The Herald‘s follow-up into the land dispute between the Nii Dodoo Clottey Family of Pokuase and a Ghanaian real estate company, ACP Estates Limited has revealed some interesting details.
Amongst these is that the Accra High Court, presided over by Justice Kwame Gyamfi Osei, did not give out all 600-acre land to the family, represented by the four plaintiffs, as narrated by Carl Richards, ACP Estates’ Executive Chairman to The Herald website moments after Justice Gyamfi Osei’s judgement at the High Court, Land Division (10) on 10th March 2023.
The court upheld a relief sought by the Defendants in their counterclaim for abrogation of the JVA, since the Plaintiffs had failed to perform their obligations under it hence the defendants were to repossess the undeveloped areas of the 200 acres under the JVA.
Contrary to the claims of the company that the judge had engaged in “corporate killings”, a copy of the judgement available to The Herald confirms that the trial judge, rather took steps to safeguard the interest of ACP Estates in the 200-acre land saying, “since pockets of the empty spaces and undeveloped portions of the 200 acres as depicted on Exhibit CE4 stands to benefit from these amenities and same would impact the values of those lands, it would be fair and just that the Plaintiff keeps those lands without paying for their actual values.
The court additionally held that the Plaintiff shall however “pay the rents for the 276 houses it has built on the land till the duration of the lease runs out. Similarly, since the evidence shows that the Plaintiff has sold the houses to third parties who are not parties in this proceedings they shall keep their properties subject to the Defendants family’s reversion”.
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It has also emerged from Justice Osei’s 38-page judgement that two of the four plaintiffs that represented the Nii Dodoo Clottey Family of Pokuase filed to join the court action after two members of the family, Nii Amoo Dodoo and Stephen Amponsah Dodoo had been dragged to court by ACP Estates. The two were dragged to court in a civil action for trespassing portions of their ancestral land, which was leased to the real estate company some 32 years ago, under a Joint Venture Agreement (JVA).
The JVA was aimed at developing the said family’s 600-acre land into an integrated modern residential estate with drains, roads, and electricity and water amenities.
Various members of the family whom The Herald interacted with were visibly incensed that the management of ACP Estates had for years failed to fulfil certain obligations under the agreement, yet rather mounted a 7-year lawsuit against them. This was after attempts to reconcile their differences arising from the company’s breach proved futile.
The meetings and negotiations, The Herald was informed, had gone on for about three years, with some involving the Ghana Police Service at Pokuase. Interestingly, Justice Gyamfi Osei was the third judge to sit on the case and concluded it.
It also emerged in court that despite the collapse of the talks between the parties, there was one instance of meeting of minds when ACP Estates, led by its Executive Chairman, Carl Richards and Nii Amoo Dodoo, third defendant jointly worked on a 13- million Cedi Compensation package from the Government of Ghana and shared the proceeds.
Interestingly, “as consideration for the JVA, 200 acres out of the 600 were leased for a period of 99 years to the Plaintiff by the Defendants family for its benefit. A separate Lease Agreement was entered into on the same day in respect of the said 200 acres. The Plaintiff claiming that the 1st and 2nd Defendants (Nii Dodoo Amponsah and Isaac Dodoo) have trespassed onto portions of its 209 acres mounted the present action against them on the 22nd of September 2016”.
The Herald is informed that the management of ACP Estates initiated the court action against Nii Amoo Dodoo and Stephen Amponsah Dodoo, after discussions between it and the Dodoo Clottey family broke down.
The talks between the two parties became necessary after it was realized that the management of ACP Estates aside failing to extend electricity, water as well as construct drains into the 400-acre portion, had “appropriated” land outside the 200 acres it was given by the Nii Dodoo Clottey family.
Members of the family “therefore entered the 200 acres and carved out 21 acres to replace what the Plaintiff unlawfully took from their family’s portion of the land as replacement”, and further claimed that plaintiff had breached the JVA and the lease agreement. The third and fourth defendants countersued the plaintiff.
