ADDO VRS. KORANTENG (A1/27/2020) [2025] GHADC 15 (18 March 2025)

1 CORAM: HER WORSHIP BIANCA GYAMERA-BEEKO MAGISTRATE SITTING AT THE DISTRICT COURT MAMPONG-AKWAPIM ON 18TH DAY OF MARCH, 2025 --------------------------------------------------------------------------------------------------- SUIT NO: A1/27/2020 ABUSUAPANYIN RANSFORD OFORI ADDO …… PLAINTIFF VRS. KWAKU KORANTENG …… DEFENDANT Plaintiff Attorney represented by Charles Nkewa Defendant present Van Dyck Esq. for the Plaintiff. JUDGMENT This is a suit that was initiated on 21st May 2020. This court, differently constituted, conducted the trial but unfortunately, the magistrate retired before she could render her judgment. On the authority of Agyeman substituted by Banahene & Ors v Anane [2013-2014] 1 SCGLR 241 which states that a judge may exercise his discretion to adopt previous proceedings in a matter rather than beginning anew, I adopted the proceedings on 20th January, 2024. Counsel for Defendant was present in court on said date and raised no issues with proceedings. Counsel for the Plaintiff was absent but had already filed his written address on 15th August, 2024. It is therefore on the basis of the record of proceedings passed down to me that I shall now proceed to make a determination of this matter. By an amended statement of claim filed on 5th August 2020 pursuant to an order of this court, the Plaintiff seeks the following reliefs: A. An order of the court directed at the Defendant to surrender 4 and 1/4 acres out of the 6 acres of land situated at Manne, Mampong which said land the Defendant expressed interest in buying same but paid for only GHS4,000 representing 1 and 1/2 acres which he has refused to surrender. B. Declaration of title and recovery of possession to Plaintiff’s 4 acres of land situate at Manne which the Defendant has trespassed unto bounded on the west by Emmanuel Kodua, on the north by Rev. Aboagye and on the other two sides by Kwaku Adom and 6 acres of vendor’s land fraudulently registered by Defendant. C. Perpetual injunction restraining the Defendant, his agent, workmen and all those who take instructions from the Defendant from entering and having anything to do on the Plaintiff’s land. D. General damages for depriving the Plaintiff of their land. E. An order of the court directed that Lands Commission Secretariat to expunge the recorded transaction in favour of the Defendant and same registered for the Plaintiff leaving on 1 and 1/2 acre for the Defendant. The plaintiff’s case. The plaintiff says he is the head and lawful representative of the Kwame Asiama family of Akremede, Larteh Ahenease and brings this action in his capacity as head of the family in the interest of the Kwame Asiama family. He describes the defendant as a trespasser. He says the land was originally acquired by the late Nana Ohene Yaw and that after his death, it became the property of his children. The family has been in peaceful possession of the land since. In 2006, the family agreed to sell six acres of their land to the Defendant at the cost of GHS2,500 an acre. The total amount due was therefore GHS15000. Out of the GHS 15000, the defendant paid GHS4000 and has since then not paid the outstanding balance. The defendant has also registered 4 acres of land belonging to the family situate near the six acres the family agreed to sell him without their knowledge or consent. The defendant is insisting that since he has registered those four acres, the family should sell it to him but the family has disagreed and asked him to yield vacant possession of that land. This is what has led to the present suit. The defendant’s case. The Defendant denies being a trespasser and says that he acquired the two parcels of land from Opanyin Kwaku Addo of the Asona family of Larteh in 2006 and that in 2008, he was issued with the land documents which he has duly registered. Defendant averred that after he acquired the first parcel of land measuring 5.09 acres from his grantor, his grantor approached him to purchase another 3.011 acres of adjoining land and he agreed. He explained that he could not finish paying for the 3.011 acres of land before the death of his grantor and subsequently, he was unsuccessful in identifying the right person to whom the payment of the balance should be made. In the course of his search to find the right person, he discovered that the Plaintiff could lead him to the right people. Defendant denied approaching the plaintiff to sell any land to him as he had already bought the parcels of land, registered them, and was in undisturbed possession. Defendant argues that the present action is statute barred as he has been in quiet and peaceful possession since 2006. He argues that even if the plaintiff and his family are the rightful owners of the land, they are estopped by acquiescence and laches from claiming ownership and or recovery of the land because they have stood by for him to remain in physical possession of the land for well over 14 years. Defendant therefore counterclaims as follows: a. A declaration of title to both pieces of land; b. Perpetual injunction restraining the Plaintiff by himself, his agents, servants, assigns, privies, workmen for interfering in any way whatsoever with the land in dispute; and c. Costs. Issues The issues for determination are: 1. Whether the Plaintiff has capacity to bring this action. 2. Whether the plaintiff is statute barred from bringing this action. 