TETTEH VRS. OKYERE AND OTHERS (LC/67/2019) [2024] GHAHC 174 (25 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ HELD IN TEMA IN THE GREATER ACCRA REGION OF THE REPUBLIC OF GHANA BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON TUESDAY THE 25TH OF JUNE 2024. CASE NO. LC/67/2019 ________________________________________________________________ ENOCH FRANCIS ANNAN TETTEH Head of Okpon We Family of PLAINTIFF Teshie, H/No. 22 Fertilizer Road, Teshie VRS 1. GEN. (RTD) OPPONG OKYERE (DISCONTINUED) 2. MARGARET JACKIE (DISCONTINUED) Near America House East Legon, Accra. DEFENDANTS 3. JOSEPH NII AKWETEH ARYEH 4. EMMANUEL ANUM TETTEH 5. CHARLES KWAKU MENSAH ________________________________________________________________ JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 1 PLAINTIFF PRESENT 3RD TO 5TH DEFENDANTS ABSENT COUNSEL FOR ALL PARTIES ABSENT ________________________________________________________________ JUDGMENT 1. INTRODUCTION [i] The Plaintiff’s claims against the Defendants in the amended writ of summons are as follows: a. A declaration of title over ALL THAT piece or parcel of land situate, lying and being at Dzornaman measuring an approximate area of 1.008 or 0.408 hectares and bounded on the North measuring 136.4 feet more of less on the East measuring 284.3 feet more of less on the South measuring 133.2 feet more or less on the West by proposed measuring 286.7 feet more or less from the Okpon We family all within Plaintiff’s family land. b. A declaration that Plaintiff is the lawful head of family of the Okpon We family. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 2 c. A declaration that the 3rd to 5th Defendants have no capacity to alienate any portion of the Plaintiff’s family land. d. Perpetual injunction restraining the 3rd to 5th Defendants herein, or any family member, their assigns, privies, agents, grantees or any person(s) authorized by them from holding themselves as the head(s) of family or interfering with Plaintiff’s position and performance of his duties as head of the Okpon We family in any manner so far as the Plaintiff remains the head of the Okpon We family. e. Perpetual injunction restraining the Defendants herein, their agents, assigns, servants, workers, men, officers, independent contractors of any person(s) claiming through them from interfering in any manner the land in dispute. f. An order setting aside any grants by 3rd to 5th Defendants or any family member on Plaintiff’s family land without Plaintiff. g. Recovery of possession and demolition of any unauthorized structures on portions of Plaintiff’s family land. h. General damages. i. Costs. 2. FACTS OF THE PLAINTIFF’S CASE JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 3 [ii] The Plaintiff instituted the present action hinging on the above reliefs by averring in the statement of claim that he is the head of the Okpon We family of Dzornaman and Teshie and he thus brings this action for himself and on behalf of the said family. According to the Plaintiff, he succeeded the late head of family by name Nii Adjei Kofi on the 24th day of August 2014. Further, the Plaintiff contended that the Okpon We family is the owner of all that piece or parcel of land situate, lying and being at Dzornaman in the Greater Accra Region of Ghana and containing an approximate area of 603.51 acres and as described in the reliefs sought. [ii] The Plaintiff again stated that his family acquired the land by farming, rearing of animals and settling thereon and even had same registered in the name of the family sometime in 1985 at the Lands Commission of Ghana. The Plaintiff’s family have thus been in possession of the disputed land ever since its acquisition by granting portions to family members and 3rd parties who had developed same. The Plaintiff’s family even obtained judgment of their family lands in various suits and which the Plaintiff listed in his statement of claim. [iii] In spite of the above, the Plaintiff stated that the Defendants have trespassed on portions of the Plaintiff’s family land and the 1st Defendant being a military officer has been using men from the Ghana Armed Forces to forcefully develop the Plaintiff’s family land and even threatened the Plaintiff, under the pretext that the Defendants obtained the land from the Ashong Mlitse family of the Odaitei Tse We family of Adjiringanor. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 4 [iv] The said head of the Odaitei Tse We family however testified in suit no. AL/25/2004 titled Al-Hassan Ltd. vrs Lands Commission & 3 Ors for the Plaintiff’s family, confirming that the land in question, a portion of which is in dispute, is Dzornaman land belonging to the Plaintiff’s family. The Defendants and their alleged grantors, the Odaitei Tse We family, are thus bound and estopped by the judgment in suit no. Al/25/2004 to dispute the Plaintiff’s ownership of the disputed land. [v] The Defendants were thus said to have trespassed on about 1.008 acres or 0.408 hectares of the Plaintiff’s family land; and per the Plaintiff, the continuous trespassory activities by the Defendants had caused and continue to cause Plaintiff a lot of hardship, injury and damage. The Defendants would also not abate their trespassory activities unless ordered by the Court so to do and so the Plaintiff prayed for the reliefs as enunciated above. 