Isaac Nii Dodoo, a businessman and resident of Lartebiokorshie – Accra, the second defendant, in one of the documents filed in court had revealed that the family, through its solicitors wrote a letter dated 22nd June 2016 to ACP Estates to request that it stayed “within the exact acreage leased to it. It is therefore not true that my family or the Defendants herein have taken any land belonging to the Plaintiff. The family did not only notify Plaintiff about the family’s activities after discovering the trespass by Plaintiff but Plaintiff witnessed, without any objection, defendants’ activities on the 21 acres later recovered from Plaintiff”.
Isaac Nii Dodoo, who had identified himself to the court as “one of the principal elders of the Dodoo Clottey family of Pokuase” with “the authority of the family to deal with and to speak to the family lands of the Dodoo Clottey Family which includes the land in dispute” revealed that it was rather ACP Estates that had gone into their family land and not the other way round.
He explained that by the JVA executed on 22nd October, 1991 between ACP Estates on one side and Nii Otoo Kwame III, Chief of Pokuase who doubled as the head and lawful representative of the Dodoo Clottey family on the other side, the parties agreed to co-operate and jointly develop a residential estate at Pokuase on the land.
“By the terms of this joint agreement, it was agreed among other things that our family would make available land in the extent of 600 acres for the purposes of the joint venture agreement. It was agreed that out of the 600 acres, 200 acres would immediately be released by way of a lease to the Plaintiff to commence immediate development into the integrated township and for this purpose, a separate lease agreement was to be executed to cover that 200 acres leased to the Plaintiff out of the 600 acres”, Isaac Dodoo said.
“In addition to the conditions stipulated and were to be performed by the Plaintiff under the lease agreement of the 200 acres, the Plaintiff also as part of its obligations under the Joint Venture agreement was to carry out certain basic services like the provision of road, lights and water on the remaining 400 acres to essentially make the 400 acres into “serviced plots” befitting of the purpose agreed under the Joint Venture Agreement”, he said.
“The lease covering 200 acres executed between our family and the Plaintiff dated the 22nd October, 1991 was for a term of ninety-nine (99) years. The lease specifically provided for yearly rent to be paid by the Plaintiff to our family”.
However the ACP Estates “neglected, refused to perform these obligations under the Joint Venture agreement and the lease. The Plaintiff surreptitiously developed portions of the 200 acres exclusively and has since sold out over 200 houses to third parties but refused to fully perform its obligations to our family”.
Isaac Dodoo stated that “contrary to the terms provided in the joint venture agreement and the lease agreement, plaintiff has failed to meet its obligations under the agreements. In particular, the Plaintiff has refused and or failed to pay the stipulated yearly rent and all efforts to get Plaintiff to pay Defendants have failed”.
He went on, “a revised rent for the period 2001 to date has not been agreed by Plaintiff for settlement”, adding “this posture by the Plaintiff is really affecting the family and Plaintiff tries to exploit this vulnerability of the family to its advantage and this is what the Defendants herein have refused to countenance”.
“The Plaintiff also fraudulently and surreptitiously registered land in excess of that which our family granted to it in the lease. Plaintiff registered 209 acres of land at the Land Title Registry far in excess of the 200 acres grant made to it by our family. It was in the course of carrying out our duties that we discovered that Plaintiff had gone beyond the 200 acres granted it and entered unto the 400 acres of our family land and developed same for sale to third parties”.
Isaac Dodoo also stated that “further investigation revealed that the acreage encroached upon by Plaintiff is to the extent of twenty-one (21) acres of land of Defendants family land which Plaintiff has developed. In ascertaining this, our family invited Plaintiff and surveyor to the land when this was ascertained”.
To this end, the family in its countersuit asked the court to determine that the JVA and the Lease, had been breached by ACP Estates and therefore must be set aside and the company made to keep only the part of the land it has developed so far and all the remaining lands returned to the Dodoo Clottey Family compensation and damages for the breach of contract by the Plaintiff.
