ABUKARI VRS ABUKARI (A2/62/23) [2024] GHADC 84 (30 April 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 30TH APRIL, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN AKILU ABUKARI AND SAFIANU ABUKARI SUIT NO. A2/62/23 - - PLAINTIFF DEFENDANT JUDGMENT INTRODUCTION 1. This judgment relates to land and probate. 2. I would like to state with the preamble that it is not for nothing that laws are passed. They are to ensure orderliness in a society. This judgment hinges on some of infractions by citizens under the guise of ignorance of the law. The learned authors Glanville Williams and John Salmond state, however, that “Ignorance of the law is no excuse.” If it were, the laws would lose their effect, because it can always be pretended. 3. In this case, the plaintiff is one of the five children of the late Abukari Dagomba. Upon his death, Abukari Dagomba left behind among his estate Plot No. 116, Nyani Fong - 1 - (Ward J) Residential Area, Tamale which is the subject matter of this dispute. The defendant is said to have purchased the said property. 4. Plaintiff through his lawyer instituted this action on 4th March, 2023 in which plaintiff seeks against the defendant the following: “a. Declaration that Plot No. 116, Nyani Fong (Ward J) Residential Area, Tamale is part of the estate of late Abukari Dagomba. b. Perpetual injunction restraining the defendant, his agents, servants, licensees, lessees, assigns etc from having any dealings with or on the said property. c. General damages for trespass. d. Recovery of possession. e. Costs.” 5. On 22nd June, 2023 the defendant disputed plaintiff’s claim and counterclaim as follows: “a. A declaration that defendant legitimately acquired Plot 116 Ward J, Nyani Fong, Tamale in the Northern Region of the Republic of Ghana also referred to and known as Plot No. 116 Ward J in the Dagomba District of the Southern Province of the Northern Territories of the Gold Coast. b. An order of perpetual injunction restraining the plaintiff, his assigns, successors, agents or workmen and those claiming through plaintiff from further going onto Plot 116 Ward J, Nyani Fong, Tamale in the Northern Region of the Republic of Ghana also referred to and known as Plot No. 116 Ward J in the Dagomba District of the Southern Province of the Northern Territories of the Gold Coast the subject matter of this suit. c. Costs on a full indemnity basis including legal costs.” - 2 - 6. The plaintiff on 5th July, 2023 filed a Reply and Defence to Counterclaim. 7. Parties were ordered to file their witness statements which they did. Below are the respective cases of either party. PLAINTIFF’S CASE 8. According to the plaintiff, his father Abukari Dagomba died interstate in October 1981 and plot no. 116, Nyani Fong Ward J Residential Area was part of the estate. He added that on 10th November, 2022, he and his brother, Alidu Abukari, jointly obtained Letters of Administration from the District Court 1, Tamale to administer the estate of their late father. However, sometime in 2023 the defendant and his workmen went onto plot no. 116 and started moulding blocks. He contended that the defendant has no better title or interest in the said land, since his alleged grantor had no capacity whatsoever to alienate same. Plaintiff contended that the acts of the defendant on the said plot constitute trespass. Hence, this present action. 9. He tendered in evidence: Exhibit A – Copy of the Search Report at the Lands Commission regarding the disputed land dated 1/3/23, together with a site plan and receipt. Exhibit B - Copy of the Letter of Administration granted to Alidu Abukari and Akilu Abukari by the District Court 1, Tamale on 10/11/22. Exhibit C - A Search Report conducted at the Circuit Court, Tamale. DEFENDANT’S CASE 10. The defendant, on his part, stated that he does not know the plaintiff herein. He admitted that the disputed property forms part of the estate of the late Abukari Dagomba. He explained that he acquired the disputed property in 2022 from one Abu - 3 - Alidu who is the sole administrator of the estate of the late Abukari Dagomba. He averred that he conducted due diligence which results revealed that his grantor had capacity in alienating the disputed property. 11. He also tendered in evidence: Exhibit 1 – A Receipt covering payment for the said property Exhibit 2 – A Statutory Declaration executed by Abu Alidu purporting to transfer of the property to the Defendant. Exhibit 3 - A Search Report conducted at the Circuit Court, Tamale. Defendant’s Witnesses 12. Mr. Abu Alidu, also known as Alidu Abukari (DW1), testified for the defendant. He gave clarity to this case. He stated that the plaintiff is his younger brother. He listed the surviving children of the late Abukari Dagomba as: Alidu Abukari (himself, 75yrs), Lariban Paga Abukari (DW2, 55yrs), Sumanya Abukari (52yrs), Akilu Abukari (Plaintiff, 46yrs) and Rashida Abukari (40yrs). 