AUSTIN VRS AMOQUANDOH & 2 OTHERS (E1/39/2012) [2023] GHAHC 571 (26 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON THURSDAY THE 26TH DAY OF OCTOBER, 2023 BEFORE HIS LORDSHIP BERNARD BENTIL - HIGH COURT JUDGE SUIT NO: E1/39/2012 NATHAN KOBINA AUSTIN (SUING PER HIS LAWFUL ATTORNEY CYNTHIA MORRISON) VRS 1. NANA ESSEL AMOQUANDOH - - ODIKRO OF GOMOA FETTEH KAKRABA (SUBSTITUTED BY NANA ESSEL AMOQUANDOH II) PLAINTIFF DEFENDANTS 2. OPANYIN KWAME YAMOAH MAKRADO OF GOMOA FETTEH KAKRABA SUBSTITUTED BY NANA YAW KODUMANU 3. BIG AIDOO CONSTRUCTION LTD JUDGMENT The Plaintiff has instituted this action against the Defendants claiming against them jointly and severally the following reliefs: a. A declaration of title to a piece or parcel of land situate at a place commonly known and called Gomoa Fetteh Kakraba and bounded on the North by Essel Amokwandoh of Gomoa Fetteh Kakraba land measuring 542’-6’ more or less, on the South by Main Mankessim – Accra Motor Road measuring 482’- 6’ more or less, on the East by Essel Amoquando of Gomoa Fetteh Kakraba Twidan Family land measuring 501’ – 0’ more or less and on the West by Essel Amokwandoh of Gomoa Fetteh Kakraba Twidan Family land measuring 555’- 0’ more or less and containing an approximate Area of 6.09 acres. b. An order to set aside the sale of the said land in dispute by the 1st and 2nd Defendants to the 3rd Defendant as being wrongful, illegal, null and void and of no legal effect. c. General damages for Trespass. d. Perpetual injunction restraining the Defendants, their agents, workmen, servants, personal representatives, persons claiming through them and assigns from having anything to do with the land in dispute. The case of the Plaintiff is simply that sometime in the year 1991, he leased the land in dispute for a period of Ninety-nine (99) years from Kofi Otoboah, Head of the Gomoa Fetteh Twidan Clan with the blessing of the principal elders and members of the said family. The said Kofi Otoboah, Plaintiff avers, is the predecessor of the 2nd Defendant. The lease was evidenced in writing, indexed, registered and stamped at the Regional Lands Commission, Cape Coast. The Plaintiff avers that, after the acquisition of the land, he erected pillars and demarcated his acquisition. The Plaintiff proceeded to erect a complete house on a portion of the land with persons residing in there and has also built another house which has reached lintel level. The Plaintiff further avers that, in the early part of the year 2009, he realised that the 3rd Defendant had entered onto the land in dispute with graders and has started developing the area. The Plaintiff’s lawful attorney confronted the 3rd Defendant who claimed he has bought the area from the 1st and 2nd Defendants. The 3rd Defendant then made a report of the confrontation by the Plaintiff’s Attorney to the 1st and 2nd Defendants who, in turn, instituted a civil suit (Suit No. E1/36/2010) against the Plaintiff’s Attorney and others at the High Court. The Plaintiff avers that on receipt of the Writ of Summons and Statement of Claim, his Attorney went to the 1st and 2nd Defendants and showed documents of acquisition by the Plaintiff. The former, after perusing the said documents, caused a notice of discontinuance to be filed against the Plaintiff’s Attorney on 31st January, 2011 thus relieving the Plaintiff’s Attorney. The Plaintiff avers that, with such discontinuance, the land in dispute remains the bona fide property of the Plaintiff by virtue of the lease of 1991. The Plaintiff further avers that, the 3rd Defendant is still working on the land in dispute with a false hope that he had bought the said land in dispute from the 1st and 2nd Defendant. The gravamen of the Plaintiff’s claim is that the sale of the land in dispute by the 1st and 2nd Defendants to the 3rd Defendant is wrongful, illegal null and void and of no legal effect due to the second sale to the 3rd Defendant. The Plaintiff further states that the 1st and 2nd Defendants have no right and power to make a second sale of the land in dispute to the 3rd Defendant and such sale ought to be set aside. The 1st and 2nd Defendants, in their defence, denied the claims and averments of the Plaintiff. They challenged the capacity of the Plaintiff’s grantor, Kofi Otoboah, to lease the land to the Plaintiff. According to the 1st and 2nd Defendants, Kofi Otoboah has never been a head of the Gomoa Fetteh Twidan family and has never been mandated by the principal elders and members of the said family. The 1st and 2nd Defendants