AMPONG VRS OWUSUAA AND ANOTHER (A1/29/2019) [2024] GHADC 332 (23 August 2024)

IN THE DISTRICT COURT HELD AT AGOGO ON 23RD DAY OF AUGUST, 2024 BY HER WORSHIP CYNTHIA NUEKIE BLAGOGEE THE DISTRICT MAGISTRATE SUIT NO: A1/29/2019 IN THE MATTER OF: KENNEDY AMPONG PER LAWFUL ATTORNEY KWESI TABI PLAINTIFF OF AGOGO VRS 1. SANDRA OSEI OWUSUAA DEFENDANTS PER HIS LAWFUL ATTORNEY AGYEI KOFI BOATENG 2. JERRY KOFI BLANKSON PER HIS LAWFUL ATTORNEY BISMARK OWUSU MR. SAMUEL AGYEI AYEH FOR THE PLAINTIFF MR. FRANCIS OPUNI KESSE FOR THE 2ND DEFENDANT JUDGEMENT The plaintiff attorney mounted this action against the Defendants herein for the following reliefs. 1. A declaration of title to plot numbers 16 and 17, block F situated at a place known and called Tweneboase on the Hwidiem stool lands. 2. Recovery of possession. CASE OF THE PLAINTIFF ATTORNEY It is the plaintiff attorney’s case that in the year 2006, one Kofi Amponsah (PW1) informed him that the 2nd defendant’s mother (DW1) and her elderly son; one Reverend Nkansah have tasked him to get a buyer for their two plots of land to solve a pressing family matter. Plaintiff attorney said, he informed the plaintiff about it and he expressed interest, thus, he purchased the two plots, numbers 16 and 17 block ‘F’ at a cost of GH¢2,200.00 after inspection of same. He added that DW1 executed a statutory declaration confirming the ownership of the plaintiff. And it was upon the statutory declaration that they registered the property at the Hwidiem Traditional Council in the name of the plaintiff and his wife. According to the plaintiff attorney, he has been in possession of the properties since then. However, he added that it was in December, 2018 that he observed that the 1st defendant was developing the plots and he confronted her. He said she named the 2nd Defendant as her grantor. That said, he noted that the 1st defendant summoned him before the Hwidiem Traditional Council and after arbitration, the 1st defendant lost the case. In support of his case the plaintiff attorney relied on the following documents. The power of attorney appointing him to litigate the instant case. Same admitted and marked as exhibit ‘A’. Also, is a site plan of plots 16 and 17 block ‘F’ at Tweneboase as exhibit B without objection. Then is a Statutory Declaration confirming transfer of ownership of plots 16 and 17 to the plaintiffs. Same admitted and marked as exhibit C without objection. A receipt marked as exhibit D being a receipt from the Hwidiem Town Development and Allocation Committee. And finally, the arbitration report as exhibit E respectively. The witnesses called by the plaintiff attorney in support of his case confirmed his story. CASE OF THE FIRST DEFENDANT’S ATTORNEY The 1st defendant who represented herself at the initial stage of the trial later appointed a lawful attorney to represent her. According to the lawful attorney in the year 2018, one sister Ama directed the 1st defendant to the 2nd defendant when she wanted plot of land to buy. He added that, the said sister Ama testified to the effect that the 2nd defendant had cultivated the said land for so long thus, same belonged to him. He also noted that the 1st defendant did her thorough search to ascertain whether or not the land belonged to the 2nd defendant and same was so. Further, it is the 1st defendant attorney’s case that the 2nd defendant executed a deed of transfer for the 1st defendant as well as a site plan. He intimated that the 1st defendant commenced building in August, 2018 but the plaintiff attorney caused damage to her foundation for which she summoned him before the Traditional Council for arbitration. Thus, he was made to pay for the damaged caused, he added. He was emphatic that her grantor’s mother (Dw1) had denied ever selling the disputed land to the plaintiffs. CASE OF SECOND DEFENDANT ATTORNEY On his part, he described himself as Bismark Owusu and tendered a copy of the power of attorney as evidence and marked as exhibit 1. His case is simple. According to him his principal is owner of the disputed plots of land by way of gift from his mother (Dw1) in the presence of his siblings. He tendered in evidence copies of transfer document and site plan executed and marked as exhibit 2 series. He refuted the plaintiff’s claim to the subject land. His only witness, who happened to be his mother (Dw1) confirmed the 2nd defendant’s story. ISSUES: 1. Whether or not the plaintiff attorney is entitled to his reliefs. 