Mensah Vrs Ebusuapanyin Papa Ga & Other [2023] GHACC 381 (15 June 2023)

Estherine Mensah v Ebusuapanyin Papa Ga & Anor. IN THE GENDER-BASED VIOLENCE CIRCUIT COURT AT SEKONDI –W/R, HELD ON THURSDAY, 15THJUNE 2023 BEFORE H/H NAA AMERLEY AKOWUAH (MRS.) ……………………………………………………………………………….………………. C1/01/2021 ESTHERINE MENSAH PLAINTIFF vrs 1. EBUSUAPANYIN PAPA GA 2. MR. ASAMOAH DEFENDANT PL: ABSENT 1STDEF.: PRESENT 2ND DEF. ABSENT C/PL.: AKPENE DARKO COBBINAH, Esq. (ABSENT) C/1ST DEF.: AMY BONDZIE-HANSON (PRESENT) JUDGMENT By her Writ of Summons, the Plaintiff claims a declaration of title to a parcel of land measuring 0.16 acres known as Plot No. 75, lying at Sofokrom Planning Scheme, Sekondi- Takoradi, recovery of possession from the 2ndDefendant, an order of perpetual injunction to restrain the Defendants whether by themselves, their assigns, servants or agents and all those who claim through them from entering or developing the land, costs and any further orders as the Court may deem fit and appropriate. By her Statement of Claim, particularly paragraphs 4, 5, 6, 9, 10 & 11, Plaintiff pleaded that she acquired Plot No. 75 on 20/04/2015 by paying the purchase price to Ebusuapanyin Kwesi Essuman, the then head of family of the Ebiradze family of Sofokrom. A deed of lease/conveyance was granted in her favour, signed by the head of family and principal elders, who acted as witnesses. The size details of Plot No. 75 and its boundary neighbours were set out in paragraph 8 of the Statement of Claim. To ensure security of the grant to her, she took immediate possession and commenced registration processes at the Lands Commission. However, her workman who went to clear the land was arrested and this led to her finding out that the same Plot No. 75 had been sold to the 2nd Defendant. The basis of Plaintiff’s claim is that she has a valid grant, duly executed by the Ebiradze family of which 1st Defendant is now the head of family and therefore, 2nd Defendant cannot be the owner of same. On the other side of the coin, 1stDefendant pleaded that he was the current head of the Ebiradze Family. He denied that the Ebiradze Family made a grant in Plaintiff’s favour and executed a lease as proof. Neither did the family authorize any other person or agent to act on its behalf. Rather, that Ebusuapanyin Kwesi Essuman (same grantor to Plaintiff) Page 1 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. granted a lease of Plot No. 75 to 2nd Defendant in 2018. 1st Defendant emphasized that backed by the family’s authority, 2nd Defendant went into possession and put up an uncompleted building on the disputed land which Plaintiff’s workman, one Eric, demolished and was arrested for. 1st Defendant pleaded that Plaintiff was estopped from taking legal action now because she failed to institute any legal action against Ebusuapanyin Kwesi Essuman when he was alive but waited till his demise to do so, a sign of untruthfulness, he claimed. 2nd Defendant was served with the Writ, Hearing Notices & all other processes filed. His lawyer. Kwaku GyimahKye, entered appearance on his behalf and attended court on several occasions. However, 2nd Defendant never attended court, filed a Statement of Defence, or participated in the hearing. And neither did his lawyer attend hearings to cross-examine witnesses as afforded he and his client under s. 62(1) of NRCD 323. In the Rep. v High Court (Fast Track Division), Accra; Ex parte Francis NiiAyikai [2015] 81 GMJ 72@87per Owusu JSC held that a person who intentionally spurns the opportunity to be heard cannot rely on the audial teram partem rule. Indeed, “where therefore he [a lawyer] and his client disabled themselves from being heard in the proceeding, he cannot turn round and accuse a court of breaching the rules of natural justice”. A similar holding was made in Rep. v High Court (Fast Track Division) Accra; Ex parte State Housing Co. Ltd. (No. 2) (Koranten-Amoako Interested Party) [2009] SCGLR 185 @190per Wood CJ., SC. On the immediate authorities, 2nd Defendant is deemed to have participated in the proceedings and is bound by the orders of his Court, where applicable. Further details of Plaintiff’s claims were in her Witness Statement, adopted as her testimony on 18/06/2021. She testified that an office colleague introduced her to Moses Arthur Bodor, a principal member of the Ebiradze Family who in turn, introduced her to Ebusuapanyin Kwesi Essuman. To the latter, she paid GHS7,000, the agreed purchase price for Plot No. 75. A receipt was issued in her name, tendered and admitted as (Exh. A). An indenture, together with a site plan, was also admitted into evidence and marked (Exhs. B& C). Thwarted acts of possession led to the Ebiradze Family promising to replace Plot No. 75. However, sometime later she was asked to go back to Plot No. 75 but met the same opposition. Plaintiff said when she reported the situation to 1st Defendant, who took over from Ebusuapanyin Kwesi Essuman, he asked her to pay the full price for the same land again, hence the instant action. Per Directions filed, the issues set down and adopted as the issues for trial in accordance with Or. 32, C. I. 47 will be discussed consecutively. ISSUES Page 2 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. 