BAIIBO VRS ATOA & 2 OTHERS (A1/01/2023) [2023] GHADC 1227 (8 August 2023)

IN THE DISTRICT COURT KINTAMPO AD - 2023 SUIT NO: A1/01/2023 BAIIBO IBRAHIM OF KOKUMA - PLAINTIFF VRS 1. MADAM ABENA ATOA - 2. AKUA DWOMOH ALL OF KOKUMA DEFENDANTS 8th August, 2023. 1. Introduction JUDGMENT 1.1. This suit concerns a transaction in respect of land situate at Kokuma in the Bono East region of Ghana. Whereas Defendants insist that the transaction was not a sale to Plaintiff but that of rent, Plaintiff insists otherwise. 1.2. Plaintiff’s story is that sometime in or around 2015, Defendants sold the disputed land situate at "Agyanu on Tamfiano Kwanso at Kokuma on Nkoranza stool land to him for valuable consideration and he has since been in effective occupation of the land by cultivating yam, maize and other food crops on it. 1.3. He claims that Defendants have refused to prepare documents covering this land in his name and all efforts made by him to ensure this is done have proved futile. Plaintiff insists that the land was sold to him for valuable consideration for which reason he prays the Court for the following reliefs: Page 1 of 14 “a. Declaration of title and recovery of possession of all that three (3) acres of land situate at a place commonly known and called Agyamu on Tamfiano Kwanso at Kokuma on Nkoranza stool land bounded by the properties of Auntie Adubia, Papa Kwaku Dapaa, Maame Tabuaa and Madam Abena Atoaa (1st defendant herein) which was sold to the plaintiff by the defendants for a valuable consideration. b. An order compelling the defendants to surrender/prepare the documents on the aforementioned land into the plaintiff’s name. Or in the alternative compelling the defendants to pay current purchase price of the three (3) acres of land to the plaintiff. c. An order of perpetual injunction restraining the defendants, their agents, assigns etc. from laying adverse claim to the disputed land.” 2. Plaintiff’s evidence 2.1. Plaintiff testified in chief that in the year 2015, he saw the disputed land and developed interest in it and went to see 2nd Defendant in her house reiterating his initial interest to rent the disputed land where she asked him to go and prepare and return later so they could properly talk about the disputed land. 2.2. Few days later one Kwadwo Donkor who knew his previous interaction with 2nd Defendant told him 2nd Defendant has said she would no longer rent the disputed land to him but rather sell it to him because they need money to bail out their brother Kofiga a truck driver who had been arrested at Burkina Faso. 2.3. He went to 2nd Defendant the second time and she told him she was no longer interested in renting the disputed land to him but she rather wanted to sell it Page 2 of 14 because she needed money to solve a problem one of her brothers was having at Burkina Faso. He offered to buy the land and 2nd Defendant offered to sell it to him at GHS 900.00 per acre for 3 acres totaling GHS 2,700.00. He told 2nd Defendant that he did not have the full amount at the moment but had GHS 2000.00. 2nd Defendant asked to be given the money due to the urgency of the situation, because it could solve her brother’s problem. 2.4. Few days later, he and his friend Sarpong, went to 2nd Defendant in her house and made an initial payment of GHS 2000.00 as part payment for the disputed land, and 2nd Defendant asked him to go and start work on the disputed land pending the return of 1st Defendant from Kumasi because due to the urgency of her brother's case she could not wait for 1st Defendant to return before she accepted the money. 2.5. According to Plaintiff the agreement was that when 1st Defendant returned from Kumasi, Defendants would properly demarcate the 3-acre farm land to Plaintiff. Later in the same year, 2nd Defendant approached him and demanded the balance of money but he told her he did not have cash in hand but had tubers of yam which were for sale and would pay the balance immediately the yam was sold. 2.6. 2nd Defendant brought a purchaser for his tubers of yam and he paid GHS 500.00 to 2nd Defendant. After paying the total price of GHS 2500.00 to 2nd Defendant he asked her of the documents to the disputed land but 2nd Defendant insisted he waits for 1st Defendant to return from Kumasi. About a year later, he met 1st Defendant in her house and asked her of the documents of the disputed land but she asked him to go and come back later. 2.7. 1st Defendant travelled again to Kumasi and on her return, he approached her for the documents and was told by her that she (1st Defendant) did not instruct 2nd Page 3 of 14 Defendant to sell the disputed land to Plaintiff. Plaintiff asked 2nd Defendant to return the GHS 2500 sum she received from him as payment for the disputed land, and he was convinced by Defendants to wait till the cashew purchasing season was over so she would return his money. 2.8. When the cashew purchasing season was over, he went to Defendants' house and demanded for his money which resulted in a quarrel and he threatened to get 2nd Defendant arrested for defrauding him but 1st Defendant pleaded through his landlord to calm him down to stop the police complaint because she would go and demarcate 3 acres of 2nd Defendant’s share in her land estate to him. 2.9. Defendants together with Kwadwo Donkor who was a witness went to 1st Defendant's land where Defendants demarcated the disputed land to Plaintiff and having demarcated the disputed land to him, 1st Defendant demanded the balance of GHS 200 from him but he demanded the documents on the land before he would make final payment. After some weeks when he did not hear from Defendants again, he went to 2nd Defendant at a time 1st Defendant had travelled again to Kumasi and demanded for the land documents. 