Brobbey v Mensah (A1/01/2026) [2026] GHADC 1 (20 January 2026)

_**8:37 A.M.**_ _**IN THE DISTRICT COURT, WESTERN REGION HELD AT EFFIA-KWESIMINTSIM, THIS WEDNESDAY THE**_ _**20**_ _**TH**_ _**DAY OF**_ _**JANUARY**_ _**, 202**_ _**6**_ _**BEFORE HER WORSHIP BERNICE ODURO KWARTENG ESQ. (MS.)**_ _**SUIT NO. A1/01/2026**_ **JASMINE EKUSEI BROBBEY ::: PLAINTIFF/RESPONDENT** **(SUING PER HER LAWFUL ATTORNEY** **ISAAC AKWASI OPPONG)** **OF WESTLINE, ANAJI** **VRS:** **ARKO MENSAH ::: DEFENDANT/APPLICANT** **OF TAKORADI** **_____________________________________________________________________** **RULING** The Plaintiff herein commenced this action on 7th October 2025, through her lawful attorney, claiming ownership of Plot No. 8, situate along Cemetery Road, Assakae, and measuring approximately 0.18 acre. Plaintiff claims she acquired the land from one Roberts Lydia and an indenture was executed between the parties and same was registered at the Regional Lands Commission. After taking possession and beginning development, the Defendant interfered with Plaintiff’s possession by halting construction activities and falsely claiming ownership. Despite repeated demands, Plaintiff claims Defendant has continued to assert rights over the land. Hence Plaintiff instituted this action praying for the following reliefs; 1. Declaration of title to all that parcel of land lying and situate at Assakae commonly described as plot no. 8 measuring in or about 0.18 acre. 2. Recovery of possession for all that parcel of land lying and situate at Assakae commonly described as plot no. 8 measuring in or about 0.18 acre. 3. General damages for trespass. 4. Perpetual injunction to restrain the defendant, his agents, assigns, workmen and all those who claim through him from having anything to do with the land described in (a) supra. 5. Costs inclusive of solicitor’s fees. The defendant/applicant consequent upon service of the writ of summons on him filed a motion on notice to strike out the action on 24/11/25 and a supplementary affidavit in support on 27/01/26. The Defendant/Applicant’s claim is that he has been sued by the Plaintiff/Respondent for interfering with his possession of Plot No. 8 at Cemetery Road, Assakae. The Applicant, however, says he is the secretary of the Ntwaa family and claims he has no personal interest in the land. He asserts that his involvement with the land in dispute was at the instructions of the head of Ntwaa Family, who manages the family’s land. He contends the land in question is part of a larger tract owned by the Ntwaa family, as confirmed by a High Court judgment in the case of **Charles Ntaeson Essuman v Nana Busumakura III and Anor (Suit No. E1/73/15)** delivered on 20th December 2024, copy of which was exhibited to the application. The Applicant further claims the disputed plot of land has already been sold to one Kingsley Amponsah Nti, making him the lawful owner. The Defendant/Applicant argues that he is not a proper party to the suit since he acted only as an agent of the family and committed no personal act of trespass. Applicant therefore prays the court to strike out the suit on the grounds that the Plaintiff has no cause of action against him. Counsel for the Defendant/Applicant in his submissions purported to rely on the authority in _**Nyirenkyi v Tetteh**_**[1982–83] GLR 1196** , asserting that an agent acting under instruction is not a trespasser unless he exceeds his authority or benefits personally. However, no such case exists, and the citation in fact refers to _**In re Sackitey (Dec); Dzamioja alias Ashong v Sackitey**_**[1982–83] GLR 1196** , which lays down a principle entirely different from the one counsel sought to advance. He also cited _**Odonkor v Amartey**_ **[1973] 1 GLR 278** to support his case that agents or subordinates are not proper parties in land disputes although this authority could not be found. Additionally, _**Nyamekye v Ansah**_ **[1989-90] 2 GLR 152****** was referenced that a family with a valid court judgment over land holds superior title, and any interference by a stranger is invalid. He argues that although Plot No. 8 is not specifically named in the judgment, it does not mean the disputed land falls out of the Ntwaa Family land. The Plaintiff/Respondent vehemently opposes the Defendant/Applicant’s motion to strike out the suit. He asserts that Plot No. 8, Assakae, does not belong to the Ntwaa family and that the Applicant has always personally claimed ownership of the land, never acting as a family representative. The Plaintiff also challenges the alleged sale of the plot to Kingsley Amponsah Nti. He exhibited a search result from the Lands Commission as evidence of his ownership. The Plaintiff maintains that the Defendant is a proper party to the suit due to his direct interference and personal claim over the land. Counsel for the Plaintiff/Respondent strongly in his defence argues that Plot No. 8, Assakae, is not covered by the judgment relied upon by the Defendant/Applicant. He emphasized that the judgment does not mention Plot No. 8 and therefore same cannot be used to justify any claim over it. Counsel further argued that the case is about a declaration of title, not trespass, and if the Defendant believes the family’s title is under threat, the proper party to defend it would be the family head, and not the Defendant acting alone. Citing the _**Nyamekye v Ansah**_ ___case (supra)_ , he invoked the principle of _**nemo dat quod non habet**_ which means no one gives what they do not have, asserting that since Plot No. 8 was not part of the judgment, the Defendant’s family had no right to transfer it. Therefore, the Plaintiff’s registered interest stands as presumptive