1. Whether or not the former head of family granted the land in dispute to the Plaintiff 2. Whether or not the Plaintiff claimed ownership of the land in dispute There is no controversy that the late Ebusuapanyin Kwesi Essuman was the rightful head of family of the Ebiradze family who had the authority to carry out the duties, functions and also exercise the powers of the position he occupied, including alienating lands owned by the family. These he did with the principal elders of the family. There is also no controversy that the late Ebusuapanyin Kwesi Essuman was the head of family during the period 2015-2018 when both Plaintiff and 2nd Defendant are said to have been leased the disputed and conveyances executed in their respective names. The controversy, however, was whether she was truly granted the land by the late head of family as controverted by 1st Defendant. Was such a lease, if truly granted, valid? S. 64 of the Land Act 2020 (Act 1036) provides that ‘good title’, amongst others is derived from ‘a grant, vesting order or conveyance from the state’. S. 9(1) of Act 1036 states that clan or family land is vested in the appropriate clan or family on behalf of and in trust for the members of the clan or family in consonance with customary law and usage. At page 50 of his book Land Law, Practice & Conveyancing, 3rd edition, Dennis Dominic Adjei, JA states that “in alienating a family land, the law is that the head of family may alienate with the consent of the principal members of the family”. Reference Akyea-Djamson v Duagbor &Ors.[[1984- 86]1GLR 697@709]the principle has also been established that unlike in the case of a stool land, family land alienated without the consent and concurrence of the principal members of the family is voidable as in the case of Fianko v Aggrey [2007-2008] SCGLR 1135. The summary of evidence that Plaintiff provided to prove her claim of having a leasehold interest in the disputed land, granted by the late head of family was in Exhs. A, B & C as well as her oral testimony. Exh. A is dated 30/04/2015, issued in Plaintiff’s name with an amount of GHS7,000 indicated as ‘full payment of one plot of land (No. 75). S. 69(1) of Act 1036 (similar wording in the previous Conveyancing Decree, 1973 (NRCD 175) provides that; (1) A receipt for money, securities or any other consideration in the body of a conveyance is a sufficient discharge from the consideration, money or securities to the person paying or delivering them, without a further receipt for them being endorsed on the conveyance. Sections 34, 35 & 36 (the equivalents of sections 1 & 2 of NRCD 175) provide the rights, obligations & interests of a transferor and a transferee in a conveyance and a contract of sale. Relative to Exh. A, s. 34 reproduced below is useful; Section 34—Contract for transfer Page 3 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. 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 (i) the person against whom the contract is to be proved; or (ii) a person who is authorised to sign on behalf of that person; or From the above, it is trite that for a contract document to be binding, including related contract documents such as receipts, the name and/or signature or mark of the issuer should be on the face of the document unless exempted under s. 36 of Act 1036 or parole evidence is led to substantiate the absence of same. See the case of Laythoarp v Bryant (1836) 2 Bing NC 735. In Fianko v Aggrey (supra) a receipt issued by the vendor alone was held to be valid and binding on the contracting parties. Alternatively, the signature of the issuer’s agent, authorized in writing, would also suffice. In Davies v Sweet [1962] 2QB 300, an authorized agent who could sign on behalf of his principal was held to include a person who has either been appointed in writing or orally by the principal or where it could be reasonably inferred from the circumstances that he had the authority of his principal to sign on his behalf (emphasis mine). On the face of Exh. A, of which a clearer copy