2.10. 2nd Defendant told him that 1st Defendant was unwilling, to prepare the land documents for him because she claimed 2nd Defendant sold the disputed land to him cheaply. When 1st Defendant returned from Kumasi, she informed him through his landlord that her children in Kumasi have asked her not to sell the disputed land so she was willing to pay back Plaintiff’s money with interest if he was minded to charge her for that interest. So, he informed 2nd Defendant that he had already prepared the land for cultivation and if she would permit him to farm the disputed land that season, he would accept the GHS 2500 without interest otherwise he would not. 1st Defendant agreed to this but when he went to work on the land, her son Asante stopped him and drove him from the land. Page 4 of 14 Plaintiff’s witnesses 2.11. Plaintiff called two witnesses. According to PW1 Kwadwo Donkor, 2nd Defendant informed him that she had three (3) acres of land the subject of this suit which she was offering for sale and pleaded with him to assist her find a prospective purchaser for the land, so he informed Plaintiff. Plaintiff expressed interest in acquiring the land, so he introduced Plaintiff to 2nd Defendant. 2.12. Later, Plaintiff informed him that he had made part payment of GHS2500.00 and that it was left with the allocation and demarcation of the land for him by 2nd Defendant. He accompanied Plaintiff and Defendants to the area where the land is located and he with Plaintiff measured the three (3) acres out of the entire land in the area with the assistance of 2nd Defendant, who supplied them with measuring rope. 2.13. Before they left the land, 1st Defendant demanded payment of GHS 200.00 being the outstanding balance of the total purchase price of the land to her personally and not to 2nd Defendant again, but Plaintiff refused and requested for conveyance to be prepared before final payment. According to PW1, they left the land hoping that 2nd Defendant would prepare the conveyance for Plaintiff but this was not done despite several requests by Plaintiff. 2.14. PW2 Sarpong Kwabena also testified that sometime in the year 2015, Plaintiff came to his house and pleaded with him to accompany him pay for the purchase price of three (3) acres of land, subject of this suit, that he had purchased from 2nd Defendant. Plaintiff told him that the cost of one (1) acre of the land he purchased from the 2nd Defendant was GHC900.00, so the total purchase price of all the three (3) acres of the land was GHS 2700.00. Page 5 of 14 2.15. He went with Plaintiff to 2nd Defendant's house on the same day and Plaintiff made part-payment of GHS 2000.00 to 2nd Defendant which she acknowledged receipt of in the presence of 2nd Defendant, Plaintiff and no one else. Later, Plaintiff informed him that he had made another payment of GHC 500.0 to 2nd Defendant leaving a balance of GHS 200.00. 2.16. Generally, I find Plaintiff’s evidence corroborated by his witnesses’ testimonies, the initial legal and evidential burden on him thereby discharged. Corroboration means confirmation of evidence given or to be given at the trial and is defined by section 7(1) of the Evidence Act 1975 (NRCD 323) Act which reads: "(1) Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence." 2.17. Another useful definition will be found in The Ghana Law of Evidence (1993 ed) by Ofori-Boateng J where he stated at p 41 as follows: "Thus corroboration confirms or supports a proof of a specific fact on which other evidence has been given already or will be given in due course, thereby giving the inference that the evidence already given or yet to be given when given is more likely than not to destroy or establish the fact in issue" 3. Defendants’ evidence 3.1. 1st Defendant in a rebuttal to Plaintiff’s evidence testified that when Plaintiff approached her, she told him from the outset that she rents out her farmland at GHS 300 per acre per annum. After Plaintiff did not return for two months, when she asked him to prepare and come back, her children took her to Kumasi for Page 6 of 14 medical treatment. She spent two years and 6 months and returned to be informed by 2nd Defendant that Plaintiff had left money with 2nd Defendant to be kept for her in respect of land he claimed they talked about. 3.2. Later when Plaintiff approached her, she reminded him that she does not sell her lands but only leases them out on a yearly basis. According to her, Plaintiff told her that the money he deposited with 2nd Defendant is a bank loan so if she was not willing to sell the land to him, he would demand interest on it in addition to the principal sum. 3.3. 