KOFI AGYEMANG PAYTELL COMPANY LIMITED vs. MANAGING DIRECTOR JAAH ENGINEERING COMPANY LTD [2016]DLCA5166

KOFI AGYEMANG PAYTELL COMPANY LIMITED vs. MANAGING DIRECTOR JAAH ENGINEERING CO... [2016]DLCA5166

Date	2016-04-21
Suit No.	CIVIL APPEAL NO: H1/180/2014
Citation No.	[2016]DLCA5166

V. D. OFOE J.A. (PRESIDING)

K. A. ACQUAYE J.A.

M. WELBOURNE (MRS) J.A.

[2016]DLCA5166
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													<main id="main" class="content" style="min-height: 60rem" >KOFI AGYEMANG PAYTELL
COMPANY LIMITED<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>MANAGING DIRECTOR JAAH ENGINEERING COMPANY LTD<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO: H1/180/2014&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;DATE: 21STAPRIL, 2016<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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V.
D. OFOE J.A. (PRESIDING), K. A. ACQUAYE J.A., M. WELBOURNE (MRS) J.A.<o:p></o:p>

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</div>K.
A. ACQUAYE, J.A.<o:p></o:p>The plaintiffs/appellants issued a writ
of summons claiming against the defendant/respondent a declaration of title to
a parcel of land situate at Achimota, Kingsby Hotel area, recovery of
possession, ejection of the defendant and cost including legal fees.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>Upon the failure of the defendant to
enter appearance and file a statement of defence the plaintiffs obtained an
interlocutory judgment and later gave evidence in proof of his title.&nbsp; The 1st plaintiff testified that
he is the Managing Director of the 2nd plaintiff.&nbsp; On 20th April 2006 he obtained an
assignment of land from one Charles Martins in the name of the 2nd
defendant and he was given a document which he tendered in evidence as exhibit
A.&nbsp; The 1st plaintiff
testified that the defendant who is in possession of the land has refused to
vacate same.&nbsp; &nbsp;&nbsp;He stated that he conducted a search at the
Lands Commission which disclosed that the land had been transferred to the 2nd
defendant and he tendered a copy of the search which was admitted as exhibit
B.&nbsp;&nbsp; The defendant even though served
with hearing notice for the proof of title was absent from court and was also
not represented.&nbsp; As a result the
plaintiff was not cross-examined.&nbsp; The
plaintiff called one witness who testified that he was a member of the Onamreko
Adain family which sold the land to the 2nd plaintiff’s grantor
Charles Martins and they gave Charles Martins a lease.&nbsp; At the time they gave the land to Charles
Martins there was litigation between Nii Paul Ayitey Tetteh as plaintiff and
the then head of family B.A. Quarcoo and Jaafru Mensah over which party was the
head of the Onamroko Adain family.&nbsp; The witness
testified that an attempt to injunct B. A Quarcoo and Jaafru Mensah was
dismissed by the High Court.&nbsp; A copy of
the ruling was admitted as exhibit C. As a result the Lands Commission
distributed a circular among its staff directing “that documents on Onamrokor Adain Family Lands executed by B.A.
Quarcoo as head of family are to be accepted for processing and plotting, until
the High Court decides otherwise”.&nbsp; A
copy of the circular was admitted as exhibit D.&nbsp;
The evidence of the witness also stands unchallenged as there was no one
to cross-examine him.<o:p></o:p><o:p>&nbsp;</o:p>In his judgment the trial judge found
that there is no evidence before the court that exhibit A has been registered
under the Land Title Registration Law (PNDCL 152) or Land Registry Act 1962
(Act 122) as submitted by plaintiffs’ Counsel except that it had been processed
by the then Lands Commission.&nbsp; The trial
judge held that since exhibit A was not registered it was ineffective and
invalid to confer rights and impose obligation.&nbsp;
The trial judge also found that “In
this case, the then head of family Nii Paul Aryitey Tetteh had since 1994 been
the head of the family and was contesting B.A. Quarcoo and Jarfro Mensah over
the headship of the family in court in 2002 before the grant to Charles Martins
was made in 2014.&nbsp; Since B.A. Quarcoo and
Jarfro Mensah Larkai lost the suit Charles Martins grant cannot stand”.&nbsp; The judge wrote that he cannot close his eyes
to the suit reported in (2009) SCGLR 621 which held that the plaintiff’s
grantors were not the heads of the Onamrokor Adain Family.&nbsp; The trial judge therefore held that “since the defendant is said to be in
occupation and the plaintiffs have not been able to prove a better title, I
dismiss the plaintiffs claim”.<o:p></o:p><o:p>&nbsp;</o:p>Dissatisfied with the judgment the
plaintiffs filed a notice of appeal with the ground of appeal being that the
judgment is against the weight of evidence.&nbsp;
On 15th December 2014 the plaintiffs obtained the leave of
the court and filed two additional grounds of appeal being: <o:p></o:p>