BENYAK COMPANY LTD vrs. PAYTELL LTD, KOFI AGYEMANG, T. T. MENSAH AND LANDS COMMISSION [2014]DLSC2884

BENYAK COMPANY LTD vrs. PAYTELL LTD, KOFI AGYEMANG, T. T. MENSAH AND LANDS COMM... [2014]DLSC2884

Date	2014-02-05
Suit No.	CIVIL APPEAL NO. J4/19/2010
Citation No.	[2014]DLSC2884

ADINYIRA (MRS) JSC PRESIDING

YEBOAH JSC

GBADEGBE JSC

AKAMBA JSC

BAMFO (MRS) JSC

KIZITO BEYUO FOR THE PLAINTIFF/APPELLANT/ APPELLANT.

PETER ZWENNES FOR THE 1ST

2ND AND 3RD DEFENDANTS /RESPONDENTS/RESPONDENTS.

[2014]DLSC2884
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													<main id="main" class="content" style="min-height: 60rem" ><o:p>&nbsp;</o:p>BENYAK COMPANY LTD<o:p></o:p>vrs.<o:p></o:p>PAYTELL LTD, KOFI
AGYEMANG, T. T.&nbsp; MENSAH AND LANDS
COMMISSION<o:p></o:p>&nbsp;[SUPREME COURT, 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. J4/19/2010&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 5TH FEBUARY, 2014<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KIZITO BEYUO FOR THE
PLAINTIFF/APPELLANT/ APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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PETER
ZWENNES FOR THE 1ST, 2ND AND 3RD DEFENDANTS
/RESPONDENTS/RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p>ADINYIRA
(MRS) JSC PRESIDING, YEBOAH JSC, GBADEGBE JSC, BAMFO (MRS) JSC, AKAMBA JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:150%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ANIN YEBOAH JSC<o:p></o:p>This
is an appeal from the unanimous decision of the Court of Appeal, Accra, which
affirmed the decision of the High Court, Accra, in favour of the
defendants/respondents/respondents hereinafter simply referred to as the
defendants.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff/appellant/appellant (who for the sake of brevity shall be referred to
in this appeal) as the plaintiff, issued a writ of summons against the
defendants on 20/10/2003 for declaration of title to a piece or parcel of land
at Kwabenya.&nbsp; The allegations of facts
pleaded against the defendants appeared to be straightforward and simple to
comprehend. The plaintiff averred that in 1999, one Ben Nyarko trading under
the name and style of BENYAK VENTURES acquired over thirty (30) acres of vacant
land at Kwabenya from NII NAGLESHIE ADDY-ABOASA family of Accra, the registered
proprietors of the land at the Land Title Registry and NII ARYEE ANANG, head
and lawful representative of the NII ODAI NTOW family of Ashonmang, Accra,
original allodial owners whose larger interest is registered at the Lands’
Commission of which the land in dispute forms part. <o:p></o:p><o:p>&nbsp;</o:p>&nbsp;According to the plaintiff, he traces his root
of title from the two families.&nbsp; It was
pleaded that the plaintiff went into effective possession and erected various
structures thereon after taking steps to register all the relevant documents on
the land from his grantors.&nbsp; The third
defendant herein thereafter asserted ownership of the land in dispute by virtue
of a transfer from the plaintiff’s grantor NII ARYEE ANANG.&nbsp; It was pleaded that the third defendant has
no such land and whatever document he had obtained from the plaintiff’s grantor
was fraught with fraud as the signature of the plaintiff’s grantor NII ARYEE
ANANG was forged or the third defendant had inserted a site plan larger than
the area covered by a grant allegedly made to him by the said NII ARYEE ANANG
without the knowledge and consent of the grantor.&nbsp; It was further given as particulars of fraud
that the third defendant had colluded with officials at the Lands’ Commission
Secretariat to register the alleged forged documents transferring the disputed
land into the third defendant’s name who subsequently transferred part of the
land to the first defendant.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>On
the issue of trespass, the plaintiff averred that the first, second and third
defendants procured thugs to demolish buildings and other structures on the
land and caused damages to cement blocks, sand and other materials on the land
on several occasions.&nbsp; The plaintiff
averred further that it had to resort to legal action for declaration of title,
cancellation of the title deeds registered by the fourth defendant (which is
the Lands Commission, Accra) in favour of the 3rd defendant and the
other usual ancillary relief of damages.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;The first, second and third defendants filed a
common statement of defence and stoutly denied virtually all the allegations of
facts pleaded by the plaintiff in the statement of claim.&nbsp; It was contended by way of answer that the
plaintiff’s grantor had no land at the place where the land in dispute falls
and that the third defendant contended that the ODAI NTOW FAMILY owned all the
lands at Kwabenya and not the plaintiff’s grantor.&nbsp; Two judgments dated 28/04/1904 and 1980
respectively were pleaded as judgments delivered in favour of the third
defendant’s grantors and that the Odai Ntow family lands are known as Ashongman
Lands of which Kwabenya lands forms part.&nbsp;
The defendants further pleaded that the 3rd defendant is an
elder of the Odai Ntow family of which Nii Aryee Anang was the acting head and
as a member of the family, the 3rd defendant occupied the land in
dispute exclusively and the plaintiff’s grantor could not dispossess him of his
title without the consent of the third defendant. <o:p></o:p><o:p>&nbsp;</o:p>The
third defendant stated that he had his grant from the family which was
subsequently formally confirmed by an indenture dated the 26/04/1986, executed
by Nii Aryee Anang and any subsequent grant by his grantor to the plaintiff
could either be by mistake or through ignorance of the identity of the land
which all the principal members of the family knew to be owned by the third
defendant.&nbsp; The allegation of fraud was
also stoutly denied by the defendants as well as the allegations of
trespass.&nbsp; The third defendant lodged a
counterclaim against the plaintiff for cancellation of the Land Title
Certificate issued to the plaintiff on grounds of error or mistake.<o:p></o:p>