NYAMEKYE vrs F.K.A. COMPANY (J4/29/2024) [2024] GHASC 44 (23 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD.2024

Coram

SACKEY TORKORNOO, CJ (PRESIDING) OWUSU JSC ASIEDU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC

Civil Appeal

NO: J4/29/2024

23RD OCTOBER, 2024

FREDERICK NYAMEKYE …. DEFENDANT/APPELLANT/APPELLANT

VRS

F.K.A. COMPANY …. PLAINTIFF/RESPONDENT/ RESPONDENT

J U D G M E N T

ADJEI-FRIMPONG, JSC:

On July 6, 2023, the Court of Appeal delivered judgment in this land suit in favour of the Plaintiff/Respondent/Respondent (herein “Plaintiff”). By that, the learned Justices wholly affirmed an earlier decision of the trial High Court which had upheld the Plaintiff’s case

and dismissed the counterclaim of the Defendant/Appellant/Appellant (herein “Defendant”). Still unperturbed, the Defendant appeals in this Court.

My Lords would have noticed from the record that but for an argument lately urged upon this Court to depart from its previous decision in another suit affecting the same subject matter, the issues in this appeal would not be unusual. Indeed, if one thing is clear from the record, it is that, this same subject matter has been many times, battled over in our courts over the years. We shall later deal with the issue about this Court’s departure from its previous decision which is of critical importance here, and determine its effect on the fortunes of this appeal. In the meantime, we set out the rival cases and arguments of the parties and how they have fared in the trajectory of this litigation.

According to the Plaintiff, its Managing Director, Frederick Kofi Asare in 1980, took a customary grant of a 95.194-acre land from the Weija Stool whose occupant then was Nii Anto Nyame II. To put the land into real estate development, he went into possession, constructed road layouts, laid pipes for water supply and also erected electricity poles on it. In 1998, he incorporated the Plaintiff Company and made the land its main asset. He requested the Stool to issue a deed of indenture in the name of the incorporated company which was done and dated 16th May 1998. Whilst occupying the land, the Plaintiff took legal actions against various encroachers and won the cases against them. A list of the cases the Plaintiff has won in the courts is pleaded to demonstrate its ownership of the land. It was a portion of this land the Defendant was alleged to have trespassed onto for which the Company took the instant action against him.

According to the Plaintiff, the Defendant purportedly acquired the said portion from the self-same Weija Stool then acting through Nii Kojo Kwame II, as Mankralo and one Nii Acquah Sackey as Stool Secretary in 2002 long after its grant of same. It pleads that the

purported grant to the Defendant was a nullity since the Weija Stool had no title in the land to make the subsequent grant to the Defendant.

Besides, the said Nii Kojo Kwame and Nii Acquah Sackey were signatories to the deed of indenture issued to the Plaintiff and could have only acted fraudulently in the purported subsequent grant of a portion of the same land to the Defendant. The Plaintiff’s writ which was amended close to the end of the trial was for the following reliefs: a. A declaration that the activities of the Defendant on Plaintiff’s land amounts to trespass. b. Recovery of possession of the said four (4) plots of land measuring 140 feet by 100 feet (0.64 acre) and further order to demolish any offending structures Defendant had erected on Plaintiff’s land at cost to the Defendant. c. Perpetual injunction restraining the Defendant, his agents, assigns and workmen from dealing with the land subject matter in dispute in any manner inconsistent with Plaintiff’s interest. d. General damages for trespass.

The Defendant’s amended statement of defence narrates that he acquired the land from the Weija Stool in 2002 and his indenture was signed by Nii Kojo Kwame (Manklaro) and Nii Acquah Sackey (Stool Secretary and elder). He took immediate possession, erected cadastral pillars and graded the place for construction. He commenced and completed one residential property and started a new one.

In the course of time, he realized that the whole area of land which the Weija Stool was alienating had previously been acquired by the Government and the area had not been returned to the Stool. He therefore applied to the “appropriate government institutions” for regularization of his grant.

