LUTTERODT vs. NYARKO AND ANOTHER [1999-2000] 1 GLR 29

CASES REFERRED TO

(1) Allcard v Walker [1896] 2 Ch 369; 65 LJCH 660; 74 LT 487.

(2) Hudderfield Banking Co v Lister (Henry) & Sons Ltd [1894]2 Ch 273; 64 LJCH 523; 72 LT 703, CA.

(3) Guardian Assurance Co v Bridi [1975] 2 GLR 387.

(4) Boye (Nii) v Adu [1964] GLR 410, SC.

(5) Adwubeng v Donfeh [1996-97] GLR 660, SC.

(6) Ntem v Ankwandah [1977] 2 GLR 452, CA.

NATURE OF PROCEEDINGS

ACTION by the plaintiff to set aside a consent judgment entered by the Court of Appeal based on an out court settlement between the plaintiff and the defendants that varied the judgment of the Circuit Court, Accra decreeing title in plot 131, Dansoman Estates, Accra in the plaintiff. The facts are fully stated in the judgment of the court.

COUNSEL

Amegatcher for the plaintiff.

Andoh for the defendants.

JUDGMENT OF DORDZIE J.

In 1976 the plaintiff issued a writ in the circuit court against the defendants claiming damages for trespass to his land, plot No 131 Dansoman and an order for perpetual injunction. One Garibah Amissah joined that action as co-defendant. On 18 February 1982 the circuit court gave judgment in that suit No CCL 68/76 in favour of the plaintiff.

The defendants appealed against the circuit court’s decision. At the Court of Appeal the parties settled the matter out of court and filed terms of settlement varying the circuit court’s judgment. The contents of the terms of settlement is in evidence as exhibit D in the present case and it reads as follows:

“(1) That judgment is hereby entered for the plaintiff-respondent in respect of the area edged blue on exhibit Y (plan B) as per the plaintiff-respondent’s document No 1018/77 dated April 1974.

(2) That the order of perpetual injunction granted by the said court is to relate to the area edged blue on exhibit Y.

(3) That the award of damages of 41,000 for trespass is to stand.

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(4) That Mr E A Addo, a licensed surveyor of Asylum Down, Accra is to physically demarcate the area edged blue on exhibit Y.”

Exhibit Y was an exhibit in the suit before the circuit court. The Court of Appeal entered consent judgment on the above terms on 7 May 1985.

In executing the above judgment the licensed surveyor, Mr EA Addo, made attempts to demarcate the area adjudged to be plaintiff’s on 27 September 1983 in the presence of all the parties. He submitted a report which is in evidence in this case as exhibit E. By the said report the physical demarcation of plot No 131 by the site plan attached to the plaintiff’s lease agreement from the State Housing Corporation is faulty and inconsistent with the description of plot 131 in the schedule to the same document. Plot 131 if demarcated physically by the said site plan affects three existing houses and a road. What is contained in the site plan does not conform with the existing general pattern of the State Housing Corporation layout of the area.

Subsequently, the plaintiff applied to the Court of Appeal for a review of the consent judgment. This application was dismissed. The plaintiff sued the State Housing Corporation for an order of rectification of the site plan attached to his lease agreement. He obtained this order and the rectified site plan was approved by the High Court. The plaintiff then applied to the Court of Appeal to have the consent judgment set aside. This application was dismissed by the Court of Appeal on the ground that it has no jurisdiction to deal with the matter.

The plaintiff therefore brought this fresh action in this court praying for the following reliefs:

“(1) an order setting aside the terms of settlement and consent judgment of the Court of Appeal in civil suit No 16/83 dated 7 May 1985 on the ground that the basis of the settlement and judgment was made under mistaken belief on the part of the parties that the area edged blue on exhibit Y existed.

(2) A declaration that the defendants are estopped per rem judicatem by the judgment of the Circuit Court, Accra

[p.34] of [1999-2000] 1 GLR 29 dated 18 February 1982 from laying claims to plot No 131. [The plaintiff abandoned this relief in the course of the trial].

(3) A declaration of title to all that piece or parcel of land known as plot 131 Dansoman Estates. Also described in the land title certificate as parcel No 57 and 58, Block 2, Section 56/1.

