Aidoo and Another Vrs Larbi and Anoter [2023] GHAHC 169 (17 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON WEDNESDAY, THE 17TH DAY OF MAY 2023 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. 1. MICHAEL AIDOO 2. DJATSE KWAME BOSOMPEM - PLAINTIFFS SUIT NO: E1/03/2023 VRS. 1. MICHAEL LARBI 2. NII MOI ALLOTEY BROWN ALIAS OTINTOR - DEFENDANTS JUDGMENT The Plaintiffs by their Writ of Summons and Statement of Claim filed on 18th September, 2022 claim against the Defendants the following reliefs: a. Declaration of title to all that parcel of land being and lying at Ngleshie Amanfrom Kasoa commencing from the survey pillars SGA A195/08/2A on a bearing 01° 16’ which bearing together with all further bearings hereinafter mentioned is referred to meridian 1° West Longitude which runs for a distance of 22111.9’ to PT1, thence on a bearing of 023°12’ for a distance of 380.8’ to PT2, thence on a bearing of 119° 21’ for a distance of 183.6’ to PT3, thence on a bearing of 198°49 for a distance of 232.4’ to PT4, thence on a bearing of 162° 04 for a distance of 178.7’ to PT5, thence on a bearing of 294° 09’ for a distance of 317.8’. From pillar SGA A195/08/2A the point of commencement covering an approximate Area of 1.60 acres. b. An order for recovery of possession of all that portion of land described in relief a) that the Defendants have encroached and are building on. c. An order for perpetual injunction restraining the Defendants, their heirs, successors and agents, workmen etc. who claim through them from interfering with Plaintiff’s quiet enjoyment of his land. d. Award of damages against the Defendant for trespassing onto portion of the Plaintiff’s land. e. An order of award of cost incidental to the institution of this action. f. An order of grant of any relief that this Honourable Court may deem fit to grant under the circumstances. The Plaintiff’s case is that, sometime in year 2000, he acquired the land in dispute under a lease from Nii Kwashie Gblorlor III, Chief of Ngleshie Amanfrom and Djatse Kwame Bosompem, Head of the Akramanaa Family of Ngleshie Amanfrom, near Kasoa in the Central Region of the Republic of Ghana. The Plaintiff avers that he took steps to have the land registered at the Lands Commission and a search prior to the registration revealed that the land belonged to the family of the 2nd Plaintiff. Plaintiff further avers that subsequent to the purchase of the land, there was a contention on the ownership of the land in dispute and in order to safeguard his interest in the land, he again purchased the same land from the Odupong Anona family Stool of Odupong Kpehe, Kasoa in the Central Region. The Plaintiff says that sometime in 2022, he realised some building activity on his land and his enquiry revealed that the Defendants are the perpetuators. The Plaintiff reported the incidence to the police but whenever the police go to the land, the workers stop working only to resume working when the police leave the site. The Plaintiff states that the Defendants have resorted to the use of tugs ‘land guards’ to secure their workers while construction activities go on day and night. The Plaintiff further states that the Defendants have caused and supervised the erection of a building on the Plaintiff’s land within a short time. The 1st Defendant in his Statement of Defence filed on 10th November, 2022 vehemently denied the claims of the Plaintiffs. The 1st Defendant states that he is the actual owner of the land in dispute. The substance of the 1st Defendant’s case or defence is that, the land in dispute forms part of a large tract of land which is described in paragraph 5 of his Statement of Defence. The 1st Defendant states that their ownership to the large tract of land including the land in dispute has been affirmed by various judgments of the Superior Courts particularly the recent judgment of the Court of Appeal delivered on 22nd July, 2022. The 1st Defendant also challenged the title of the 2nd Plaintiff (that is, the grantor of the 1st Plaintiff) and averred that the real owner is Nai Odupong Awushie Tetteh II, Chief of Odupong Ofaakor and Benkumhene of Awutu Traditional Area (the grantor of the 1st Defendant) in the Central Region of the Republic of Ghana. It is significant to note that the Defendants have clearly evinced an intention not to participate in this action nor defend the action. Neither Defendants nor their lawyer have ever stepped foot in this court since the commencement of this action notwithstanding the avalanche of hearing notices served on the Defendants. By this conduct, the Defendants have waived their right to be heard. Giving a party a hearing also means giving the party the opportunity to be heard. Thus, when a party is given the opportunity to be heard and he/she fails to take it out, that party cannot complain that he/she was not given a hearing. See SAMUEL KAKRA MENSAH V CHRISTOPHER KWABLA LIGBIDI (CIVIL APPEAL NO. H1/202/2013) DATED 20 MARCH 2021 C. A. On this note, I proceeded to hear the matter without the Defendants. The 1st Plaintiff, however, is not automatically entitled to his claim by reason only of lack of participation on the part of the Defendants. The claims or assertions of the Plaintiffs have been denied by the 1st Defendant. Therefore, even in the absence of any evidence from the Defendants, the onus is on the Plaintiff to prove his case on the preponderance of probabilities. In the case of FAIBI V STATE HOTELS CORPORATION [1968] GLR 471, the court