Whilst in possession, the Plaintiff Company instituted Suit No. BL514/2005 intituled F.K.A. Company Limited v. Frederick Nyamekye against him to claim four of the six plots of land he was in possession of. The claim was however dismissed by the High Court Coram Aduamah Osei J.A (sitting as additional High Court Judge). The Plaintiff was therefore estopped per rem judicatam from relitigating the matter. The Plaintiff had also taken more land than was granted to it by the Weija Stool and had fraudulently falsified his original site plan to cover the extra land wrongfully taken. He counterclaims against the Plaintiff as follows: a. A declaration that the Defendant is owner in possession of all that land situate lying and being at new Weija, Accra and covering an appropriate [sic] area of 0.96 acre more or less and bounded on the north by proposed road measuring 210 feet more or less, on the east by proposed road measuring 200 feet more or less, on the east by lessor’s land measuring 200 feet more or less and the west by proposed road measuring 200 feet more or less.

b. Perpetual injunction restraining the Plaintiff her agents, assigns, workmen and all privies from entering the land in dispute.

By way of response to the Defendant’s plea of res judicata, the Plaintiff admits suing the Defendant for four (4) plots of land (Suit No. BL514/2005 intituled F.K.A. Company Limited v. Frederick Nyamekye) which matter was determined by Aduamah Osei JA. The Plaintiff lost the action because Aduamah Osei J.A had found that the Plaintif f had earlier alienated those plots to a certain Madam Ewuntomah and therefore the Plaintiff was bereft of capacity to bring the said action. Whilst admitting that its claim in the said suit was dismissed, the Plaintiff contended that the dismissal was for want of capacity and not on the merits of the case, hence no res judicata applied.

It was also contended that the name Ewuntomah was a mistake and that the person the Plaintiff granted the land to was called Madam Mary Ntumy. Indeed, the Plaintiff, this time on the power of attorney of the said Mary Ntumy had commenced a fresh action to claim four (4) plots. The issues arising from these matters were part of those the learned trial judge was confronted with.

Let us however clarify one point here. In this suit, the Plaintiff’s initial claim related to two plots of land. From the original writ of summons, which was subsequently amended, the two plots it claimed measured 0.32 acres (140 ft by 100 ft) (Page 2 Vol.1 ROA). The Plaintiff’s amendment to claim four plots (0.64 acre) was consequent upon the testimony of the Surveyor appointed by the trial Court to prepare a composite plan to inter alia depict the land in dispute. It appeared that, contrary to the Defendant’s claim that the land he acquired measured 0.92 acres constituting 6 plots, the Surveyor determined that he rather occupied 1.12. By the Plaintiff’s own calculation as we understand it, the 1.12 acres gave 8 plots and not 6 plots as claimed by the Defendant. And since Four (4) out of supposed eight (8) plots had been the subject matter of the suit that went before Aduamah Osei J.A, then the Plaintiff became entitled to claim the remaining four (4) plots hence the amendment. The Plaintiff’s prayer was captured in its affidavit in support of the motion for leave to amend as follows: “7. That a perusal of the site plan of the Plaintiff will indicate that the defendant has encroached on eight (8) plots of land with the Plaintiff’s 95.194 acres of land.

8. That four plots out of the eight plots encroached on by the defendants has been sold to Madam Florence Ntumy by the Plaintiff which is also a suit pending before the High Court (Land Division 7).

9. The said suit is entitled Florence Ntumy (Suing Per Her Lawful Attorney Frederick Kofi Asare) v Frederick Nyamekye [Suit No. SOL/41/14]

10. That implicitly, it is evident that based on the Component [sic] plan and Report to the Court tendered S Exhibit CE1 and CE2 it has become imperative to amend it reliefs to read as follows: “Recovery of Possession of the 4 plots measuring 140 ft by 200 ft (0.64 Acre) and further order to demolish any offending structures placed and erected on Plaintiff’s land by Defendant at cost to Defendant.”

From the record, even though the learned trial judge granted the Plaintiff’s amendment, she in the end determined that the land the Defendant occupied was seven (7) plots and not eight (8) plots as computed by the Plaintiff. The judgment she gave therefore related to three (3) plots and not four (4) as contained in the amended writ. The learned judge also drew the following findings and conclusions:

(1) The Plaintiff provided sufficient evidence to prove that it was granted 95.114 acres of land by the Weija Stool. This position she also found supportable by the list of judgments the Plaintiff had obtained in the previous suits.

(2) The seven (7) plots the Defendant occupied were all located within the Plaintiff’s 95.114 acres of land.

(3) The Defendant was unable to prove that the Plaintiff wrongfully took more land than was granted to it and that no fraud was committed by the Plaintiff on the preparation of its plan.

