THE REGISTERED TRUSTEES OF THE CATHOLIC CHURCH vs. BUILDAF LTD MR. ABU AND MOHAMMED ASAMOA

THE REGISTERED TRUSTEES OF THE CATHOLIC CHURCH vs. BUILDAF LTD MR. ABU AND MOHAM... [2015]DLSC3234

Date	2015-06-25
Suit No.	CIVIL APPEAL NO. J4/30/2014
Citation No.	[2015]DLSC3234

WOOD CJ (PRESIDING)

ANIN YEBOAH JSC

BAFFOE BONNIE JSC

GBADEGBE JSC

BENIN JSC

MRS. M. Y. N. ACHIAMPONG ESQ. FOR THE DEFENDANTS/APPELLANTS/ APPELLANTS.

E. S. GOKA ESQ. FOR THE PLAINTIFF/RESPONDENT/RESPONDENT

[2015]DLSC3234
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													<main id="main" class="content" style="min-height: 60rem" >THE REGISTERED TRUSTEES
OF THE CATHOLIC CHURCH<o:p></o:p>vs.<o:p></o:p>BUILDAF LTD MR. ABU AND
MOHAMMED ASAMOA - KWANING<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. J4/30/2014&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;
DATE: 25TH
JUNE, 2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MRS.
M. Y. N. ACHIAMPONG ESQ. FOR THE DEFENDANTS/APPELLANTS/ APPELLANTS.<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">

E.
S. GOKA ESQ. FOR THE PLAINTIFF/RESPONDENT/RESPONDENT <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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WOOD CJ (PRESIDING), ANIN YEBOAH JSC, BAFFOE
BONNIE JSC, GBADEGBE JSC, AND BENIN 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;
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JUDGEMENT<o:p></o:p>

</div>BENIN,
JSC:-<o:p></o:p>The Plaintiffs/Respondents/Respondents,
hereinafter called the Respondents, brought an action at the High Court against
the 1st and 2nd Defendants/Appellants/Appellants, hereinafter
called the 1st and 2nd Appellants respectively. In the
course of proceedings the Co-defendant/Appellant/Appellant, hereinafter called
the 3rd Appellant was joined to the suit upon application.<o:p></o:p>The Respondents’ case was
that in the year 1946 the disputed land which forms part of a larger piece of
land described in the schedule annexed to the statement of claim was gifted to
them by one Mrs. Naa Oyo Ofosu Quartey who had obtained same from Mrs. Freda Hansen
Sackey, whose own deed of conveyance had been registered as 1060/40. It turned
out that the said Mrs. Freda Hansen inherited the land through the husband’s
estate. The said husband obtained it by purchase in 1926 from Ayibonte &nbsp;and Tetteh Quaye who were said to be the Gbese
Manche and Korle Wulomo respectively. The said Gbese Manche and Korle Wulomo
belonged to the wider Onamrokor family of which the Appellants’ grantors, the
Onamrokor-Adain family is also a part. And according to Counsel for the
Appellants the Onamrokor-Adain family obtained the entire land described as
Dome land of which Achimota land is an integral part by customary gift from the
same Gbese Manche and Korle Wulomo in the 1860’s. The Respondents’ case was
that in the same year 1946 that the land was gifted to them they registered it
at the Deeds Registry as number 274/46. They moved into occupation and
exercised various acts of ownership thereon without let or hindrance. Among the
acts of possession, the Respondents pleaded that they wire fenced all around
the land and erected a chapel on a portion of the land. The Respondents averred
they started experiencing encroachment to portions of their land a few years
back and they took action against the trespassers with success. The Appellants
were also said to have encroached on a part of the land, hence the claim before
the High Court for damages for trespass and perpetual injunction.<o:p></o:p>The Appellants’ case was
that they initially obtained the land from one Hansen Sackey on rental basis.
Whilst in occupation one Paul Ayitey Tetteh approached the 2nd
appellant who is also the alter ego of the 1st Appellant and
introduced himself as the head of the Onamrokor-Adain family, the true and
rightful owner of the land. The 2ndAppellant was shown land
documents as well as a Supreme Court judgment of 1961 which confirmed the title
of the Onamrokor-Adain family to the land. The 2nd Appellant became convinced
this family was truly the owner of the land so he took a lease from them in the
name of the 1st Appellant. Thereafter the 1st and 2nd
Appellants transferred ownership of the land to the 3rd Appellant
who is the son of the 2nd Appellant. The 3rd Appellant
successfully registered title to the land with the Land Title Registry under Land
Title Registration Law, 1986, PNDCL 152. They therefore counterclaimed for
special and general damages.<o:p></o:p>The core issue therefore
was which of the parties has a better title to the land. The Respondents called
a couple of witnesses who testified about the acquisition of the land in 1946
and about various acts of possession they have exercised on the land since 1946
including erecting a wire fence mounted on poles around the plot, holding of
numerous church activities and erecting a chapel. Nobody challenged them all
these years until a few years back when encroachers began to trespass on the
land. They successfully took action against the encroachers and the only cases
that are still pending involve the 2nd Appellant and his first
landlords Hanson Sackey. Thus the 2nd Appellant was fully aware that
title to the land was being contested in court yet he went ahead and
transferred the assignment to his son 3rd Appellant herein who is
said to live abroad and got the title passed on to him. The Appellants gave
evidence by the 2nd Appellant and he recounted the facts they had
pleaded. He tendered a number of search results which showed on their face that
the land has been adjudged in favour of the Onamrokor-Adain Family since 29
June 1961. The said search reports did not disclose the title of the case and
the Appellants did not tender the judgment in evidence. However, Counsel in her
written address provided the title of the case and gave the citation in the
Ghana Law Reports. Before proceeding we must take note that where a party relies
on a court decision and clearly intends thereby to raise res judicata he must give
particulars of that decision in the pleadings to enable the opponent to provide
an answer thereto. The Appellants also failed to tender it in evidence. Counsel
only gave the particulars in an address to the court. This is clearly contrary
to the provisions of Order 11(8) and Order 12(1) of the High Court (Civil
Procedure) Rules, 2004 C.I. 47. Nonetheless the Respondents raised no objection
and both the trial High Court and the Court of Appeal also did not criticize
the procedure adopted by Counsel for the Appellants and dealt with the question
of res judicata on its merits. Order 81 of C.I. 47 could be applied in the
circumstances.<o:p></o:p>The trial High Court gave
judgment in favour of the Respondents and ordered that the 3rd
Appellant’s title certificate be cancelled. The Appellants were not satisfied
with the judgment and orders of the High Court so th</main>