NANA ASARE DWAMENA MINTA II vs. NII ADJEI KPOBI ASAAWA [2019]DLHC8786

Date	2019-07-10
Suit No.	SUIT NO. LD/0866/2016
Citation No.	[2019]DLHC8786

HIS LORDSHIP JUSTICE ANTHONY OPPONG

MR. JOSEPH NICHOLAS NKRUMAH ESQ. FOR PLAINTIFF

MR. KWAASI DJIN ESQ. FOR DEFENDANT

[2019]DLHC8786
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													<main id="main" class="content" style="min-height: 60rem" >NANA ASARE DWAMENA MINTA
II<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>NII
ADJEI KPOBI ASAAWA<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO. LD/0866/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
10TH JULY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
JOSEPH NICHOLAS NKRUMAH ESQ., FOR PLAINTIFF&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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MR.
KWAASI DJIN ESQ., FOR DEFENDANT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE ANTHONY OPPONG<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%;
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</div><o:p>&nbsp;</o:p>Plaintiff is the nephew of one Jacob Kofi Dwamena Minta.
Jacob Kofi Dwamena Minta died testate on the 13th day of November,
1997. Some few months before his death Jacob Kofi Dwamena Minta acquired four
plots of land at Oyarifa from the Agbawe family of La in Accra. The Head of the
Agbawe Family is Defendant. <o:p></o:p><o:p>&nbsp;</o:p>The Court is not told how much Jacob Kofi Dwamena Minta paid
as consideration for the land. Neither was there any document issued to
evidence the transaction before his death. However, upon his death, the Plaintiff
who claims to be his customary successor went to see the family who
subsequently executed Exhibit “B” in
the name of Plaintiff. It is however not the case of Plaintiff that he personally
acquired the land even though he claims that before Exhibit “B” was executed,
he parted with some consideration but the Court regards that so called
consideration as nothing but as facilitating the issuance of the indenture especially
so since Plaintiff’s claim to the disputed land is premised on the acquisition
of the land by his uncle Jacob Kofi Dwamena Minta.<o:p></o:p><o:p>&nbsp;</o:p>It appears that Jacob Kofi Dwamena Minta before his death
knew that he had acquired four plots of land at Oyarifa. No wonder in his Will
he mentioned in paragraph 14 thereof that: <o:p></o:p>&nbsp;<o:p></o:p>“I devise my four
plots of land at Oyarifa near Accra to my customary law successor in trust for
my family to be used for the maintenance and care of the said family. The
family here refers to my brothers, sisters, nieces and nephews”.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;Quite clearly the
land at Oyarifa as mentioned was not defined. It is however unarguable that the
land was devised to his family but was entrusted in the hands of Plaintiff for
purposes of administering it for the benefit of the family. But the critical
question to be asked is what are the dimensions in terms of size and boundaries
of the land Plaintiff described as four plots of land that Jacob acquired? In
the view of the Court, there is some uncertainty as to the size of the land
allegedly acquired by Jacob. By Plaintiff’s own showing the acquisition was
subsequently evidenced in Exhibit “B” and the size of the land therein was
stated as 0.598 of an acre. An examination of the controversial vesting assent Exhibit “A” also shows an attached site
plan and the size of the subject matter land was stated as 0.64 of an acre.<o:p></o:p><o:p>&nbsp;</o:p>In the face of such uncertainty as to the particular land in
issue, Plaintiff’s claim for specific performance is rendered unmaintainable.
It is trite that in an action for specific performance, the subject matter of
the transaction that the Plaintiff is seeking to enforce must be certain so as
to make it apposite for the Court to order the handing over of the property by
way of specific performance. The Court will not be exercising its discretion
properly if it would order specific performance of a transaction or a contract
where the subject matter of the transaction or contract is uncertain as to its
description and identity. &nbsp;<o:p></o:p><o:p>&nbsp;</o:p>It is instructive to observe that neither Jacob Kofi Dwamena
Minta nor Plaintiff ever possessed the land. In the case of Jacob Kofi Dwamena</main>