13. According to DW1, he solely obtained Letters of Administration from the Circuit Court, Tamale on 5th October, 2022. Based on the said grant, he sold the disputed plot to the defendant and the proceeds shared among his siblings. He explained that the plaintiff objected to the sale saying that they could get a better deal from a different purchaser but when given time to bring a better deal, plaintiff failed, so he (DW1) proceeded with that of the defendant. DW1 added that the sale to defendant was also with the consent of all the family members. He confirmed that he executed Exhibit 2 and that the presence of defendant on the disputed land does not constitute trespass. Hence, this court should grant the defendant’s relief. - 4 - 14. He tendered in evidence a copy of the Letter of Administration granted to him by the Circuit Court, Tamale dated 5/10/22 as Exhibit 4. 15. Lariban Paga Abukari (DW2), as earlier mentioned is also a sibling of the DW1 and plaintiff. He simply added that all the siblings gave DW1 the go ahead to negotiate and sell the disputed land. ISSUES FOR TRIAL 16. The issues borne out of the facts are: a. Whether or not Abu Alidu @ Alidu Abukari was clothed with capacity to sell the disputed property to the defendant? b. Whether or not the plaintiff or defendant is entitled to his claim? BURDEN OF PROOF 17. In civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression ‘burden of persuasion’ and in section 14 that expression has been defined as relating to, ‘each fact the existence or non-existence of which is essential to the claim or defence he is asserting.’ See also ss. 11(4) and 12(1) and (2) of NRCD 323. 18. Lastly, where there is a counterclaim, the counter claimant must also prove his case. The Supreme Court speaking through His Lordship Ansah JSC in the case Osei v Korang [2013] 58 GMJ 1, stated as follows: - 5 - “… each party bears [the] onus of proof as to which side has a claim … against his/her adversary, for a counter claimant is as good as a plaintiff in respect of … which should he assays to make his/her own.” ANALYSIS OF THE ISSUES 19. Before I proceed to determine the issues, let me address an issue which came up during the trial. It regards two Letters of Administration granted in respect of the same estate. 20. Now, the law regarding regularity of official documents or duty is that where institutions of State like Courts, Lands Commission, etc issue an official document or carries out a duty, it is presumed that that document or duty is regular in line with the statutes that established them. This law on the presumption of regularity of official duty performed (in latin omnia presemuntur rite et solemniter esse act), is found in s. 37 of NRCD 323. Section 37(1) of NRCD 323 states that, ‘It is presumed that official duty has been regularly performed.’ The Supreme Court in Seidu Mohammed v Saanbaye Kangbere [2012] 2 SCGLR 1068 stated that, ‘the presumption of regularity in law had been given statutory recognition in section 37 of the Evidence Act. That means that institutions of State like Lands Commission, Survey Department and the Land Registry were presumed to conduct their affairs with a certain degree of regularity in line with the statutes that had established them.” Hence, save fraud or mistake or other legitimate basis that the official duty had not been properly carried out, the law presumes regularity of the said act or documents therefrom. 21. From the evidence, the plaintiff averred that he and Abu Alidu @ Alidu Abukari took Letters of Administration from the District Court 1, Tamale on 10th November, 2022. See Exhibit B. Abu Alidu also averred that he took Letters of Administration from the - 6 - Circuit Court, Tamale on 5th October, 2022, see Exhibit 4. This clearly points to the fact that before the plaintiff and Abu Alidu took Letters of Administration from the District Court, Tamale, the Circuit Court, Tamale had already granted Letters of Administration regarding the same estate to Abu Alidu. The period between the two Letters of Administration is just a month. I wonder why Abu Alidu allowed this to happen. 