ABDUL KARIM ZANNI DUBUIRE AND AHMED ISSAH MUSAH (PLAINTIFFS) vs. NANA OHENE NTOW AND THE DEVELOPER (DEFENDANTS) [2007]DLHC7066

ABDUL KARIM ZANNI DUBUIRE AND AHMED ISSAH MUSAH (PLAINTIFFS) vs. NANA OHENE NTOW... [2007]DLHC7066

Date	2007-05-21
Suit No.	SUIT NO. AL92/2006
Citation No.	[2007]DLHC7066

HIS LORDSHIP JUSTICE P. K. GYAESAYOR

[2007]DLHC7066
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													<main id="main" class="content" style="min-height: 60rem" >ABDUL KARIM
ZANNI DUBUIRE AND AHMED ISSAH MUSAH<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>NANA OHENE NTOW AND THE DEVELOPER<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP JUSTICE P. K. GYAESAYOR<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>The Plaintiffs herein on
the 19th May, 2006 took out a Writ of Summons against the Defendant who is the
current General Secretary of the New Patriotic Party seeking amongst other
reliefs a declaration of title to all that piece of land covered by separate
conveyance dated November 5, 2003 and registered as Nos. AR/9477/2003,
9478/2003 and 974/2004. The plaintiff also sought an order for recovery of
possession as well as damages. <o:p></o:p>Upon service of the claim
on Defendant, he dutifully filed a statement of defence in which he counter
claimed for:— <o:p></o:p>a)
Declaration that he is the legal owner of all that piece and parcel of land
situate and being at New Nungua East Legon measuring 0.64 acres, and bounded on
the North/West by Proposed Road measuring 140 feet more or less on the
North/East by a Proposed Road measuring 150 feet more or less on the South/East
by Lessor Land measuring 140 feet or less on the South/West by Lessor Land
measuring 200 feet more or less. <o:p></o:p>b)
An order directed at the Plaintiffs to pay for the loss of wall constructed
which was unlawfully demolished by the plaintiffs assessed at ¢147,810,000. <o:p></o:p>c)
General damages for trespass. <o:p></o:p>d)
Perpetual injunction restraining the plaintiffs and their agents, assigns,
privies, workmen or whosoever and howsoever from entering or interfering with
the said land, the subject matter of this suit. <o:p></o:p>e)
Further order directed that the Registrar, Land Title Registry or the Executive
Secretary, Lands Commission to expunge the name of the plaintiffs or cancel any
registration of that parcel of land covered by separate conveyance dated
November 5th 2003 and registered as No. R/9477/2003, 9478/2003 and 974/2004
respectively. <o:p></o:p>At the close of pleadings,
the parties were instructed to submit their respective documents relating to
the land for a composite plan to be drawn in order to facilitate the hearing
and determination of the dispute between the parties. While the Defendant complied
with the order of the court, there is no evidence that the Plaintiffs did so.
Indeed, the Plaintiffs and their lawyer ceased coming to court without offering
any excuse whatsoever. Consequently, the court under Order 36 Rules (2) (b)
which provides that "where the Defendant attends and the plaintiffs fails
to attend, dismiss the action and allow the defendant to prove the
counterclaim, if any", dismissed the suit for failing to appear and thus
paving the way for the defendant to prove his counterclaim. <o:p></o:p>In proof of his claim,
having assured the position of plaintiff in the counterclaim, the defendant
told the court that he did not know the plaintiffs and had sued him in court
and further testifies that he took the land from the Wulomo of Nungua for enquires
from the Land Commission revealed that ownership of the land is vested in the
Nungua Stool. He tendered Exhibit A which is an indenture duly executed between
him and Numo Borketey Laweh Gborbu Wolumo of Nungua with the consent and
concurrence of the principal members of the stool. The Indenture which is duly
stamped and satisfies the requirements of a proper document stands unchallenged
in this court on this alone, I am satisfied that a valid grant of land was made
to the defendant as evidenced by the indenture and site plan which together
have been marked as exhibit A. This together with the consent of the Nungua
Traditional Council clearly confirms the case of the defendant that he is the
true owner of the land, the subject matter of this dispute. <o:p></o:p>To further buttress his
point, the defendant exhibited a newspaper publication in which Nii Adjei
Otswnnah Nmashie III Teshie Mankralo and Head of Numo Nmashie family of Teshie
in which said publication, the Teshie Mankralo denies that it is the owner of
the Adjirigono lands. In effect the claim by the plaintiffs that their grant is
from Teshie Stool is untenable. In any event the assertions of the defendant
stand unchallenged since the plaintiffs who brought him to court failed to come
and prove their claim. Since the defendant has now produced evidence in support
of his clam, this court finds that the defendant is the owner of the plots of
land constituting the subject matter of this litigation. <o:p></o:p>There is sufficient
evidence to show that a protected wall had been constructed by the defendant to
protect these plots but as at the hearing of this suit the wall had been pulled
down. In a civil matter, the degree of proof is on a balance of probabilities
as opposed to proof beyond reasonable doubt in a criminal matter. Although the
defendant said he was uncertain about the identity, of those who pulled down
the wall events of th</main>