(4) An order of recovery of possession of the said land.

(5) An order of perpetual injunction restraining the defendants, their servants, agents and assigns from their continued occupation or trespass to the property.

(6) General damages for trespass.”

The defendants deny all the claims by the plaintiff and contend that the plaintiff is estopped by the consent judgment entered by the Court of Appeal from bringing the present action.

It is necessary at this stage to consider the issue as to whether this action is properly before this court, and whether this court has jurisdiction to entertain the suit. Counsel for the plaintiff in his address justified the institution of this action on grounds that the consent judgment of the Court of Appeal was given on mutual mistake on the part of the parties. In such a situation, a consent judgment can be set aside and the lawful method by which the plaintiff can set aside the consent judgment is to institute a fresh action. Counsel quoted Halsbury’s Laws of England (4th ed) Vol 26, para 562 and the English cases of Allcordsic(1) v Walker [1896] 2 Ch 369 and Huddersfield Banking Co Ltd v Henry Lister & Son Ltd. [1894] 2 Ch 273 and the Ghanaian case of Guardian Assurance Co Ltd v Bridi [1975] 2 GLR 387 to support his argument.

The law as stated in Halsbury’s Laws of England (4th ed), Vol 16, pp 286-287, para 562 on this issue is as follow:

“A judgment given or an order made by consent may be set aside in a fresh action brought for the purpose, on any ground which would invalidate a compromise not contained in a judgment or order. Compromises have been set aside on the ground that the agreement was illegal as against public policy, or was obtained by fraud or misrepresentation, or non-disclosure of material fact which there was an obligation to disclose, or by

[p.35] of [1999-2000] 1 GLR 29 duress or was concluded under a mutual mistake of fact, ignorance of a material fact or without authority…

Unless all the parties agree, consent orders, when entered, can only be set aside by a fresh action, and application cannot be made to the court of first instance in the original action to set aside the judgment or order, except, apparently, in the case of an interlocutory order. Nor can it be set aside by way of appeal.”

The law makes it expressly clear that a consent judgment can be set aside where it was obtained illegally and against public policy, or where it is obtained by fraud or misrepresentation. Other circumstances under which it can be set aside include the following: where a material fact that ought to be disclosed was not disclosed, where it was obtained by duress or where it was concluded under mutual mistake of fact. The plaintiff’s stand in this case is that the parties to the consent judgment in question agreed on the terms under mutual mistake of facts.

The law further stipulates the process by which a consent judgment can be set aside. That is by institution of fresh action. It cannot be set aside by way of appeal. It is for this reason that the Court of Appeal dismissed the plaintiff’s application to that court to have the consent judgment set aside saying it has no jurisdiction to determine the application.

The issue that arises here and which I have to determine at this stage is whether the agreement upon which the Court of Appeal entered the consent judgment was reached on a common mistake of facts. What are the facts underlying the said consent judgment? They are: that the plaintiff herein was to have the land covering the area edged blue on exhibit Y, plan B. The defendant was perpetually restricted from entering this land. A licensed surveyor was to physically demarcate the area edged blue on exhibit Y on the ground. Exhibit Y is the superimposed plan drawn by the surveyor in the suit in the circuit court that went on appeal. The area edged blue is the plaintiff’s land as shown by his site plan on exhibit Y. It turned out that what pertains on the ground does not correspond with the plaintiff’s site plan. If the physical demarcation is carried out, the area edged blue (which should be the plaintiff’s land) falls on a road and three other existing buildings of other property owners. This means that what the consent judgment gave to the plaintiff did not

[p.36] of [1999-2000] 1 GLR 29 exist. It is obvious that when the parties agreed in the consent judgment that the plaintiff should take the area of land shown on exhibit Y by his site plan they both believed that the situation as disclosed by the site plan existed.

