Hosi Vrs Fianyo & Another [2023] GHAHC 202 (4 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HO – VOLTA REGION A. D. 2023 CORAM: CHARITY A. ASEM (MRS) J. SUIT NO. E12/23/2021 DATE: 4TH JULY, 2023 ISAAC HOSI CARPENTER, H/NO BE6/38, PLAINTIFF HO. VRS. 1. FIANYO KOFI UNEMPLOYED, H/NO – UNKNOWN 2. YAO XINI FARMER/BUSINESSMAN, DEFENDANTS H/N UNKNOWN , CUSTOMARY SUCCESSOR OF MOSES YAO FIANYO (DECESSED) ALL OF DZODZE FIAGBEDU JUDGMENT The plaintiff commenced the instant suit against the defendants on the 28/9/2020, and claimed the following reliefs. 1. A declaration that, the plaintiff entered into a land purchase agreement or contract with the deceased, Moses Yao Fianyo known to the defendants covering a land in the Dangme West District, Odumase in the Greater Accra Region to be given him or allocated to him by his employers, the Ghana Highway Authority. 2. A declaration that, the plaintiff paid a total amount of GH¢4,000.00 less GH¢121.00 pending the final preparation of the landed documents on the land. 3. A declaration that, the defendants and other beneficiaries to the estate of the deceased are only entitled to the balance of GH¢121.00. 4. An order directed at the Ghana Highway Authority to re-allocate the said plot of land, Plot No. 13 due the late Moses Yao Fianyo to the plaintiff and not the defendants or successors of the deceased. 5. Declaration of title in the plaintiff of the said Plot No. 13. 6. Perpetual Injunction restraining the defendants, their assigns, privies, workers, agents, servants and anybody at their behest from ever having anything doing with the said Plot No. 13. 7. Punitive cost. Initially the defendants failed to respond to the suit as required under Order 9 of C. I. 47of the High Court Civil procedure Rules of 2004 compelling the plaintiff to proceed with an application for Interlocutory Judgment in default of appearance. However that default judgment was set aside by the court and the defendants who appeared unrepresented, were ordered to file a late appearance and statement of defence within 2 weeks. They complied. From their respective defence filed on 15/1/2021, they each denied plaintiff’s claims and put him to strict proof thereof. The 1st defendant counter-claimed against the plaintiff as follows; 1. Declaration of title, recovery of possession and perpetual injunction to restrain the plaintiff his assigns from having anything to do with the land at Dangme West District Odumase in the Greater Accra Region allocated to the deceased Moses Yao Fianyo by his employee, Ghana Highway Authority (Plot No. 13). 2. Declaration that the alleged transaction between the plaintiff, the deceased Moses Yao Fianyo and 2nd defendants herein is fraudulent and hence same is null and void. 3. Punitive cost. 4. Any further order or orders as the court deem fit. ISSUES RAISED BY PLAINTIFF FOR THE COURTS DETERMINATION At close of pleadings the following issues were set down by the court for determination when it conducted directions on the 17/3/2021. The defendants did not present additional issues. a) Whether or not the 2nd defendant is the Head of the Fianyo family of Dzodze Fiagbedu. b) Whether or not the 2nd defendant or 1st defendant is the customary successor of Moses Yao Fianyo deceased. c) Whether or not the plaintiff entered into land purchase agreement with the deceased. d) Whether or not the plaintiff made part payment of the purchase price to the deceased. e) Whether or not the plaintiff made further payments after the death of the deceased to the 2nd defendant. f) Whether or not the defendants and their family were aware of the land purchase agreement between them and the plaintiff. On the 17/03/2021, when the court conducted directions the parties were present. An order for parties to present witness statement was directed. On the 14/04/2021 the 2nd defendant was present when the suit was adjourned to the 6/05/2021 for Case Management Conference. Both defendants were absent without a justifiable excuse. The court continued with the business of the day and conducted case management conference and directed hearing notice be served on defendants who were absent. Upon receipt of the hearing notice the 1st defendant attended the court on the 28/03/2022. He was directed to file witness statement, pretrial check list within 14 days for the case to proceed to trial on the 29/04/2022. Though they filed some processes the defendants stopped coming to court. What is the duty of