was filed subsequently during the hearing, the signature of the issuer is unclear and virtually unreadable with faint smudges of ink seen. Indeed, it is difficult to make out an outline of the signature, upon casual or careful scrutiny. It is on the subsequent copy of Exh. A that a small/short signature is seen, without an accompanying name. The name of the issuer is absent on both copies of Exh. A. However, the owner of the alleged signature of the late head of family on Exh. A was put to rest when Plaintiff admitted under cross-examination that it was rather the signature of one Atta Bordoh, not Ebusuapanyin Kwesi Essuman. The following interaction captured the admission; Q: A: Do you see any difference between the signatories on “Exhibit B” and that of “Exhibit A” Yes, there is a difference. The first signature on the receipt is from the Ebusuapanyin’s secretary who led me to the Ebusuapanyin and he told me that was his secretary as well. Q: Who is this secretary you are referring to A: Q: A: Atta Bordoh So, you are saying that Ebusuapanyin Kwesi Essuman did not sign “Exhibit A” Yes Page 4 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. To determine the authenticity or otherwise of the signature of the said Atta Bordohon Exh. Aas the same person whose signature appears on Exh. B, counsel for 1st Defendant put it to Plaintiff that they were different, to which she disagreed. I must state that even without forensic training in signatures, it is obvious to any untrained eye that the signatures on Exh. A, as initially admitted, and the clearer copy of the same Exh. A later filed, are different upon examination at the near-invisible outline. With Exh. B, the signature is clear and when compared to what appears on Exh. A, is very dissimilar even from the outlines therein. Though the 1st Defendant disputed the signatures as that of the late head of family, it was the Plaintiff’s burden to prove that it was. Therefore, I find the three signatures, appearing on the two copies of Exh. A and B, alleged to be of Atta Bordoh markedly different and unlikely to have been authored by the same person. Standing on s. 34, Act 1036, and the admission that Exh. A, offered proof of a contract of sale between Plaintiff and the late head of family, was not authored by the latter, it was Plaintiff’s duty under s. 11(1) of NRCD 323 to lead sufficient evidence that indeed Atta Bordoh was the Eburadze family secretary and authorized by the then head of family to sign on his behalf. Under cross-examination on the capacity of Atta Bordoh to sign on behalf of the late head of family, the following ensued; Q: From your Statement of Claim, you haven’t mentioned any Atta Bordoh as being a secretary to Ebusuapanyin Kwesi Essuman A: Moses and Atta Bordoh’s names has been mentioned in my statement Q: In fact, the name you mentioned in paragraph 5 of your Statement of Claim is Evans Bordoh and not Moses and AttahBordoh A: Evans is the same as Atta Bordoh so he is Evans Atta Bordoh …… Q: A: Q: A: The receipt was issued by one Moses Atta Bordoh and not the head of the family then, Ebusuapanyin Kwesi Essuman Yes, I was told he was the secretary to the Ebusuapanyin and also a family member and so he received the money, signed it and stamped it with the Ebusuapanyin’s stamp. The issuing of the receipt to you was done in the absence of Ebusupanyin Kwesi Essuman Yes Plaintiff’s assertion that Atta Bordoh was the secretary to the late head of family was unsupported by documentary evidence, as on Exh. B the said Atta Bordoh allegedly signed as a principal member, not secretary and neither was corroborative evidence, under s. 7 of NRCD 323, led in support. I find that Plaintiff did not discharge the burden to Page 5 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. provide sufficient and persuasive evidence, as required by s. 10(1) & 11(1) of NRCD 323 to support the assertion that Atta Bordoh was secretary to the late head of family and had his authorization to sign contracts on his behalf. From the issue of signatures, Plaintiff was questioned on whom she paid the amount of GHS7000 to and her answer was captured as follows; Q: A: You do not know who you paid the GH¢7,000 that you claim you paid to I know whom I paid the money to and that was Evans Atta Bordoh The obvious finding is, at least on the face of Exh. A, no consideration passed from Plaintiff to the late head of family, and the said Atta Bordoh had no authorization to sign Exh. A, to fulfill sections 34 & 69 of Act 1036. LAW ON EXH. B S. 35 of Act 1036 states that in a conveyance for the transfer of land, both the transferor and transferee are to sign