further denied giving the land in dispute to the 3rd Defendant. They aver, however, that the land in dispute was regularly alienated to one Otchere Mensah who has duly registered same. The 1st and 2nd Defendant further denied the Plaintiff’s Attorney showed them any documents. In relation to this, they aver that the notice of discontinuance in the suit against the Plaintiff’s Attorney was filed when it was realised that the 1st and 2nd Defendants had sued the wrong persons. The case of the 1st and 2nd Defendants is that the land in dispute is the property of Otchere Mensah and they have not dealt with the land in any way inconsistent with the interest of Otchere Mensah. The 3rd Defendant in its Statement of Defence filed on 24th February, 2012 also denied all the averments contained in the Plaintiff’s Statement of Claim. The 3rd Defendant states that it purchased the land in dispute from Mr. and Mrs. Ochill Mensah sometime in 2010 and it was thereafter that the 3rd Defendant entered onto the land. The 3rd Defendant further states that, its grantors acquired the land in dispute from the 1st Defendant in or around 2005 and same is evidenced by an indenture which is duly registered as Deed Registry No. 1993/2011 with current Deed No CR 996/2005 at the Lands Commission. The 3rd Defendant states that it was in no way involved in the civil suit between the 1st & 2nd Defendants and the Plaintiff. The 3rd Defendant further states the Plaintiff’s Attorney reported the matter to the Awutu Breku Police, which matter was later transferred to the Kasoa District Police. The police conducted a search at the Lands Registry at the Central Regional Lands Commission and the results showed that the 3rd Defendant’s assignors had duly registered the land in question. The Police then advised the 3rd Defendant to go ahead and develop the land as its assignors were the bona fide owners. The 3rd Defendant also challenged the capacity of the Plaintiff’s grantor and stated that Kofi Otoboah has never been appointed head of the Gomoa Fetteh Twidan family and does not have capacity to alienate any land whatsoever. In relation to this, the 3rd Defendant further stated that the High Court, Cape Coast in the case of Mavis Amissah and Anor v Opanin Kwame Yamoah (Suit No. E11/03/2010) that the Plaintiff’s grantor had no authority to alienate land belonging to the Essel Amoquandoh Twidan family of Gomoa Fetteh Kakraba. On account of the above, the 3rd Defendant counterclaims for the following reliefs: a. Declaration of title to land to all that piece of land situate at Gomoa Fetteh Kakraba in the Central Region starting from Pillar SGPS9/32A to OM1 on a bearing of 79° 30 56” at a distance of 2024.02 feet more or less. Thence from OM1 to OM2 on the North-West by lessor’s land on a bearing of 353° - 53’ at a distance of 433.11 feet more or less. Thence from OM2 to OM3 on the North-East by lessor’s land on a bearing of 83° - 33’ at a distance of 260.70 feet more or less. From OM3 to OM4 on the South-East by lessor’s land by a bearing of 173° - 53’ at a distance of 40.27 feet more or less. Thence from OM4 to OM1 on the South-West by the main Winneba- Accra Road on a bearing of 260°- 55’ at a distance of 260.85 feet more or less containing an approximate area of 2.58 Acres more or less. b. Perpetual injunction restraining the Plaintiff, his heirs, assigns, agents and privies from entering on the land described in paragraph 17(a). At the close of pleading, the following issues were set down for trial: 1. Whether or not per the High Court decision in Mavis Amissah and Rockson Amissah v Opanin Kwame Yamoah (Suit No. E11/03/2010) Kofi Otuboah has authority to alienate the large parcel of land lying and situate at Gomoah Fetteh Kakraba in the Central Region. 2. Whether or not 3rd Defendant’s acquisition of the disputed property is valid. 