Buatsi Vrs Vodzi & Another [2023] GHAHC 199 (29 March 2023)

IN THE SUPERIOUR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO VOLTA REGION A. D 2021 CORAM: CHARITY A. ASEM (MRS) J SUIT NO. E1/58/2019 DATE: 29TH MARCH, 2023 FRED DZAKO BUATSI H/NO. 5, KOI STREET PLAINTIFF OSU-AKO ADJEI, ACCRA VRS. 1. MRS. ESTHER VODZI HO. DEFENDANTS 2. LANDS COMMISSION VOLTA REGION, HO JUDGMENT On 24/06/2019, the plaintiff issued a writ of summons against a trespasser on his land. The trespasser is 1st defendant. The following are the endorsement of his reliefs sought. 1) A declaration of title to all that piece or parcel of land situate lying and being at a place known and called Gbalave, near Ho Technical University and more particularly described in Land Registry Document No. 2720/1979 and further described in the schedule hereto. 2) An order for damages for trespass. 3) An order for recovery of possession of all or any portion trespassed upon by the defendants and/or registered in the name of James Yaovi Vodzi. 4) A further order directed at the 2nd defendant to delete, cancel and/or correct the portion of the plaintiff’s said land registered in the name of James Yaovi Vodzi. 5) An order of Perpetual Injunction restraining the defendants whether by themselves, privies, assigns, workmen or whosoever described from having anything to do with the plaintiff’s land as described. 6) Costs. SCHEDULE The land is situate, lying and being at Gbalave, near the Ho Technical University and bounded as follows; - On one side by the land of Ben Agbetsoamedo. On another side by the land of the Glalah Family. On yet another side by a road, and On the last side by the main Ho, Technical University road. Upon service the 1st defendant lodged a defence on the 9/08/2019 and denied the claims of the plaintiff. She however did not counter-claim. At close of pleadings, the following issues were adopted by the court for determination when it conducted direction on the 25/03/2020. ISSUES 1. Whether the plaintiff acquired by purchase in 2/1/1979, the land the subject matter of this suit from the Afese family of Ho-Dome. 2. Whether or not the land was demarcated and boundary pillars erected on the boundaries with the inscriptions FDB. 3. Whether or not the plaintiff left the land in the care of Ben Agbetsoamedo, Natal and Robert Sangbe. 4. Whether or not Natal purchased the boundary of the land belonging to the Glalah family. 5. Whether or not the plaintiff caused sandcrete blocks to be moulded and packed on a portion of the land. 6. Whether or not the plaintiff conducted searches on the land. 7. Whether or not by a search conducted in 2015, a portion of the land is registered by the 2nd defendant in the name of 1st defendant or her husband. 8. Whether or not what transpired before Togbe Kassa was a valid arbitration. 9. Whether or not the plaintiff is entitled to his claim as per the Writ of Summons. 10. Any other issue not hereinbefore mentioned but raised and arising on the pleadings. The plaintiff testified personally on the 26/06/2021. He called three witnesses in support of his case. On the other hand, the 1st defendant testified and also called three (3) witnesses in support of her case. At close of defendants’ case, Counsel made a prayer for the court to appoint a surveyor to draw a composite plan of the respective claims of the parties. The directive to the surveyor was complied with and he appeared on the 21/12/2022 to testify. He tendered the survey report as Exhibit “CE1” and the Composite plan as “CE2”. He was crossed examined by both Learned Lawyers. The court will refer to the relevant portions of the said Exhibits and evidence in the cause of this discussion as I find the work of the court witness reliable and so cannot be glossed over. All the parties and witnesses testified according to their witness statements. THE PLAINTIFF’S CASE According to the plaintiff he sued the defendants in respect of a piece of land he acquired sometime in the year 1979 from the Afese family of Ho-Ahoe. That he acquired land of approximate area of 0.36 acre or 0.14 hector from his vendors. A lease was executed in plaintiff’s favour and tendered in evidence as Exhibit “A”. He continued that after the sale and the land was demarcated to him, he took possession of same and caused to be erected on the boundaries pillars at the four (4) corners with the inscriptions FDB (Fred Dzako Buatsi). According to him the pillars are still on the land. He caused the Indenture Exhibit “A” to be registered at the Lands/Deeds Registry Accra as document No. 2720/1979. He cultivated