3. AMENDED STATEMENT OF DEFENCE OF THE 1ST AND 2ND DEFENDANTS [vi] The 1st and 2nd Defendants, in their defence and which was subsequently amended, denied all the material averments of the Plaintiff. Even though the 1st and 2nd Defendants denied that the Plaintiff was the head of the Dzornaman family, they did admit that the Plaintiff’s family had some plots of land at Dzornaman. The Defendants further contended that the size of the Plaintiff’s family land is 321.73 acres or 030.20 hectares; and not 601.51 acres as alleged by the Plaintiff at paragraph 6 of the statement of claim. [v] Additionally, the Court of Appeal, in the case of Al-hassan Limited vrs Lands Commission & 3 Others, as cited by the Plaintiff, only granted the Plaintiff’s family 321.73 acres of land, and there were principal members of the Plaintiff’s JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 5 family who were willing to testify to that. The Defendants added that they have been in peaceful possession and occupation of their land since same was acquired in 2000 and have even begun and completed the construction of a three-bedroom residential house thereon. [vi] Again, the Plaintiff’s family land of 321.73 acres was also located at Dzornaman and not at Otano Ajiringanor, where the Defendants’ land is situate. The Defendants further contended that contrary to the Plaintiff’s assertions, the Defendants did not acquire their plot of land from the Odaitei Tse We family of Adjiringanor but rather from the Nii Boye Doku family. The Plaintiff is only trying to claim land that does not belong to his family and per the Defendants, the Plaintiff’s act of encroachment is just an extension and abuse of the judgment they obtained. The Plaintiff is also falsely and fraudulently extending the size of the Okpon We land as determined in the case of Al Hassan Ltd v Lands Commission and 3 Others, and the Defendants thus alleged fraud against the Plaintiff, particularising same as follows: PARTICULARS OF FRAUD a. Plaintiff being fully aware of the size of his family land yet trying to acquire land that is outside his family land. b. Plaintiff having been warned by other members of the Family of the size of their land but neglecting their warnings and proceeding to claim more than that size. c. Plaintiff or his assigns forging a judgment plan for the case of Al Hassan Ltd v Lands Commission and 3 Others to cover an area of 603.51 acres instead of 321.73 acres. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 6 d. Plaintiff or his assigns forging the Statutory Declaration signed by his own Family Head in 1963 to cover an area of 603.51 acres instead of the actual deed which covers an area of 321.73 acres. e. Plaintiff being aware of a letter issuing form other principal elders of the Okpon We family to the Lands Registration Division confirming clearly that their land is 321.73 acres yet Plaintiff ignoring this totally for his own vested interest and his land goons. [vii] The 1st and 2nd Defendants thus relied on the above averments and counterclaimed for the following: 4. COUNTERCLAIMS OF THE 1ST AND 2ND DEFENDANTS I. A declaration that all the piece and parcel of land with land title TDA 0560 belongs to the 2nd Defendant to the exclusion of all others. II. Perpetual injunction be granted against the Plaintiff and all his assigns and agents from meddling or trespassing on Defendant’s land. III. Damages against the Plaintiff for breaking down Defendants’ fence wall. IV. Damages against the Plaintiff for fraud. V. Costs against the Plaintiff for litigation and ancillary costs. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 7 VI. Any other relief(s) the Court deems fit. 5. PLAINTIFF’S REPLY AND DEFENCE TO THE AMENDED STATEMENT OF DEFENCE & COUNTERCLAIM OF THE 1ST AND 2ND DEFENDANTS [viii] The Plaintiff thereafter filed a Reply and a defence to the amended defence and counterclaim of the 1st and 2nd Defendants, generally joining issues with the Defendants but denying any allegation(s) of fraud against him. The Plaintiff reiterated that the land being claimed by the Defendants fell within Dzornaman lands and the Defendants had trespassed on the Plaintiff’s family lands. The Plaintiff was thus entitled to the reliefs sought and the Defendants’ counterclaims should instead be dismissed by the Court in the circumstances. 