the conveyance. The transferor shall also sign the back of the site plan. Specifically, s. 35 provides that; (1) A transfer of an interest in land other than a transfer specified in section 36, shall be inwriting and signed by (a) the person making the transfer or by the agent of that person duly authorised in writing; and (b) the person to whom the transfer is made or the agent of that person duly authorised in writing (2) A transfer of an interest in land made in a manner other than that provided in this section does not confer an interest on the person to whom the transfer is made. S. 68 (1) of Act 1036 makes provision for the conditions necessary for ‘Execution of Conveyance’ as follows; “a conveyance shall be executed by the grantor and the grantee and the signature or mark of each of them shall be attested to by at least one witness who shall state the name and address of the witness” A conveyance, also a deed by another nomenclature, is required by s. 206-232 of Act 1036 to be registered. On the subject of the credibility and weight to be attached to Exh. B, I must commend Counsel for the 1st Defendant in her submissions made in her Written Address on the matter filed on 10/02/2023, specifically at pages 8, 9, 10 11 & 12. I agree with her entirely, save her position on the law as to the capacity of 1st Defendant to be sued in a matter that occurred when he was not the head of family. The simple answer is based Page 6 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. on the rules of succession which makes the position of head of family the subject of suits because an occupier takes over the rights and liabilities of a predecessor. Secondly, was s. 227(2) of Act 1036 on the use of unregistered deeds as proof of title for deeds executed after the coming into force of the Act, forgetting that Exh. B was allegedly executed in 2015, predating Act 1036 and so cannot have a retrospective effect, unless the decision in the very recent case of Obeng Gyebi v The Rep. [2021]DLSC 10691 on the interpretation of criminal statutes and applying amendments retrospectively is argued as applicable in this instance too. Thirdly, was the use of subsection 6 of s. 32 of the Stamp Duty Act, 2005 (Act 689) as the general position of the law instead of subsections 1, 2 & 3 of Act 689, reproduced below; Section 32—Admissibility of insufficiently stamped or unstamped instrument (1) Where an instrument chargeable with a duty is produced as evidence (a) in a court in a civil matter; or (b) before an arbitration or referee, the judge, arbitrator or referee, shall take notice of an omission or insufficiency of the stamp on the instrument. (2) If the instrument is one which may legally be stamped after its execution, it may, on payment of the amount of the unpaid duty to the registrar of the Court or to the arbitrator or referee, and the penalty payable on stamping that instrument, be received in evidence subject to just exceptions on other grounds. (3) An instrument which is sufficiently stamped under this Act shall be receivable in evidence although that instrument may not have been stamped or is insufficiently stamped according to the law in force in the place where that instrument was executed. The qualification notwithstanding, counsel’s restatement on the law on the admissibility of an unstamped instrument as stated in the case of Woodhouse v Airtel Ghana Ltd. [2018] GHASC 76 which referenced the case of Lizori Ltd. v Boye& School of Domestic Science & Catering [2013-2014] 2SCGLR 889 is correct. To give credit where it is due, I shall reproduce the referenced submissions, in summary, and ditto, because they mirror the law, my observations, and conclusions on the inconsistencies in Plaintiff’s testimony and exhibits. “Interestingly, Exh. B the purported indenture predates the receipt Exh. A, meaning an indenture was allegedly executed for the plaintiff at a time she had not even paid any money to her supposed grantors. The said exhibits contradict plaintiff’s evidence in paragraphs 6 & 7 that Exh. Bwas executed after Exh. A had been issued. Page 7 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. Further Exh. B being a purported indenture by which she acquired the land is an instrument affecting land which ought to have been stamped in accordance with the Stamp Duty Act, 2005 (Act 698), sections 32(1), (2), (3) & (6) and registered as required by s. 227 of the Land Act, 2020 (Act 1036)… The effect of non-stamping of Exh. B is that it was inadmissible in evidence. … Your Honour, although Exh. B was admitted in evidence without objection it is respectfully submitted that on the provision of s. 