3. Whether the defendant is entitled to recovery of 41/2 acres out of the land which was the subject of the first sale transaction. 4. Whether the plaintiff is entitled to declaration of title and recovery of possession of the 4 acres of land situate at Manne. 5. Whether the defendant is entitled to declaration of title to both pieces of land 6. Whether the defendant is entitled to an order of injuction restraining the plaintiff from interfering with the land. Evidentiary burden. The principle is that he who alleges must prove. Section 14 of the Evidence Act, 1975 (Act 323) provides that: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non- existence of which is essential to the claim or defence he is asserting. The Supreme Court in the oft cited case of Serwah v Kesse (1960) GLR 227 stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. They laid down the tests for who bears the burden as follows: “The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted in Stroud, Judicial Dictionary (3rd. ed.) p. 1996.” The Plaintiff is therefore under an obligation to prove the facts that will enable the court conclude that his averments are true. This being a civil matter, the Plaintiff is required to prove his case upon a preponderance of probabilities in accordance with section 12 of the Evidence Act 1975 (NRCD 323). Whether the Plaintiff has capacity to bring this action. In the first paragraph of the Plaintiff’s amended statement of claim filed on 5th August 2020, he described himself as the head and lawful representative of Kwame Asiama family of Akremede, Larteh Ahenease and he averred that he was bringing the present action in his capacity as head of the family and in the interest of the Kwame Asiama family of Akremede, Larteh, Ahenease. This was denied by the Defendant in paragraph 2 of his amended statement of defence and counterclaim filed on 21st January, 2021. The defendant put the plaintiff to strict proof on this issue. The principle is that when a suitor’s capacity is challenged he can only succeed on the merits if he proves that he is clothed with that capacity; Essuon Vrs Boham [2014] GHASC 156 (21 May 2014). This principle has been enunciated in a number of cases including Sarkodie I v Boateng II [1977} 2 GLR 343 cited by Counsel for the Defendant in his written address, where the Court of Appeal held that It is now trite learning that where the capacity of a plaintiff of complainant or petitioner is put in issue, he must, if he is to succeed first establish his capacity by the clearest evidence. Even though the court may resort to taking evidence on all the issues raised by the pleadings, the court must always consider the issue of capacity first; Musah Vrs Appeagyei [2018] GHASC 24 (2 May 2018). The Plaintiff was therefore obliged to lead evidence to prove he was the head of family as he had claimed. The Plaintiff himself did not testify in this matter. He relied on the testimony of one witness, Kwadwo Aboagye who describes himself as caretaker of the land. A witness statement was filed for Mr Aboagye on 5th November, 2021. It was adopted as his evidence in chief on 4th March 2020. I have carefully read through this witness statement and unfortunately, I did not see even one statement purporting to prove that the Plaintiff has capacity to bring the present action. In the case of Majolagbe v Larbi [1959] GLR 190, Justice Ollenu, quoting his dictum in the case of Khoury and anor. V. Richter delivered on the 8th December, 1958 explained as follows: Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstan. erment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true. On the strength of the authority of Majolagbe v Larbi, I find that the Plaintiff has failed to prove that he has the requisite capacity to mount this action. The failure of the Plaintiff to prove that he is the head of family and that it is in that capacity that he brings the present action is fatal because it is trite that when a party lacks the capacity to prosecute an action the merits of the case should not be considered at all; see the case of Musah Vrs Appeagyei [2018] GHASC 24 (2 May 2018). Consequently, I hereby dismiss the Plaintiff’s suit. The defendant has counterclaimed for declaration of title, perpetual injuction and costs. The law is that a counterclaim is an independent cross-action that can be maintained even if the Plaintiff’s case is struck out. In the case of ZOGLIE VRS ZOGLIE (PA/869/2020) [2024] GHAHC 34 (25 January 2024), Dadson J quoted with approval the dictum of the Supreme Court in the case of Gbedema vs Awoonor Williams (1970) CC 12 that “a counterclaim is to all intents and purposes an action by a respondent against the applicant. It is an independent and separate action”. However, in the instant case, the Plaintiff has been struck out for want of capacity. Since he lacks capacity to sue, he cannot be a proper person to be sued for the defendant’s counterclaims either. Consequently, I shall not consider the defendants case as it is my considered opinion that the proper parties are not before the court. In summary, I hold as follows: 1. The Plaintiff has failed to prove that he has the capacity to bring institute the present suit. His writ is therefore struck out. 2. The Defendants counter-claims are dismissed because the proper parties are not before the court. 3. I make no order as to costs. SGD. H/W BIANCA GYAMERA-BEEKO MAGISTRATE