6. INTERVENING MATTERS [ix] An application for joinder was made and the 3rd to 5th Defendants were joined to the suit as parties. They equally filed a defence and counterclaim; and the Plaintiff in turn filed a Reply and a defence to the counterclaims of the 3rd to 5th Defendants. Pleadings thereafter came to a close. 7. APPLICATION FOR DIRECTIONS [x] At the Application for Directions stage, the following issues were set down for trial: a. Whether or not Plaintiff is the head of the Okpon We family of Teshie and has capacity to institute the instant action. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 8 b. Whether the Okpon We family land contains an approximate area of 603.51 acres or 321.20 acres and covers the land being claimed by the 1st and 2nd Defendants. c. Whether the 3rd, 4th and 5th Defendants are estopped from claiming or asserting that the Okpon We family land contains only 321.20 acres but not 603.51 acres. d. Whether or not the 3rd, 4th and 5th Defendants could lawfully grant any portion of the Okpon We family land. e. Whether or not any grant of any portion of the Okpon We family land by the 3rd, 4th and 5th Defendants or any other family member without the head of the Okpon We family (the Plaintiff herein) and any subsequent grant or registration and Land Title Certificate based on the same is void ab initio. f. Any other relevant issues arising from the pleadings. All the Defendants filed additional and further additional issues as follows: ADDITIONAL ISSUES 1. Whether or not the Plaintiff is the head of the Okpong-We Family. 2. Whether or not in view of the Interlocutory Injunction by the Court of Appeal, the Plaintiff has any locus standi. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 9 3. Whether or not the Plaintiff has a cause of action and the capacity to commence this action. 4. Whether or not the Okpon We Family land is 321.200 as was handed down in the Alhassan case. 5. Any other issue arising from the proceedings. FURTHER ADDITIONAL ISSUES 1. Whether or not the Okpon We family land is located at Dzornaman or Otano Ajiringanor. 2. Whether or not the Plaintiff sent land guards to break down the 1st and the 2nd Defendant’s wall. 3. Whether or not members of the Okpon We family have written to Lands Commission that their land size is 321.73 acres and not 603.51 acres. 4. Whether or not the 2nd Defendant has been in possession of her land since the year 2000. 5. Whether or not the Plaintiff perpetuated fraud by forging a judgment plan and the statutory declaration signed by his own family head in 1963 to cover an area of 603.51 acres instead of the actual deed which covers 321.73 acres. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 10 6. Whether or not the 1st and 2nd Defendants are entitled to their counterclaim. The parties were ordered to file their respective witness statements and they did. After case management conference, the trial commenced. 8. WITNESS STATEMENTS OF THE PLAINTIFF [xi] The Plaintiff filed a witness statement for himself and tendered in evidence judgments of the Court said to affirm his predecessors as the heads of the Dzornaman family. Plaintiff further tendered in evidence minutes of a family meeting said to have been taken when the Plaintiff was appointed as the head of family on the 24th of August 2014 as Exhibit B, together with pictures as Exhibits C series. The Plaintiff further exhibited an affidavit said to have been deposed to by family members confirming the Plaintiff as the head of family and the Plaintiff went on to narrate how his family obtained its interest in the disputed land. The Plaintiff concluded by praying the Court for the reliefs sought and the dismissal of the counterclaims of all the Defendants. 9. WITNESS STATEMENTS OF THE DEFENDANTS [xii] The 1st Defendant filed a witness statement for himself and the 2nd Defendant and a supplementary witness statement. Therein, he also reiterated the averments in their pleadings and he also prayed the Court to grant the counterclaims of the 1st and 2nd Defendants. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 11 [xiii] The 3rd to 5th Defendants also filed a joint witness statement, denying the capacity of the Plaintiff and stating that the Plaintiff never succeeded Nii Adjei Kofi as the head of family. Further, the date given by the Plaintiff that he was appointed as the head of family does not appear to be correct because that day was the Homowo season and no traditional rites of appointment were performed. The Plaintiff was thus not a Head of family. Additionally, the 1st and 2nd Defendants had not trespassed onto the Plaintiff’s plots of land and so the Plaintiff’s claims ought to be dismissed and the counterclaims of the 3rd to 5th Defendants instead be granted. The trial subsequently came to a close. 