(4) Given the earlier grant to the Plaintiff by the Weija Stool to the Plaintiff, the nemo dat quod non habet rule operated to prevent any subsequent grant to the Defendant by the same Stool.

(5) The suit before Aduamah Osei J.A was not determined on the merits and therefore did not operate as res judicata.

On the important issue of the compulsory acquisition by the State of the whole area of land for which reason the Defendant said he sought to regularize his title from the appropriate state institutions, the learned trial judge went short of making a definite determination. This is what she observed: “That the land in dispute is the subject of a government acquisition is not in doubt. The land was acquired under Executive Instrument 60 and 61 of 1979. Plaintiff attached Exhibit D a petition from the Chiefs of Weija, Bortianor, Amanfrom, Kokrobite, Ashyie and Amanfrom praying government to revoke t he E.I.s and release part of their compulsorily acquired back to them for lack of compensation. This led to a series of meetings involving the Ministry of Lands, Forestry and Mines, Ministry of Agriculture, Cabinet and District Assemblies. Exhibit E is a policy document on government’s intention to release some compulsory acquired lands back to the original owners including the land subject matter in dispute. Exhibit F series are all documents in support of the revocation and release of the lands compulsorily acquired. As part of the intention of government to release the lands back to its original owners the government embarked on a boundary demarcation of the various Stools and families in the Weija catchment area. Exhibits D series are letters of acceptance on the various Stools on the boundary plans prepared. The Exhibit D series are dated in year 2000.”

The foregoing does not answer the question whether by virtue of the prior compulsory acquisition, the Weija Stool had title to grant the land to the Plaintiff (or even the Defendant) at the time it did. Nonetheless, from the final decision of the Court, it is inferable that it took the position that by the events narrated in the passage quoted above and on account of the evidence adduced including the various judgments in favour of the Plaintiff, the Weija Stool held title to the land which it could vest in the Plaintiff. The

Court’s final orders about the three (3) plots after declaring the Defendant a trespasser were: “I order that Defendant pay Plaintiff the current market price for the three (3) remaining plots being occupied illegally by Defendant within six (6) months after the approval of the valuation report on the value of the 3 plots of land, failing which I grant Plaintiff an order of recovery of possession of the said three (3) plots of land covering (0.48 acre) and further grant Plaintiff an order to demolish any offending structures Defendant has erected on Plaintiff’s land at cost to the Defendant. It is hereby ordered that Director of Surveys demarcates and surveys the three (3) plots of land. I order that same be valued by the Land Valuation Division of the Lands Commission to ascertain the value to be paid by the Defendant. Cost of the demarcation and valuation must be borne by Plaintiff and surcharged against defendant.”

The court further awarded in favour of the Plaintiff, GHC10,000 as General Damages, GHC20,000 as costs and granted also an order of perpetual injunction. Appeal to the Court of Appeal The Defendant’s appeal to the Court of Appeal were on the following grounds: a. The judgment is against the weight of evidence adduced at the trial b. The trial High Court Judge woefully failed to adequately consider the totality of the evidence of the Plaintiff/Appellant thereby occasioning substantial miscarriage of justice. c. The learned trial judge woefully failed to consider the totality of the reasoning given by Aduamah Osei J.A (sitting as an additional High Court Judge) in his judgment dated 18th November, 2011 in suit number BL 524/2005 between the same parties on the same parcel of land.

d. Having observed that the same piece or parcel of land was a subject matter of litigation between the same parties, the learned High Court Judge erred on an elementary rule of law and procedure when she assumed jurisdiction and substantially constituted her court to sit on appeal over the judgment of a court of co-ordinate jurisdiction. e. Having failed to establish on the evidence that the Plaintiff was in possession of the disputed parcel of land, the learned Judge erred when she granted the Plaintiff’s prayer that “the activities of the defendant on plaintiff's land amounted to trespass.” f. Having previously ruled that Florence Ntumy and Elizabeth Ewuntoma were two separate and distinct individuals to whom plaintiff had alienated the disputed parcel of land, the learned judge should have realized that there was nothing more to litigate on. She therefore erred in ordering the defendant to pay for a non-existent three plots of land.”

None of the grounds of appeal found favour with the learned Justices of the Court of Appeal. Below are the highlights of the decision of the Court as we glean from their