proof of his ownership unless overturned by a competent court. **STRIKING OUT OF THE INSTANT SUIT** I have carefully reviewed the motion, the supporting and opposing affidavits, and the arguments advanced by both counsels for the Defendant/Applicant (hereinafter referred to as Applicant) and the Plaintiff/Respondent (hereinafter referred to as Respondent). The application primarily raises the question of whether the applicant is the proper party to be sued. According to **Order 9 Rule 6** **of the District Court Rules, 2009 (CI 59)** , this court has the discretion to strike out the name of any party, Plaintiff or defendant, who has been improperly joined, if it considers such action just. To determine whether the applicant is the proper party to be sued, the court must consider the reliefs indorsed on the writ of summons, the summary of subject matter of claim, the depositions of the Applicant and Respondent and the arguments canvassed. The Respondent’s claim is for a declaration of title to land, not an action for trespass. Therefore, the Applicant’s argument that he acted under the instructions of his family head in his dealings with the land is irrelevant. The core issue raised by the Respondent is a dispute over ownership of the land between the parties. Since the Respondent is seeking declaratory reliefs, it would be unjust to strike out the suit without affording him an opportunity to present and prove his case. The second issue raised by the Applicant concerns the doctrine of _estoppel per rem judicatam_ (res judicata). Applicant contends that the instant suit, which relates to ownership of the disputed land, has already been adjudicated by the High Court in the case of _Charles Ntaeson Essuman v. Nana Busumakura III and Anor_ (Suit No. E1/73/15), delivered on 20th December 2024. On this basis, Applicant argues that this action cannot be maintained in this court. According to _**Black’s Law Dictionary**_**, 9th edition** , _res judicata_ is defined as “an issue that has been definitively settled by judicial decision; or an affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit. The three essential elements are (1) an earlier decision on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties, or parties in privity with the original parties.” It was held in the Court of Appeal case of _**Dalike Dzata and John Doe Gadri v. Kofi Agbenyo**_**(2021) JELR 108967 (CA)** , that “the effect of a successful plea of res judicatam is to deny any court, including this District Court, from which the appeal before us emanates, jurisdiction to rehear the case which had already been determined by an earlier competent court.” The court referred to _In re_ _**Yendi Affairs; Andani v. Abdulai**_**(1981) GLR 866 and** _**Akim Akroso Stool & others v. Akim Manso Stool & others**_**(1989-90) 1 GLR 100**. It is instructive to note that counsel for the Applicant has acknowledged that the specific plot in question, Plot No. 8, was not expressly mentioned in the High Court’s judgment although he contends that the absence of a direct reference to Plot No. 8 does not automatically exclude it from the lands adjudicated as belonging to the Ntwaa Family in the High Court case. However, whether Plot No. 8 indeed forms part of the Ntwaa Family’s land is a factual issue that can only be resolved through the taking of evidence by this court. Therefore, it would be preposterous and inappropriate to strike out the present suit solely based on the defendant’s assertion of _res judicata_. Although the defendant has exhibited the High Court judgment purportedly related to the current dispute, the applicability of that judgment to the disputed land in this present case cannot be conclusively determined without a full evidentiary hearing. This position is supported by the High Court’s decision in _**Kiverty Victoria Obeng v. Welbeck Mensah Yemoh**_**(2017) JELR 66887 (HC)** where it was held that: “It is trite law that where the defence of a defendant in a cause before the court is one of res judicatam, it is not opened to him in the absence of evidence at trial to establish the claim of that estoppel to move the court to dismiss the suit because he has an iron clad defence to the action. Such a claim must of necessity be brought to the fore through evidence at trial.” The court cited with approval the decision of _**Republic v. High Court, Accra; Ex Parte Aryeetey (Ankrah Interested Party)**_**[2003-2004] SCGLR 398**. Further, the Court of Appeal in _**Kwaku Adjei v. Golden Age Company and Eric Kwasi Yeboah of Sunyani**_**(2021) JELR 108984 (CA)** emphasized that: “It has been said that the plea of res judicata should be used more as a shield than a sword.” Additionally, in _**Gbenartey and Glie v. NETAS Properties and Investments and Ors**_**[2015-2016] 1 SCLR 605** , the Supreme Court cautioned that “the procedure of terminating proceedings by summary process should be applied only in cases where the action is clearly unsustainable, plain and obvious that it is beyond doubt that the case is unarguable, frivolous and vexatious, and even legitimate amendments could not cure the defect.” In light of the foregoing, the court finds that the Defendant’s application lacks merit. The claim of _res judicata_ cannot be conclusively determined at this preliminary stage without the benefit of evidence. Accordingly, the application is dismissed. **SGD** **H/W. BERNICE ODUR****O****KWARTENG ESQ. (MS).** **DISTRICT MAGISTRATE** **EFFIA KWESIMINTSIM. `** _**COUNSELS:**_ **AKPENE DARKO COBBINAH FOR THE PLAINTIFF/RESPONDENT** **EMMANUEL ZEIKAH WITH SHAROH GYAN-MENSAH FOR THE DEFENDANT/APPLICANT.** _**PARTIES:**_ **PLAINTIFF’S ATTORNEY PRESENT.** **DEFENDANT ABSENT.** Page | 3