10. BURDEN OF PROOF IN CIVIL CASES [xiv] This being a civil case, the burden of proof on a party is on a balance of probabilities, as was held in the case of Serwah v Kesse [1960] GLR 227 – 228 and also in sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323. Section 12 of NRCD 323 provides: (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 12 In the case of Jibril Mahama v Akwasi Mensah [2020] 170 GMJ 449, the Court held: “A person who endorses the writ of summons with the relief of declaration of title, it is trite that such a claim cannot avoid a trial. By the relief of declaration of title, the Appellant was required by law to lead evidence in a trial to proof title.” The above was confirmed by the Supreme Court in the case of The Republic v High Court Accra; Ex parte Osafo [2011] 2 SCGLR 966, thus: “By the settled practice of the courts, for declaratory orders to be good, such orders must be made only after hearing all the parties to the action or at least offering them an opportunity to be heard.” [xv] Further in Nortey v AIJC & Ors [2014] 77 GMJ, the Court held at page 27 as follows: “In an action for declaration of title to land, recovery of possession and injunction, a plaintiff must establish by positive evidence the identity and limits of the land he claims. (see Agyei Osae & Ors v Adjeifio & Ors (2007-2008) SCGLR 499, [2008] 4 GMJ 149 SC.) The plaintiff will succeed only if he is able to establish the identity of the land in question satisfactorily according to law so as to entitle him to the reliefs. The onus of proof required by law as regards the identity of land would be discharged by meeting the conditions clearly stated in JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 13 this court’s decision in Tetteh v Hayford (2012) SCGLR 417 [2012] 44 GMJ SC 11 citing the case of Kwabena v Atuahene [1981] GLR 136 thus: (i) The plaintiff has to establish positively the identity of the land to which he claimed title subject matter of the suit. (ii) Plaintiff also has to establish all his boundaries. (iii) Where there is no properly oriented plan drawn to scale, which made compass bearings vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title.” At page 30 of the Nortey case (supra), the Supreme Court further held: “Even though the courts stipulate that the identity of a disputed land be clearly established or with certainty as a precondition for the grant of title, this does not mean mathematical certainty or exactness. The stipulation calls for common sense approach to providing proof which demands that material witnesses would not be left out. This is because the basic principle of the law of evidence is that a party who bears the burden of proof is to produce the required evidence of the facts in issue that have the quality of credibility, short of which his claim may fail.” [xvi] Also, in the case of Dzaisu v Ghana Breweries Limited [2007-2008] SCGLR 539, the Supreme Court per Adinyira JSC held, in expounding on section 14 of NRCD 323, as follows: JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 14 “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” The Learned Justice of the Supreme Court went on to state: It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party. 11. BURDEN OF PROOF ON A COUNTER-CLAIMANT [xvii] The Defendants have also counterclaimed for a declaration of title to the plots of land that they state have been alienated to them; and so they equally bear the burden of establishing that they are entitled to their claims. In Bullen & Leake and Jacob's Precedents of Pleadings (12th Edition) at pp. 96-97, it was stated: "A counterclaim is substantially a cross-action, and not merely a defence to the plaintiff’s claim. It is a cross-claim which the defendant may raise in the very action brought against him by the plaintiff, instead of himself bringing a separate, independent action against the plaintiff. The right to maintain a counterclaim was first introduced by the Judicature Act 1873, and the procedure by counterclaim has been greatly extended in its operation and application by the rules, so that as far as JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 15 practicable, the counterclaim is assimilated to the position of a statement of claim indorsed on a writ of summons.” It has been held that the current Ghanaian provisions on counter-claims set out at order 12 of the High Court (Civil Procedure) Rules 2004, CI 47 retain this quintessential principle. The above was the holding of Date-Bah JSC in GIHOC Refrigeration v Hanna Assi (Civil Appeal No. J4/11/2005) of 1st February 2006. [xviii] Likewise, the case of Aryeh & Akakpo v. Aya Iddrisu [2010] SCGLR 891 at 901, in which the Supreme Court again reiterated the burden of proof on a counterclaimant as follows: "A party who counter-claims bears the burden of proving his counterclaim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent's case.” 12. PLAINTIFF’S SETTLEMENT WITH THE 1ST AND 2ND DEFENDANTS [xix] After the Plaintiff opened his case and Counsel for the 1st and 2nd Defendants had commenced cross-examination, it appears the Plaintiff made an out of Court settlement with the 1st and 2nd Defendants; but there were no terms of settlement filed on the Court’s docket. Be it as it may, Counsel for the 1st and 2nd Defendants did not appear to complete the cross-examination of the Plaintiff on account of the settlement. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 16 [xx] Counsel for the Plaintiff subsequently filed a notice of withdrawal against the 1st and 2nd Defendants, and so they no longer are parties to the suit. The reliefs sought against the 1st and 2nd Defendants, as follows a. Declaration of title against the 1st and 2nd Defendant over ALL THAT piece or parcel of land measuring an approximate area of 1.008 or 0.408 hectares and bounded on the North measuring 136.4 feet more of less on the East measuring 284.3 feet more of less on the South measuring 133.2 feet more or less on the West by proposed measuring 286.7 feet more or less from the Okpon We family all within Plaintiff’s family land. b. Recovery of possession against the 1st and 2nd Defendants. c. General damages and costs against the 1st and 2nd Defendants are all rendered moot and thus dismissed. The counterclaims of the 1st and 2nd Defendants are also dismissed as the parties have informed the Court they have settled out of Court. 13. THE 3RD TO 5TH DEFENDANTS [xxi] With respect to the 3rd to 5th Defendants, after the Plaintiff had discontinued and withdrawn the suit against the 1st and 2nd Defendants, Counsel for the 3rd to 5th Defendants wrote to the Court that they did not intend to appear before this Court to prosecute the matter and so the trial automatically came to a close. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 17 The Plaintiff had opened his case and the 3rd to 5th Defendants had counterclaimed, disputing the capacity of the Plaintiff as the head of family but the 3rd to 5th Defendants elected not to appear to prosecute their counterclaims. The counterclaims of the 3rd to 5th Defendants thus stand dismissed as no iota of evidence was adduced in support of those counterclaims. 13. EVALUATION OF THE EVIDENCE ADDUCED AT THE TRIAL BY THE PLAINTIFF [xxii] Upon a careful evaluation of the witness statements and the exhibits of the Plaintiff, duly tendered and admitted in evidence without any objection, I find that there is no evidence whatsoever to discredit the testimony and the evidence of the Plaintiff. Consequently, the evidence adduced by the Plaintiff remains firm and uncontested. The 3rd to 5th Defendants averred that the Plaintiff was not the head of family; but they did not adduce any evidence in support of same. Only mere averments without more; and that is insufficient to establish the counterclaims of the 3rd to 5th Defendants. In the case of IBM v HASNEM [2001-2002] SCGLR 393 at 402, Adzoe JSC held that “It is one thing pleading a cause and repeating it in court, and another thing providing evidence in support of the cause so pleaded.” 14. CONCLUSION [xxiii] For the foregoing reasons, judgment be and is hereby entered in favour of the Plaintiff and against the 3rd to 5th Defendants for the reliefs below: JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 18 a. A declaration that Plaintiff is the lawful head of family of the Okpon We family. b. A declaration that the 3rd to 5th Defendants have no capacity to alienate any portion of the Plaintiff’s family land. c. Perpetual injunction restraining the 3rd to 5th Defendants herein, or any family member, their assigns, privies, agents, grantees or any person(s) authorized by them from holding themselves as the head(s) of family or recognizing any person as the head(s) of family or interfering with Plaintiff’s position and performance of his duties as head of the Okpon We family in any manner so far as the Plaintiff remains the head of the Okpon We family. d. Perpetual injunction restraining the 3rd to 5th Defendants herein, their agents, assigns, servants, workers, men, officers, independent contractors of any person(s) claiming through them from interfering in any manner with the land in dispute. e. An order setting aside any grants by 3rd to 5th Defendants or any family member on Plaintiff’s family land without Plaintiff. f. Recovery of possession and demolition of any unauthorized structures on portions of Plaintiff’s family land. Finally, this Court shall mulct the 3rd to 5th Defendants in costs of Gh¢50,000.00 in favour of the Plaintiff herein. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 19 SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA GREATER ACCRA REGION. 25TH JUNE 2024. JUDGMENT – ENOCH FRANCIS ANNAN TETTEH vrs GEN (RTD) OPPONG KYERE & 1 OR 20