3. Whether or not the 3rd Defendant is entitled to its counterclaim. It is trite learning that the standard of proof in all civil cases is proof by a preponderance of probabilities. This is the certainty of belief in the mind of the Court by which it is convinced that the existence of a fact is more probable than its non-existence of a fact is more probable than its non-existence. See section 12 of the Evidence Act, 1975 (N. R. C. D. 323); ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. Therefore, the onus lies on a Plaintiff who makes assertions which are denied by the Defendant to adduce sufficient evidence to prove his/her assertions as true or probable than that of his opponent’s otherwise, his claim fails and judgment will be given against him. See ZABRAMA V SEGBEDZI [1991] 2 GLR 221; FAIBI V STATE HOTELS CORPORATION [1968] GLR 471-480. However, where (as in this case) a defendant counterclaims, the policy of the law is that the defendant bears the onus to establish his case. This is in accordance with the rule that a counterclaimant is as good as a Plaintiff in respect of his counterclaim and thus, assumes the same standard of proof as the Plaintiff. In this wise, the Plaintiff and the 3rd Defendant bear the onus of adducing sufficient evidence to tip the scale in their favour failing which, judgment would be entered against the Party who fails to satisfy the standard of proof. For the purposes of effectively determining the issues between the Parties, the first issue is rephrased to read: Whether or not the grantor of the Plaintiff, Kofi Otoboah, had the requisite capacity to alienate the land in dispute to the Plaintiff. In determining this issue, I first wish to reiterate the point that a person desirous of purchasing land must conduct due diligence before purchasing the land. This have been severally held by the Courts. A purchaser of land is enjoined by the law to make such investigation as to the title of his vendor. See HYDROFOAM ESTATES (GH) LTD VRS OWUSU (2013-2014) 2 GLR 1117; KUSI & KUSI VRS BONSU (2010) SCGLR 60. A simple search at the Lands Commission or enquiries from neighbours could suffice as due diligence. See OLIVIA ANIM (SUING PER HER LAWFUL ATTORNEY DIANA MENSAH BONSU VRS WILLIAM DZANDZI) (CIVIL APPEAL NO. J4/10/2018) DATED 6TH JUNE 2019 (DELIVERED BY THE SUPREME COURT). It is trite knowledge that family lands are held by the head of the family in trust for the members of the family. In this regard, for a proper alienation of a family land, the sale must be done by the head of the family with the consent and concurrence of the principal members of the family. Thus, any transfer of family land made by a person other than the family head and without the requisite consent and concurrence is void. In the case of DOTWAAH V AFRIYIE [1965] GLR 257 SC, Ollenu JSC posited as follows: The law regulating dealings with family property is well settled, and is as follows: The head of the family or the successor is an indispensable person in the alienation of family land; and alienation of family property made by the head of the family or a successor purporting to be with the consent and concurrence of the principal members of the family is voidable at the instance of the family if they act timeously; but a conveyance made by any other member without the indispensable person, the head of the family or the successor as the case may be, is void ab initio and confers no interest or title in the land on the purchaser or mortgagee. The above dictum has been quoted with approval by the Supreme Court in the unreported case of DORA BOATENG VRS MACKEOWN INVESTMENT (CIVIL APPEAL NO. J4/12A/2019) DATED 5TH FEBRUARY, 2020. As clearly indicated supra, the Defendants have challenged the capacity of the Plaintiff’s grantor as the head of the Gomoa Fetteh Twidan family. The onus, therefore, is on the Plaintiff to adduce sufficient evidence to satisfy this Court that Kofi Otoboah was, at the time of the conveyance, indeed the head of the Gomoa Fetteh Twidan family. The law is that where a person makes an averment or assertion which is traversed by his opponent, he bears the onus of establishing the veracity of his averments or assertions. This burden is not discharged by merely repeating the denied averments on oath. He must lead admissible and credible evidence from which the fact(s) can be inferred. See MAJOLAGBE VRS LARBI (1959) GLR 190; ZABRAMA V SEGBEDZI (SUPRA) In the Witness Statement of the Plaintiff’s Attorney, she stated that the Plaintiff acquired the land in dispute from Nana Kofi Otoboah who was the head of the Gomoa Fetteh Twidan family of Gomoa Fetteh and his principal elders. She further stated that, Nana Kofi Otoboah died and is succeeded by the 2nd Defendant. In my considered view, this is a repetition of the Plaintiff’s averment which has been denied by all three (3) Defendants. The Plaintiff did not adduce any evidence to convince this Court that his grantor, Nana Kofi Otoboah, was indeed the head of the Gomoa Fetteh Twidan family at the time of the conveyance. The Witness Statement of Opanyin Cosmos Kwame Baah is no different. He states that he is a member of the Asona Family and knows the Plaintiff