1st Defendant’s testimony is that at the time, Plaintiff had already cultivated the disputed land for 2 years, and due to Plaintiff's consistent demand for the interest on the alleged loan plus the principal sum, she and Plaintiff agreed that she allocates 3 acres of the farmland to him to cultivate for an additional 4 years to defray all debt owed him, which she did. She says that without her knowledge, Plaintiff allocated a portion of the disputed land to another and took money for it, which was not part of their agreement and within the agreed 6-year lease period, Plaintiff exploited all the timber on the disputed land for profit without her knowledge which was also not part of the agreement. 3.4. 1st Defendant’s conclusion is that Plaintiff did not give any money to her personally as payment for any land he bought from her, that she did not negotiate with him for the sale of the disputed land, and she only agreed with Plaintiff for him to cultivate the disputed farmland for 6 years to defray all the debt she owed him as a result of the money he deposited with 2nd Defendant and its alleged interest. 2nd Defendant’s evidence 3.5. 2nd Defendant corroborated 1st Defendant’s narrative on the events of parties’ first meeting. She added that one day, Plaintiff came to the house and told her that he Page 7 of 14 had brought GHS2000 as deposit for the land he had discussed with 1st Defendant and she told Plaintiff that 1st Defendant was not around but to the best of her knowledge 1st Defendant does not sell her lands outrightly to others but rather leases them out for GHS 300 an acre per annum. So, she told Plaintiff that she can only lease the farm land to him in her absence so that on her return, the two of them could talk properly about the disputed land which he agreed. 3.6. She admits receiving received GHS 2000 from Plaintiff under an agreement for him to cultivate the disputed land for 3 years. Later, Plaintiff brought an additional GHS 500 as top up to the initial deposit he made to her. After 2 years 6 months, 1st Defendant returned from Kumasi and she informed him of the money Plaintiff had deposited with her as well as her agreement for Plaintiff to cultivate the disputed land for 3 years to exhaust the amount he had given to her. 3.7. According to her, at the time 1st Defendant returned from Kumasi, Plaintiff had cultivated the disputed land for years and 1st Defendant made it clear to Plaintiff that she would not sell the disputed land to him. Plaintiff in turn told 1st Defendant that he would make 1st Defendant to pay the amount he deposited with 2nd Defendant plus interest since the money was a bank loan, so 1st Defendant in an attempt to make peace agreed anew with Plaintiff for Plaintiff to cultivate 3 acres of the disputed land for an additional 4 years to defray all costs incurred by Plaintiff. So, she and 1st Defendant went together with Plaintiff to the disputed land and demarcated 3 acres to him as already agreed, so that the agreed period of 6 years is now due. 3.8. She concluded that Plaintiff has trespassed unto the disputed land after the 6-year agreed period and attempted to plough the land which was stopped by her brother Asante since Plaintiff no longer has any right over the land. She claims that she never sold the disputed land to Plaintiff since she does not own it and has no right Page 8 of 14 to it, that she received GHS 2500.00 as payment in respect of land leased to Plaintiff for six (6) years which period has passed so his claims should fail. 4. Analysis of the evidence 4.1. The primary issue for determination in this suit is whether the transaction between parties was a sale or rent. It is admitted by PW1 that at the time the demarcation of the land was made to Plaintiff he had his crops already on the land, meaning he had already cultivated the disputed land before the three-acre portion was formally demarcated to him. Although PW2 stated under cross-examination when asked by 2nd Defendant whether 1st Defendant sold land to Plaintiff in the negative, I am minded to dwell very little on this response since this witness had already admitted that he did not know about the actual agreement between the parties. 4.2. If I accept 2nd Defendant's story that she leased the land in 1st Defendant's absence, that is the 3-acre land in dispute, to Plaintiff for a total sum of GHS 2,500 as their initial agreement, then it could not possibly be true because by simple arithmetic the total rent for three years would have been GHS 2,700.00, which curiously is the amount Plaintiff has always alleged was the total agreed amount, the purpose of the payment aside. This to my mind is an afterthought on the part of 2nd Defendant. 4.3. Defendants’ evidence is to my mind further diminished in the weight to be given to it because of their prevarication and inconsistencies. 2nd Defendant particularly denied a fact that is clearly admitted by Plaintiff and 1st Defendant, that the dispute went before Fri Bosomfour, contrary to 1st Defendant’s testimony under cross- examination. She also for the first time alleged contrary to her testimony that the total rent amount was GHS 2700 in that she alleged that GHS 200 remained to be paid by Plaintiff in respect of the land allegedly rented out to him. This again to my mind is an afterthought. Page 9 of 14 4.4. Although the rule of law is that for an inconsistency to have a relevant bearing on a judgment, it must relate to facts in issue, in Obeng v. Bempomaa 1992-93 3 GBR p 1029, Lamptey JA. (As he then was) had this to say concerning the effect of inconsistencies on a party’s case: “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Complainant and his witnesses weakened the merit of his case and proved fatal to his claim.” 