ACHANA VRS ADIL (UE/NA/DC/A2/9/23) [2024] GHADC 506 (20 February 2024)

IN THE DISTRICT COURT HELD AT NAVRONGO IN THE UPPER EAST REGION ON TUESDAY THE 20TH DAY OF FEBRUARY, 2024 BEFORE HIS WORSHIP FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) SUIT NO. UE/NA/DC/A2/9/23 ACHANA JULIANA - PLAINTIFF VRS ADIL SANU SAHIDATU - DEFENDANT JUDGMENT [1] By a writ of summons filed on 3rd May, 2023, the Plaintiff sued Defendant for Recovery of GH¢25,000.00, interest from June, 2022 until final determination of the case, Cost of GH¢1,000.00 for sending officials of Land Commission and labour to the land and Cost. [2] The brief facts are that defendant was tenant in plaintiff’s house at Nangalkinia. Defendant currently lives at Tankuna. Both plaintiff and defendant are traders. The Defendant’s father made a joint grant of four plots of land to Defendant and her daughter and a joint lease marked exhibit ‘A’ was executed to that effect between the Paramount Chief of Paga and Defendant and her daughter. Later Defendant used the lease and secured loan from Naira Rural Bank and gave it a copy of the lease. [3] On 13th June, 2022, Defendant sold two plots of the land to Plaintiff at the cost of GH¢25,000.00 and handed over remaining three copies of the lease to Plaintiff as the document covering the land. An attempt by Plaintiff to work on the land was fiercely resisted by Defendant’s family members. [4] On a careful reading of the pleadings, evidence in chief and cross examination, the following issues were identified for consideration: i) Whether or not Defendant put Plaintiff into possession of the land she sold to Plaintiff. ii) Whether or not the land sold to plaintiff is free from all encumbrances. iii) Whether or not Plaintiff is entitled to interest. iv) Whether or not plaintiff is entitled to the GH¢1,000.00 cost incurred on Lands Commission Officers and labour. [5] It is the case of Plaintiff that she is a business woman. She and Defendant lived as landlady and tenant peacefully without any problem and shared ideas. In June, 2022 Defendant informed her about piece of land she has at Paga which she wanted to sell. And wanted to know whether plaintiff was interested. Plaintiff told Defendant that she was afraid of buying land because of litigation. Defendant assured her of litigation free land. Defendant further informed plaintiff that the plots are four. She put up building on one plot and was ready to sell two plots to enable her solve financial challenges and other pressing needs. She suggested to have the documents of the land checked by the officials of Lands Commission to confirm whether it is genuine. Defendant agreed and gave her the documents. Officials of Lands Commission in the company of Plaintiff went to the land on 22nd June, 2022 and confirmed the document as good. So she paid the agreed price of GH¢25,000.00 for the two plots. [6] Later, she contracted officials of lands commission to work on the land but were stopped by Defendants family members who told them the land is for the family and cannot be sold to Plaintiff. [7] Plaintiff states further that she informed the Defendant about her family members’ claims. Defendant’s father advised them to see the Paga Chief but all effects made thereafter proved futile. Defendant was not able to put plaintiff into possession of the land. [8] PW1, Kwame Awome repeated all that plaintiff has said. He further stated that the family members prevented Officers of Lands Commission from working on the land. [9] PW2, Kofi Amoah is a surveyor from Lands Commission. According to him, he knows parties. In June, 2022 Plaintiff informed him about land she wanted to buy and invited him to check the documents. He went to Plaintiff and checked three documents given to her. He informed plaintiff that the documents are usually four but had only three copies. Defendant informed him that she used one copy as collateral for loan from Naara Rural Bank. She will have it after praying for the loan and give it to plaintiff. Defendant added that she needed money to pay off the loan and retrieve the document from Naara Rural Bank. Later, he was transferred to Techiman. [10] He was told that officers of the Lands Commission went to measure the land but there are problems. The other family members of Defendant stated that only one plot of land was given to Defendant to put up building on it for her and her children. The other land is a family land and that defendant cannot sell it. [11] The case of Defendant was that her father DW1 gave her a portion of his land at Paga more than seven years ago. Her father advised her to prepare land document to show that she is the new owner of the land. She prepared the document covering four plots of land. In the course of dealing with her business partner, she incurred debt so she decides to sell two plots of land her father gifted to her to enable her pay the debt. She told DW1 and he agreed. [12] She told plaintiff about the land and requested her to find buyer for her. After Plaintiff had visited the land, she expressed interest. Plaintiff paid GH¢25,000.00 for two plots of land and she handed over the land documents to plaintiff. According to Defendant she had already developed one plot of land and no family member prevented her from doing so. Plaintiff informed her that anytime she goes to the land to start developing it, Defendants family members such as Achana, Ayaga, Kose and Dawe stops her. They told her to go to Defendant for a refund. Defendant made it clear to plaintiff that those family members do not inherit from DW1. They also have their portions they farm on. [13] DW1, Babagripe Bugayire was Defendant’s father. He stated that he gave the land to Defendant so