JHAMATMAL TEJUMAL KHUBCHANDANI v. SAMIR KALMONI
2012
COURT OF APPEAL
GHANA
CORAM
- ASARE-KORANG, J.A.(PRESDING)
- OFOE, J.A
- HONYENUGA, J.A
Areas of Law
- Property and Real Estate Law
- Equity and Trusts
- Evidence Law
- Civil Procedure
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal judgment, authored by OFOE, J.A., resolves a land title dispute over a 2.39-acre parcel at Jankama on the Aburi Hills between Kishin and the defendant/appellant, who claimed through Emma Enyonam Ocloo. Kishin relied on a 1960 conveyance from the Oyoko family and Jankama stool, asserting continuous control via a caretaker, while the defendant pointed to developments by his grantor and his own 1997 registration. The Court addressed six appellate grounds: acquiescence, possessory rights, bona fide purchase without notice, notice and priority of registration, and alleged fraud. Applying equitable and evidentiary principles, the Court held that acquiescence was not proven, possession alone cannot defeat an earlier better title, constructive notice principles required broader searches beyond Koforidua, defendants later notice showed an encumbrance, registration affords no state-guaranteed priority, and fraud lay with vendors who purported to resell previously conveyed land. The appeal was dismissed and the High Court’s judgment affirmed.
J U D G M E NT
OFOE, J.A:
The plaintiff/ respondent who I will hereinafter refer to as the plaintiff sued the defendant/ appellant in respect of a 2.39 acre land situated on the Aburi hills, Eastern region, specifically, Jankama for:
“A declaration of title to that piece or parcel of land situate lying being at Jankama, Aburi Akwapim in the Eastern Region of the Republic of Ghana and bounded on the North by the property of G.R.M.Francois measuring 487 feet more or less on the south by property of Oyoko Family measuring 490 feet more or less on the East by the property of Oyoko Family measuring 235 feet more or less and on the West by Accra Aburi main trunk road measuring 200 feet more or less and covering an area of 2.39 acres.
b. Damages
c. Perpetual Injunction
d. Recovery of Possession”
By his pleadings he got a conveyance of this land in 1960 from the elders of the Oyoko family and the Jankama stool. He subsequently got the conveyance registered as No 4207/97. He claims he did not leave this land unattended to but that he had a caretaker on it. Not until 1997 when he discovered that the defendant was erecting a wall over this land there had never been any intruder unto this land. Since the events that unfolded subsequently convinced him the defendant was determined to covert this land to himself he had no option than to seek the courts intervention.
Defendant/appellant, hereinafter referred to as the defendant, traces his root of title from a 1976 conveyance of his grantor, a Emma Enyonam Ocloo, whose conveyance is registered as No 4650/1985. When he got his grant from Madam Ocloo in 1996 he also caused it registered as No. 1801/1997. In his pleadings he raised the statute of limitation, contending that plaintiff’s action is statute barred due to effluxion of time and also the defence of laches and acquiescence. He further questioned the plaintiff’s registration with number 4207/1997 as procured by fraud.
After full trial the High Court judge was convinced of plaintiff’s claim and gave him judgment dismissing the defendant’s counterclaim. The defendant is on appeal to this court against this decision and prays that we set aside the whole judgment of the trial court and instead give him judgment on his counterclaim. He has six grounds for such a prayer. I will reproduce them:
“1.The learned trial judge erred in law in holding contrary to the evidence before the court that the plaintiff/ respondent presented at the Deed Registry in Accra in 1960