the land for a while before he was transferred to Accra. He stressed further that he left the land in the care of Alfred Kojo Ayima Natal (PW1) whom he share boundary with, and one Robert Sangbe his uncle. As part of evidence of his possession he caused to be moulded blocks which he placed on the land. He said he was unable to develop the land as a result of his transfer to Accra and financial difficulties over the period. He continued that in 1990 and 2009 he caused a search to be conducted at the Lands Registry in respect of the disputed site upon his retirement. The result showed that the piece of land was still in his name. That in 2015 he caused another search to be conducted however he realized that, portions of it has been registered by the 2nd defendant in favour of James Yaovi Vodzi (deceased) the husband of the 1st defendant. It is his case that 1st defendant did not only trespassed but has allowed other persons to put up structures on portions of the land. Subsequently, he lodged a complaint to the 2nd defendant, but 2nd defendant failed to heed to any of his cry to attempt to correct their record in his favour. Plaintiff continued that when all failed he complained to Togbe Kasa, the chief of Ho- Ahoe, who invited the 1st defendant and the matter was arbitrated upon by him. According to him, Togbe Kasa found in his favour and an award was published (Exhibit “E”). That the 1st defendant failed to abide by the terms of the award published by Togbe Kasa; hence the instant action for the court to restrain the 1st defendant from her persistent and unlawful conduct on his land. THE CASE OF THE 1ST DEFENDANT. According to the 1st defendant she is the widow of James Yaovi Vodzi. It is her case that her late husband acquired the land from one Jimmy Aguadze and other principal members and elders of the Glalah family. She siad that, the disputed land formed part of the Glalah family of Ho-Ahoe. According to her, the Glalah family led by Gotlieb Glalah gave a parcel of land to one Albert Klu Yao Aguadze as a gift. That Albert Aguadze later sold portion of the gifted land to others. That the disputed land form part of the gifted land, which was reserved for the daughter of Albert Yao Aguadze. Her name is given as Christie Aguadze. She did not develop the land before she died. It was this undeveloped part that was sold to her late husband Yaovi Vodzi. She continued that the said albert Yao Aguadze placed one Martin Kodzo Atiglo on portion of the land who occupied same for over 35 years before his death in 2017. Stressing that the said Kodzo Atiglo lived in a structure which was later developed into a single room with blocks. 1st defendant also tendered the registered indenture executed in her husband’s favour by his vendors as Exhibit 1 – No. DR/VR193/2012. Furthermore, that her late husband had registered the instrument before his demised. 1st defendant admitted the proceedings at Togbe Kasa’s palace. She however claimed that the matter was not gone into as regarding ownership of the land. It is her story that whilst she insisted that the portion sold to her deceased husband belonged to the Glalah family, Togbe Kasa’s interest was only as to who was first to register interest in the land. That Togbe Kasa refused to listen to her vendors thought they pleaded to be heard. His verdict was that since plaintiff was first to register the land, same belongs to him, he ordered that she vacate the land. According to her, herself and the Glalah family’s representative protested the decision of Togbe Kasa before they left his Palace. She concluded that the land belongs to the Glalah family which gave it to Albert Klu Yaw Aguadze who later sold his interest it to James Yaovi Vodzi. She denied being a trespasser. 2nd defendant thought served did not participate in this trial. I believe they considered themselves to be nominal defendants. Since this is a land suit, the plaintiff is expected to lead evidence in proof of his title and cannot rely on the weakness of his opponent to succeed. Either party must discharge his or her own burden of proof. In the case of Agyekum vs Amoah Civil Appeal No. J4/59/2014 delivered on 13th April 2016 (unreported) it was decided that in civil trials, the standard of proof is that of a balance of probabilities. Section 11(4) and 12 of the Evidence Act 1975 (NRCD 323), the above position was made manifest in the case of ALBERTINA AMANKUMAH ODAMTEY V. REBECCA CLOUCH (1991) 1 WASC 129. Please see also Sarkodie v. FKA Co. Ltd (2009) SCGLR page 65 holding 1. From the facts and evidence before this court, the