held that: onus in law always lies upon the party who would lose if no evidence is led in the case and where some evidence has been led, it lies upon the party who would lose if no further evidence was led. Therefore, the 1st Plaintiff, in seeking the reliefs outlined above, assumes the burden to adduce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the facts they aver are more probable than their non- existence. The absence of the Defendants at the trial does not in any way lower the standard of proof on the Plaintiff. In the light of the facts set out supra, I am of the opinion that the issues which are germane or central to the determination of the dispute between the parties are: 1. Whether or not the 1st Plaintiff can be estopped as being privy in estate by the judgment (EXHIBIT F) against his vendor commenced after the purchase of the disputed land. In other words, whether or not EXHIBIT F extinguished the 1st Plaintiff’s interest in the disputed land. 2. Whether or not the 1st Plaintiff is entitled to his reliefs. In respect of the first issue, there is undisputed evidence on record that the 1st Plaintiff in the year 2001 acquired the land in dispute from Nii Kwashie Gborlor III, Chief of Ngleshie Amanfrom and Djatse Kwame Bosompem, Head of the Akramanaa Family of Ngleshie Amanfrom. This transaction is duly evidenced by an indenture (EXHIBIT A). The 1st Plaintiff further states in his witness statement that after acquiring the land in dispute, there were disputes as to the ownership of the said land and in order to safeguard his interest in the land, he bought the same land from the Odupong-Ofaakor Anona family Stool of Odupong Kpehe, Kasoa in the Central Region who had judgment dated 12th June, 2018 (Exhibit F) in their favour in respect of the land in dispute. This transaction is also evidenced by an indenture (EXHIBIT C). What then is the effect of Exhibit F. Does it automatically extinguish the 1st Plaintiff’s interest in the land in dispute since the Plaintiff’s vendor was declared not to be the owner of the land in dispute? The answer to this question is in the negative. It must be noted that Exhibit F was delivered in 2018 (i.e., seventeen (17) years after the 1st Plaintiff acquired his interest in the land). In the case of ATTRAM V ARYEE [1965] GLR 341, Ollenu JSC held that: “A prior purchaser of land cannot be estopped as being privy in estate by a judgment against the vendor commenced after the purchase.” This principle was further reiterated by the Supreme Court in the unreported case of THE REGISTERED TRUSTEES OF THE CATHOLIC CHURCH V BUILDAF LTD & 2 OTHERS (CIVIL APPEAL NO. J4/30/2014) DATED 25 JUNE 2015 where the Court held that: “There can be no dispute that this authority cited fits the facts of this case affirming the position already taken that the 1932 judgment could not erode the title of the Respondents’ original predecessor-in-title and so too could the 1961 judgment not erode the Respondents’ original grantor’s title and for that matter the Respondents’ title.” In the circumstances, the 1st Plaintiff cannot be regarded as privy in estate to Exhibit F (the said judgment). Therefore, on the authorities of the above cited decisions of the Supreme Court, I hold that the Plaintiff’s title in the disputed land is not affected by Exhibit F. The Plaintiff therefore did not need to repurchase the same land from the new owners since he had good title from his grantor in spite of Exhibit F. Moving on to the second issue, the law requires a person asserting title and on whom the burden of persuasion falls to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party would be entitled to the claim. This was emphasised in the case of MONDIAL VENEER (GH) LTD V AMUAH GYEBI XV [2011] 1 SCGLR 466 AT PAGE 476. The law is that, to succeed in an action for declaration of title to land, it is required that the Plaintiff adduces evidence to prove and establish the identity of the land in respect of which he seeks a declaration of title and the limits of the land which he claimed. See DR. ERIC GRAHAM & ANOTHER V VIVIAN AKU BROWN-DANQUAH & 3 ORS (CIVIL APPEAL NO. H1/93/2017) DATED 31 JANUARY, 2019 (DELIVERED BY THE HIGH COURT). This rule, however, only applies in appropriate cases, that is, where the identity of the land is in dispute. In cases where the parties are ad idem as to the identity of the land, proof is dispensed with. See BENJAMIN QUARCOPOME SACKEY V ISSAKA A. MUSA (CIVIL APPEAL NO. H1/93/2010) DATED 20TH MAY, 2010 (DELIVERED BY THE COURT OF APPEAL). This is in accordance with the rule that facts admitted by a party need not be proved by the other party. In this instant suit, it is clear that the parties are ad idem as to the identity of the land. The 1st Plaintiff’s description of the land in dispute was not denied by the 1st Defendant. The admission on the part of the 1st Defendant as to the identity of the land can be gleaned from paragraphs 4 and 5 of his Statement of Defence as follows: 4. The 1st Defendant denies paragraph 3 of the statement of claim and in a reply state that, he does not purport to be the owner but he is the actual owner of the land described in relief (a) in the writ of summons of the 1st plaintiff. 