Additionally, the family demanded that ACP Estates “ought to be ordered by this honorable court to pay to our family the accrued yearly rent from the year 2001 till date and interest on the said amount till date of payment”, insisting “this will be equitable, fair and just under the circumstances to prevent the situation where the Plaintiff is always taking advantage of our family and exploiting the family for the Plaintiff’s parochial and financial interest”.
But ACP Estates, denied the claims against it by the family and insisted that it has indeed, fulfilled its obligations under the JVA.
“My Lord, we refute these allegations and say that Plaintiff has performed its obligations to the best of its ability. The Plaintiff constructed an access road from the Nsawam Road with pavement blocks manufactured by its sister Company, ACP Limited, and continued with bitumen to the entrance of the 600 acres of land under the JVA”.
“It also constructed a water line of over one (1) mile from Kwabenya for the exclusive use under the JVA, Electricity was also extended to the 209 acre land and to its peripheral which was tapped or connected by residents of the 400 acres of land”.
“My Lord, the problem with the JVA was that not long after its execution, some members of the family started disposing of the lands without recourse to the contents of the Agreement. The one (1) mile exclusive pipeline became a target of residents along its stretch. These residents secretly tapped the lines in the nights, therefore preventing the flow of water to the whole of the land under the JVA. The Plaintiff also assisted the Town to build the palace of the chief of Pokuase, Nii Otto Kwame Ill and constructed an access road to the palace.
“It is therefore totally incorrect that the Plaintiff breached the terms of Exhibit ACPEIL5. Indeed, the agreement was frustrated due to circumstances beyond the control of the Plaintiff.”
On the nonpayment of ground rent, the Plaintiff had said that it had since 2001 paid rent annually on account to the family, which were received by head of family Madam Grace Darkoaa Dodoo through the family lawyer, R. O. Solomon.
Interestingly, this was rebutted in cross examination by the Dodoo Clottey family, with one the defendants saying “that is not true because Madam Naa Grace Dodoo is my aunty and not the family head. The family had issues with the position of family head that is why the family appointed Nii Amo Dodoo and Stephen Amponsah Dodoo to represent the family on all land related issues.”
In his judgement, Justice Gyamfi Osei noted that the activities of the defendants are geared towards the protection of their family property, adding “the supposed head of family Madam Grace Darkua Dodoo certainly did nothing when 200 acres of land granted to the Plaintiff “grew” to 209 acres. As I read this judgment she has not applied to be joined to the suit to protect their family property”.
In the estimation of the court “the evidence has shown that the Plaintiff has cheated the Nii Dodoo Clottey Family. The promise it made to the said family for some 32 years ago has not materialized with respect to the 400 acre land. Why should a court of justice look on for the Plaintiff who has blatantly cheated the Defendants family be made to keep that compensation money, which said money could help the Defendants family develop the abandoned 400 acre? That should not happen”.
“The Plaintiff is claiming declaration of title to the 200 acre land, perpetual injunction, damages for trespass and recovery of possession of the trespassed lands. These reliefs in the face of the evidence before this court cannot be granted for reasons disclosed supra”, said the judge.
“To reiterate, the Plaintiff has not fulfilled its obligations under the JVA with regard to the 400 acre land. The dream of the Defendants family to enjoy the full benefit of an integrated modern residential estate with drains, roads, and electricity and water amenities has not happened for the past 32 years. To grant the reliefs is to permit the Plaintiff to benefit from its own wrong. Even though no time limit was set for performance in the JVA, the Plaintiff should have started the performance within a reasonable time after October 1991. Definitely 32 years of non-performance is unreasonable time. In any case the Plaintiff has demonstrated that it is not ready to fulfill its obligation under the JVA due to its failure to develop both lands without discrimination as stipulated under clause 6 of the JVA (supra). From its posturing the Plaintiff has no intention of fulfilling its obligation under the JVA. Hence the entire reliefs fail and same are dismissed accordingly”.