It had been proved by the surveyor that it was impossible to physically demarcate the portion the court ordered him to demarcate to the plaintiff because the situation is different on the ground. There is no doubt that the parties would not have agreed if they were aware of the situation as it existed on the ground as narrated above. The consent judgment was given on 7 May 1985. That both parties acknowledged the existence of the mistake is borne out by a letter from the State Housing Corporation, grantors of the land, dated 4 May 1987 addressed to the parties and tendered in this case as exhibit R which reads: “We refer to your respective lawyers letters requesting the State Housing Corporation to resolve the prolonged litigation over the true and accurate position of plot 131 (property of Dr Alfred Lutterodt situated at Dansoman Estates, Accra”

There was a further letter from the State Housing Corporation dated 7 September 1987 marked exhibit R1 inviting the parties to be present at redemarcation of plot 131 by the corporation.

Apart from the obvious fact that, had the parties known the true and accurate position of plot 131 at the time they signed the terms of settlement that the Court of Appeal confirmed as the consent judgment they would not have done so, there are exhibits R and R1 confirming that the parties were not aware of the accurate position of plot 131 when they signed the terms of settlement that resulted in the consent judgment. The second defendant in her evidence in chief in this case denied that there was a mistake as to the position of plot 131 at the time they signed the terms of settlement. In her evidence in cross-examination however the second defendant who gave evidence on her own behalf and on behalf of her husband, first defendant admitted that there was a mutual mistake. I will quote her evidence in cross-examination on this issue:

“Q You agree that one Mr E A Addo, a surveyor, was ordered to physically demarcate the land and report to the court?

A Yes.

[p.37] of [1999-2000] 1 GLR 29

Q You are aware that the Surveyor carried out the physical demarcation and presented a report to the registrar of the court of Appeal?

A I am not aware.

Q You know as a fact that the first report of Mr E A Addo, exhibit Q was served on your solicitor?

A Yes.

Q In that report Mr. EA Addo used the schedule in the plaintiff’s document for the physical demarcation?

A Yes.

Q You are aware that your solicitor requested a second physical demarcation based on the site plan in the plaintiff’s document?

A Yes Q Mr E A Addo presented a second report on this second demarcation and that is exhibit E?

A Yes.

Q You agree with me that in exhibit E, Mr E A Addo detected an error shifting the plaintiff’s physical land onto a road and three other houses?

A Yes.”

It is clear from the defendant’s own evidence that it was upon the request of her solicitor that exhibit E that disclosed the error was made. A denial that the mistake exist is an afterthought. It does not also lie in the mouth of her counsel to say as he did in his address that Mr EA Addo had no authority to do a second demarcation resulting in exhibit E. That demarcation was done at the request of the defendant’s counsel at that time. It is my finding that at the time the parties had the consent judgment there was a mistake as to the accurate position of plot 131 which the plaintiff was adjudged to have. This mistake was acknowledged by the grantors, State Housing Corporation, who wrote letters to the parties after the judgment inviting them to meetings to have the mistake rectified. The terms of settlement between the parties upon which the Court of Appeal entered the consent judgment dated 7 May 1985, I find to be based on facts that never existed. The parties consented to the judgment upon a common mistake.

[p.38] of [1999-2000] 1 GLR 29

The remedy available to the plaintiff in such circumstance is to bring a fresh action to have the consent judgment set aside. This Suit therefore is properly before this court and the court has jurisdiction to set aside the terms of settlement and its resultant consent judgment dated 7 May 1985. The said terms of settlement and consent judgment are hereby set aside.

Having dealt with the issue of jurisdiction, it is important that I consider defence counsel’s submission in his address on the admissibility of the plaintiff’s attorney’s evidence. This is fundamental to any considerations I may make on facts presented by the plaintiff’s attorney in his evidence. The defence counsel submitted that Mr W L Lutterodt who gave evidence in this matter is the plaintiff, Alfred Theodore Lutterodt’s attorney. He ought as an attorney to have given evidence in the third person and not in the first person singular as if he were a party to the suit or a witness. Counsel relied on the Supreme Court decision in the case of Nii Boye v Adu [1964] GLR 410, SC and submitted that Mr Lutterodt’s evidence is inadmissible and should be expunged from the records.

In the Nii Boye v Adu case (supra) the court never considered the issue of the evidence of an attorney. The facts that gave rise to the decision of the Supreme Court in that case which counsel is urging upon this court are as follows: The defendant in that case was blind. The trial court permitted a representative to assist him and help him prosecute the action. When it came to the defendant’s turn to give evidence he took the oath but did not give evidence himself. His representative entered the witness box and gave unsworn evidence and spoke as if he were the defendant. The Supreme Court held such an evidence is inadmissible.