the court when a party fails to attend court? A court generally has no jurisdiction to proceed against a person who has not been notified of its proceedings. Since the court exist to do justice it must ensure that all persons may be affected by its decision must be served to appear and be heard in order that rule of natural justice is observed. For the above reasons the court granted the plaintiff an order to serve defendants by substituted serve but they steadfastly failed to respond. In the case of Sarfo Adu V. Badu (1977) 2 GLR holding 3 thereof, the court held that, “A court could proceed with the case where a party or his lawyer have been given the opportunity to appear to take part in the trial but ignored same.” Please also In re West Coast African Dying Com. Ltd V. Adams & another (1984-86) 2 GLR page 561 C A. Satisfied that the court has given every conceivable notice and opportunity to the defendants to attend the court, but they failed to avail themselves to participate in the trial and since the case cannot continue to be in abeyance the court proceeded to hear evidence from the plaintiff. The plaintiff testified and relied on his witness statement filed on the 18/11/2020. He did not call a witness in support of his case. I am not unaware of the position of the law that, witnesses are weighed not counted by the court. The plaintiff can succeed on his claim if he discharge the evidential burden as in all civil litigation. Section 10, 11 and 12 of the evidence Act, 1975 NRCD 323 referred. Plaintiff tendered Exhibit A1 – A8 being receipts he claimed were issued to him when he made payment to defendants’ late father and defendants themselves. Exhibit B and C are evidence of the passing of Moses Fianyo in 2012. It is plaintiff’s story that, the late Moses Yao Fianyo was his very close friend who worked at Ghana Highway Authority, Ho. That deceased informed him that he was being allocated plot No. 13 at Dangme West District, Odumase in the Greater Accra Region as an employee of the Ghana Highway Authority. That the deceased said he would rather sell the said plot and use the money to build at his hometown Dzodze-Fiadgedu. Plaintiff averred that he entered into a land purchase agreement with the deceased to buy the said land for which reason he made various payments to the deceased. The payments were acknowledged by the deceased as in Exhibit A1- A5 According to plaintiff the agreed purchase price was GH¢4,000.00 out of which he paid GH¢3,879.00 leaving a balance of GH¢121.00. It is his further evidence that, the defendants who are very much aware of the agreement between him and their kinsman are denying same and rather making attempts to dispose of same on his blind side. He alleged fraud. The particulars of fraud are stated at paragraph 12 of the statement of claim Plaintiff continued that, the monies received by the defendants contributed to assist the family in the funeral of the deceased. That the defendants voluntarily released Exhibit ‘D’ series to him and he obtained Exhibit ‘E’ from the deceased’s place of work evidencing the fact that he was allocated the said plot in his lifetime. He concluded that since the deceased took some of the purchase money and the 2nd defendant took the balance after the death of the said Fianyo Yao Moses, it will be unconscionable, unfair, unjust and inequitable on the part of the defendants to deny him access to the land in issue. I wish to recount the facts alluded to by the 1st defendant in his statement of defence and counter-claim filed on 15/01/2021. He stated that he is the customary successor of the deceased Moses Yao Fianyo. He denied that 2nd defendant is also a customary successor to the deceased. He does not deny the allocation of the plot in dispute to his late father by the Highway Authority. He however denied knowing plaintiff as his father’s friend. He continued that, 2nd defendant hails from the same family with the deceased but he is not the Head of family. That the monies 2nd defendant received from the plaintiff after the death of their kinsman was not done on behalf of the family. And whatever money he collected is not in connection of sale of the deceased land as alleged. He was categorical in the defence that the deceased did not enter into any agreement to sell his land to plaintiff, and all the transaction plaintiff had with 2nd defendant were without the knowledge of the deceased’s family and same was fraudulent. On the 15/01/2021 