BENYAK COMPANY LTD vs. PAYTELL LTD AND 3 OTHERS [2014]DLSC6156

Date	2014-02-05
Suit No.	CIVIL APPEAL NO. J4/19/2010
Citation No.	[2014]DLSC6156

ADINYIRA (MRS) JSC PRESIDING

YEBOAH JSC

GBADEGBE JSC

BAMFO (MRS)

AKAMBA JSC

KIZITO BEYUO FOR THE PLAINTIFF/APPELLANT/ APPELLANT

PETER ZWENNES FOR THE 1ST 2ND AND 3RD DEFENDANTS / RESPONDENTS /RESPONDENTS.

[2014]DLSC6156
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													<main id="main" class="content" style="min-height: 60rem" >BENYAK
COMPANY LTD <o:p></o:p>(PLAINTIFF
/APPELLANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>PAYTELL LTD AND 3 OTHERS<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[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;&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 5TH FEBRUARY, 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;
padding:0in 0in 1.0pt 0in">

PETER
ZWENNES FOR THE 1ST, 2ND AND 3RD DEFENDANTS / RESPONDENTS /RESPONDENTS. <o:p></o:p>

</div>CORAM: <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">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-layout-grid-align:none;text-autospace:none;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ADINYIRA
(MRS) JSC PRESIDING, YEBOAH JSC, GBADEGBE JSC, BAMFO (MRS), AKAMBA JSC<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;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;mso-layout-grid-align:none;text-autospace:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 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>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. 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[sic], 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>According
to the plaintiff, he traces his root of title from the two families. 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. 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. 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. 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. <o:p></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. 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>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. 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. 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. 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. 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 w</main>