The situation in this case is different. Mr W L Lutterodt was given a power of attorney by the plaintiff to prosecute this case on behalf of the plaintiff. Stroud’s Judicial Dictionary (4th ed), Vol 4 at p 2075 defines power of attorney as “an authority whereby one is ‘set in the turns, stead or place of another’ to act for him.” Thus Mr W L Lutterodt has authority to act for the plaintiff in this matter. In this court the plaintiff’s attorney’s evidence does not consist of account of what the plaintiff did in respect of the land in dispute. From the evidence the attorney acted for the plaintiff from the time of the acquisition of the land and in all other matters involving the land till today. His evidence therefore a narration of what he did

[p.39] of [1999-2000] 1 GLR 29 himself in respect of the land, what is within his personal knowledge concerning the land. The situation that arose in the Nii Boye v Adu case (supra) is far different from the circumstances in this case. I find the defendant’s counsel’s submission to be a misconception of the law. The plaintiff’s evidence is admissible and I will rely on it in determining the rest of the issues at stake.

The next question to determine is whether the plaintiff is entitled to his claim of declaration of title to the land in question. At the end of considering this claim, I hope all other issues raised by the pleadings and set down in the summons for direction for trial would have been determined as well. The plaintiff ‘s evidence per his attorney before me on the issue of title to plot No 131, Dansoman is as follows: In 1974 the State Housing Corporation granted the plaintiff a lease of the plot in question. He was given a lease agreement, exhibit B, by his grantors. He started developing the southern portion of the land and later saw that the defendants were about to start development on the northern portion of his land. They had deposited sand and stone on the site. He took steps to stop them from developing the land. He wrote to them, he reported the matter to his grantor’s, the State Housing Corporation, who asked them to stop developing the land. They paid no heed. He made a report to the police whose warnings the defendants took no notice of either. He therefore instituted an action in the circuit court claiming damages for trespass and perpetual injunction against the defendants. The circuit court gave judgment in favour of the plaintiff and perpetually restrained the defendants from entering the land, that is plot No 131. The proceedings in the suit before the circuit court and the judgment from the circuit court are in evidence as exhibit C.

In further proof of the grant of plot No 131 to the plaintiff by the State Housing Corporation, the plaintiff relied on the evidence of the assistant surveyor of the State Housing Corporation, Mr Samuel Koate Gyebi (deceased) in the circuit court suit. It is in evidence that the present officials of the State Housing Corporation cannot give evidence in this matter because they are not in the know of the facts, and all former staff of the State Housing Corporation have been laid off and the file on the matter cannot be found. The only evidence the plaintiff can produce from the State Housing Corporation is the evidence of Mr Gyebi (deceased), which evidence section 118 (1) (b) (i) of the Evidence Decree, 1975 (NRCD 323)

[p.40] of [1999-2000] 1 GLR 29 permits the court to admit. By Mr Gyebi’s evidence in the circuit court suit, the area where plot No 131 is located was acquired by the government for the State Housing Corporation by Executive Instrument No 27. Mr Gyebi’s evidence further says plot No 131 was leased to the plaintiff by the State Housing Corporation. Mr Gyebi said he visited the site because of complaints made by the plaintiff. He observed that the position of plot No 131 does not tally with the site plan attached to the lease agreement.

According to the plaintiff, though the State Housing Corporation admitted the site plan was faulty and promised to rectify it, they refused to act though he requested them to do so. He took an action in the High Court and got an order from the High Court asking the State Housing Corporation to rectify the site plan to conform with the layout of the area. The State Housing Corporation failed to comply with this order. The plaintiff then applied for and got an order requesting the regional surveyor of the Greater Accra Region to redemarcate the area and to submit a site plan for the approval of the court. The chief surveyor of the State Housing Corporation then submitted the layout of the area to the regional surveyor, who prepared the site plan that conforms with the layout. The rectified site plan of plot 131 was approved by the court. The court further ordered the State Housing Corporation to issue the plaintiff with a deed of rectification. Again the State Housing Corporation failed to do this. The plaintiff said he took alternative steps to regularise his title to the land, that is he applied to the Land Title Registry for a land title certificate. His application was processed and he was given a land title certificate which he tendered in evidence as exhibit O.