location of the land is not in dispute. It is also a fact that both parties have a registered document covering about the same piece of land. The plaintiff’s indenture was registered at the Land/Deeds Registry, Accra as document No.2720/1979, whilst defendants’ document was registered as document No. RV/4937/2012 at the Lands Registry Volta Region Ho. The obvious red flag is that whilst the plaintiff traced his root of title from the Afese family, defendant traced hers from the Glala family. One of the germane issues for determination therefore, will be the determination of the ownership of the disputed land between the two grantees. The plaintiff alleged that the defendant has trespassed unto his land, he owes a duty to the court to and was required to prove that by evidence as well within the ambit of the law. As always a claim of perpetual injunction automatically puts in issue the title of the plaintiff and he must prove same. In the case of NANA BRAFO DADZIE II V. JOHN KING ARTHUR & ORS. Civil Appeal No. J4/20/2016 unreported per Appau JSC said; “The authorities are legion that where in addition to a claim for damages for trespass, the plaintiff claims an injunction, title is automatically put in issue, because that postulates that, the plaintiff is either the owner of the land in dispute or has had (prior to the trespass complained of) exclusion possession of it.” Likewise, in Anane & Ors v. Donkor & anor. (Consolidated) (1965) GLR page 188 holding 1, the Supreme Court decided that, “A claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land subject matter of this suit.” The rational in the above principle was re-echoed in the case of BEDU & Ors. V. AGBI (1972) GLR 238 and expatiated that, “The onus was on the plaintiffs to establish the exact boundaries of the land in dispute so that any judgment in their favour would be related to a defined area.” Further in Akoto II & Others v. Kavege & Ors (1984-86) 2 GLR page 365, the Court of Appeal held that “The failure to prove boundaries even of one side was fatal. Please see Bissah v. Gyampoh III (1964) GLR 381 SC holding 1. Akakpo v. Ayaa Idrisu (2010) SCGLR 819 on the above principles. The above cited authorities are to the effect that, it is the law that the plaintiff in an action for declaration for title of land must succeed on the strength of his own case and not the weakness of the defence, though in an appropriate case where the defence supports that of the plaintiff the plaintiff is entitled to rely on such evidence in support of his case to prove his case. Please see LAMISI V. ALHAJI LAWAL ADETORO SC (NIG) 148/2001 UNION OF INDIA & ORS V. VASAVI CO-OP HOUSING SOCIETY LTD & ORS (Civil Appeal No. 4702/2004. The court held; “In civil suit for declaration of title, the burden always lies on the plaintiff to make out and to establish a clear case for granting such a declaration and weaknesses if any of the case set up by the defendants would not be a ground to grant a relief to the plaintiff.” It seems to me that in declaration of title to land, the paramount hurdle to cross would be the root of one’s title. Therefore, a plaintiff or anyone desirous of acquiring land ought to be mindful and to investigate thoroughly, and properly the title of his grantor. Our Apex Court has held in the case of KUSI & KUSI V. BONSU (2010) SCGLR page 60 holding 9 thus; “…….indeed when it come to the sale of land, unless the buyer acted diligently and with the services of an expert, she receives no pity from the court should unexpected events begin to rear their ugly heads relative to the purchase.” Per the pleadings and the witness statement the plaintiff unequivocally described his grantor as Lawrence Kwadzo Afese. From Exhibit “A”, the said Lawrence Afese was the head of the family, when the transaction in Exhibit “A” was conducted. From the issues set down for determination, and having studied the evidence adduced from both side of the divide, the witness statement, exhibits, I realised that the issues raised by the counsel for the plaintiff will add nothing to the just conclusion of this case. It is the considered view of the court that issues (a-g) are borne out of the pleadings as undisputed facts. The court will not bother itself to determine whether or not Natal was plaintiffs’ caretaker, or whether indenture was executed in favour of the parties etc. The court will however discuss issue (h) briefly the issue of arbitration before Togbe Kasa and set for itself consideration - Whether or not the disputed land is for the Afese family or the Glalah family all of Ho Ahoe, in