Tsuru III Vrs Obodai II And Others (H1/228/04) [2008] GHACA 11 (17 January 2008);

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL - A C C R A

CORAM - HENRIETTA ABBAN [MRS], JA [PRESIDING]

YAW APPAU, JA

ISAAC D. DUOSE, JA

17TH JANUARY, 2008

H1/228/04

NII KPOBI TETTEY TSURU III … PLAINTIFF/APPELLANT

V E R S U S

NII AGO SAI (PER JOSEPH NII TORGBOR

OBODAI II … DEFENDANT/RESPONDENT

(1) TOP CONSTRUCTION COMPANY LTD.

(2) EVANS TEYE

(3) EVANS TEYE ESTATE CO. LTD. CO-DEFENDANTS/

RESPONDENTS

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J U D G M E N T

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DUOSE, JA:- In a writ of summons issued on 18-01-94, the Plaintiff the Chief of La sued asking for the following reliefs:

(1) Declaration of title to all Ogbojo lands.

(2) Order of perpetual injunction restraining the defendant from disposing of

Ogbojo lands without the approval of the Plaintiff.

At the close of evidence the trial High Court gave judgment to the defendant. Aggrieved by the said judgment the Plaintiff/Appellant filed the following eight grounds of appeal.

(1) The judgment is manifestly against the weight of evidence adduced at the

trial.

(2) The learned trial judge erred in law when she dismissed the case against

the Co-defendants on the ground that the pleadings did not disclose any cause

of action against them.

(3) The learned trial judge erred in law when she misconstrued the judgment

in Nartey Vrs. Mechanical Lloyd and erroneously relied on the mis-

construction to give judgment to the defendant.

(4) The learned trial judge erred in law when she held that the Plaintiff

is estopped by conduct from laying claims to the land in dispute in the

action.

(5) The learned trial judge erred in law when she relied on statements allegedly

made by the Plaintiff’s deceased predecessor that the land in dispute in the

action belongs to the defendant and on the basis of that held the Plaintiff to

be bound by them.

(6) The learned trial judge erred when she relied on evidence not related to the

determination of the suit to give judgment to the defendant.

(7) The learned trial judge erred in law when she relied on Exhibits 11, 11A-11F

to give judgment to the defendant when the basis of the said exhibits is

defective.

(8) The costs awarded by the learned trial judge were unreasonable and excessive.

The Plaintiff/Appellant seeks from this court an order setting aside the judgment of the High Court, Accra, dated the 17th day of February 2004 and a judgment in his favour.

In our considered view the most important of the grounds of appeal is ground 3 and we propose to deal with it first as follows. The learned trial judge set herself on the right path when she stated in paragraph 4 of page 5, of the judgment. “Whether La Rural Lands are La Stool Lands and whether grants of such lands could be made without the consent of the La Stool and what constitutes estoppel on the part of the La Stool were issues the Supreme Court decided in the case of Nartey Vrs. Mechanical Lloyd Assembly Plant [1987-88] 2 GLR 314. Decisions of the Supreme Court are binding on this court. The decision in that case therefore will go a long way to dispose of some issues I have to determine in this case.”

We note that this case is very similar to the Nartey Vrs. Mechanical Lloyd Assembly Plant case in many respects. It is also similar to the CB Owusu & Anor. Vrs. Mantse of Labadi 1[WACA] 178. Whereas the Nartey case relates to La Stool Lands in Frafraha, the Owusu case relates to La Stool Lands in Nkwantanang. In each case the approach of development and the enhancement of the value of the land brought the usufructuary owners in to conflict with the allodial owner. Each sub chief put up claim

of independent founder with exclusive right of ownership as private family land. What then is the ratio decidendi in the Nartey case? Gordon R. Woodman discussed it in his learned article titled “La Stool Land Dispute” [1989-90] Vol. XVII Review of Ghana Law from page 338 to 348. At page 342 paragraph 3 is the following: “A nice problem

is encountered by one who would seek to determine the legal proposition

propositions for which the Supreme Court decision is authority. Two

members of the court, Taylor and Wuaku JJSC, out of the three who

decided in favour of the Plaintiff, held, that the grant as La rural land

by a sub-stool was ineffective except when the La Stool was estopped

by acquiescence from disputing it. The two dissentients, Francois and

Amua-Sekyi JJSC, held that such a grant was always in effective.

