Opare Vrs Acquah [2023] GHADC 491 (18 May 2023)

IN THE DISTRICT COURT NEW ABIREM HELD ON THE 18TH DAY OF MAY 2023 BEFORE H/W WORSHIP BENJAMIN BENNET ATTABRA ESQ. TIME; 08: 30AM SUITNO. A1/11/23 WILLIAM OPARE VRS. GEORGINA ANSU ACQUAH THE MANAGER, DUMPONG RURAL BANK AKOASE BRANCH. Plaintiff ……………………. Present First defendant …………. Present Second defendant ……... Present Counsel for the defendants Gabriel Odame Adufu Esq. …. Absent. By court; JUDGMENT Plaintiff claims against the defendants is for; (a) declaration that plaintiff is entitled to a portion of that piece of land situate and lying at a place commonly known and called “Ankase” at Akoase which the first defendant has purportedly sold to the 2nd defendant. (b) Recovery of possession of the plaintiff’s share of the land. (c) Declaration that the purported sale of the said land by the 1st defendant to the 2nd is unlawful and costs. The case of the plaintiff is that he is a Carpenter and the first defendant a retired nurse. The second defendant is the manager of the Dumpong Rural Bank. The plaintiff contends, his father is the brother of the first defendant. It was the contention of the plaintiff that his late grandfather Opanin Aye Kofi owned the property in contention. Opanin Aye Kofi in his life time had four children. One of his uncles is dead leaving the 1st defendant and the brother at Tarkwa. Following the demise of Aye Kofi his four children ought to have a share of the property in contention. Two of the siblings are dead leaving the defendant and her brother at Tarkwa in the Western Region of Ghana. Plaintiff submits as Akuapims they inherit patrilinealy for which reason he is entitled to his father’s share of the land in contention. Plaintiff maintains without his knowledge and consent, first defendant purportedly sold the land to the 2nd defendant hence that the sale must be set aside. The defense of the defendants was that, second defendant is the manager of the Dumpong Rural Bank PLC Asakraka. The Dumpong Rural Bank operates a branch office at Akoase in a rented apartment and therefore decided to look for a plot of land to build an office for itself, hence approached Opanin Yaw Opare for a parcel of land to be used for the purpose. The plaintiff’s father Yaw Opare was the head of family then who leased for consideration half of the land to the Bank. Later the first defendant who is the aunt of the plaintiff also sold the leasehold of the remaining half plot to the Bank as the initial half bought was too small for the project. The two half plots were merged to one plot and a site plan made to cover it. It is the contention of the defendants that the plaintiff of these transactions at the time but did not protest. The land in contention is part of the Akoase stool lands and so the family of Aye Kofi directed the Bank to the stool for documentation. An indenture of the lease was prepared and was eventually executed between Nana Sefa Boateng, the Adontenhene of Akim Akoase, who was then the regent (as the Lassor) on part and the Dumpong Rural Bank (as the lessee) on the other part dated 26th June 2015. The second defendant says at the time the Yaw Opare’s family sold the land, there was a wooden carpentry shop on it. The family promised to cause their member who is the plaintiff herein to remove the shop and give vacant possession of same to the defendant Bank. The plaintiff agreed to remove the carpentry shop which appeared to be in disuse from the land but failed to do so. Second defendant says about seven years now the plaintiff has not removed the wooden structure and wants to resell the land to the bank and he is demanding money from the bank before removing the disused structures. The second defendant now wants to develop and sent a bulldozer to clear the land but the plaintiff however came to the place resisted and threatened to kill the operator of the machine and anyone who attempts to work on the land. The second defendant contends plaintiff is the grandson of the original owner of the land Opanin Ayeh Kofi. The first defendant who is privy to the sale of the land is the Aunt of the plaintiff. The transaction ₵was approved of and witnessed by the principal members of the family. The 1st and 2nd defendant say that the plaintiff being the grand child cannot undo or rescind the decision of his parents and family elders to claim the land for himself. He is estopped also by conduct as he knew of the transaction but never protested. Defendants say the plaintiff has no legal or equitable interest in the land and therefore has no capacity to file this action against his aunt and the Bank. Defendants further say the plaintiff has no reasonable cause of action against them and that his action is without merit and must be dismissed. First