Against this evidence on the issue of title is the defendants’ evidence, given by the second defendants, Mrs Grace Mensah Nyarko on behalf of the defendant as follows: The land in question was granted to her by one Mr Amissah in 1972 as a gift. There was no document given her evidencing the gift but a customary covenant was entered into by Mr Amissah and her concerning the gift. Amissah broke a reed in the presence of his relatives as a symbol of the covenant and gift. She the second defendant in turn gave drinks as a form of thanksgiving for the land. The second defendant said she started developing the land in 1976. The plaintiff’s attorney at that time fetched water from her and never objected to her development of the land until she reached window level. The plaintiff’s attorney

[p.41] of [1999-2000] 1 GLR 29 then with the daughter and wife came to her house and quarrelled with her claiming the land was his. After this quarrel the plaintiff never objected to her development. The second defendant tendered a deed of conveyance, exhibit 3, as a document executed between her and her grantor, Mr Garibah Amissah.

The second defendant however admitted in cross-examination that Garibah Amissah did not sign documents, he only thumbprinted documents. The document, exhibit 3, was signed not thumbprinted. The second defendant admitted that the document was not signed by her grantor, Garibah Amissah, but Garibah’s son. She claimed exhibit 3 is the same document she had at the time of the suit in the circuit court. The second defendant was confronted with the proceedings in the suit in the circuit court to challenge her credibility.

Section 80 (1) of NRCD 323 permits the court to admit in evidence and consider “any matter that is relevant to prove or disprove truthfulness” of a witness. Section 80 (2) of NRCD 323 enumerates various matters that may be admitted, and statement or conduct consistent or inconsistent with the testimony of the witness at the trial is one of the matters numerated to be accepted in evidence to prove credibility of a witness. The evidence of the second defendant in the circuit court falls under this category of matters. In the circuit court, the document the second defendant gave the surveyor for the superimposed plan of the land in dispute is numbered AC/9123/76 dated 15 April 1976. Exhibit 3, the document she has tendered in this court as her title deed to the same land is numbered LVB 4692/93 dated 21 May 1974. In her evidence in this court the second defendant has said in one breath she was not given any document by her grantor, and in another breath she tendered exhibit 3, a deed of conveyance not a deed of gift, as a document executed by her and her grantor whose grant to her was a gift.

Exhibit 3 clearly is a red herring manufactured to mislead this court. The second defendant denied in cross-examination that she ever said anything elsewhere contrary to the evidence she gave to this court in this case. However when confronted by the evidence she gave at the circuit court on the same issues, it turned out that every statement she made in the present suit is contrary to the statements she made on the same issues in the earlier suit in the circuit court.

Contrary to what second defendant told the court as to how she acquired the land, in exhibit C, the proceedings from the circuit

[p.42] of [1999-2000] 1 GLR 29 court, her evidence on 5 May 1981 is that she does not own land any where. The land in dispute was acquired by her husband in 1973 from Amissah. She said she does not know how the husband acquired the land, and she does not know the dimensions of the land. Yet in the same exhibit C, the surveyor who prepared the superimposed plan said it was the second defendant, Mrs Mensah Nyarko who showed him the boundaries of the land she claims for the preparation of the superimposed plan. Though in her evidence in this suit the second defendant said she built the house they are living in now on the disputed land, she supervised the building from the start to completion, she said in exhibit C that it was the husband who built the house. She saw the house for the first time when it was at the roofing level.

Contrary to her evidence in this court that the plaintiff’s attorney fetched water from her when she was constructing her house and she took him to Tema Steel Works to purchase iron rods for his project, and that the plaintiff’s attorney and daughter and wife came to quarrel with her when her building was at window level, in exhibit C she said she had never met the plaintiff’s attorney and daughter and she saw them for the first time in the court. She had never met the wife at all.