view of the fact that both vendors appeared to defend what they conveyed to their grantees. ISSUE 1. WHETHER OR NOT THE DISPUTED LAND BELONG TO THE AFESE OR THE GLALAH FAMILY OF HO – AHOE. From the plaintiff’s evidence both from himself and witnesses, it is an undeniable fact that one Lawrence Afese sold land to the plaintiff in 1979 per Exhibit “A”. He did not develop same till date. According to him he cultivated the land briefly before he left to Accra by reason of transfer. He placed the land in the care of the witnesses. It is a fact that Ayima Natal PW1 was one of the caretakers, who share a common boundary with the plaintiff at the time. But he PW1 purchased his land from the Glalah family. According to 1st defendant, the disputed land originally belonged to the Glalah family who gifted same to one Aguadze who later sold same to her deceased husband. When this dispute arose, the matter was reported to Togbe Kassa for arbitration. Defendant denied what appears to be arbitration because she was denied hearing by her vendors the Glalah family. Though plaintiff tendered the award from Togbe Kassa, it does appear to this court that the 1st defendant did submit to the arbitration but however rejected the outcome. I believe this is a good point to examine the issue of the arbitration, plaintiff and his counsel placed so much emphasis on. First of all, from the endorsement and reliefs being sought by the plaintiff, thought plaintiff heavily relied on the said arbitration, plaintiff did not seek the enforcement to the said arbitration award granted in his favour from this court. It is unclear why plaintiff who claimed to have a valid award in his favour will sue for declarative relief on the same subject matter land rather than proceed to its enforcement. It is the considered view of this court that, the declarative reliefs before the court herein negates the award made by Togbe Kasa. And my candid view is that the defendant cannot be bound by it, the reliefs herein show that the award has been clearly abandoned. Secondly, there is no satisfactory evidence before this court that 1st defendant freely submitted to he said arbitration after evaluation of what transpired at Togbe Kasa’s Palace. The proses looked more like an invitation into a set meeting. This court therefore will not place any weight on the said award as appears in exhibit E. I turn to agree with Counsel for the 1st defendant that, merely paying a fee and, attending to the Chiefs call as it happened in that case cannot constitute a valid arbitration. Please see the case of REPUBLIC V. AKROBETO SUB-TRADITIONAL COUNCIL (1980) GLR page 928 also cited by Learned Counsel for 1st defendant. After careful evaluation of the evidence from both sides of the divide the present dispute appears to be purely a boundary issue between the Glalah and the Afese family all of Ho-Ahoe. The evidence of DW2 Walter Data Glalah was instructive so also PW2. The witnesses agreed that the case was a boundary dispute. PW2 is the son of plaintiffs’ grantor in privy. Privies in blood, such as an heir and an ancestor and privies in estate, such as grantor and grantee etc. (Emphasis mine). The witness admitted under cross examination on the 4/01/2022 when the following questions were posed to him on the issue of boundary; Q. Your father and one Prosper Afese contested title to the Gblave land at the high court Ho, not so? A. Yes Q. judgment was given in favour of your father for the Gblave land A Yes. Q. In the case, one of the Key witnesses for your father was Alfred Kwadzo Glalah in that trial. A. it is so Q. His evidence was to the effect that Glalah family share boundary with the Gblave land (Afese) A. He did. Q. The said Alfred Glalah tendered the Glalah family land plan on behalf of your father. A. I do not remember that he tendered a plan. Q. Look at exhibit 5 of the defendant, and by that exhibit, I suggest to you that Alfred Glalah gave evidence on a plan on behalf of your father. A. Yes, he gave evidence that Glalah and Kunyodu share boundary. Q. Who is Kunyodu A. My grandfather Q. Your fathers’ father? A. Yes Q. I suggest to you that the problem in this case is your boundary against the Glalah land. A. Yes. After assessment of the various claims of the parties, the court thus ordered an independent survey to avail the court of the disputed site a composite plan. Both parties were directed to file survey instructions which is to guide the expert witness. The directives were complied with. Both parties therein stated clearly the instructions the surveyor must follow. The Surveyor