32(6) of Act 698 and the Supreme Court’s decision in the Woodhouse and Lizori cases cited supra, the admission of Exh. B was therefore erroneous and the court is invited to invoke s. 8 of the Evidence Act, 1972 (NRCD 323) to exclude it from evidence. s. 8 of NRCD 323 provides that ‘Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion’ The above submission is further fortified by the decision in Amoah v Arthur (1987-88) 2GLR 87 where the Court of Appeal stated as follows: “It was the duty of the trial court to reject inadmissible evidence which has been received, with or without objection during the trial when he came to consider his judgment; and if he failed to do so that evidence would be rejected on appeal because it was the duty of the courts to arrive at a decision based on legal evidence only. Tormekpey v Ahiable [1975] 2GLR 432, CA cited Your Honour, the effect of non-registration which is stated on the assumption that Exh. B is still of any material (given the effect of the non-stamping) is that it never assumed any legal effect until it would have been registered. Reference is made to the case of Amuzu v Oklikah (1998-1999) SCGLR 141. Giving (sic) the absolute exclusion of Exh. B which includes Exh. C and the Plaintiff’s own admission that Exh. A was not issued to her by the 1st Defendant’s predecessor, in fact in his absence, the Plaintiff’s claim thus stands unproven and this is fatal to her case. In effect, there is no evidence upon which the court could safely find that the plaintiff acquired the land in April 2015 from the Ebiradze family of Sofokrom then headed by 1st Defendant’s predecessor, Ebusuapanyin Kwesi Essuman” An inconsistency that revealed Plaintiff’s massaging of the facts was her claim that Attah Bordoh was the same as Moses Evans Atta Bordoh, only to contradict herself when she answered a question that showed Evans Atta Bordoh was different from Uncle Moses, the two people she paid the GHS7000 to and confronted when the dispute of the land arose. Page 8 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. From her answers under further cross-examination, Plaintiff admitted that she never personally confronted Ebusuapanyin Kwesi Essuman or met him on the challenges to her claims in respect of the land when he was alive, even as of 2018. This clearly did not support her testimony that 6 months after the execution of an indenture in her favour, her title was challenged by 2nd Defendant who she found on the land. Still, in 2015, she did not confront Ebusuapanyin Kwesi Essuman but Uncle Moses, with whom she had obviously dealt with all along, through issues at the police station and who informed her that he would resolve the challenges with Ebusuapanyin Kwesi Essuman. The evidence is clear that Plaintiff did not deal with Ebusuapanyin Kwesi Essuman personally, but with Atta Bordoh and Uncle Moses, who did not have the authority to alienate the land of the Ebiradze Family. Plaintiff further testified that she had begun title registration of the disputed land, as set out in s. 83-205 of Act 1036 but failed to present evidence to support this assertion, effectively making her averments bare assertions, which has been held in T. K. Serbeh& Co. Ltd v Mensah [2005-2006] SCGLR 341@360-361not to amount to proof in the proper legal sense. ISSUE3 Whether or not the Plaintiff is entitled to her claims In Rukayatu Usumanu v ZongoNaa Kun-Gari& 16 Ors. [2021] DLSC 10171 at page 6 per Dordzie (Mrs.), JSC, the Court referred to the case of Mondial Veneer (Gh) Ltd. v Amuah Gyebu XV [2011] 1SCGLR 466 per Georgina Wood CJ at page 474, which held that: “in land litigation even where living witnesses who were involved in the transaction under reference are produced in court as witnesses, the law requires the 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”. A similar holding on proof of title was made in Okonti Borley &Okonti Bortey v Hausbauer Ltd. [2021]DLSC 10078 on page 17 per Tanko, JSC. In the instant case before me, Plaintiff has failed to prove her root of title to the right grantor, mode of acquisition through the rightful persons, and starkly, did not lead a shred of evidence on acts of possession that she did to exercise her interest in the land. I am not satisfied that she is entitled to any of her claims. DECISION The reliefs numbered (i – v) contained in the Writ of Summons and Statement of Claim filed on 14/08/2020 are hereby dismissed. Costs of GHC10, 000 awarded against Plaintiff. Page 9 of 10 Estherine Mensah v Ebusuapanyin Papa Ga & Anor. ................................................................. H/H NAA AMERLEY AKOWUAH (MRS.) Page 10 of 10