the 2nd defendant lodged a defence to plaintiff’s claims. He said that during the funeral rites celebrations the plaintiff come to inform the family that the deceased has sold his land plot No. 13 at Odumase to him and that he has paid substantial part of the purchase price leaving a balance to be paid. He continued that, the family demanded and the plaintiff paid further sums of money which money was used for the funeral celebration. That the family agreed that the property should be conveyed to the plaintiff. He acknowledge the right of plaintiff to the said plot in question. Though he presented a witness statement on 12/12/2020 he failed to attend the trial to put those averments in evidence. I will proceed to take the issues as raised and also the law as it relates to the plaintiff’s claim. I will consider issues A and B together; whether or not the 2nd defendant is the head of the Fianyo family of Dzodze Fiagbedu; whether or not the 1st defendant is the customary successor of Moses Yao Fianyo deceased. Let the plaintiff be reminded that, the fact that his adversaries did not appear, it is an automatic win for him. It is the law that a party who makes an assertion bears the legal burden of establishing it. The Supreme Court per Wood CJ (as she then was) in the case of Poku v. Poku (2008)18MLRG 1 at 30 thus, “Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard of degree must also necessarily be proof on the preponderance of the probabilities;” Similarly, Gbadegbe JSC (as he then was) in the case of Sagoe v. SSNIT (2011) 30 GMJ 133, (2012) 52 GMJ 47 at page 58 held that, “The party who asserts the affirmative of an issue has the incidence of legal burden…” The plaintiff in this case averred at paragraph 1 of the statement of claim that the defendants are customary successors of the late Moses Yao Fianyo deceased. He described 2nd defendant as the younger brother of the deceased and he is the head of the Fianyo family of Dzodze. The plaintiff repeated the above narrations in his witness statement filed on the 18/11/2020. Though the 2nd defendant insisted he failed to appear and prove same. It appears that what plaintiff did virtually was a repetition of his pleadings. The issue herein is unverifiable from the plain evidence produced by the plaintiff. In the case of Eric Asante v. The Republic (2017) 109 GMJ Dotse JSC at page 8 decided that, “It must be noted with all emphasis that where a party in a trial refers to matters that are capable of independent proof in a positive manner and those matters are denied, the party does not establish the truth of those matters by stating them in the witness box and failing to proffer the other evidence which in the circumstances of the case should be available. Where the circumstances of the case are such that there can be no corroborative evidence, that will be a different matter.” See also Mortey v. African Institute of Journalism and Communication (2014) 7 GMJ, per Akanba JSC, decided that; “This court pointed out in Ackah vs Pegah Transport Ltd (2010) SC GLR (2011) 31 GMJ 174 the various methods of producing evidence which includes the testimonies of the party and…witness, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the tribunal or court.” Please see also the cases of, Emmanuel Osei Amoako v. Stanford Edward Osei (subst.) by Bridget Osei Lartey); Civil Appeal No. J4/3/2016 per Apam JSC; Jacqueline Asabre & Anor v. Johnson Aboagye Asin (2017)109 GMJ 206 of 235. Though the 2nd defendants’ name appeared in exhibit B a copy of the Obituary of the deceased, the best recognition the family gave him was Motor Chairman. He did not attend the trial, since plaintiff was categorical, having dealt with 2nd defendant in his capacity as head and customary successor of the late Moses Yao Fianyo’s family prove of these averment is essential to the success of his claim. Much more the plaintiff alleged that the money paid to the family assisted in organizing the funeral of Moses Fianyo. With that said, the plaintiff could have called any neutral individual from the deceased family to appear to testify to confirm the averment. The plaintiff did none of these. In my candid view the plaintiff have been unable to establish by credible evidence to discharge the legal burden on him to establish that the 1st and 2nd defendants are customary successor and head of the Fianyo Fiagbedu family of Dzodze. On the part of the 1st defendant, I have no doubt he may be the