5. The 1st defendant would describe the large tract of land including the disputed land as follows… There is no doubt that the 1st Defendant does not dispute the identity of the land in dispute. This makes the rule above in relation to proving the identity of land inapplicable in this instant action. The Plaintiff need not adduced evidence on facts already admitted by the 1st Defendant. I therefore accept this agreed fact (i.e., the identity of the land) as established. As stated supra, in the Plaintiff’s evidence-in-chief, he tendered in evidence a duly stamped indenture evidencing the lease of the disputed land from Nii Kwashie Gborlor III, Chief of Ngleshie Amanfrom and Djatse Kwame Bosompem, Head of the Akramanaa Family of Ngleshie Amanfrom (EXHIBIT A) and EXHIBIT C which is the indenture evidencing the subsequent purchase of the land in dispute. There is no evidence of Exhibit B being stamped in accordance with law. Section 32(6) of the Stamp Duty Act, 2005 (Act 689) provides that except as expressly provided in this section, an instrument (a) executed in Ghana; or (b) executed outside Ghana but relating to property situate or to any matter or thing done or to be done in Ghana shall except in criminal proceedings, not be given in evidence or be available for any purpose unless it is stamped in accordance with the law in force at the time when it was first executed. The Supreme Court has held in the case of LIZORI LTD V MRS EVELYN BOYE & SCHOOL OF DOMESTIC SCIENCE & CATERING [2013 - 2014] 2 SCGLR@ 903 that: “the provisions of section 32 of Stamp Duty Act is so clear and unambiguous and requires no interpretation. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the first place and ask the party to pay the duty and penalty after judgment.” His Lordship Benin JSC held in the case of MARTIN ALAMISI AMIDU V THE ATTORNEY-GENERAL, WATERVILLE HOLDINGS (BVI) LTD, ALFRED AGBESI WOYOME AND UT BANK LTD (IN RECEIVERSHIP) (CIVIL MOTION NO. J7/10/2014) DATED 27TH JUNE, 2019 that: “The position of the law is that where legally inadmissible evidence has found its way into the record it is the duty of the Court to reject it when pronouncing judgment. It is not one of those situations which can be saved under section 6 of the Evidence Act. This is because the stamp duty is a statutory imposition and a source of revenue to the State so parties cannot be allowed to flout the law and deny the State of its revenue.” Exhibit C is therefore inadmissible and cannot be relied on by the 1st Plaintiff in support of his case. This, however, does not in any way affect the case of the 1st Plaintiff. As stated above, Exhibit A is still a valid indenture and not negated or rendered a nugatory merely because of the judgment in favour of his new grantors. The act of repurchasing the same land from the new owners can be termed as merely regularising his interest in the land in dispute which on the authority of ATTRAM V ARYEE supra was not necessary in law. The Plaintiff merely erred on the side of caution by seeking a second grant of the same land from Odupong- Ofaakor Anona family. Moreover, Exhibit C cannot be relied on by the Plaintiff because it did not exist at the time of institution of this action. I have noticed that the Plaintiff instituted this action two (2) days before his interest in the subject matter of Exhibit C was transferred to him. The Writ of Summons was issued on 18th September 2022 whiles Exhibit C was executed 20th September, 2022. I am satisfied that by Exhibit A, the Plaintiff has successfully proven his root of title and mode of acquisition as these are evident on Exhibit A. The Plaintiff, however, adduced no evidence as to any acts of possession exercised by him. The evidence on record is that 1st Defendant is the one in possession of the land in dispute. In law, possession is nine points of the law and a party in possession has a good title against the whole world except the one with a better title. (SEE ELIZABETH OSEI V MADAM ALICE AFUA KORANG (CIVIL APPEAL NO. J4/27/2012) DATED 20 FEBRUARY, 2013 AND DELIVERED BY THE SUPREME COURT). The true owner cannot be ousted unless possession amounts to adverse possession. This is in accordance with the principle of law that long possession by itself does not ripen into ownership unless the occupant exercised clear acts of adverse possession. It is also true that possession evinces a presumption of ownership under section 48 of the Evidence Act, 1975 (N. R. C. D. 323), but this is merely a rebuttable presumption. From the foregoing, the 1st Plaintiff has positively established a better title to the land in dispute and further rebutted the presumption of ownership which operated in favour of the 1st Defendant by virtue of Exhibit A. The above evaluation of the evidence adduced by the 1st Plaintiff substantially tilts the scales in his favour. In the absence of any credible evidence in favour of the 1st Defendant to satisfy a reasonable mind such as this Court that the existence of the facts averred by the Plaintiff is less probable than its non-existence, I am satisfied that the 1st Plaintiff has proved his case on the balance of probabilities. Judgment is hereby given in favour of the 1st Plaintiff in respect of all the reliefs sought. The 1st Plaintiff is declared the owner of the land described in the Writ of Summons. The Defendants, their heirs, successors and agents, workmen etc. who claim through them are perpetually restrained from dealing with the said land in any form or manner or interfering with the 1st Plaintiff’s quiet enjoyment of his land. Cost of GH₵ 3,000.00 is awarded in favour of the 1st Plaintiff against the 1st Defendant. BERNARD BENTIL, J. [HIGH COURT JUDGE] (SGD) COUNSEL EUGENE LARBI APPIAH ESQ. FOR PLAINTIFF. 11