In the case of Adwubeng v Donfeh [1996-97] SCGLR 660 the Supreme Court discuss the effect of tendering of evidence in a previous suit to support or attack the credibility of a witness. At 669 the court per Acquah JSC has this to say:

“where a witness is proved in a previous suit to have sworn to the contrary of what he testifies in a subsequent suit, two situations can arise. One is where the witness is unable to give a satisfactory account of the inconsistent testimonies; the other is where he gives an explanation which the trial judge accepts as reasonable for his former evidence. In the first case, the effect of the contradiction is to destroy his credibility and to render the evidence he gives at the subsequent trial negligible; but the earlier testimony or statement used to contradict his is not admissible evidence of the truth of the fact stated therein and is not evidence upon which the court should act to make findings of fact … In the second case, it will be for the trial judge to form his own opinion of the credibility and veracity of

[p.43] of [1999-2000] 1 GLR 29 the witness and either accept or reject the evidence given before him.”

The effect of the evidence of the defence before me in the face of the previous inconsistent testimony is that it is not worth its salt, it is negligible. The defence never offered any explanation to these inconsistencies, in fact Mrs Nyarko persistently denied on oath that she had ever said all that she said in her previous testimony until she was compelled to read her previous testimony aloud. It was only when what she read contradicted her denials that she admitted she had ever made those statements on oath. In fact she has proved herself to be a very untruthful witness.

The second defendant admitted in her evidence in cross-examination that when she attempted going on to the land in dispute she became aware later that the whole area was acquired by the government for the State Housing Corporation. She further admitted that she applied to the State Housing Corporation to grant her the piece of land in dispute but the State Housing Corporation has not up to today granted her any lease of the land.

It has been demonstrated to this court that whatever stories the defendants have about acquiring the land from Garibah Amissah are not true. It has also been proved that Garibah Amissah does not own the land in disputes. The State Housing Corporation are the owners of the land. By the defendants own admission the State Housing Corporation has not given them any grant. It follows then that by the defendants’ own admission they do not have any title to the land in dispute. They are trespassers. If trespassers, then the defendants have no basis challenging the plaintiff’s application to the Land Title Registry for the certificate. It is not therefore a surprise that the plaintiff was granted the title certificate without any hindrance.

It is in evidence that the second defendant operates a restaurant opposite the Land Title Registry and most of the workers at the Land Title Registry take their meals at her restaurant. The land certificate exhibit O was issued to the plaintiff in respect of plot No 131 on 15 July 1992. An objection to the issue of the certificate the second defendant said she wrote to the Chief Registrar of Lands, exhibit 4, is dated 11 June 1993. The Chief Lands Registrar’s reaction to the objection is dated 24 March 1995. That is about two years after the objection. A representative of the Chief Lands Registrar gave

[p.44] of [1999-2000] 1 GLR 29 evidence as the first defendant witness and told this court that where an objection is raised in respect of a land certificate they have issued they notify the holder of the certificate of the objection within one month. The Chief Lands Registrar in their March 1995 letter to the plaintiff in reaction to the letter of objection written by the second defendant requested the plaintiff to return the land certificate on the grounds that they had noticed there was a sharp difference in the site plan attached to the document. As at that time the mistake in the plaintiff’s site plan had been rectified and the first defendant witness admitted that the time they wrote to the plaintiff to return the certificate the Chief Lands Registrar was not aware that the site plan had been rectified and if they were aware of that, their position would have been different.

My findings from the facts before me in respect of the issue of the defendants’ objection letter to the Chief Lands Registrar is that that objection letter was not written on the date indicated on it. It was manufactured for the purposes of this suit and back-dated. With her familiarity with officials of the Land Title Registry, the second defendant got the Chief Lands Registrar to write the various letters she tendered in evidence. The objection of the issuing of land certificate to the plaintiff has no basis in that the defendants have admitted in their evidence that they have no title document on the land and the State Housing Corporation, the owners of the land, never made any grants to them. How then can the defendants who have no root of title effectively challenge the title holder from the State Housing Corporation of the same land. I find as a fact that the defendants never challenged the issuing of the land certificate to the plaintiff. The plaintiffs land certificate I find was validly obtained and the Chief Lands Registrar had no basis to withdraw the certificate issued to the plaintiff.