personally. He met the Plaintiff one day along the highway and the Plaintiff enquired whether he could have a land to buy at Fetteh Kakraba. Opanyin Cosmos informed him the Chief, Nana Bootu and Opanyin Otuboah (head of the Gomoa Fetteh Twidan family) are in charge of Gomoa Fetteh lands. Opanyin Cosmos further stated that at that time, Nana lived in Takoradi but in his absence, Opanyin Otuboah (Plaintiff’s grantor) was the one fully in charge of Fetteh Kakraba lands. In the light of the challenge of the capacity of the Plaintiff’s grantor as head of the Gomoa Fetteh Twidan family, I am unable to accept the above as substantial proof of Nana Kofi Otoboah’s capacity as the head of the Gomoa Fetteh Twidan family. The Plaintiff could have called upon one of the attesting witnesses to the deed, if any is still alive, or a principal member of the family who consented to the alienation of the family land to the Plaintiff to give evidence in his favour. The Plaintiff could also have given evidence of overt acts performed by Nana Kofi Otoboah in his capacity as head of the Gomoa Fetteh Twidan family. In this wise, I hold that Nana Kofi Otoboah was not the head of the Gomoa Fetteh Twidan family at the time of the conveyance thus, on the authority of DOTWAAH V AFRIYIE (supra) and DORA BOATENG VRS MACKEOWN INVESTMENT (supra), the alienation of the Gomoa Fetteh Family land to the Plaintiff is void and conferred no interest or title in the land on the Plaintiff. The Plaintiff’s action fails in this regard and thus not entitled to his reliefs. With respect to the counterclaim of the 3rd Defendant, law is that a person seeking for a declaration of title to land or recovery of possession must prove his root of title, mode of acquisition and various acts of possession exercised over the land. See YEHANS INTERNATIONAL LTD VRS MARTEY TSURU FAMILY AND ANOTHER (J4/34/2018) DATED 24TH OCTOBER, 2018 (DELIVERED BY THE SUPREME COURT). 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 by the Supreme Court in the case of MONDIAL VENEER (GH) LTD V AMUAH GYEBI XV [2011] 1 SCGLR 466 at 476. The law also requires such Party to adduce sufficient evidence to prove or establish the identity and the limits of the land in respect of which he seeks a declaration of title. However, there are a plethora of decisions to the effect that this rule is not applicable where the identity of the land is not in dispute. In cases where the Parties are ad idem as to the identity of the land, proof is dispensed with. This instant case falls within this exception. The Parties are ad idem as to the identity of the land and the issue solely lies with which of the Parties has a valid grant of the land. The 3rd Defendant in proving his title to the land gave evidence through Michael Aidoo, the Managing Director of the 3rd Defendant. From his witness statement, the 3rd Defendant traces its title from Mr. and Mrs. Ochill who also trace their title to the 1st and 2nd Defendant. See EXHIBIT BAC 1. Although the 3rd Defendant failed to exhibit a copy of the indenture executed in its favour, same is in evidence as EXHIBIT NYK 1. Michael Aidoo further stated in his Witness Statement that, after the acquisition of the land in dispute, the 3rd Defendant began clearing the land. In the absence of any evidence to the contrary, I am satisfied that the 3rd Defendant has established its case on the balance of probabilities. In view of the Plaintiff’s inability to establish the capacity of his grantor as the head of the Gomoa Fetteh Twidan family, the act of Nana Kofi Otoboah cannot be attributed to the Gomoa Fetteh Twidan family and therefore not binding on the family. In this wise, it was within the rights of the family to alienate the land in dispute to the grantors of the 3rd Defendant. Thus, the 3rd Defendant’s acquisition of the land in dispute is valid. For all the foregoing reasons, the Plaintiff’s action utterly fails and same is dismissed as unmeritorious. However, judgment is accordingly entered in favour of the 3rd Defendant for all the reliefs indorsed on its counterclaim. The 3rd Defendant is adjudged the owner of the land described in relief (a). The Plaintiff, his heirs, assigns, agents and privies are hereby perpetually restrained from interfering or having anything to do with the land in dispute. Cost of GH₵10,000.00 awarded in 3rd Defendant’s favour and against the Plaintiff. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL DANIEL ARTHUR ESQ. FOR THE PLAINTIFF. ANTHONY FORSON ESQ. FOR THE DEFENDANTS. 11