4.5. Even if I deemed the evidence of Defendants worthy of being considered oath against oath to that of Plaintiff, I am reminded that in the case of Oxyair Ltd & Darko v. Wood [2005-2006] SCGLR 1057, the Court held that in the case of oath against oath, it is the duty of the trial court, or any court to consider the evidence adduced to form a judgment as to what version of events was more credible. Additionally, in Lutterodt v. Commissioner of Police [1963]2 GLR 429, SC, it was held that in an oath against oath situation, it is incumbent upon the trial court to examine the evidence before preferring one to the other and give reasons for the preference. The trial judge cannot be faulted on his decision once it is based on the evidence on record. Her Ladyship Afia Serwaa Asare-Botwe (Mrs.) relied on these rules in Lydia Tetteh v. Madam Akweley & Anor (2019) JELR 107108 (HC). 4.6. 1st Defendant does not deny that she represented to Plaintiff that she would carve out 3 acres of land from her estate originally intended for 2nd Defendant to him so that he would abandon a police complaint. She did not also challenge this under cross-examination or lead any credible evidence in rebuttal thereof. In Takoradi Flour Mills v Samir Faris1 Ansah JSC at page 890 referred with approval to the 1 [2005-2006] SCGLR 882 Page 10 of 14 case of Tutu v Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, where Ollenu JA said that: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” 4.7. 1st Defendant is accordingly deemed to have admitted this. An admission as defined by the 7th edition of the Black’s Law Dictionary is a voluntary acknowledgment of the existence of facts relevant to an adversary’s case and as held in Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, where a matter is admitted proof is dispensed with. 4.8. Again, in the case of In re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III (substituted by) Laryea Ayiku III [2005- 2006] SCGLR 637 at 656, the court laid down the rule of law on admissions in these words: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.” 4.9. I also consider 1st Defendant being the original true owner of the disputed land bound by her conduct, she being estopped from resiling from her promise which Plaintiff has relied on. The principle of promissory estoppel as referred to by some as equitable estoppel was explained by Denning J (as he then was) in the case of Page 11 of 14 Central London Property Trust Ltd v. High Trees House Ltd [1947] KB 130 where it was held thus: “... where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by consideration in the strict sense ...” 4.10. The elements to be proven by a party whose case relies on promissory estoppel as discussed in IBM World Trade Corporation v. Hasnem Enterprises Ltd [2001- 2002] 2 GLR 248 are that a promise that has been made with the intention that the claimant should rely on it and that the claimant has in fact relied on it. To my mind, these are well established in the evidence. 1st Defendant promised to convey the disputed land to Plaintiff in forebearance of his right to pursue a police complaint. This agreement must be fulfilled since Plaintiff fulfiiled his part. 4.11. As held in IBM World Trade Corporation v. Hasnem Enterprises Ltd (supra) “It must be borne in mind that specific performance is an equitable relief. It is exceptional in its character, and a court has the discretion either to grant it or to refuse it. That discretion is exercised on fixed principles.” These fixed principles include the readiness of he who claims specific performance to perform his obligations in respect of the underlying agreement and there is little doubt that Plaintiff in this has sufficiently performed his part of all the the agreements which have precipitated this suit. 4.12. It is clear from the evidence on record, and I find so, that the transaction between Plaintiff and Defendants was a sale and that it was always understood by the Page 12 of 14 parties that Defendants divested themselves of their property in the disputed land to Plaintiff. Conclusion In conclusion, Plaintiff’s action succeeds and these orders are made in Plaintiff’s favour: a. Declaration of Plaintiff’s ownership of all that three (3) acre land situate at Agyamu on Tamfiano Kwanso at Kokuma on Nkoranza stool land bounded by the properties of Auntie Adubia, Papa Kwaku Dapaa, Maame Tabuaa and Madam Abena Atoaa (1st Defendant herein) which was sold to him by Defendants for valuable consideration. b. Recovery of possession of all that three (3) acre land situate at Agyamu on Tamfiano Kwanso at Kokuma on Nkoranza stool land bounded by the properties of Auntie Adubia, Papa Kwaku Dapaa, Maame Tabuaa and Madam Abena Atoaa (1st defendant herein) from Defendants. c. Defendants are hereby ordered to execute a deed conveying the aforementioned land to plaintiff within fourteen (14) days. d. An order of perpetual injunction restraining Defendants and all those claiming through them from dealing with the land adversely or laying any adverse claim thereto. e. I assess Plaintiff’s costs at GHS 2000.00 SGD. KWAME ADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present (Unrepresented) Page 13 of 14 Page 14 of 14