SAMUEL BROOKMAN AMISSAH VS JONATHAN NARH DOWUONA & 1 ors

Both Plaintiff and 1st Defendant claimed to have acquired the disputed land from one E. Q. Nortey, the then acting Osiahene and Acting Osu Mantse in 1998. 2nd Defendant is a grantee of 1st Defendant.

It is instructive to observe however, that while Plaintiff acquired the land in September 1998 according to Exhibit “B”, 1st Defendant acquired the land in December 1998 according to Exhibit “1” from the same Osu Stool.

The trite land law as espoused in several cases including the case of Brown v. Quarshigah (2003-4) SCGLR 930 favors Plaintiff as Plaintiff was the first in time to have been granted the land by the Osu Stool in September 1998. The law postulates that when a land owner grants land he/she cannot purport to grant the same land to another person later, the reason being that the earlier grant has the effect of divesting the owner of whatever interest he/she might have had in the land and so he would have nothing in the land to purport to grant the same land the second time.

This law is expressed in the Latin maxim nemo dat quod non habet, you cannot give something you do not have.

It bears emphasis therefore that Plaintiff appears to have acquired better title than 1st Defendant.

But there is a fundamental fact that would not make any title or interest supposedly acquired by both Plaintiff and 1st Defendant in 1998 cognizable under the law.

That is that as far back as 1979, the Government of Ghana (GOG) under an Executive Instrument had already compulsorily acquired vast piece of land including the land the Plaintiff and 1st Defendant are claiming.

On the pleadings the parties appear to agree that in 1979, GOG through due process acquired that part of Osu Stool land including the one in dispute.

In paragraph 3 of the Statement of Claim, Plaintiff stated that “… he later got to know that the land which is within a larger parcel of land was acquired under an Executive Instrument by the Government of Ghana on 12th April 1979…” and in paragraph 4 of the Statement of Defence, Defendants 3 responded “Save for the fact that the subject matter of this suit is within a larger parcel of land acquired under an Executive Instrument of Ghana…”By the state of the pleadings it is a point to state that both parties concede that in 1979, the land ceased to be Osu Stool land by virtue of the compulsory acquisition by GOG and for that matter by operation of law.

What is this law? I am referring to the law stated by the Supreme Court in the case of Memuna Moud