appeared and testified on the 21/12/2022. He tendered the Composite Plan Exhibit “CE2” and the Report Exhibit “CE1”. I must say that the composite plan tendered by the Surveyor was clear and decipherable and cannot be glossed over and I intend to rely on it in this judgment. Since the Surveyor appeared and was cross- examined by both sides of the divide, it will be unjust to shy away from the report. It only means that I have studied the work of the expert witness on this dispute and have no good reason to reject the work as both parties participated in the outcome. The law is that although the evidence of a court expert is only of persuasive effect and not binding, there must be very good reason by the court to reject it. In the case of TETTEH V. HAYFORD (2012) 44 GMJ 11, Dotse JSC in his erudite decision said; “It is generally understood that a court is not bound by the evidence given by an expert such as the surveyor in this case. But the law is equally clear that a trial court must give good reason why an expect evidence is to be rejected.” Please see also the case of MFUM FARMS & FEEDMILLS LTD V. MAD. AGNES GYAMFUA – (DSD) SUBST by LOVIA OPOKU BANDOH 2018 DLSC 2484. I proceed therefore to evaluate the evidence of the court expert witness. From the composite plan, plaintiff’s land is edged in the colour yellow, and the 1st defendants’ is edged blue. From observation recent road developments have eaten deep into the land marked for the plaintiff, as more than half of it lies in the middle of the road. The composite plan when compare to exhibit 2 is same as tendered by DW1, admittedly thought it was one sided developed, but there is not much deference. From further observation and scrutiny of the composite plan it is regrettable that the whole area claimed by the plaintiff fall deep within the land marked as belonging to the Glalah family land. As stated elsewhere in this judgment the Afese family did not submit a plan in this trial. Without much I do, I find as a fact that the disputed site belongs to the Glalah family of Ho-Ahoe. The plaintiff as a matter of fact did not challenge the work of the surveyor satisfactorily, which amounts to admission. The question then is whether or not the plaintiff acquired any interest in the land in dispute from his grantor? It is the law that a grantor of land can only give out which he owns. In the plethora of cases on this principle I cite only a few. THE REGISTERED TRUSTEES OF THE CATHOLIC CHURCH, ACHIMOTA ACCRA V. BUILDAF & 2 ORS (2015) DLSC 3234, per Bennin JSC, decided that, “That is the law that only the owner of land can give away title to a third party.” NUMO ADJEI KWANKO II V. LEBANON SOCIETY & 2 ORS (2016) DLSC 2786, per Ansah JSC; “It is simple logic that if a person can only give what he has, it follows that if the plaintiff’s grantors title has been found unreliable, there is no way the plaintiff can rely on it.” From exhibit CE2 the boundary shown for the Afese land is far away from the disputed location. Unfortunately, from a careful evaluation of the case of the plaintiff, this court is unable to find in favour of the plaintiff. It is he who alleged or asserts that must assist the court with credible and satisfactory evidence otherwise the claim fails. Therefore, I hold that the plaintiff has failed to discharge the burden placed on him under Section 10, 11 and 12 of the Evidence Act, NRCD 323, 1975. The evidence of the plaintiff does not tally with any proven facts before the court. The Court of Appeal per Ayebi J A, in the case of FOURDJOUR V. KAAKYIRE (2015) 85 GMJ 6 at page 93 held that, “It has to be noted that the courts determine the merits of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without adducing evidence in support of that assertion is not evidence to require denial in the cross examination by an opponent.” Please see also ZABRAMA V. SEGBEDZI (1991) 2 GLR 221 AKUFFO-ADDO V. CATHERINE (1992) 2 GLR Then His Lordship Appau JSC held in the case of EMMANUEL OSEI V STANDFORD EDWARD OSEI (SUBST) by BRIGHT OSEI LARTEY; Civil Appeal No. J4/3/2016 dated 1/06/2016 SC that, “Judgments must be based on established facts not mere rhetoric or narrations without any supporting evidence that can sustain the claim.” I observed that, though the plaintiff claimed to have bought the land in 1979 and took possession thereof, and placed blocks and corner pillars nothing of his was found when CW1 visited the site. From where I seat, I see the plaintiff as a gentleman who minded his business most often when he appeared in court. So, I do not doubt his credibility in