ASANTE VRS SAMAGLO (A1/01/22) [2023] GHADC 875 (21 November 2023)

CORAM: HER WORSHIP MRS. ANNETTE SOPHIA ESSEL, SITTING AS DISTRICT MAGISTRATE, AMASAMAN DISTRICT COURT “B” ON THE 21st DAY OF NOVEMBER, 2023. ROBINSON KWAME ASANTE PAUL EKECHUKWU SUIT NUMBER: A1/01/22 PLAINTIFFS VRS CHIEF AGA SAMAGLO DEFENDANT JUDGMENT INTRODUCTION: The reliefs sought by the plaintiffs against the defendant as underscored in their writ of summons and statement of claim are as follows: i. An order of the honourable court to compel the defendant to replace the four plots of land for the plaintiffs and buy the sand, chippings and the 2,800 blocks which were deposited on the land or alternatively pay the total cost of the land made up of the following; GHC 7,800.00 & GHC 9,300.00. ii. Interest of the total sum from 2014 to date of the final payment and cost. CASE OF THE PLAINTIFFS: The Plaintiffs: a pastor and a businessman respectively are residents of Sapeiman and Ablekuma Joma respectively in the Ga-West District of the Greater-Accra Region of the Republic of Ghana. The Defendant is an older brother of the late Isaac Sodoku (hereinafter referred to as the late Isaac Sedonu). The plaintiffs assert that they purchased two plots of land each at Medie and Sapeiman respectively at a cost of Five Thousand Cedis (GHc 5,000.00) and Six Thousand Five Hundred Cedis (GHc 6,500.00) only from the defendant’s late brother Isaac Sodoku. They stated that they were issued with receipt covering the transaction. Plaintiffs continue that after payment of the land they both bought a trip of sand and chippings and deposited same on the land. Their vendor died shortly after the transaction. The plaintiffs narrate that following the death of their vendor, they realized that someone was working on their respective lands. They therefore were led by George Ayim who led them to their vendor to his brother; the defendant for a replacement of their land earlier purchased from Page 1 of 12 the deceased. The plaintiffs assert that when they met the defendant and explained their purpose of visit, the defendant collected the receipt of the 1st plaintiff with explanation that he was verifying the authenticity of the transaction. Plaintiffs aver that the defendant subsequently replaced their lands for them at Kuntunse and further demanded an additional Two Thousand Eight Hundred Cedis (GHC 2,800.00) only from each of them for purposes of processing title documents covering the replacement lands to which they duly paid same to him. Plaintiffs averred that upon visiting their replacements lands, they discovered that same had also been sold out to other persons thus they gave the defendant feedback on this also. The plaintiffs claim that the defendant promised to make good this anomaly and has failed to do despite their persistent demands. Plaintiffs concluded that to date the defendant had reneged to fulfill his word hence the commencement of this action. CASE OF THE DEFENDANT: In response to the claim of the plaintiff, the defendant, a resident of Sapeiman stated that he had no knowledge of land transactions between his brother; the late Isaac Sodoku in his lifetime and plaintiffs. The defendant further added that his brother died in the year 2017. Sometime in the year 2020, he met plaintiffs at his palace at which meeting the plaintiffs informed the defendant that they had land transactions outstanding with his late brother, they thus sought the assistance of the family to retrieve their land. Defendant further stated that he requested plaintiffs to bring proof of the transaction for the family to meet on their claim but plaintiffs left defendant's palace and never returned. The defendant denied collecting any receipts for verification or monies for replaced lands from the plaintiffs. He claimed that he had no knowledge of sand and chippings deposited on any piece of land sold to plaintiffs’ land, neither did he know of George Ayim nor Alex Agyapong. He added that to the best of his knowledge, the plaintiffs rather dealt with another relative of theirs by name Sam Atsu Forson who demanded for documents in support of the alleged transaction between plaintiffs and the late Isaac Sodoku but none was presented and that was the end of their interactions with the plaintiffs. In conclusion he denied having any contract with the plaintiffs and prayed that their reliefs be dismissed. Page 2 of 12 ISSUES FOR DETERMINATION: From the pleadings of parties, their witness statements, the exhibits tendered in evidence and