son of the deceased, but that does not make him automatic customary successor to his father. The next three issues (c, d, e and f) will be discussed simultaneously. Whether or not the plaintiff entered into land purchase agreement with the deceased; Whether or not plaintiff made part payment of the purchase price to the deceased; and Whether or not plaintiff made further payment after the death of the deceased to the 2nd defendant. Throughout the pleadings, witness statement and the written address submitted on behalf of the plaintiff, it is alleged that the plaintiff entered into a land purchase agreement with the late Moses Yao Fianyo in his life time for the sale of his plot allocated to him at odumase by his employers, Ghana ay Authority. Plaintiff testified and relied on his witness statement and tendered Exhibits A, A1 – A8 in support of his case. According to him the agreed price was GHC4000.00. According to plaintiff he made part payment to the deceased who could not transfer his interest to him before his death. After his death, he approached deceased friend’s family to discuss the matter. After which he made the rest of payment on the agreement with the deceased to 2nd defendant. Apart from these exhibits nothing by way of a written agreement was introduced by the plaintiff. He however attached exhibits D, D1and E which are documents from Ghana Highway Authority addressed to the late Moses Fanyo which plaintiff claimed come to his possession through his own efforts. Upon scrutiny, Exhibit A, A1 to A5, consist of receipts issued in the lifetime of the deceased; totaled GH¢1,149.00. Exhibit A face value GHC1,012.00 Exhibit A1 face value GHC10.00 Exhibit A2 face value GHC102.00 Exhibit A3 face value GHC30.00 Exhibit A4 face value - GH¢10.00 Exhibit A5 face value – GH¢5.00 In all honesty, none of the above receipts are clear as to what it was meant to achieve. Except one or two of these receipts that recorded “land at Dodowa.” Exhibit A1 for instance said the deceased borrowed GH¢10.00 from plaintiff. Exhibit A5 with a face value of GHC5.00 represents an amount collected by the deceased for travelling to his hometown. It is noted that all these exhibits are inundated with cancellations of dates, figures and above all not counter signed by the plaintiff’s deceased friend. It is plaintiff’s case further that after the death of Moses Fianyo he made further payment to his family representing the balance leaving only a fraction to be paid, and he will do so upon the transfer of the land to him. According to him the payments made to defendants were receipted as appears in Exhibit A6, A7 and A8. Exhibit A6 is dated 6/08/2012 with face value of GH¢1,100.00 the receiver is 2nd defendant. Exhibit A7 dated 9/04/2013 with face value of GH¢1,300.00 dated 9/04/2013, received by Yao Xine (2nd defendant). Exhibit A8 dated 15/04/2013 with face value of GH¢300.00 received by Yao Xine. Apart from the Exhibits plaintiff did not present any other document relating to the sale agreement of the land between him and the deceased Moses Yao Fianyo. THE LAW In this judgment the focus of the court will be on the law as stated in the Conveyancing Act, the Land Act, 2020 ( Act 1036 ) and other sound judicial precedents on transfer of title in land in Ghana. I will discuss transfer or sale of land beyond three 3 years and what the law says concerning verbal sales of land beyond three years. The attributes of a lawful lease were stated by the Supreme Court in the case of Doudu- Sakyiana v TDC Civil Appeal No. J4/25/2015 dated 6th June 2016 SC; where it was stated that, “The material terms of a valid lease are as stated by Rocha & Lodoh in their book “Practical Draftsman” pages 50 - 52 (a) Identity of the lessor and the lessee and the capacities in which they are contracting. (b) A precise description of the land to be leased; (c) The duration of the lease and its commencement date. (d) The consideration for the lease. (e) The covenants, stipulations and conditions which the parties intend to govern their relationship and (f) Signature of the parties or their agents duly authorized in writing to sign on their behalf. In the above case when the entire elements were not established, the Supreme Court held the instrument invalid. His Lordship Apau JSC held that, “Exhibit A does not satisfy all the requirements stated above; particularly requirements (e) and (f). Exhibit A is therefore not a valid lease that is enforceable in our