2. Whether or not the 1st defendant claim must avail. THE LAW AND ANALYSIS: This is a land matter and the principle remains as in sections 10 and 11 (1) and (4) of the EVIDENCE ACT, 1975 (NRCD 323) that the plaintiff has the obligation to prove his case for a ruling in his favour. The above provision is explained in the case of YORKWA V DUAH [1992-93] GBR 278 at 282 by JA BROBBEY (as he then was). “Considering the wording of section 10(1) ……the expression burden of persuasion should be interpreted to mean the quality, quantum, amount, degree or extent of evidence the litigant is obliged to adduce in order to satisfy the requirement of proving a situation or a fact.” “Under sections 11,12 and 13 particularly section 179 (1) of the Decree, the burden of producing evidence means the duty or obligation lying on a litigant to lead evidence. In other words, these latter sections cover which of the litigating parties should be first to lead evidence before the other’s evidence is led….” In reference to the above provision, the plaintiff attorney as explained above bears the burden of producing evidence since the instant action was commenced by him. The plaintiff attorney traced his title to the subject land by way of sale. He contended he had been in possession of same since 2006 after purchase as set out in case of MONDIAL VENEER (GH) LTD V AMUA GYEBU XV [2010] SC GLR. Further, he relied on a Statutory Declaration confirming transfer of ownership executed by his grantor (Dw1) and one another. As well as a site plan. A receipt from the Traditional Council and an arbitration report. All admitted without objection and marked as exhibits A, B, C, D and E respectively. On the part of the 1st defendant, she submitted to the court on the 18/3/2021 that she was dispensing with her attorney to defend herself, Again, when asked whether or not she was tendering any document in support of her case, she replied in the negative during the CMC and dated 18/3/2024. Let me reproduce the encounter as recorded in the civil record book and dated 18/3/2021 by my predecessor: “D1 informs the court that she is dispensing with the attorney and that she would defend the action herself. BY COURT: Power of attorney filed by D1 herself removed since she is here to defend the action herself.” COUNTINUATION OF CMC: COURT: Have you received all documents filed by plaintiff? D1: Yes please. COURT: Are there any other concerns? COUNSEL FOR PLAINTIFF: No, my lord. I have no objection to D1’s witness statement. COUNSEL FOR D2: I have no objections to D1’s witness statement. COURT: Do you have any documents you intend to tender in evidence? D1. No please. BY COURT: CMC complete. Suit adjourned to 04-05-2024 for the plaintiff to testify. So, from the above reply by the 1st defendant, it is without doubt that she has no documentary evidence as proof of her purchase of the subject land as required by the conveyancing Act, 1973 (NRCD 175) as amended by the land Act, 2020 (Act 1036). Section 34. “A contract for the transfer of an interest in land is not enforceable if the contract is not. a. evidenced in writing and b. signed by c. the person whom the contract is to be proved; or d. a person who is authorized to sign on behalf of that person; or e. exempt under section 36.” Indeed, per the arbitration report (exhibit E); the 1st defendant could not produce any document from her grantor (2nd Defendant). See the encounter between the 1st defendant and PW3. Q. I put it to you that it is not true I did not produce any documents before the panel? A. Not correct. Q. I put it to you that it was from Samaahene that I collected my documents. You were present. A. Although I saw you with him, I did not know what you were there to do. He has no authority to give you any land documents except the Hwidiem hene. From the above reply by the 1st defendant, I agree with counsel for the plaintiff attorney that as of 18/3/2021 the exhibit SO1 and SO2 tendered and relied on by the 1st defendant attorney was not in existence as the 1st defendant attorney sought to suggest. See his reply to counsel for the plaintiff attorney captured at page 494 of the record book volume 17. Q. And are you aware that on the 18/3/2021 when CMC was conducted in this court; the 1st defendant informed this court that she had no document to rely on in this matter? A. I’m not aware of that. Q. I am suggesting to you that as at 18/3/2024, this documents i.e., SO2 had not been prepared. A. That is not correct. Note that the 1st defendant is a teacher, thus, she is a literate and educated as she is, if she truly had those documents prior to the day of the CMC, I did not expect her to tell the court that she did not have. Thus, this is not a conduct I could gloss over. And I agree entirely with counsel for the plaintiff attorney that exhibits, SO1 and SO2 were not in existence of the time of the purported sale of the subject land by the 2nd defendant to the 1st defendant. Thus, I could not place much weight on same in my decision. Beyond that it is the 1st defendant’s case that she did not sue Mr. Tabi (plaintiff Attorney) for the land but for the destruction he caused to her foundation. Let me reiterate what transpired between PW3 and the 1st defendant as recorded on page 45 of the typed-out proceedings and dated 25/8/2022. Q. I also put it to you that I did not sue Mr. Tabi for land but I sued him for destroying my foundation? A. Not correct. You summoned him because of the land. Well, I find it difficult to believe the 1st defendant’s averment here. In the sense that the alleged destruction is a criminal act and the forum to address that was at the police station and not the palace. Let me repeat that the 1st defendant being