22. In the case, The Republic v High Court (Probate & Administration 2), Accra Ex parte Elizabeth Darko (Tracy Opoku & 3 Ors. – Interested Parties), [2021] DLSC 10695, His Lordship Amadu JSC in explaining the requirement for revocation of Probate or Letters of Administration stated that: “In fact, on a more fundamental ground, if the applicant’s counsel had considered Rule 29 of Order 66 [of CI 47] sic she would not have endorsed that relief of revocation of the probate on her writ of summons. It provides that; ‘Action to revoke grant of probate or letters of administration 29. (1) Where grant of probate or letters of administration has been issued, any person who seeks to have the grant revoked by the Court may issue a writ to seek the relief. (2) In any action brought under, rules 25 to 29 of this Order, rules 32 to 43 shall apply.’(emphasis supplied). Accordingly, it is only when a grant of probate or letters of administration has been issued that an action may be brought for its revocation. Since in this case the probate had not been issued, it was premature for the applicant to pray the court to revoke same. What this means is that the applicant had no valid cause of action as far as her relief (ii) is concerned and same could have been struck out by the trial judge, but not for failure to comply with Rule 33(3) of Order 66. The reason for Rule 29 is simple. Until the probate or letters of administration are issued out of the - 7 - registry of the court to the executor or administrator, the court can always set aside or vary its order for the grant of same upon justifiable grounds by a simple application to the court in the matter by a person adversely affected by the grant. It must be remembered that applications for probate and administration are generally by ex parte proceedings and a court will not hesitate to set aside or vary its orders obtained ex parte if sufficient reason is provided.” 23. Or. 66 rule 29 of CI 47 is similar to Or. 31 rule 29 of the District Court (Civil Procedure Rules), 2009 (CI 59). Or. 31 rule 29 of CI 59 provides that, “Action to revoke grant of probate or letters of administration 29. (1) Where grant of probate or letters of administration has been made, any person who seeks to have the grant revoked by the Court may issue a writ to seek that relief. (2) In any action brought under rules 25 to 29, rules 32 to 43 of this order shall apply.” 24. Hence, where one person is dissatisfied with a Letters of Administration granted to some person(s), he does not go to the other court to similar take Letters of Administration. Simply put, there cannot be two Letters of Administration regarding the same estate within the same jurisdiction. However, since this instant suit does not regard the revocation of Letters of Administration either granted by the District Court, Tamale or Circuit Court, Tamale, as same was not endorsed on the writ/counterclaim or that Abu Alidu is a party to this case, I would not go into the merits of it. Moreso, this court does not have supervisory (review) jurisdiction over the decisions or grants of the Circuit Court. - 8 - Issue ‘a’ 25. Issue ‘a’ regards, whether or not Abu Alidu @ Alidu Abukari was clothed with capacity to sell the disputed property to the defendant? Upon the death of a person without a will, the person is said to have died interstate. The laws applicable to the estate of a person who dies interstate is relative to the time of death. Notable applicable laws are the customary law, Administration of Estate Act, 1961 (Act 63) and the Interstate Succession Law, 1985 (PNDCL 111). 26. Customary law is part of the laws of Ghana. It has been in existence way before Ghana’s independence. In defining common law as a source of law in Ghana, article 11(2) of the 1992 Constitution provides that, “common law shall comprise the rule of law…and rules of customary law including those determined by Superior Court of Judicature.” Article 11(3) of the 1992 Constitution basically defines customary law to mean “the rules of law which by custom are applicable to particular communities in Ghana.” Customary law regarding a person who died interstate has been developed over the years, by the superior courts and learned authors like A. K. P. Kludze, Ewe Law of Property (2012); Modern Law of Succession in Ghana (2015), N. A. Ollenu, Principle of Customary Land Law in Ghana (1962); The Law of Testate and Interstate Succession in Ghana (1996), and K. Bentsi-Enchill, Ghana Land Law (1964). 27. A. K. P. Kludze in his book, Ewe Law of Property (2012) at page 340-341 stated: “The judicial customary law is that, upon the death intestate of any person, his self-acquired property becomes family property and that it is the family, and not an individual, that succeeds to the interests in the property. On the strength of the authorities, Ollenu says: ‘… the correct statement of the law is that upon a person’s death intestate, his self-acquired property vests in his ancestral family, which includes the immediate, the head and elders of the whole family.’ Subsequently, he states more categorically that: - 9 - ‘… the first principle of the customary law of succession applicable to all tribes in Ghana is that upon a person’s death interstate – male or female – his or her self- acquired property becomes family property.’ And he adds that: ‘… it is family which inherits and not an individual.’ Agreeing with him is Bentsi-Enchill who also says: ‘…the fundamental rule on which all are agreed [is] that upon the death interstate of a person, his or her self-acquired property becomes family property. This is so whether the family be patrilineal or matrilineal.” A. K. P. Kludze, at page 353, however, disputed the ‘wide propositions’ by the above authors and submitted that under Ewe law it is the male children of the deceased who succeeds in intestate property as of right as the proximate next-of-kin, but not the family. 28. Act 63 came into force in 1961. Sections 1 of Act 63 provides that: “Devolution on personal representatives (1) The moveable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death. (2) In the absence of an executor the state shall until a personal representative is appointed, vest as follows (a) if the entire estate devolves under customary law – in the successor, (b) in any other case – in the Chief Justice.” 29. By the interpretation in section 108 of Act 63, “’Personal representative’ means executor, original or by representation, or administrator for the time being of a deceased person.” See also the case, Opanin Yaw Okyere v Opanin Appenteng & Anor. [2011] DLSC 2664 on personal representatives and expected beneficiaries. 30. PNDCL 111 came into force on 14th June, 1985. The learned author A. K. P. Kludze in his book, Modern Law of Succession in Ghana (2015) at page 161 stated that, “As from 14 June, 1985, there has come into force the Interstate Succession Law, 1985, which - 10 - statutorily regulates rights to interstate succession in Ghana. As a statute, this law supersedes and reforms the rules of customary law. Its effect is a radical alteration of the existing customary law,…”. See also Or. 31 rule 13 of CI 59, which also stipulates that it is “only where a person dies interstate on or after 14th June, 1985 that (a) surviving spouse (b) surviving children, (c) a surviving parent and (d) customary successor of the deceased” can apply for the grant of Letters of Administration. 31. In our instant case, it is not in doubt that the deceased, Abukari Dagomba, died in 1981. Hence, based on the above authorities, the applicable law is customary law of the deceased, see s. 1(2) of Act 63. In effect, the heavy reliance by parties in this case on Letters of Administration is completely misplaced. 32. From the evidence, it is also not in doubt that the disputed property is part of the estate of the late Abukari Dagomba. Similarly, there is evidence to the fact that Abu Alidu @ Aliku Abukari sold the disputed property to the defendant. The question, then is, at the time of the sale was Abu Alidu clothed with capacity, customarily, to sell? 33. Capacity of a person, as a legal term, can be raised at any stage in a case. It is a hurdle that must be established in order to give effect to a person’s action(s). In the case, Kaseke Akoto Dugbartey Sappor & 2 Ors. v Very Rev. S. Dugbartey Sappor & 4 Ors [2021] DLSC 10042, the Supreme Court held that the capacity of a person ought to remain, at any point in time. Hence, where the capacity is lost, the person has no locus standi and there was no need to entertain such a person or go into the merit of the case. - 11 - 34. It is also trite that one cannot give what his does not have. Also, one cannot seek to deal with a thing or property when he has no capacity or have divested himself of that capacity. This in Latin is known as the nemo dat quod non habet principle. Therefore, if one does not have the capacity to deal with a thing and he does, his action comes to nothing, see the cases of Samuel Adom Botchway v Samule Addo Osei [2003] DLCA 6952, Saanbaye Basilde Kangbere v Alhaji Seidu Mohammed [2012] DLSC 6442 and George Kwadwo Asante & Anor. v Madam Abena Amponsah & Anor. [2022] DLSC 11677. In Samuel Adom Botchway v Samule Addo Osei [supra], Lartey JA stated that “Turning to the first ground of appeal, it is difficult to agree with learned counsel for the defendant that the trial court's judgment is unreasonable. In the first place, it was the case of the defendant that he bought the property from Kwesi Tetteh who in exhibit 'B' is only a witness and who thumb-printed in that capacity. There is nothing in the said document which suggests that title in the disputed land resides in Kwesi Tetteh. Accordingly, Kwesi Tetteh had nothing to pass on to the defendant, and the defendant on his part obtained no interest for which he seeks a declaration of title to the disputed land as per his counterclaim. I think the maxim nemo dat quod non habet is clearly applicable because no one, as in the instant case, can give that which he has not. In the result, the first and second reliefs in the counterclaim cannot succeed.” 