defendant also testified to the effect that she is called Georgina Ansu Acquah. That plaintiff is her senior brother’s son. According to the first defendant her parents bought a plot of land at Akoase in their life time. They were six siblings and not four as claimed by the plaintiff. That four of her siblings are dead leaving the first defendant and the brother. The land in contention is the property of her late father Ayeh Kofi. Plaintiff’s father was their senior brother. From 2012-2014 her brother was sick and came to her. In the year 2015, he sold ½ of the plot used the proceeds to treat his sickness. That her younger brother Mr. Nicholas Ayeh consented to the sale. The bank paid him GH₵3000.00. Later on her brother died and the family called the Plaintiff and siblings but they were unwilling to come to Akuapim. Other Children of Aye Kofi’s children came to claim their share. Mr. Nicholas Aye came from Tarkwa for the sale of the remaining ½ plot at GH₵7000.00 and proceed shared. They invited the plaintiff and siblings but they did not come. Later plaintiff was disturbing the second defendant who bought the land. Defendants counterclaim for a declaration of ownership or title of Dumpong Rural Bank to all that piece of land situate at Akoase. An order of specific performance of the lease Agreement to compel the plaintiff to yield vacant possession of the land to the 2nd defendant. (c) Recovery of Possession. (d) Perpetual injunction to restrain the plaintiff by himself, heirs, successors, assigns, privies, agents and workmen from laying claim to the land described by the 2nd defendant or dealing with it in any way. From 1973 that the plaintiff and siblings started enjoying the property in contention they were enjoying the property at the expense of the rightful owners or the beneficiaries. That is their father’s siblings who were out of the jurisdiction working. The land is a self-acquired property of Ayeh Kofi. Plaintiff’s father died in the year 2015. Prior to his death he unilaterally sold ½ of the plot in contention and applied the proceeds to treat his sickness. Plaintiff’s father subsequently died. The surviving siblings also sold the unencumbered ½ plot to the second defendant. Issues to be determined by the court include: (a) whether or not the plaintiff is entitled to a portion of the plot of land in contention? (b) Whether or not the sale of ½ plot to the 2nd defendant is unlawful or null and void? During the course of the trial, plaintiff testified and called his siblings in support of his stance. Frist defendant and second defendant also testified well as the former Assembly man who played a liberal role in the sale of the land to the second defendant. The court observed the initial sale of the ½ plot was done by the plaintiff’s father and witnessed by the surviving siblings on the 1/4/2015. The second sale receipt was dated 10th November 2016 issued by the plaintiff’s father’s siblings (first defendant and the brother) at Tarkwa in the Western Region of Ghana. Following the death of Ayeh Kofi, (being Akuapim who are patrilineal) the property devolved unto the four siblings (the children of Ayeh Kofi) and not the entire family. It was not out of place for the other children to allow their senior brother and his immediate family (wife and children) to enjoy the property as they were working elsewhere. Until the time plaintiff’s father’s was sick and advanced in age. When the sickness was at the advanced state there was the need for part of the land to be sold. According to first defendant, her brother had to dispose the land and the money used for his hospital bills. Plaintiff intimated that the children were doing well financially and that for any reason at all if the father wanted to sell part of the land he would have consulted them. AKP Kludze in book Modern Law of Succession in Ghana page 261 paragraph 4 states; in most Ewe cases, the issue has been whether, of the entitled children, one or the other had been duly authorized to succeed to a particular item of property or to manage the undivided estate on behalf of the other children. It is submitted, therefore, that among the Ewes, the family as such does not succeed to self-acquired property of an intestate. Among the ewe, children succeed in the interest in their father’s self-acquired property as of right, in a similar manner to the right of succession of the next-of-kin at common law. Failing children, other persons, according to proximity to the intestate in the pedigree, are entitled in Ewe law to succeed to interest in the property. The rights of grandson in the property of a grandfather depend on the nature of the grandfather’s property. How the property was managed i.e. whether it is self-acquired or ancestral