the purchase of the disputed site, nor his assertion that he might have placed blocks and corner pillars on the land sometime in 1979. But he would agree with me that, that was over 44 years ago. There is evidence that major road construction as well as other development has taken place and eaten deep into what he claimed. The blocks may have been destroyed during the construction of the roads or perhaps stolen. In fact for 44 years he has nothing on the land. Sadly, I have no satisfactory evidence that plaintiff has been in undisturbed possession of the disputed land. His so called caretakers have been sleeping rather than watch over the land. I say so because no strong and valid evidence was received of warding off any trespasser on the land. The fact of the presence of Martin Atiglo on potions of the disputed has been known to plaintiff and his caretakers. Indeed the above evidence satisfactorily support the possession of the defendant’s grantor. I however observed from the camp of the defendant that, her vendor was resolute to defend that which was conveyed to her. In support of her claim the Glalah family introduced Exhibit EV2, the site plan of their family land. There was no objection whatsoever as same was submitted for the work of the court expert witness. The plan was used as a fact finding in composition of the composite plan and tendered by her grantor. The court however did not see any mother plan from the Afese family to the contrary. This court is of the view that, the call on council for plaintiff to reject the site plan of defendant’s grantor, should not be in his written address to the court. Please see Section 6 of the Evidence Act, 1975 (NRCD 323) which is the substantive enactment on objections to evidence provided during trials. The Act supra, provides that an objection shall be raised at the time the evidence is being offered. The Supreme Court in the case of SALOMY SHORME TETTEH & NII AMON TAFO V. MARY KORKOR HAYFORD (SUBT) by STELLA LARBI & COMFORT DECKER (infra) decided that; “There is an obligation on a grantor, lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest he conveys to any grantee or lessee…..” Thought the plaintiff and his grantor accepted the challenge mounted by the defendant, and after carefully examining the evidence and the exhibits tendered, it does appear the plaintiff and his vendor do not have what it takes to contest the defendant over the disputed land. Although, the plaintiff had full support from his vendor and witnesses, the undeniable fact that the disputed site belongs to the Glalah family cannot be over emphasised. Plaintiffs’ grantors only laid claim to the land by assertion and rhetoric and that carried no weight in so far as Exhibit EV2 is concerned. The law is that brandishing a registered document in open court is not a conclusive of good title. Please see the case of BROWN V. QUASHIEGAH (2003-2004) SCGLR page 930. Finally, I have no doubt the plaintiff acquired the land in dispute legally from the Afese family. But the odds in legal ownership in law went against him. It is the law that the grantor can only give out land he owns. Nemo dat rule. THE REGISTERED TRUSTEE OF CATHOLC CHURCH ACHIMOTA V BUILDAF (supra). It is he who came to court but was unable to prove the title of his vendor to the disputed land. In so far as this court is concerned the disputed land does not belong to the plaintiffs’ grantor the Afese family. Addae JSC explained the rules in the case of NARTEY V. MECHANICAL LIOYEDS ASSEMBLY PLANT LTD (1987) 2 GLR 314 at 344 that, “A person who comes to court no matter what the claim is must be able to make a case for the court to consider otherwise he fails……..” Therefore, from the evaluation of the evidence before the court, the balance of probabilities does not tilt in favour of the plaintiff. The 1st defendant through her witnesses has been able to discharge the burden to lead evidence to disprove plaintiff’s claim. This court has no difficulty as sad as it is to dismiss the claims of the plaintiff, and same is accordingly, dismissed on the above stated reasons. The 1st defendant is entitled to cost no doubt. But in the award of cost the court takes the view that the claim of plaintiff is not a frivolous one it is the odds that went against him and therefore, I will shy away from punitive cost. Cost is therefore assessed in the sum of GHC5,000.00 in favour of the 1st defendant. (SGD.) CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION MR GODWIM T. K. KPORBLE FOR PLAINTIFF – PRESENT SMK DZIKUNU FOR 1ST DEFENDANT – PRESENT. PARTIES. Jd* 17