ROWLAND KOFI DWAMENA vs. RICHARD NARTEY OTOO AND THE REGIONAL LANDS OFFICER LANDS COMMISSION, ACCRA [2019]DLSC6501

ROWLAND KOFI DWAMENA vs. RICHARD NARTEY OTOO AND THE REGIONAL LANDS OFFICER LAND... [2019]DLSC6501

Date	2019-06-12
Suit No.	CIVIL APPEAL NO. J4/47/2018
Citation No.	[2019]DLSC6501

ANSAH JSC (PRESIDING)

GBADEGBE JSC

APPAU JSC

PWAMANG JSC

DORDZIE (MRS.) JSC

ERIC NARH FOR THE 1ST DEFENDANT/APPELLANT/APPELLANT.

RAPHAEL ALIJINA FOR THE PLAINTIFF/RESPONDENT/RESPONDENT

[2019]DLSC6501
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													<main id="main" class="content" style="min-height: 60rem" >ROWLAND KOFI DWAMENA<o:p></o:p>(PLAINTIFF/RESPONDENT/ CROSS-APPELLANT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>RICHARD NARTEY OTOO AND THE REGIONAL
LANDS OFFICER LANDS COMMISSION, ACCRA<o:p></o:p>(DEFENDANTS/APPELLANTS/
CROSS-RESPONDENTS/APPELLANTS)<o:p></o:p>[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">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. J4/47/2018 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 12TH JUNE, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>ERIC NARH FOR THE 1ST
DEFENDANT/APPELLANT/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RAPHAEL ALIJINA FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.<o:p></o:p>

ANSAH
JSC (PRESIDING), GBADEGBE JSC, APPAU JSC, PWAMANG JSC, DORDZIE (MRS.) 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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</div>PWAMANG, JSC:-<o:p></o:p>My Lords, before us is an appeal against the judgment of the Court of
Appeal dated 1st June, 2017 which, by majority decision, dismissed the appeal
of the 1st defendant/appellant/appellant, who shall be referred to as the 1st
defendant.<o:p></o:p>The antecedents of this appeal are as follows. On 13th June, 2012, the
plaintiff/respondent/respondent, to be referred to as the plaintiff, sued
Edward Kabu Otoo and two others in the High Court for declaration of title to
land at Osu on which he built a house but could not register title documents
given to him by the Osu Stool on account of prior registration by the said Edward
Kabu Otoo. The 1st defendant herein, who initially was the 2nd defendant, was
added to the suit because he also applied to register the land in his name at
the Land Title Registry. In addition to the relief of declaration of title, the
plaintiff endorsed his writ of summons with a prayer for the Lands Commission
to be ordered to delete the records of the defendants and process his document.
Accordingly, he made Lands Commission a nominal party as the 3rd defendant. In
his defence filed on 17th October, 2012, the 1st defendant pleaded that the
property in dispute belonged to Edward Kabu Otoo who acquired it from the Osu
Stool before his death in 1944. The 1st defendant claimed that he was the late
Edward Kabu Otoo’s customary successor so he counterclaimed for recovery of
possession, general damages and perpetual injunction. In a reply the plaintiff
pleaded that the 1st defendant, by not challenging him when he was developing
the land, was estopped by the doctrine of estoppel by acquiescence from
claiming it. The Lands Commission filed a statement of defence and stated that
they had no interest in the land and would abide by the decision of the court.
As Edward Kabu Otoo had died long ago, his name was struck out and the case
proceeded with only the present 1st defendant. The Lands Commission did not
participate in the trial.<o:p></o:p>After a full trial, the High Court gave judgment on 14th April, 2015
against the 1st defendant but did not grant plaintiff his reliefs prayed for.
In effect, plaintiff was only left in possession of the land. In the court’s
opinion, while the plaintiff did not prove valid title to the land, the
defendant was indeed guilty of acquiescence.&nbsp;
The 1st defendant appealed against the judgment to the Court of Appeal
and plaintiff also cross-appealed. As stated above, the Court of Appeal
dismissed the appeal and allowed the cross-appeal by granting the plaintiff
declaration of title and an order for the Lands Commission to delete the
defendants’ records and register his document. <o:p></o:p>In this final appeal by the 1st defendant, the sole ground of appeal is
that the judgment is against the weight of the evidence. This ground of appeal
is an invitation to the court to comb through&nbsp;
the record that was placed before the lower court and decide for
ourselves whether, having regard to the evidence and the law relevant for a
determination of the case, the lower court was right in its findings and
conclusions. See Akufo Addo v Catheline
[1992] 1 GLR 377.<o:p></o:p>However, when we examined the record after the hearing of the appeal,
we noticed that in the proceedings at the Court of Appeal, the plaintiff made
submissions in respect an earlier case determined by this court on facts
related to those in this case. That case is intituled Otoo &amp; Ors v Otoo &amp; Ors and reported in [2015] 81 GMJ 90. That earlier
litigation also started from the High Court, Accra upon a writ of summons by
Nora Otoo, Emmanuel Otoo and Felix Otoo who claimed, as beneficiaries under the
Will of the late Edward Kabu Otoo who died in Accra in 1944, for declaration of
title to landed properties &nbsp;at Achimota
and American Embassy Annex at Osu that formed part of the deceased’s estate.
They brought the action against principal members of Otoo family of Osu,
including the 1st defendant herein, who disputed their ownership and
claimed the properties as belonging to&nbsp;
the whole Otoo family.<o:p></o:p>There was a full trial after which the High Court gave a judgment on
26th October, 2009 in favour of the plaintiffs and granted the reliefs they
claimed. However, the defendants appealed and the Court of Appeal reversed the
de</main>