property. When a property is ancestral, the grandson has a similar right to his father on his grandfather’s property. The grandson has no birth right in self acquired property of his grandfather. When a grandfather’s property is ancestral, the grandson cannot be excluded from it. When a grandfather’s self-acquired property passes on to the grandchild, only then can the grandchild inherit the property upon his father’s death. The grandson will get a share of the deceased father. In the instant suit, Aye Kofi is Akuapim and inherit patrlineally. From the evidence the property is a self-acquired property that plaintiff’s father and siblings inherited from their father Ayeh Kofi, in view of that it is the considered opinion of the court that the plaintiff has no birth right in Ayeh Kofi’s self-acquired property. Flowing from the above, plaintiff cannot meddle in the affairs of his fathers. That is to say whether or not he had enjoyed the land for some time, he does not have the capacity to prevent the valid sale of the land. Regarding the counter-claim of the 2nd defendant for declaration of title of ownership of the property in contention, this is what has to say; In Odoi v Hammond [1971] 2 GLR375, CA, Azu Crabbe JA (as he then was) said at page 382 of the Report that “It is now common learning in this country that in an action for a declaration of title to land the onus is heavily on the plaintiff to prove his case and he cannot rely on the weakness of the defendant’s case. He must indeed show clear title. The law is settled that for Plaintiff to be entitled to his reliefs of declaration of title, recovery of possession, perpetual injunction and costs, he must prove with certainty the boundaries of the land claimed, how much he bought the land, the price that he paid for and the documentary proof establishing the title, the plaintiff must establish by positive evidence the identity and limits of the land he claims, the case of Nyikplorkpo v Agbedotor [1987 -88] 1GLR 65 at page 171. See also Abbey & Others v Antwi [2010] SCGLR 17; [2010] 26 GMJ 151 SC; [2010] 27 MLRG 89 SC. Again, in Fosu &Adu-Poku v Dufie{Dced) & Aru- Poku Mensah [2009] SCGLR Atuguba JSC stated; “This being an action for declaration of Title and Recovery of possession, the issue is what must plaintiff do in order to succeed. In this regard Sections 10 11 12 of the Evidence Act 1975(NRCD 323) come in handy in answering this question. In the case of Mondial Veneer (GH) Ltd v Amuah Gyebu XV (2011)1 SC GLR 466 at 475, It was held as follows: "In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title and on who the burden of persuasion falls, as in this case, to prove the title of his root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation." The 2nd defendant in proving his counterclaim called a witness DW1 who testified to the effect that the land belongs to Aye Kofi. Yaw Opare being the senior child of the Aye Kofi who inherited the property having inherited same from his father. At a point he expressed his desire to sell ½ of the plot he inherited with his siblings enable him solve a financial need. He being an assembly man then for Akoase approached the bank for negotiation. Yaw Opare offered the land for sale at GH₵3000.00. Mr. Nicholas Aye came from Tarkwa for the sale of the remaining ½ plot at GH₵7000.00 and proceeds shared. The two half plots were merged to one plot and a site plan made to cover it. The land in contention is part of the Akoase stool lands and so the family of Aye Kofi directed the Bank to the stool for documentation. An indenture of the lease was prepared and was eventually executed between Nana Sefa Boateng, the Adontenhene of Akim Akoase, who was then the regent (as the Lessor) on part and the Dumpong Rural Bank (as the lessee) on the other part dated 26th June 2015. Second defendant tendered in evidence a copy of the indenture. Second defendant’s testimony and evidence of the witnesses proved root of title, mode of acquisition to entitle him to the reliefs sought. Second defendant having lawfully acquired the land from the land owners needs to be granted there reliefs sought. In the instant suit, there is sufficient proof of the fact that second defendant is the owner of land in dispute. The burden of proving this fact (counterclaim) therefore lay heavily upon the second defendant and I am satisfied that the second defendant discharged the burden and hence is entitled to the reliefs he seeks from this court. The court having listened to the second defendant and his witness is of the view that their case is more probable than the plaintiff and his witness. Judgment is hereby entered for second defendant on all the reliefs sought. There is no order as to costs. SIGN; BENJAMIN B. ATTABRA DISTRICT MAGISTRATE