that she and her children can have place to stay. He advised Defendant to prepare document to which he thumb printed. The land was given to him by his father. When Defendant started developing the land, she informed him and he blessed her. And that no family member disturbed Defendant. [14] Defendant informed him about a debt and wanted to sell two plots. She informed him that some family members are stopping the plaintiff from developing the land. [15] Three of Defendant’s family members who prevented plaintiff from possessing the land were called as courts witnesses upon application of plaintiff. There was no objection from Defendant to their invitation. [16] According to CW1, Achana Kwotua the land belongs to his father. When the surveyor came to demarcate the land, CW3 called him and he drove the surveyor away. Later plaintiff came to him and he told plaintiff that the land is a family land. Members of the family are numbering about hundred, so they are not prepared to sell their land to anybody. And that plaintiff should go to Defendant for a refund. CW1 states further that the land was preserved for use by family members. They do not expect Defendant who is married elsewhere to come home and sell land. If Defendant had come to ask for land to build on they would allow her but not to sell it. [17] CW2, Ayaga Adikou states that he owns farm around or near the land in question. He had inherited the land from his father. When surveyors came, CW1 drove them away and called him. His land is not for sale because he has many children who will not get a place to settle. He told CW1 that any time surveyors come he should drive them away. He went to the land and saw that Defendant built on it without notice to him. So he told CW1 to inform Defendant to demolish the house. [18] CW3, Kwotuo Kose Albert states that he was among the people who prevented plaintiff from working on the land. The land belongs to their grandfather. Defendant is not allowed to sell the land. In their family a woman is not allowed to sell their land. [19] I intend to highlight on the burden of proof of parties in this case before I proceed to consider the issues. [20] The principle has always been that a party who makes positive statement capable of proof has the burden of producing evidence and the burden of persuasion on that issue. [21] In Okudzeto Ablakwa (No2) Vs AG [2012] 2 SCGLR 845 at 867 it was held that “If a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which emphasizes on the party on whom lies the duty to start leading evidence…” [21] Section 14 of the Evidence Act, 1975 (NRCD 23) provides “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. [22] In Ababio v Akwesi III [1994-1995] GBR part II at page 774 Aikins JSC held “… a party whose pleadings raised an issue essential to the success of a case assumed the burden of proving such issue. The burden only shifted to the Defendant when plaintiff has adduced evidence to establish the claims”. [23] In Klah v Phoenix Insurance Co Ltd [2012] SCGLR 113 Supreme Court held “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 and his averment 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 satisfy itself that what he avers is true.” [24] In Frabina Ltd v Shell Ghana Ltd[2011] 33 GMJ I SC at pages 27-28 Brobbey JSC speaking for it court stated “ what must be noted is that in evaluating evidence in Judicial Proceedings a court has several sources to draw material evidence from 1. First are the pleadings, where the pleadings are not in contention, it is safe for the trial judge to draw from it and make his conclusions. 2. The second is the oral evidence that has been led in Court. The credibility of oral evidence is normally tested through cross examination. 3. The third is the documentary evidence. This normally takes the form of documents that are tendered during the course of trial and upon which questions are asked during examination in chief and cross examination. It can also take the form of reports submitted by Court appointed expert witnesses such as surveyors, Accountants, Medical doctors etc who testify and tender in reports prepared by them to help the Judge in determining the case one way or the other. 4. The fourth are Judicial decisions and authorities touching and dealing with principles of law in the subject matter of the case on trial. This is normally done during the closing addresses by counsel of parties to the Court. [25] The standard of proof on a party who assumes burden of proof as stated above is by preponderance of probabilities. [26] Section 11(4) of the Evidence Act,1975 (NRCD 323) provides” In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. [27] Section 12(1) of the evidence Act 1975 (NRCD) also provides “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities”. [28] In this case Defendant did not counterclaim and most of the issues are asserted by plaintiff in her pleadings some of which Defendant failed to comment on. It is therefore plaintiff’s burden to proof her claims. [29] I will now proceed to deal with issues 1 and 2 together, thus whether or not Defendant put Plaintiff into possession of the land she alienated to her. And whether or not the land is free from all encumbrances. [30] The principle of possession was described in Uniliver Ghana Ltd Vs Kama Health Services [2013-2014] 2 SCGLR 861 at 880-881 where Benni JSC speaking for the Court stated “It is an incidence of every sale of land for valuable consideration that the purchaser be granted quiet enjoyment. Thus possession that is challenged to the extent that the tenants even refused to pay rents to the purchaser on account of challenges to his title, would not be considered possession in the eyes of