35. Per the evidence, Abu Aliku (DW1) and Lariban Paga Abukari (DW2), alluded to the fact that the sale of the disputed property was with the consent of the family. DW1 listed the surviving children of the late Abukari Dagomba as: Alidu Abukari (himself, 75yrs), Lariban Paga Abukari (DW2, 55yrs), Sumanya Abukari (52yrs), Akilu Abukari (Plaintiff, 46yrs) and Rashida Abukari (40yrs). DW1 explained that when the plaintiff objected to the sale of the disputed property saying that they could get a better deal - 12 - from a different purchaser, they gave plaintiff the opportunity to bring in a better deal, but plaintiff failed, so he (DW1) proceeded with that of the defendant. 36. I rehash of section 1(2) of Act 63 provides that “In the absence of an executor, the estate shall until a personal representative is appointed, vest as follows (a) if the entire estate devolves under customary law – in the successor…”. If so, is Abu Alidu, the successor or customary successor? 37. The evidence did not point to the fact that DW1 is the customary successor. Rather, DW1 in his evidence-in-chief stated that he is the Head of Family of the deceased, Abukari Dagomba. The question then is, is a successor (customary successor) the same as head of family? A successor is defined by the Black’s Law Dictionary, 9th Edition, as, “(1) A person who succeeds the office, rights, responsibilities, or place of another; one who replaces or follows a predecessor.” It also defined, head of family as, “A person who supports one or more people related by birth, adoption or marriage and with whom those persons maintain their permanent domicile.” From these definitions, it is clear that a successor is different from a head of family. A customary successor is therefore the person who has a right to inherit the property of a deceased person under the customary law. The head of family is also the person who has authority over the family and its members. At least, a head of family suggests other family members (which may include external family members), but that person is the head. However, these terms can exist in one person at a time. Some legal writers, do use the term customary successor or head of family, interchangeably in probate actions, see the article - The Role of Customary Successor in the Application for Letters of Administration: A sine qua non or a legal superfluity by Fredrick Gurah Sampson (published on Ghana Law Hub website on 5th April, 2024) where he argued that the - 13 - strict reliance on the affidavit of the “head of family” (as in customary successor) in support of an application for Letters of Administration is superfluous. 38. Despite the non-description of Abu Alidu as the customary successor per se in this case, it is worth mentioning that the courts have held that on upon the death of a person, interstate, his properties devolve unto his immediate family. His immediate family gains access to the enjoyment of the property. 39. For ease of reference, let me repeat paragraph 27 of this judgment in which I quoted A. K. P. Kludze as follows: ‘“The judicial customary law is that, upon the death intestate of any person, his self-acquired property becomes family property and that it is the family, and not an individual, that succeeds to interests in the property. On the strength of the authorities, Ollenu says: ‘… the correct statement of the law is that upon a person’s death intestate, his self-acquired property vests in his ancestral family, which includes the immediate, the head and elders of the whole family’ Subsequently, he states more categorically that: ‘… the first principle of the customary law of succession applicable to all tribes in Ghana is that upon a person’s death interstate – male or female – his or her self-acquired property becomes family property.’ And he adds that: ‘… it is family which inherits and not an individual.’ Agreeing with him is Bentsi-Enchill who also says: ‘…the fundamental rule on which all are agreed [is] that upon the death interstate of a person, his or her self-acquired property becomes family property. This is so whether the family be patrilineal or matrilineal.” ‘A. K. P. Kludze, at page 353, however, disputed the ‘wide propositions’ by the above authors and submitted that under Ewe law it is the male children of the deceased who succeeds in intestate property as of right as the proximate next-of-kin, but not the family.’” - 14 - 40. In the case Atta v Amissah [1970] CC 73, which was decided before the passage of PNDCL 111 and was cited by Nene Amegatcher JSC (as he then was) in the recent case of Dora Boateng v Mckewon Investment Ltd [2020] DLSC 8525, the court that: “It is settled customary law that upon the death of a person intestate, although his self- acquired property becomes the property of the whole family, the immediate and the wider family together, the right to the immediate or beneficial enjoyment in it and to the control, use and present possession of it vests in the immediate or branch family alone. If the property is held by tenants, the right to the landlord’s benefits vests also in the immediate family alone. It is the immediate family, and not the extended family, which has the power to alienate the property by virtue of its possession of the right to the beneficial enjoyment of the property.” 41. In Adjabeng v Kwabla [1960] GLR 37, Ollenu J. (as he then was) in explaining who can deal with the property of a person who died interstate under the customary law stated that: “To succeed in his claim, the plaintiff must establish two facts; if he fails in either of them his claim ought to be dismissed. The two things he must establish are: (1) That his father was owner in possession of the land at the date of his death, and either (2) That he is the head of family of his father’s family, or (3) That he has been properly appointed successor to his father by the head and principal members of his father’s family.” 42. In effect, where the head of family and with the consent of the principal family members of the deceased, sell the devolved property, the said sale shall be deemed valid, see also the cases of Kwan v Nyieni [1959] GLR 67 and Evelyn Aseidu Offei v Yaw Asamoah Odehye Kwaku Gyapong [2018] DLSC 151. - 15 - 43. On the totality of the evidence, I find that the reference of Abu Alidu (DW1) as head of family was not disputed by the plaintiff. Again, I find that DW1 sold the property with the consent of some of the members of the family. DW1 is the eldest son of the deceased. DW2, Lariban Paga Abukari, is the second born. Both DW1 and DW2 stated in their evidence that DW1 obtained the consent of the family members before the sale was made. So as head of family and with the consent of some of the family members, DW1 can sell the property which devolved on the immediate family. I also glean from the evidence that all that plaintiff sought to achieve in this case was that as at the time DW1 sold the disputed property, DW1 had not obtained Letters of Administration so the sale be set aside. Unfortunately for the plaintiff, this case does not regard Letters of Administration. 44. I, therefore, come to the conclusion that Abu Alidu was clothed with capacity, customarily as head of family and with the consent of some of the family members, sold the disputed property to the defendant on 6th September, 2022. 45. I must also mention here that the Supreme Court has held that statutory declarations by themselves do not confer title. Reference can be made to cases such as In re Ashalley Botwe Lands; Adjetey Agbosu v. Kotey [supra] and Mrs. Vivian Aku- Brown Danquah v. Samuel Lanquaye Odartey [2016] DLSC 2833. In the latter case for example, the Supreme Court noted as follows: “… in an action for declaration of title to land a statutory declaration by itself does not confer title on the declarant. A party relying on a statutory declaration in an action for title is required to lead credible and admissible evidence to prove the acts of ownership and possession referred to in the declaration. See the case of Agbosu v. Kotey [2003-2004] SCGLR 420.” - 16 - 46. Similarly, in Donkor v Alhassan [1987-88] 2 GLR 253, cited by Aninakwah JSC in the case of Kottey v Kolete [2005-2006] SCGLR 368 at 375 held that, “(1) the receipts, Exhibits A and B, were not meant to transfer by themselves any interest in the land, but only evidenced payment in pursuance of an agreement to transfer an interest in land.” Also in Osei v Korang [supra], the Supreme Court speaking through Ansah JSC (as he then was) elaborated further in saying that: “It is settled that receipts/building permits, building plans, title documents, etc do not confer titles on their holders per se, [but] are nevertheless strong acts of ownership, Kakraba v Kwofie [1966] GLR 229.” 