The other four of the judges held that grants by a sub-stool would be

invalid in the absence of acquiescence by the La Stool. But these four

included only two out of the three who upheld the plaintiffs appeal.

Moreover, this near consensus postulates a condition – the absence of

acquiescence which appears unlikely to be often met.”

The analysis above is very right as the Supreme Court nearly failed to provide a clear decision to lead the lower courts.

In both the Owusu and Nartey cases it was declared that La rural lands were La Sool lands. In sharp focus then is the evidence of DW1 Nii Adjei Nkpa IV the head of the Mafti Dzrase quarter of La. His evidence in chief was to the effect that it was the ancestor of the Defendant Okotse Adja or Torgbortse Adja who first settled in the village. That, that ancestor was a hunter and a herbalist and a farmer. The same claim was made by Nkrantanang in the Owusu case

However we cannot gloss over the following piece of evidence extracted from the witness under cross-examination on pages 142 to 143 of the record. From the record this is the star witness of the defendants, it was he who organized the physical survey of Ogbojo lands and prepared the Statutory declaration and registered it. His paternal relatives are authorities in Ogbojo.

(1) Q: La as a town has rural villages.

A: Yes.

(2) Q: One of these rural villages is Ogblojo.

A: Yes.

(3) Q: You agree with me that these rural villages were acquired by conquest

from the people of Nungua.

A: We were told of the war and La conquered Nungua in the war.

(4) Q: The land conquered stretches from Akwapim to La.

. A: La has lands in the area these are Oyarifa, Teimang, Ogbojo, Adenta,

Frafraha, Nkwantanang, Amanfro, Malejo, Amanhia and more.

(5) Q: Amanfro is predominantly inhabited by the people from your quarter.

A: It is the Adejigbeke We from Drase are predominant there.

(6) Q: I suggest to you that you know that lands at Amanfro village are granted

by the head of Amanfrom village with the consent of the La Stool.

After interjection and objection from counsel for the defendant was over-

ruled witness finally gave the following answer.

A: I do not know.

Learned Counsel for the defendant having realized that the witness had let the cat out of the bag attempted to repair the damage with the following question on re-examination.

(7) Q: In your evidence-in-chief, you told the court that Ogbojo lands are owned

by Anahor and Drase families but in cross-examination you told the court

that Ogbojo lands are part of La rural lands can you explain?

This question was objected to by the counsel for the plaintiff and upheld. The court then put the following question:-

By Court: Q: What do you mean by La rural lands and La rural villages?

A: I do not know. One can easily see that the witness answers to questions

(6) and (8) are dishonest.

It is our considered view that by the preceeding showing the witness one of the seven notable persons in La being a quarter head has more than corroborated the evidence of the Plaintiff on the issue of the character and nature of Ogbojo lands as La rural lands. La rural lands have been held to be La Stool lands. This is sufficient evidence to find for the plaintiff.

We are also aware and take judicial notice of the fact that there is an incipient reaction to the Administration of stool lands. By this reaction most owners of land seek to cloth lands that are otherwise stool lands with family land.

Grounds 4 and 5 are in pari materia. This concern the issue of estoppel by the conduct of the predecessor of he plaintiff. The finding of the trial court on laches and acquiescence arise from the evidence of the defendant and co-defendant to the effect that Nii Anyetei Kwa Kwakranya informed co-defendant that Ogbojo lands belong to the people of Ogbojo and therefore the co-defendant was sent to Ogbojo to acquire land from the defendant. It is our considered view that the way that piece of event was rendered turns customary law on its head. The custom known all over this country is that where a sub-chief or headman is in charge, the paramount chief would not personally or directly allocate land. The proper thing to do is to send the person looking for land to the person in charge who would act and “report”, for consent and or concurrence. Further Exhibit2 and 3 properly read do not constitute a challenge or an affront to the title of La Stool to the land. Kotei Amli family is the chief of Nkwantanang which is close Ogbojo. Nii Kotei Amli sided with a faction in of Ogbojo which tried to dislodge the defendant either as a chief or as the administrator of the Ogbojo lands. Clearly the defendant sought refuge with the La Mankralo who found for him. That decision to all intents and purposes only settled a dispute between two subjects of the La Stool over the usufruct in Ogbojo land. We are therefore unable to confirm the finding that those two exhibits constitute evidence to ground laches and acquiescence against the La Stool.