the law; it is anything but quiet enjoyment. [31] The position then is that the Defendant appellant, having failed to give legal title to the plaintiff respondent, could not claim to have given them possession…” [32] Section 50(1) of the Lands Act, 2020 (Act1036) provides “ In a conveyance for valuable consideration there implied the covenants of right to convey, quiet enjoyment, freedom from encumbrances and further assurance in the terms set out in part I of the second schedule.” [33] This provision was emphasized by Sir Justice Dennis Dominic Adjei JA in his book Land Law, Practice and Conveyancing 3rd edition at pages 479 to 489 as follows: the vendor must have consent of persons who matters, power to convey, assurance of quiet enjoyment, freedom from encumbrances among others. [34] In this case, the fact that Defendants family members prevented plaintiff from working on the land is not in doubt. Some of these members made it clear in Court that Defendant could not have sold the land to plaintiff because it is a family land. Information concerning position of Defendants family members was known to Defendant long ago but she failed to take action to put plaintiff in possession of the land. [35] Under cross examination of plaintiff by defendant it became clear that the Defendant failed to address the issue raised by her family members and rather took position which is very awkward as follows: Q- Did I or my father came to stop you from working on the land. A-No but your brothers came to stop me. Q-Did we enter into an agreement that you can later come for your money. A-No but I am not in possession of the land that is why I am demanding for a refund. [36] Interestingly, the land is yet to be demarcated for plaintiff to know it’s identity on the ground. [37] Apart from Defendants obvious neglect to ensure possession of the land given to plaintiff, there are other encumbrances. A careful observation of Exhibit ‘A’ shows that the land was owned jointly by Defendant and Mukedamatu Andane. Although Defendant has right to server and sell equal portion with or without consent of Mukedamatu, it is on record that defendant had already put up building on a portion of the land. This situation poses a problem as to the extent of Defendant’s ownership in this joint property. [38] In my opinion since Defendant had already put up building on a portion of these flour plots of land consent of Mukedamatu was necessary for Defendant to sell two plots of the land. It is however not on record whether this necessary consent had been obtained by Defendant to sell the land. [39] Another impediment to the sale of this land was the use of the lease by Defendant for loan from Naara Rural Bank. In her cross examination of Defendant by plaintiff the issue of loan came up as follows:- Q-You informed me the day you sold the land that you used one of the documents as collateral for loan, have you finished paying for the loan. A-My loan is not your concern I have sold two plots to you not four plots. Q-I put it to you that if you fail to pay the loan and the bank is coming for the land they will take all the four plots because the four plots are contained in one document. A-My loan is not even up to the amount half plot of my land is cost. Q- Did you pay back the loan. A-I am still in the process. [40] In his evidence in Chief PW2 stated at Paragraph 9, 10, 11 and 13 as follows: “(9) That after telling the Defendant that there is still one copy left out, the defendant confirms that yes and told me that she has taken one copy to serve as collateral for loan at Naara Rural Bank. “(10) Defendant further stated that the management of Naara Rural Bank has taken the other copy so that after paying off the loan she can take the other copy of the land document back.” “(11) Defendant also added that after paying off the loan she will take the other copy of the land document to (plaintiff).” “(13) The defendant also added that she needs the money to enable her pay off the loan in Naara Rural Bank in other to take back the other copy of the land document in Naara Rural Bank.” [41] It is deduced from these pieces of evidence that plaintif did not heed advice of PW2 to withhold payment to Defendant until copy of the lease with Naara Rural Bank was retrieved. This was due to assurance given her by Defendant that she will use the money to repay the loan and take the lease. Based on the assurance, the plaintiff paid the purchase price to Defendant. However, Defendant failed or neglected to repay the loan and get the remaining lease document for plaintiff. [42] Since the Defendant could not give possession of the land to plaintiff, obtain consent from Mukedamatu, and recover the remaining document from Naara Rural Bank, the land sold to plaintiff cannot be said to be free from encumbrances implied by law as above. [43] On the issue as to whether Plaintiff is entitled to interest on claim 1 the answer is not farfetched. The fact that Plaintiff paid the purchase price of GH¢25,000.00 to Defendant is not in dispute. Defendant unequivocally admitted same in her evidence in chief as follows:- “12 I state that we agreed on a purchase price of GH¢25,000.00 for two plots of land which plaintiff paid and I handed over the land documents to the Plaintiff.” [44] Upon Defendant’s failure to put Plaintiff in possession of the land, she ought to have refunded the purchase price to her. And there is no issue since Defendant had accepted that she took the GH¢25,000.00 from Plaintiff. [45] Order 28 rule 7 (1) b of C.I.59 provides: “a) the court, at the time of giving judgment or making an order or at any time afterwards, may b) order the payment of interest at the same rate as High Court may order in