THOMAS AWINE AKURUGU vs ALHAJI OSMAN & ORS
February 13, 2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP K. A. GYIMAH, JUSTICE OF THE HIGH COURT
Areas of Law
- Property and Real Estate Law
- Equity and Trusts
- Civil Procedure
- Evidence Law
February 13, 2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Before the High Court, presided over by His Lordship K. A. Gyimah, an application for interlocutory injunction sought to restrain further development on disputed land. The applicant relied on Exhibit B, described as an indenture confirming a purported customary grant allegedly made by Joseph Amon Kotey in 2013. The court examined Exhibit B and found it was a Deed of Assignment dated 10 February 2011 but signed in 2013 by the assignor and the applicant. The oath of proof was sworn in April 2011 claiming a witness saw execution then, contradicting the 2013 signature dates. Citing authorities on the nature and effect of customary grants, and applying equitable maxims, the court held the document suspicious, refused injunctive relief, stressed courts do not make useless orders given the land was already developed, and awarded GH a21,000 costs to the defendants.
In paragraph 4 of the plaintiff’s affidavit in support, the plaintiff avers that he got a customary grant of the land in dispute from one Joseph Amon Kotey in 2013 and he further states in paragraph 5 that the said Joseph Amon Kotey gave him an indenture to confirm the said customary grant.
The authorities are clear that a customary grant can be reduced into writing but when it is reduced into writing, it is effective still as a customary grant and it takes effect from the original date of the grant and not from the date of the documentation.
Brown v. Quarshigah [2003-2004] SCGLR 930, Sarkodie v. FKA Co.
Ltd [2009] SCGLR 65, and Dovie & Dovie v. Adabanu [2005-2006] SCGLR 905 refer.
The said indenture confirming the grant is attached as Exhibit B. While the supposed customary grant was made in 2013, the document confirming the grant is dated 10th February 2011, two years before the said customary grant.
The said document is also a Deed of Assignment and it does not make any reference to a supposed customary grant.
This grant to the plaintiff to all intents and purposes is an assignment which is a common law interest and not a customary grant.
The document was also signed by the Assignor on 6th July, 2013 and by the plaintiff (Assignee) on 17th August, 2013. Thus while the document is dated 2011, it was executed by the parties in 2013. This generally is not a problem but the problem however arises when one analyses the oath of proof.
Even though it is stated clearly on the document that the Assignor signed it on 6th July 2013, the oath of proof was supposedly sworn to on 17th April 2011, about two years before the Assignor signed the document.
The oath of proof also states that the witness was present when the said Assignor executed the document on 17th April 2011. This statement on oath is contradictory to the date indicated against the signature of the Assignor as the date he signed the document.
Though counsel for plaintiff has asserted that fraud cannot be proved only by affidavit evidence which is largely true, my assessment of Exhibit B, the document plaintiff relies on and upon which he has brought this application, leads me to one conclusion, that it is a suspicious document and I cannot, based on the issues raised, grant an equitable remedy on a suspicious document as the maxim goes – “he who comes to equity must come with clean hands”. Furthermore, the application is to prevent the defendant from further developing the land.
The ev