“As the evidence has shown the Defendants family fulfilled its obligation under the JVA by giving out two hundred acres of land to the Plaintiff. Since the Defendants family for a period of 32 years got nothing in respect of the 400 acres the said family is entitled tó call off the agreement. Every entity enters into a contract with the hope of getting something out of it. The Defendants family are therefore entitled to ask the court to abrogate the contract for the obvious breach of that primary obligation under the JVA and which I have no difficulty in granting same. As indicated supra once the JVA goes down the Lease Agreement dated 22nd October 1991 also goes down and same are accordingly abrogated”.
“As I have found, for the past 32 years the Plaintiff has failed to honour obligations under the JVA. This is a clear breach of the agreement entitling the Defendants family to be awarded damages for the breach of the agreement. Taking all the peculiar facts of this case I award GH¢100,000.00 as general damages for its breach of the agreement”.
“With regard to the rent it was for the Plaintiff to furnish the Defendants family with its capital outlay as for the said family to fix the rent payable taking into account the cost of living and price index indicators. From the evidence the Plaintiff did not furnish the said family with its capital outlay. In my view same was deliberate act on the part of the plaintiff to keep paying the ridiculously low rates after the end of the 10th year.
“I therefore order the Plaintiff to furnish the court with its capital outlay within 30 days from today for an order to be made to the Administrator of Stool lands to assess rent from November 2001 to date taking into account the cost of living and price index indicators. The Plaintiff shall pay interest at the prevailing bank rate on the rent assessed, for the reason that it intentionally prevented the Defendants family from assessing same by its failure to provide its capital outlay.
“The Plaintiffs continued to pay the rent using his own assessment without any input from the Defendants family hence the Defendants family is entitled to be paid the acceptable rent charges, the long period of refusal notwithstanding.
The Defendants asked for a cost of GH¢200,000.00. The Plaintiff’s counsel left it to the discretion of the court. Having regard to the conduct of the Plaintiff as shown by the evidence and the fact that family which has been cheated were rather dragged to this court compelling them to engage counsel all these years I think it would be fair and punitive cost of just to award GH¢100,000.00 against the Plaintiff in favour of the Defendants family.
“I grant the Defendants family possession of all the undeveloped and empty spaces … For the avoidance of doubt all areas not containing any residential building shall revert to the Nii Dodoo Clottey Family of Pokuase.
On a GH¢9,556,399.95 compensation received from Millennium Development Authority (MiDA) which one of the defendants had prayed the court to order the Plaintiff to refund in respect of the family land, the plaintiff’s counsel, was said to have interestingly failed or refused to respond to same in its address, however, having failed to honour the terms of the JVA, but “on the fact and the law the plaintiff has no business taking possession of the said money. Hence release the amount of GHC9, 556,399.95 in its unlawful custody to the Defendants family, within five weeks from today i.e. 14th April 2023 at 12 noon. This order shall be brought to the notice of all the directors of the Plaintiff Company for compliance”.
It also emerged that Justice Gyamfi Osei, cited various landmark cases including Ashalley Botwe Lands: Adjetey Agbosu & Ors Kotey & Ors [2003-04] SCGLR 420 and Kwan and Nyieni 1959 GLR 67 CA to rebut the plaintiff’s claim that defendants lacked legal capacity to mount a fight for the disputed land either saying as individual members of the Nii Dodoo Clottey family they are bound by law to secure the interest in their ancestral property even in the absence of a similar move from a family head who chose not to do so for various reasons.
The trial judge was at a loss that “even per the terms of settlement which led to the release of the compensation claim from the custody of this court and which was prepared by the Plaintiff, the Plaintiff recognized that the 3r Defendant was acting for the Nii Dodoo Clottey Family. It ought to be noted that this compensation claim was in 2020 when this case was already in court. Hence it is quite baffling that the Plaintiff is still questioning the locus of the 3rd Defendant in this matter”.
