EMMANUEL ADJEI MENSAH v. NUUMO ADJEI KWANKO II & ORS
January 31, 2019
COURT OF APPEAL
GHANA
CORAM
- F.G. Korbieh, J.A. (Presiding)
- Cecilia H. Sowah (Ms), J.A.
- Merley A. Wood (Mrs.), J.A.
Areas of Law
- Civil Procedure
- Property and Real Estate Law
January 31, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In the Ghana Court of Appeal, F.G. Korbieh, J.A., addressed an appeal by a principal member of the Tsie We family of Teshie seeking to protect land he claimed was exclusively Tsie We. He sued Nuumo Adjei Kwanko II (Ayiku and Osabu Wulomo and spiritual head of Kle Musum Quarter), an incorporated real-estate company that allegedly trespassed, and a registrarial 3rd defendant over an indenture dated 15 June 2016. The High Court dismissed the suit as frivolous and caught by res judicata. On appeal, relying on Koranteng II v. Klu and Kwantreng II v. Klu, the court held Kle Musum Quarter land is vested in Tsier-We and that the Wulomo with elders alone may alienate; the 1st defendant had capacity, and the jurat objection failed under section 9 of the Illiterates Protection Act as the instrument was prepared by a solicitor. Estoppel per rem judicatam barred re-litigation; costs were proper; the appeal was dismissed unanimously.
F.G. KORBIEH, J.A.
The plaintiff/appellant in this case (hereinafter referred to only as the plaintiff) issued the writ of summons and statement of claim in his capacity as a principal member of the Tsie We family of Teshie, Accra and sued for and on behalf of the said family.
He sued the 1st defendant whom he described as “the Ayiku and Osabu Wulomo of Teshie as well as a member of the Tsie We Family and the Spiritual Head of the Kle Musum Quarter of Teshie”.
The plaintiff also joined the 2nd defendant (an incorporated legal entity “believed to be engaged in real estate development”) to the suit because, according to him, it had trespassed on the land in dispute which belonged to the Tsie We family.
Also joint to the suit was the 3rd defendant.
According to the plaintiff’s narration of events in his statement of claim, the Tsie We family is one of the five constituent family units of the Kle Musum Quarter of Teshie but each family unit has its family head (or head of family); accordingly, headship of the Kle Musum Quarter and the Tsie We family are never held by one and the same person at the same time.
In view of the fact that there is rivalry for the headship of the Tsie We family between the 1st defendant, one Nii Nortey Sedua and one Nii Agor Adjei, the plaintiff brought the action in court in order to protect the family’s land.
The said family land is exclusively owned by the Tsie We family and not jointly with the Kle Musum Quarter and was registered in the name of that family with Land Certificate No.GA 14112 in Land Register Volume 02, Folio 213 issued on 17/8/1998.
In a number of cases, it was decided that the 1st defendant was not and could not act as head of family of the Tsie We family.
And yet by an indenture dated 15/6/2016, the 1st defendant, in purporting to act as the head of family of the Kle Musum/Tsie We family, granted the land in dispute to the 2nd defendant.
The indenture is a nullity since the 1st defendant, who is an illiterate, thumb-printed it without a jurat which is in breach of the Illiterates Protection Act.
Besides, the Kle Musum Quarter has no interest in the land in dispute to grant to the 2nd defendant.
The 3rd defendant also registered the defective indenture for the 2nd defendant thus making the registration of the indenture a void and null act.
The registration of the land in dispute by the 3rd defendant for the 2nd defendant was by mistake.
The 1st defendant’s conduct in persistently dealing with Tsie W