NANA AMUA GYEBU XV vs. GHANA TELECOMUNICATION CO. LTD (NOW VODAFONE) [2019]DLHC7047

Date	2019-05-15
Suit No.	SUIT NO. E1/83/14
Citation No.	[2019]DLHC7047

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.

C. KUDEZDZI ESQ. FOR THE PLAINTIFF.

MARTIN AGYEN SAMPONG ESQ. FOR DEFENDANT.

[2019]DLHC7047
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													<main id="main" class="content" style="min-height: 60rem" >NANA AMUA GYEBU XV<o:p></o:p>vs.<o:p></o:p>GHANA TELECOMUNICATION CO. LTD (NOW VODAFONE)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH
COURT, SEKONDI]<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">

SUIT
NO. E1/83/14&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 15TH MAY,
2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>C.
KUDEZDZI ESQ. FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MARTIN AGYEN SAMPONG ESQ. FOR
DEFENDANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<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:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The issues comprised in this case
are not in any wide compass as the facts below will show.<o:p></o:p>The stool the plaintiff occupies
acting through its regent then, granted a lease of a 28.068-acre land to the
defendant company. Dated the 3rd of July 1998, the lease was for a
term of 99 years. <o:p></o:p>It is not in any contest at least on
the pleadings that due to some errors in the grid values of the site plan
attached to the lease there was subsequently, a deed of variation dated 18th
of July 2005. As per deed No. WR 1520/2005, the lease was varied by the
insertion of a new site plan showing what was said to be the correct values to
reflect the location of the land.<o:p></o:p>Whilst the lease is subsisting, the
plaintiff has come before this court to have it forfeited. The basis is that
the defendant is in breach of some of its obligations. The case is pleaded as
follows:<o:p></o:p>5.
By the terms of the Head lease and the subsequent Deed of Variation the
defendants were to pay annual ground rent to the plaintiff’s stool and develop
the said land within a period of three years.<o:p></o:p>6.
The plaintiff avers that the defendant company has breached the terms of the
lease in paragraph 5 supra by failing to pay the ground rent and to develop
within the stipulated time.<o:p></o:p>7.
By various Notices of Re-Entry dated 11th June 2012 and 27th
July 2013 the plaintiff wrote to the defendant to remedy the breach failing
which the plaintiff would exercise his right of re-entry unto the land.<o:p></o:p>Now, claiming that the defendant has
failed to remedy the alleged breach, the plaintiff claims two reliefs; Damages
for breach of covenants to pay ground rent and to develop the land and an order
of forfeiture of the lease and the deed of variation.<o:p></o:p>In strenuous terms the defendant
resists the plaintiff’s claim denying any breach of the terms alleged. It
claims to have paid all the ground rents due under the lease to the Stool Land
Secretariat. The Stool Land Administrator issues demand notices for annual
ground rent. However as of the date the plaintiff issued his writ, the
defendant had not received any notice to pay any outstanding ground rent. <o:p></o:p>The defendant also holds the
plaintiff responsible for its inability to develop the land. According to the
defendant, after the grant of the land, the plaintiff began encroaching upon
same and selling portions along the perimeters to third parties to develop.
This act prevented the defendant from developing the land according to its housing
plan. <o:p></o:p>Furthermore, plaintiff had on 23rd
December 2009 written to the defendant proposing to acquire the defendant’s
interest in the land which proposal the defendant rejected. The plaintiff
ignored its warnings and continued to sell portions of the land. Having failed
to convince the defendant to dispose of its interest in the land to him the
plaintiff is resorting to falsehoods to acquire the said interest. <o:p></o:p>The plaintiff, pleads the defendant,
cannot be entitled to the equitable remedy of forfeiture as his hands are not
clean. If anything at all, the plaintiff is the one in breach of the terms of
the lease by encroaching upon the land to lease portions to third parties who
have developed same.<o:p></o:p>Additionally, the defendant pleads
that the plaintiff’s claim being one relating to land, is statute-barred under
section 10 of NRCD 54 as the alleged cause of action accrued to the plaintiff
more than 12 years before the writ in the case was filed.<o:p></o:p>To my mind, two substantive
questions arise to be resolved. Has the defendant breached any such covenants
in the lease and is the plaintiff entitled to the remedy of forfeiture? I
consider all other questions subordinate to the above and will touch on them in
due course. <o:p></o:p>The defence has however pleaded
limitation. This is a preliminary question by its very nature. For if
successfully established, the plaintiff’s claim is barred regardless of
whatever merit it otherwise has. <o:p></o:p>As I can see however, the defence
having pleaded limitation did not appear to pursue the issue with any
seriousness. Indeed, Learned Defence Counsel did not address me on what I
thought should be considered a pertinent legal point for the defence. I suspect
Counsel might have found the point unsustainable and abandoned same as I find
it misconceived within the context of the case put up. I shall however attend
to the question briefly.<o:p></o:p>In the first place, it ought to be
understood that a plea of limitation under section 10 of the Limitation Act has
at its nerve center the principle of adverse possession. The defendant must
have been in adverse possession for the rule to apply against the plaintiff. To
ease reference, I set out the entire provisions under section 10 of the Act.<o:p></o:p>“10
(1). No action shall be brought to recover any land after the expiration of
twelve years from the date on which the right of action accrued to the person
bringing it or, if it first accrued to some person through whom he claims, to
that person.<o:p></o:p>(2)
No right of a</main>