courts.” His Lordship Dennis Adjei J. A. at page 68 of his book Land Law, Practice & Conveyancing in Ghana explained that, “A sale may be barter… the parties must state the property that was used as barter and if possible its value and shall appear in the receipts clause.” In the instant case under consideration apart from receipts alleged to be payments made to the deceased for the transfer of the property in question no other agreement or written document between the parties was introduced by the plaintiff in evidence. According to him these payments were made in order that the deceased will transfer his interest in property No.13 which he was entitled to from his employers to him. After careful evaluation and scrutiny of the exhibits, unfortunately, the receipt did not meet the requirements of the law under consideration. They fall below expectation of the law. Section 35 of the land Act deals with the mode of transfer of land and it provides as follows; “(1) A transfer of an interest in land other than a transfer specified in Section 36 shall be in writing and signed by; (a) The person making the transfer or by the agent of that person duly authorized in writing; and (b) The person to whom the transfer is made or the agent of that person duly authorized 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 (Emphasis is mine) the transfer. Now this is a claim against a deceased person the courts have been admonished to look with suspicion when claims are made against deceased persons. The authorities are endless. Please see; Kwame Bonsu & Ors. Vs. Kwame Kusi & Ors (2010 GMJ SC. Ofori Agyekum v Agatha, Civil Appeal No. J4/59/2014 SC. It is trite learning that land sale by verbal agreement above three years is frowned upon by the law. In the case of Kofi Sarpong (Deceased) substituted by Nana Kwasi Kodua vs Franklin Adubobi Jantuah Civil Appeal No. J4/2015 dated 17/02/2016 page 7, the court was decisive that, “The law should be applied strictly here as the plaintiffs’ only route of ownership is the purported sub-lease from Mad. Afua Addai which is non-existence. And the law as stated earlier does not recognize verbal agreements beyond three years. Benin JSC concluded that…the law as stated in Sections 1, 2 and 3(1) (8) of the conveyancing Decree, 1973 NRCD 175, requires any such lease to be evidence in writing else it is ineffective to convey any title.” In the instant case, all the plaintiff has to show are some receipts which in my candid view has no correlation to conveying of Plot No. 13 at Dangme Odumasi by the deceased to the plaintiff. The Supreme Court has stated that receipts per se are not instruments of transfer in land, so also statutory declaration with exceptions; and held in the case of Oppong v. AAngi (2020) 1 GLR SC and Donkor v. Alhassan (1987-88) 2 GLR 253 at 256 thus, “It is not just any document that has to be transferred to the purchaser but documents capable of conveying title to the land.” In Kama Health Services Ltd vs Uniliver Ghana Ltd. (2013) GMJ 1 at 27 where again it was stated that, “Transfer of title is not merely handing over any documents to the purchaser but documents that enables the purchaser to secure the legal title. The plaintiff had none and therefore he had no basis to presume ownership and moreover when he is not in possession of the disputed land.” I wish to remind us of the section 1, 2 and 3 of the Conveyancing Act, NRCD 175. Part 1 of the Act provides for Mode of transfer of interest in land. Section 1(1) A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorized in writing, unless relieved against the need for such a writing by the provision of section 3. (2). A transfer of an interest in land made in a manner other than as provided in this part shall confer no interest on the transferee. Section 3 Transaction Permitted Without Writing (1) Section 1 and 2 shall not apply to any transfer or contract for the transfer in land which takes effect – a) by operation of law b) by operation of the rules of equity relating to the creation or operation of resulting, implied constructive trust c) by order of the court d) by will or upon intestacy e) by prescription f) by a lease taking effect of possession for a term not exceeding three years, whether or not a lessee is given power to extend the term, g) by a licence or profit other than a concession required to be in writing by section 3 of the Concessions Ordinance (cap 136), h) by oral grant under customary