State Housing Corporation had confirmed in exhibit C that by their records plot No 131 belongs to the plaintiff. The only circumstance that existed which the defendant took advantage of and had remained on the land till this time is the mistake in the plaintiff’s site plan, a mistake that was not his doing. A mistake the State Housing Corporation admitted but failed to rectify for years. That mistake has been rectified and the right position of plot No 131 has been identified. The defendants’ building is on plot No 131. The defendants have not produced an iota of evidence in proof of their

[p.45] of [1999-2000] 1 GLR 29 title to plot No 131. The plaintiff I find has securely proved his title to the land, that is, plot No 131. The land certificate exhibit O confirms an indefeasible title on the plaintiff. The defendants I find to be trespassers and the plaintiff is entitled to his claim of recovery of possession.

The defendants have erected a building on the land and have lived there since 1977 according to them. Will the provision of the Land Development (Protection of Purchasers) Act, 1960 (Act 2) protect them or will they suffer hardship and injustice if the plaintiff is granted recovery of possession of the portion of the land they are occupying? Counsel for the plaintiff submitted in his address that Act 2, does not apply to Dansoman and therefore cannot avail the defendants. By section 4 of Act 2, the law, that is Act 2 is applicable to areas designated by the Minister of Works and Housing by legislative instrument. The Land Development (Protection of Purchasers) (Accra Prescribed Area) Instrument, 1961 (LI 118) was passed by the Minister of Works and Housing. The designated areas in the Schedule to LI 118 do not include Dansoman Estates. I do not think the Dansoman Estates was developed in 1961, the time this legislative instrument was passed. Act 2 therefore is not applicable to the area in question in this suit and the defendants cannot be protected by the Act.

The evidence before me is that since 1976 when the defendants entered the land the plaintiff protested and warned them, made reports to the police and eventually in that year instituted an action in the circuit court against the defendants, that is suit No 68/76. In spite of all the warnings and the court action the defendants went ahead and built on the land. The circuit court gave judgment against the defendants and perpetually restrained them from entering the land, this was in February 1982. The consent judgment of May 1985 gave ownership of plot No 131 to the plaintiff and confirmed ‘the circuit court’s decision on award of damages for trespass and the order of perpetual injunction. It is clear that throughout the years of protracted litigation it has been made manifestly clear to the defendants’ that they are trespassers to plot No 131.

The undisputed evidence before me apart from the above is that there is no access to the portion the defendants built on except through the plaintiff’s gate. That alone should have put any prudent purchaser in the know that all is not well. If in the face of all the [p.46] of [1999-2000] 1 GLR 29 warnings and litigation and the realisation that the area had been acquired by the government and therefore whosoever gave the land to them is not the true owner, the defendants took the risk to build, it means they are ready for the consequences and they will have themselves to blame. The reasonable step any prudent purchaser would have taken would be to suspend any development until the issue of title was resolved. This the defendants failed to do. They have to accept the result of their recklessness. The defendants in building on the disputed plot despite all the warnings and court action did not act in good faith. Even in cases where Act 2 is applicable, the case law is that where a defendant erects a building on a land fully conscious of the risk in such an act, Act 2 will not avail him: see the case of Ntem v Ankwanda [1977] 2 GLR 452.

The plaintiff, I find, has successfully proved all his claims. Judgment is hereby entered for the plaintiff on all his reliefs. It is hereby ordered that the defendants vacate the land and give vacant possession to the plaintiff. The cost of removal of their building on the land is to be borne by the defendants.

On the question of damages for trespass, the trespass had been continuing since 1976. The plaintiff had been deprived of developing the portion of the land the defendants occupied for years. This court granted an interim injunction upon application by the defendants that the plaintiff was carrying out development on the land during the pendency of the suit. It is part of the plaintiff’s evidence that cement he had bought for that development caked as a result of the Court order. I will take into consideration these factors and the rate of inflation over the years that the plaintiff has been prevented from developing his land due to the trespass on the part of the defendants in the award of damages and consider 45 million damages as appropriate. The plaintiff is hereby awarded 45 million damages for trespass and costs of ¢2 million. The defendants, their servants, heirs and assigns are hereby perpetually restrained from their continuing occupation of plot No 131 Dansoman and continuing trespass to the said land.

DECISION

Judgment for the plaintiff.

LSNA

Endnotes

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