MARINA HOTEL LTD vs. STEPHEN OFOSU MENSAH [2015]DLCA5315

Date	2015-03-26
Suit No.	CIVIL APPEAL NO. H1/123/2014
Citation No.	[2015]DLCA5315

MARFUL-SAU JA (PRESIDING)

AGNES DORDZIE JA

MARGARET WELBOURNE JA

[2015]DLCA5315
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													<main id="main" class="content" style="min-height: 60rem" >MARINA HOTEL LTD<o:p></o:p>&nbsp;(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>STEPHEN
OFOSU MENSAH <o:p></o:p>(DEFENDANT/RESPONDENT)<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;
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CIVIL APPEAL NO. H1/123/2014&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; &nbsp; &nbsp;&nbsp;DATE: 26TH MARCH, 2015<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;
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MARFUL-SAU
JA (PRESIDING), AGNES DORDZIE JA, MARGARET WELBOURNE JA<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpFirst" align="center" style="margin-bottom:0in;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;border:none;mso-border-bottom-alt:
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</div>MARFUL-SAU,
JA:<o:p></o:p>This
appeal which is taken from the judgment of the High Court (Fast Track Division)
dated the 23rd of July 2010 raises one fundamental legal issue. That
issue is this: with the subsistence of E1 75, the instrument that vested the
land in dispute in the State, which of the parties in this case has a better
title to the land? The plaintiff who is the appellant herein in the Notice of
Appeal formulated one ground which is that the judgment was against the weight
of evidence adduced at the trial. However pursuant to leave granted the
appellant on the 12th November 2013, ten additional grounds of appeal
were filed. Upon examination of the record of appeal it does apear that all the
grounds of appeal seek to address the ultimate issue, as to which of the
parties had a better title to the land in dispute. I shall therefore in this
appeal address the fundamental issue so identified and stated above. <o:p></o:p>From
the record of appeal there is no dispute that the land the subject of this case
was acquired by the State on the 3rd of July 1973. The Executive
Instrument that vested the land in the State is EI 75. This Instrument was
exhibited by the defendant, now the respondent herein during the trial as
exhibit 4 and it is at page 286 of the record of appeal. The acquisition was
done by the State pursuant to the State Lands Act, 1962 (Act 125). The land in
dispute is a smaller portion of the entire land measuring 2002.58 acres situate
at Kwabenya acquired for the State under EI 75. From the record of appeal there
is no evidence that EI 75 had been revoked or that the State had surrendered it
interest in the land so acquired.<o:p></o:p>So
the question is: with all the parties agreed that the land was acquired by the
State for the Ghana Atomic Energy Commission, which of the parties in this
appeal has a better title or interest in the land in dispute? To address this
fundamental issue I will have to examine the root of title of the parties in
this case. The appellant from the evidence on record traces it title to a
consent judgment which was entered for it in the case titled Ghana Atomic
Energy Commission vrs. Marina Hotel Ltd in suit No.L836/95. The consent
judgment was dated the 3rd of May 2001 and it was exhibited at the
trial as exhibit B and it is at page 261 of the record of appeal. The record
revealed that the High Court in the case cited above made the following orders:-<o:p></o:p>‘’BY COURT: Upon the terms of settlement filed on
5/4/2001, judgment is entered in favour of the defendants on their counterclaim
filed on 13/3/96 for title to the land described and demarcated red in the plan
attached to the plaintiffs claim. The plaintiffs and their agents and all
others claiming through them are restrained from any interference in the quit
enjoyment of the said land by the defendant. There will be costs of two million
cedis in defendants favour.’’<o:p></o:p>Now,
the defendant in the case above who obtained the judgment as indicated is the
appellant in this appeal namely Marina Hotel Ltd. The record also revealed that
based on this judgment which is still subsisting, in that it has not been set
aside or reversed on appeal, the appellant herein got the Lands Commission to
lease the land in dispute to it. The lease was executed for the appellant by
the Lands Commission acting on behalf of the State on the 29th March
2005. This was tendered at the trial as exhibit C4 and it is at page 267 of the
record. In sum appellant’s root of title is in the lease granted it by the
State after the consent judgment entered for it by the High Court.<o:p></o:p>The
respondent on the other hand relied on a conveyance dated 12th June
1972 made for him by Manye Adorkor Allotey, head of the Onamroko Adain Family
of Accra. Counsel for the appellant has seriously contested the date of this
conveyance. According to counsel even though the document was dated 12th
June 1972 other parts of the document showed that it was made in 1979. Counsel
cites for example the site plan att</main>