TOP KINGS ENTERPRISE LTD v. ADRAIN NII ODOI ODDOYE & ANOTHER
March 10, 2022
COURT OF APPEAL
GHANA
CORAM
- SENYO DZAMEFE JA PRESIDING
- P. BRIGHT MENSAH JA
- JENNIFER DODOO JA
Areas of Law
- Property and Real Estate Law
- Civil Procedure
- Evidence Law
- Tort Law
March 10, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal decision concerns a land dispute at Oyarifa, Accra between the Oddoye family and defendants Robert Bosco, Top Kings Enterprises Ltd, and Rev. Christopher Okpoti, a representative of the Agbawe Owusu We family. The High Court found that the Oddoyes’ late father held a valid customary grant of 5.64 acres obtained in 1979, in addition to a separate 40-acre parcel, and that they maintained long possession marked by physical demarcations and agricultural use. On appeal, the majority held the 2nd defendant never properly filed a notice of appeal (no filing/bank stamps; not filed in the court below), foreclosing appellate jurisdiction. The 3rd defendant’s non-compliant grounds were struck out, but the Court proceeded on the omnibus ground. The majority affirmed the High Court, ruling that registration under PNDCL 152 cannot defeat a prior grant, applying nemo dat to invalidate the later sale and assignment, finding no fraud, and confirming trespass by the 2nd defendant. Dzamefe JA dissented, would have treated defendants’ registered titles as prevailing and allowed the appeal.
BRIGHT MENSAH JA:
My Lords, two (2) important issues arise in the instant appeal for our active consideration. The first is whether the 2nd defendant being aggrieved with the judgment of the High Court [Land Division], Accra delivered 27/04/2018, took the necessary legal steps to appeal against the judgment to have the adverse decision overturned in his favour on appeal. The second is the consequence of 3rd defendant’s failure of, or default in filing written submissions in compliance with rule 20(1) of the Court of Appeal Rules [CI 19] after filing his notice of appeal. Is it the case that the 3rd defendant did not want to pursue his appeal or has abandoned it?
These introductory remarks are against the backdrop of two purported notices of appeal on the docket; one from the 2nd defendant and the other filed by the 3rd defendant. Significantly, the appeal by the 2nd defendant has been called into question on the ground that it is not properly filed thus, this court cannot pronounce on it for lack of jurisdiction. In this appeal, the parties shall maintain their designations. That is to say, the plaintiffs shall continue to be referred to simply as the plaintiffs and the defendants, the defendants.
The writ:
It is noted that the plaintiffs initially mounted the suit against Robert Bosco only as the defendant. Per the endorsement on the writ of summons, the plaintiffs claimed:
1. Damages for trespass.
2. An order of perpetual injunction to restrain the defendant, his
agents, privies and assigns from entering unto or in any way
disturbing the plaintiffs and their caretakers possession of the
land. Land as described in paragraph 3 of the statement of
claim is:
………..all that piece of land situate at Oyarifa Accra and
covering an area of 5.64 acres and bounded on the North West
by land measuring 420 feet more or less, on the North East by
the land measuring 575 feet more or less, on the South East
by the land 420 feet more or less, and on South West by the
land measuring 575 feet more or less.
3. An order canceling the Land Certificate No. GA 46749, volume
59. folio 375 issued by mistake to the defendant.
4. Costs including legal costs.
See: pp 1 – 4 of the record of appeal [roa].
Upon being served with the plaintiffs’ writ and the statement of claim, the 1st defendant entered appearance, filed a defence and counterclaimed as well as follows:
A declaration that defendant is the owner of ‘all that piece or parcel
of land situate