DORA BOATENG vs. MCKEOWN INVESTMENT LTD [2020]DLSC8525

Date	2020-02-05
Suit No.	CIVIL APPEAL NO. J4/12A/2019
Citation No.	[2020]DLSC8525

ANSAH JSC (PRESIDING)

DOTSE JSC

MARFUL-SAU JSC

DORDZIE JSC

AMEGATCHER JSC

K. AMOAKO AGYEI FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

JOSEPH GYAMFI FOR THE DEFENDANT/APPELLANT/RESPONDENT WITH HIM PATRICIA KOFIE.

[2020]DLSC8525
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													<main id="main" class="content" style="min-height: 60rem" ><a name="_Hlk25052519"></a><a name="_Hlk24557419">DORA BOATENG</a><o:p></o:p>(PLAINTIFF/RESPONDENT/APPELLANT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>MCKEOWN
INVESTMENT LTD<o:p></o:p>(DEFENDANT/APPELLANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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:0cm 0cm 1.0pt 0cm">

CIVIL
APPEAL NO. J4/12A/2019&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 5TH
FEBRUARY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>K. AMOAKO AGYEI FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.<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">

JOSEPH
GYAMFI FOR THE DEFENDANT/APPELLANT/RESPONDENT WITH HIM PATRICIA KOFIE.<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;
padding:0cm 0cm 1.0pt 0cm">

ANSAH
JSC (PRESIDING), DOTSE JSC, MARFUL-SAU JSC, DORDZIE JSC, AMEGATCHER 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;
padding:0cm 0cm 1.0pt 0cm">

</div>AMEGATCHER,
JSC:-<o:p></o:p>The events leading to this appeal which has ended up
at the apex court started its journey from the Circuit Court, Koforidua. Being
a civil case, its upward movement was routed on appeal to the Court of Appeal.
The parties wishing to take full advantage of all the legal avenues open to
them did not end the journey at the intermediate appellate court. The fight
continued by invoking our appellate jurisdiction as the final court in the
land, hopefully to give this land dispute its quietus. One gentleman called
Kwame Kissiedu Kwaasi is at the centre of this land dispute. The
actual role the said Kwame Kissiedu Kwaasi played and his legal capacity will be
a determinant factor in this appeal.<o:p></o:p>For Dora Boateng, the plaintiff, the facts of her
case from the record reveal that she bought a 20 acre plot of land situate at
Okorase near Koforidua from Kwame Kissiedu Kwaasi, who described himself as the
Head of Family and lawful representative of the Kissiedu Kwaasi Family of a
section of the Anonkore Clan. The deed to the plot of land was executed between
the plaintiff and Kwame Kissiedu Kwaasi in 2000 and registered in 2014. The plaintiff
who is ordinarily resident in Switzerland states that she returned to the
country to find that her land was being encroached on by persons she could not
identify. She put up warnings and caused announcements to be made within the
vicinity. Since she could not trace the said persons, she commenced an action
at the Circuit Court, Koforidua against “The Developers” claiming against them,
ejection from the land and perpetual injunction restraining the defendant and
its assigns from interfering with the land. After substituted service, Mckeown Investment
Ltd, the defendant, entered appearance and contested the case to its finality.<o:p></o:p>Mckeown Investment’s Limited case is that it
acquired a 46.98 acre land from Naggesten Farms. Naggesten Farms in turn
acquired the plot of land from a family at Larteh to which Kwame Kissiedu
Kwaasi, the plaintiff’s grantor belongs and is its secretary. This land is said
to include the 20 acres of land claimed by the plaintiff and in dispute in this
appeal. The defendant counterclaimed against the plaintiff for the relief of
declaration of title to the land as well as perpetual injunction retraining the
plaintiff and her assigns from interfering with the land. <o:p></o:p>The trial Circuit Court gave judgment for the
plaintiff on 30th October 2015, holding that on the balance of
probabilities, she was the rightful owner of the land. It applied the nemo
dat quod non habet rule, saying that since Alfred Naggesten (of
Naggesten farms) claimed to have acquired his parcel of land from Kwame
Kissiedu Kwaasi in 2006 (six years after the plaintiff), Kwame Kissiedu Kwaasi had
no interest in the land to convey to him after the first sale.<o:p></o:p>Dissatisfied with the trial court’s decision, the
defendant lodged an appeal at the Court of Appeal. On 3rd May 2017,
the Court of Appeal reversed the Circuit Court judgment, allowed the appeal and
ruled in favour of the defendant for the reliefs endorsed on its counterclaim.
On the substance of the matter, the Court of Appeal relied on the recitals in
the deed of conveyance between Kwame Kissiedu Kwaasi and the plaintiff in which
the former was described as the “Head and Lawful Representative of the Kissiedu
Kwaasi Family of a section of the Anonkore Clan”. The said family was said to
be granting the land with the consent and concurrence of the principal members
of that family. The Court of Appeal held that since Kwame Kissiedu Kwaasi was
not the head of the section of the Anonkore Clan of Larteh-Akuapem, the grant
was void. The Court further held that, assuming the grant had been initiated by
Kwame Kissiedu Kwaasi’s mother (Madam Abena Frimpomaa), the inability of Kwame
Kissiedu Kwaasi to take Letters of Administration or Probate after her death to
clothe him with capacity </main>