DEDE KOSEY YOHUNU & ANOR vs. ANNIE KUMAH AGBETI & 3 OTHERS [2014]DLCA6719

Date	2014-05-15
Suit No.	CIVIL APPEAL NO: H1/50/10
Citation No.	[2014]DLCA6719

ABBAN (MRS.) JA (PRESIDING)

ACQUAYE JA

DZAMEFE JA

JOHN KLU FOR 1ST & 2ND DEFENDANTS/APPELLANTS

RUBY ESI KITTAH FOR PLAINTIFFS/RESPONDENTS

[2014]DLCA6719
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													<main id="main" class="content" style="min-height: 60rem" >DEDE KOSEY YOHUNU &amp;
ANOR<o:p></o:p>vs.<o:p></o:p>ANNIE KUMAH AGBETI &amp;
3 OTHERS<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO: H1/50/10&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 15TH MAY,
2014<o:p></o:p>

RUBY
ESI KITTAH FOR PLAINTIFFS/RESPONDENTS<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>DZAMEFE, JA <o:p></o:p>The
plaintiff/respondents hereinafter referred to as the respondents issued this
writ of summons in the High Court, Accra against the defendants/appellants
referred to as appellants for the following claims;— <o:p></o:p>1.
A declaration that the plaintiff is the true and lawful owner of all that piece
of land described under the ‘Schedule’ in the plaintiff’s statement of claim. <o:p></o:p>2.
A declaration that the 3rd defendant has no such legal right or power to
alienate or grant the said piece of land by execution of an indenture in favour
of the 1st defendant. <o:p></o:p>3.
A declaration that the 1st and 2nd defendant have trespassed unto the said land
described in the schedule belonging to the plaintiffs. <o:p></o:p>4.
An order that the conveyance or lease executed by the 3rd defendant in favour
of the 1st and 2nd defendant is declared null and void. <o:p></o:p>5.
An order against the 4th defendant to strike out from its register the land
registered in the name of the 1st defendant belonging to the plaintiff. <o:p></o:p>6.
Perpetual injunction against the 1st and 2nd defendants, their assigns,
privies, agents from having anything to do whatsoever with the land described
in schedule in the plaintiff statement of claim. <o:p></o:p>7.
Damages for trespass and cost. <o:p></o:p>The
1st plaintiff is the mother of the 2nd plaintiff. Their case is that the
Okpelor Sowah Din family granted them the land described in the schedule but
the 3rd defendant from the same family later granted the same land to the 1st
defendant. This land according to the plaintiffs was granted them in 2002 by
the said Okpelor family acting per its lawful attorney Nii Okpelor Jacob Ablor
Mensah. They went into possession erected a fence wall and commenced
construction.&nbsp; After 3 years of lawful possession
1st and 2nd defendants trespassed onto the land.&nbsp; This conduct was reported to police who
bonded the 1st &amp; 2nd defendants, yet they continued with their acts of
trespass the extent of demolishing some parts of plaintiffs’ building. <o:p></o:p>The
1st and 2nd defendant thereafter went to the Madina police to report that the
land in issue belongs to them and their grantor is the 3rd defendant and his
family. It is their case that the 1st defendant had unlawfully registered their
documents by the help of 4th defendant facilitating the trespass hence this
writ. <o:p></o:p>The
3rd defendant in his defence avered[sic] he is the head of the Okpelor Sowah
Din family and that Nii Okpelor Jacob Ablorh Mensah is not and has never been
lawfully appointed as the lawful attorney of the family.&nbsp; That by customary law, he as the Head of
family is the only rightful person to alienate land though with the consent of
principal members of the family. He said as the lawful head of family, he never
delegated, assigned nor in anyway authorized Nii Okpelor Jacob Ablorh Mensah to
make any grants of the family lands. <o:p></o:p>He
said he also never knowingly executed any power of attorney to the said Ablorh
Mensah to exercise the power of alienation of family lands on his behalf as the
head of family.&nbsp; Whatever developments
the plaintiffs had done on the land was therefore unlawful. <o:p></o:p>3rd
defendant submits that the 1st &amp; 2nd defendants went onto the land in issue
as the grantee of the family on the strength of a lease he executed in their
favour.&nbsp; He said the defendants were
granted the land in 1999 but the formal lease was not executed due to the
litigation over the family lands which dragged on to the Supreme Court. <o:p></o:p>He
submits that in 2005, based on some fictitious letters written by Ablorh
Mensah, officials of Lands Commission met him and he denied the claims of the
said Mensah and also disclaimed the purported power of attorney. <o:p></o:p>It
is his further submission that the registration of the defendants document is
lawful and proper as the grantee of the family.&nbsp;
That the indenture held by the plaintiff is void as not emanating from
him as the Head of family.&nbsp; It is his
contention that the Okpelor family has not lawfully given any such powers to
Nii Mensah and any purported act by him is invalid and of no legal effect since
these powers is rather vested in him, the 3rd defendant, as the substantive
head and lawful representative of the family. <o:p></o:p>He
cited an example in 1994 when he delegated some of his authority as head of
family to three principal members of the family and he executed a power of
attorney on 19th July 1994 to the three of them. <o:p></o:p>3rd
defendant also avered[sic] that he has </main>