the circumstances.” [46] Rule 1 of the Court (Award of interest and Post Judgment interest) Rules, 2005 (C.I. 52) provides “(1) If the Court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated (a) At the bank rate prevailing at the time the order is made and (b) At simple interest.” [47] In Delle and Delle V Owusu Afriyie [2005-2006] SCGLR 6 it was held in holding 4 that “whilst it is true that at common law interest was not payable on a debt or loan in the absence of express agreement or a course of dealing or custom to that effect, under the existing statutory regime in Ghana, the Courts have power to award interest on sums claimed and found to be due. Such interest is payable from the date on which the claim arose.” [48] In this case, Plaintiff said she had made several repeated demands for Defendant to put her in possession, but Defendant failed. So she demanded for a refund. [49] Defendant did not dispute Plaintiff’s assertion that she demanded for either possession of the land or refund. Her argument was that there was no agreement that when she sold the land to Plaintiff she will later come for a refund. This posture of Defendant cannot avail her since plaintiff has not breached the land purchase agreement in any way. [50] Since Defendant was unable to give undisturbed possession of the land plaintiff, there is no other option than refund of the purchase price paid by Plaintiff to her upon demand. This she failed to do since June, 2022 when her family members’ resistance was brought to her notice. Plaintiff is therefore right in demanding for interest on the GH¢25,000.00. [51] The next issue is whether or not Plaintiff incurred cost of GH¢1,000.00 for sending officials of Lands Commission and labour to the land. Facts, must either be admitted or denied specifically. In paragraph 14 of the statement of claim, plaintiff states that “after paying for the necessary workmanship from Lands Commission the official of the Lands Commission moved to the land days after payment.” [52] In response Defendant states that “the Plaintiff told her she was stopped by one Achana and Kuse. The land in dispute belongs to Defendant father and Defendant father gave the land to her”. Defendant’s response shows she did not disagree with Plaintiff that she sent officials of Lands Commission to the land. [53] In Thorp v Holdsworth (1876) 3 Ch D 637 at 639-641 Jessel M.R. noted “The whole object of pleadings is to bring parties to an issue, and the meaning of the rules of (this order) was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was… [The defendant] is bound to deny that any agreement or any terms of arrangement were ever come to, if that is what he means; if he does not mean that, he should say that there were no terms of arrangement come to except the following terms and then state what those terms were.” [54] In his is work on pleading and practice (18th ed) at p 131 Odgers made similar point as follows: “It is in the power of the party either to admit or to deny each allegation in his opponent’s plea, as he thinks fit. If he decides to deny it, he must do so clearly and explicitly. Any equivocal or ambiguous phrase will be construed into an admission of it. There is no third or intermediary stage. If the judge does not find in the pleading a specific denial or a definite refusal to admit, there is an end of the matter; the fact stands admitted.” [55] In paragraph 28 of the statement of claim plaintiff states that “she claims as per the writ of summons.” Defendant’s defence shows she did not respond to claims of plaintiff in paragraph 28 of the statement of claim. Defendant’s silence on paragraph 28 of the statement of claim, to my mind meant she admitted to what plaintiff had said. Since there is no conspicuous denial of this claim, there is no point in refusing to grant it to plaintiff. [56] On the totality of evidence before this Court. I found as a fact that plaintiff paid GH¢25,000.00 to Defendant as purchase price for two plots of land Defendant sold to her. Defendant could not put plaintiff in possession of the land because of encumbrances. [57] Plaintiff proved her case on the balance of probabilities. I therefore hold that Plaintiff is entitled to all reliefs she sought. [58] Judgment is according entered for plaintiff against Defendant for the following: 1. GH¢25,000.00 2. GH¢1,000.00 being expenses incurred in transporting officials of lands commission and labour. 3. Interest on the GH¢25,000.00 at simple prevailing bank lending rate from July, 2022 to date of Judgment. 4. In awarding cost I exercised my discretion as required under the rules. [59] Order 7 rule 1 (1) of the District Court Rules 2009 C159 state “(1) The cost in a suit or matter, and of each particular proceeding in the suit or matter is at the discretion of the court and the court may after hearing the parties, award costs it considers just” (2) In the absence of any express direction by the Court, cost should be awarded at the end of the suit or proceedings.” [60] In Ritter V Godfrey [1920] 2KB 47 at 52-53 CA Lord Sterndale noted “… there is such a settled practice of the Courts that in the absence of special circumstances a successful litigant should receive his cost, that it is necessary to show some ground for exercising a discretion by refusing an order which would give them to him”. [61] In this case there is no agreement that cost should be waived. The case started on 23rd May, 2023. It is less than year when proceedings were concluded. The Parties live in Navrongo. [62] I therefore award cost GH¢2,000.00 for Plaintiff against Defendant. (SDG.) H/W FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) REPRESENTATION No legal representation for parties.