a teacher and a literate should know better. Thus, I find her posture here problematic which also brought her credibility into question. In the instant case, counsel for the 2nd defendant argued that the arbitral report (exhibit E) was a fallacy and never happened. See the encounter counsel had with Pw3 at pages 41 and 42 of the proceedings dated 27/6/2022. Q: I am putting it to you that Jerry Blankson (2nd Defendant never appeared before the panel, neither did he testify? A. Not correct. Q. I am putting it to you that the whole story about a certain arbitral sitting and its report is a complete fallacy. A. Not correct. Well, referring to the above encounter I seemed to wonder why counsel holds that position. In the sense that, per the evidence before me the arbitral proceedings were at the instance of the 1st defendant. Thus, if counsel perceived same to be a fallacy, then in my humble view it should be the 1st defendant who would be deemed as not being truthful and not the plaintiff attorney as counsel sought to suggest. The plaintiff attorney has maintained that he purchased the subject plot from DW1 and her son one Reverend Nkansah. He together with his witness (PW1) averred that the said Reverend and his mother (DW1) were selling the subject land to solve a case the family had. DW1 who denied the plaintiff attorney’s assertion had this to say when counsel for plaintiff attorney put her to scrutiny. See page 349 of volume 19 of the record book. Q: And do you remember that the said Rev. Nkansah had a court case? A. Yes, somebody owed him and he took that person to Juaso court. Q. I am putting it to you that it was Rev. Nkansah who was supposed to refund money to that person? A. That is not correct. Now, per this encounter, the plaintiff attorney’s case is highly probable in my humble view than the story of the DW1. In that, her reply seems to confirm the plaintiff attorney’s averment. That said, it is DW1’s case that she gifted the disputed plots to the 2nd defendant for which she thumb printed a deed of gift for him to seal same. Let me reproduce her assertions in court. See page 346 of volume 19 of the record book. Q: Can you tell this court whether or not you were a witness to the sale of the said plot by your son? A. The documents I remember thumb printing is the deed of gift I made to the 2nd defendant. Q. Which year did the said gift of deed made? A. It’s a long time and can’t recollect. Q. In your estimation would it be within 10 years? A. More than 10 years. Now, per the above assertions by DW1, I expected the 2nd defendant to have evinced the purported deed of gift he received from DW1 because, his mother DW1 was emphatic that she thumb printed the document as proof of the alleged gift. What his attorney tendered and relied on in support of his case was a declaration of transfer of ownership (exhibit 2). Yes, witnessed by the DW1 and dated the 26/7/2018. Obviously, exhibit 2 is not the same as the alleged deed of gifted described by DW1. I therefore find DW1 averment as not accurate. But more importantly, if Dw1 truly gifted the subject land to the 2nd defendant as she wants the court to believe I expected the 2nd defendant to call any of his siblings to corroborate his case by way of persuading and convincing me to believe his story. The Supreme court in the case of BARKO V MUSTAPHA [1964] GLR 78 laid down the elements that must be present for a customary gift to be given effect to in law; which include publicity; acceptance and the donee must be placed in possession. The 2nd defendant failed to convince the court with the above ingredients than the alleged assertion that he had been farming on the disputed land for long. I therefore, did not believe his case nor that of Dw1 about the alleged gift of the said land to the 2nd defendant as they want the court to belief. In the instant case, the plaintiff attorney has demonstrated and convinced me that he purchased the disputed land from DW1 and his elder son Rev. Nkansah and paid for; for which reason they executed documents for him to that effect. And since the plaintiff attorney had already acquired DW1’s interest in the disputed land, she had no other interest in the plots of land available for his son (2nd defendant) to pass on to the 1st defendant. This is the what the maxim: nemo dat quod non habet seeks to explain as held in the case of CHOU SEN LIN V TONADO ENTERPRISES LTD [2007-2008) 1 SC GLR 135 at 139 by Brobbey JSC (as he then was). Consequently, I adjudge the case for the plaintiff attorney against the 1st and 2nd defendants for his claims. I declare title of plots 16 and 17 block F and situate at Tweneboase on Hwidiem stool lands to the plaintiffs. The plaintiffs are ordered to recover possession of same forthwith. I perpetually injunct the defendants, their family members workers, agents, assigns and any person claiming title through them from any further interference of the said land. I award cost of GH¢5,000.00 from the 1st and 2nd defendants jointly and severally for the plaintiffs. SGD HW CYNTHIA N. BLAGOGEE (MRS.) DISTRICT MAGISTRATE 11