Exhibit 10 is a statutory declaration registered by the defendant in 1985. It is trite law that a statutory declaration of the nature of Exhibit 10 is a self serving document. The clandestine registration of a statutory declaration cannot constitute notice to the world under S. 25(1) of Act 122. To constitute such notice it must satisfy S. 18(2) of Act 122, the Lands Registry Act. To put this issue beyond doubt we reproduce the relevant provisions of Act 122 which are mandatory.

S. 17(1) The registrar shall keep a book in which the registrar shall on

registration of an instrument enter the registered number, the

names of the parties, the date and nature of the instrument and

the date of the registration.”

S. 18(1) Within ten days after the last day of each month the registrar in charge

of each office shall send to the chief registrar a complete list in the

Form G set out in the schedule, or to that effect of the instruments

registered at the registrar’s office during the past month.

S. 18(2) On receipt of the list the chief registrar shall within fourteen days

compile one general list which shall be retained in the registrar’s office

and shall send one copy of it to the registrar in charge of each office, and

publish the list in the Gazette.”

The mere registration of Exhibit 10 without due publication defeats the purpose of notification and can neither ground title to land or confirm it more so where a subject seeks to defeat the title of his over lord. In deed a statutory declaration registered or not does not pass title.

Regarding grants made by the defendant to members of the general public in the form of Exhibits 4, 11-11A to 11F we make following remarks and decision. The common law and equity evolved the principle of laches and acquiescence. It operates to protect the innocent or to sanction the non vigilant or indolent party to a suit. However since 1972 Ghana passed or enacted a Limitation Decree NRCD 54. The general effect of the principles of laches and acquiescence and the Limitation Decree is to limit the time within which action ought to be taken by a party to vindicate or enforce his legal rights by civil action. Whereas the court applying the principles of laches and acquiescence exercises discretion in the circumstance to fix or bar an action for undue delay, the Limitation decree fixes definite time bar. Thus Section 10 of the Limitation Decree NRCD 54 provides:

“A person shall not bring an action to recover land after the expiration of

twelve years from the date on which the right of action accrued to the

person through whom the first mentioned claimed to that person……….

Some of Exhibits 4, 11, 11A to 11F were made as early as in 1978 and others as late as 1994. This suit commenced in 1994. Obviously some are caught by the Limitation Decree others are not. To that extent each of the said exhibits need to be considered on its own merit vis-à-vis S 10 of the Limitations Decree.

On ground 2, where the court struck out the suit against the Co-Defendant under Order 15 rule 6(2)(a) of the High Court (Civil Procedure)(Amendment)(No.2) Rules, 1977 L.I. 1129. To the extent that the Co-defendants were not alienating La Stool land and therefore needed to be stopped, it is abundantly clear that they are third party beneficiaries of the wrongful alienation of La Stool lands. As such they are necessary parties since they stand to gain or lose at the end of the process. Needless to say that it is the particular grant to the Co-Defendants which necessitated the current action. It will be manifestly unfair and unjust to keep them in the dark therefore the decision to strike out the Co-defendants is wrong.

Ground 6 - It was wrong or improper for the trial judge to draw conclusion from the inconclusive or contested signature of PW2. The records show that the trial judge suo moto ordered the signatures of PW2 to be submitted to Primus Forensic Laboratory for examination. The officer-in-charge of Nima Police was also ordered to examine the signature of PW2 in their possession in relation to criminal investigations against PW2 and submit a report. In the absence of a forensic report relative to the disputed signatures of PW2 we cannot support the conclusions drawn by the court on that matter.

We therefore make a finding as was made in the Owusu and Nartey cases that Ogbojo lands are La Stool Lands and we accordingly declare title to the La Stool of all Ogbojo lands being the allodial owners. Therefore no alienation of Ogbojo lands shall be made without the consent and concurrence of the La Stool.

In the result the appeal is allowed. The suit against the Co-defendants is re-instated they being third party beneficiaries. The judgment of the trial court is hereby set aside. Perpetual injunction is hereby issued to restrain the Defendant from disposing of Ogbojo lands without the approval of the plaintiff.

I.D. DUOSE

JUSTICE OF APPEAL

I agree. H. ABBAN [MRS]

JUSTICE OF APPEAL

I also agree. YAW APPAU

JUSTICE OF APPEAL

COUNSEL - MR. WILLIAM ADDO FOR PLAINTIFF/APPELLANT.

ROXBY ANYETEI OKAITEI AKO FOR DEFENDANT/RESP.

KIZITO BEYUO FOR CO-DEFENDANT/RESPONDENT.

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