47. In effect, Exhibit 2, the statutory declaration by Abu Alidu purporting to transfer interest in the dispute property to the Defendant, does not confer any title. However, it prohibits Abu Alidu from disputing the said sale, more particularly where there is a receipt covering the sale, see Exhibit 1. Issue b 48. Issue ‘b’ is whether or not the plaintiff or defendant is entitled to his claim? With issue ‘a’ determined, it implies the plaintiff’s action fails. 49. Before I conclude, the Supreme Court in the case Kofi Manu v Akosua Agyeiwaa & 3 Ors. [2013] DLSC 2572 held that, “…this court will not ordinarily grant any relief which a party has not formally asked for. The only instance when a relief has been, so to speak, granted without being specifically asked for is in an instance when that relief emerges or is apparent from the evidence on record.” The court does so in order to do substantial justice to the parties, see also Hanna Assi (No. 2) v GIHOC Refrigeration and Household Products Ltd. (No.2) [2007-2008] 1 SCGLR 16. - 17 - 50. From the evidence, since Exhibit 2 does not confer title, in order to do substantial justice, I hereby hold that the defendant is entitled to his counterclaim, with an additional relief that Abu Alidu regularizes the sale with a proper conveyance to the defendant, see Osei v Korang [supra]. CONCLUSION 51. In sum, I hereby enter judgment in favour of the defendant as follows: a. I declare that defendant legitimately acquired Plot 116 Ward J, Nyani Fong, Tamale being part of the estate of the late Abukari Dagomba. Abu Alidu @ Aliku Abukari to ensure that the defendant obtains a proper conveyance. b. The plaintiff, his assigns, successors, agents or workmen and those claiming through plaintiff are perpetually restrained from further going or interfering with defendant’s disputed plot. c. No order as to costs. 52. Once again, ignorance of the law, is no excuse! H/W D. ANNAN ESQ. [MAGISTRATE] DAJIAH J. IDDRISU ESQ. FOR THE PLAINTIFF TERENCE NINNANG ESQ. FOR THE DEFENDANT References: 1. Article 11(2) and (3) of the 1992 Constitution 2. ss. 11(4), 12(1) & (2), 13, 14 and 37 of the Evidence Act, 1975 (NRCD 323) - 18 - 3. s. 1 and 108 of the Administration of Estate Act, 1961 (Act 63) 4. s. 27 of the Interstate Succession Law, 1985 (PNDCL 111) 5. Faibi v State Hotels Corporation [1968] GLR 471 6. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420 7. Osei v Korang [2013] 58 GMJ 1 8. Seidu Mohammed v Saanbaye Kangbere [2012] 2 SCGLR 1068 9. The Republic v High Court [Commercial Division], Accra Exparte Yvonne Amponsah Brobbey (Gladys Nkrumah Interested Party) [2023] DLSC 12147 10. Opanin Yaw Okyere v Opanin Appenteng & Anor. [2011] DLSC 2664 11. Kaseke Akoto Dugbartey Sappor & 2 Ors. v Very Rev. S. Dugbartey Sappor & 4 Ors [2021] DLSC 10042, 12. Samuel Adom Botchway v Samule Addo Osei [2003] DLCA 6952 13. Saanbaye Basilde Kangbere v Alhaji Seidu Mohammed [2012] DLSC 6442 14. George Kwadwo Asante & Anor. v Madam Abena Amponsah & Anor. [2022] DLSC 11677 15. Atta v Amissah [1970] CC 73 16. Dora Boateng v Mckewon Investment Ltd [2020] DLSC 8525 17. Adjabeng v Kwabla [1960] GLR 37 18. Kwan v Nyieni [1959] GLR 67 19. Evelyn Aseidu Offei v Yaw Asamoah Odehye Kwaku Gyapong [2018] DLSC 151 20. Mrs. Vivian Aku-Brown Danquah v. Samuel Lanquaye Odartey [2016] DLSC 2833 21. Agbosu v. Kotey [2003-2004] SCGLR 420 22. Donkor v Alhassan [1987-88] 2 GLR 253 23. Kottey v Kolete [2005-2006] SCGLR 368 at 375 24. Kakraba v Kwofie [1966] GLR 229 25. Kofi Manu v Akosu Agyeiwaa & 3 Ors. [2013] DLSC 2572 - 19 - 26. Hanna Assi (No. 2) v GIHOC Refrigeration and Household Products Ltd. (No.2) [2007- 2008] 1 SCGLR 16 27. Or. 66 rule 29 of High Court (Civil Procedure) Rules, 2004 (CI 47) 28. Or. 31 rules 13 and 29 of the District Court (Civil Procedure) Rules, [2009] CI 59 29. A. K. P. Kludze in his book, Modern Law of Succession in Ghana, 2015, at page 161 30. A. K. P. Kludze, (2012), Ewe Law of Property 2nd Edition, Sonlife Press 31. N. A. Ollenu, (1962) Principle of Customary Land Law in Ghana, Sweet & Maxwell: (1996) The Law of Testate and Interstate Succession in Ghana, Sweet & Maxwell 32. K. Bentsi-Enchill, (1964) Ghana Land Law, Sweet & Maxwell 33. Article: The Role of Customary Successor in the Application for Letters of Administration: A sine qua non or a legal superfluity by Fredrick Gurah Sampson (published on Ghana Law Hub website on 5th April, 2024) 34. Black’s Law Dictionary, 9th Edition, - 20 -