law 2) Sections 1 and 2 shall be subject to the rules of equity including the rules relating to unconscionability, fraud, dues and par-performance. Upon careful evaluation of the law relating to the subject matter under discussion and the evidence proffered by the plaintiff, his case cannot find any place under the stated provisions of the law to deal favorably with the plaintiff’s claims. Embolden by the above decisions and the position of the law, I have no difficulty in dismissing the plaintiff’s claims. I am happy Counsel for plaintiff in his address to the court re-iterated the law that, it is the duty of a plaintiff to prove what he alleges as he is the party who has raised issues in his pleadings essential to the success of his case thus assume the burden of proving it. He cited very recent cases like Okudzeto Ablakwa (No. 2) v. Attorney General & Anor. (2012) 2 SCGLR found at page 867 in his submissions and others. So, it follows that when the plaintiff who alleges failed in his duty to establish a clear case from his pleadings he will lose. Flowing from the discussions thus far, I find as a fact that, the plaintiff did not satisfy the threshold requirements of the law in the land purchase agreement he claimed he entered with the deceased. There is no written agreement between the plaintiff and the deceased nor the defendants herein. Whatever the plaintiff held in his hands fell short of the requirement of the law and an abysmal quest of a prudent purchaser of land in Ghana. There is no evidence that the defendants are aware of the dealings with plaintiff and his late friend. According to 2nd defendant who seemed to side with plaintiff said, plaintiff come to the family to inform them after the death of Moses Fianyo of the agreement to transfer the land to him. He said the family agreed and collected the rest of the purchase price which greatly assisted the family to conduct the funeral. The above story is palpable false. From plaintiffs own Exhibit B, Moses Fianyo died on the 3rd of June 2012 and was buried on the 7th July, 2012. However plaintiff paid the two tranches monies to 2nd defendant long in 2013 long after the burial. These exhibits have clearly exposed the fact that plaintiff has always acted in bad faith towards his deceased friend, otherwise, how could he count GHC5. 00 and GGHC10. 00 against his friend as part payment of purchase price of landed property when on the face of the said receipt it is recorded loan and transportation? In all honestly, the plaintiff thought he could outsmart the children or the direct beneficiaries of the deceased Estate by luring 2nd defendant to achieve his clandestine maneuvers but has been embarrassingly exposed. Indeed, the burden to be established by the plaintiff under the law is double-edged. In Kwaku Mensah Gyan & Anor. V. Mad. Mary Armadi Amangala Buzume & 4 Ors, it was held that, “What is required is credible evidence which must satisfy the two folds burdens stipulated by the rules of evidence NRCD 323. The first is a burden to produce the required evidence and the second, that of persuasion. Section 10 and 11 of NRCD 323 are the relevant sections. This burden is not met merely by tendering the exhibits G in evidence with all its ambiguities, doubts and lack of explanation.” Since the plaintiff could not produce any credible, satisfactory, cogent evidence in support of his claims to establish his is entitled to what he claims before the court, it means to this court that the failure of the defendants to appear and cross-examine the plaintiff or participate in the trial is of no moment. I would also think that, learned counsel for the plaintiff should have used his legal lens when approached by the plaintiff before heading to this court. It is my most considered view that, plaintiff’s evidence is insufficient to move the hand of the court to grant the reliefs he is seeking herein. Even though your opponents may not appear to test your claim, victory is not automatic when a claim is built strictly on statutory provision that must strictly be applied to achieving justice. This is one of such cases where the court ought to throw away by its left hand. In the circumstances therefore, I dismiss the claims of the plaintiff in limini and same is dismissed. END. (SGD.) CHARITY A. ASEM (MRS) (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION MR. GODWIN KPORBLE FOR PLAINTIFF – PRESENT PARTIES – PLAINTIFF – PRESENT DEFENDANTS – ABSENT 18