cross-examination of parties, the following issues arise for determination by this Court: i. Whether or not the plaintiffs can recover possession of their respective lands pur- chased from the late Isaac Sodoku from the defendant. ii. Whether or not the plaintiffs can recover the Five Thousand Six Hundred Cedis (GHC 5,600.00) only paid to the defendant. BURDEN OF PROOF: This being a civil suit, the standard of proof required of a party who makes assertions which are denied, is one on a balance of probabilities. This therefore requires a party making asser- tions to adduce such evidence in proof of the assertions, such that the court is convinced, that the existence of the facts she asserts are more probable than their non-existence. Section 12 of the Evidence Act, 1975 (NRCD 323) provides that: Proof by a Preponderance of Probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a prepon- derance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. Section 11(1) and (4) of the Evidence Act, 1975 (NRCD 323) provides that: Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce suf- ficient evidence so that on all the evidence a reasonable mind could conclude that the ex- istence of the fact was more probable than its non-existence. Section 14 of the Evidence Act, 1975 (NRCD 323) provides that: Allocation of Burden of Persuasion Page 3 of 12 “Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.” Section 10 of the Evidence Act, 1975 (NRCD 323) provides that: Burden of Persuasion Defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the prob- abilities or by proof beyond a reasonable doubt. In explaining the principles relating to the duty to produce evidence, the learned jurist S. A Brob- bey J. S. C states at page 31 of his book Essentials of the Ghana Law of Evidence thus; “This literally means the proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof. Where the Plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial.” In the case of Dzaisu and Others v Ghana Breweries Limited [2007-2008] 1 SCGLR 539 at page 545, the Supreme Court per Sophia Adinyira (Mrs.) JSC. stated as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim. Regarding the burden of proof, the dictum of the Supreme Court in the case of Klah v Phoenix Insurance Co Limited [2012] SCGLR 1139, is relevant. In that case, the court held that; “Where a party makes as averment at capable of proof in some positive way e.g., by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or Page 4 of 12 having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.” EVIDENCE ADDUCED BY PLAINTIFFS: It is the case of the first plaintiff that sometime in 2014 he was led by George Ayim and Alex Agyapong to purchase four (4) plots of land situate at Medie-Akotoshie from the late Isaac Sodoku valued at a cost of Six Thousand Cedis (GHc 6,000.00) only per plot of which he made a down payment of Five Thousand Cedis (GHC 5,000.00) only and was duly receipted for this transaction by his vendor. 1st plaintiff narrated that try as he did to secure the site plan covering the land same was not forthcoming from his vendor who rather demanded more money from him in settlement of the full amount for land purchased. It was agreed between plaintiff and Isaac Sodoku that until half-payment of this transaction as made, plaintiff could not commence works on the land. He narrated that he subsequently entered into vacant possession of the land and deposited trips of sand and gravel on the land. The 1st plaintiff narrated that he stalled development on the land following this only to commence work to realize that same land was being developed by another person. The deceased vendor therefore promised to relocate 1st plaintiff to another location. 1st Plaintiff narrated that as at 2017 when this replacement had not been done and his vendor could not be traced at his office or home at Sapeiman and Opah respectively that he lodged a formal complaint with the police for the arrest of his vendor only to be met with news that he was sick with his estate development business being handled by the defendant. 1st Plaintiff narrated that he subsequently visited the defendant at his palace in the company of PW1. Following his demand for receipts which same he obliged the defendant and his subsequent verification and confirmation of transaction from his brother, the defendant informed the 1st plaintiff that the late Isaac Sodoku had instructed him to replace 1st plaintiff’s land with another at Samsam; which same had valid title documents. 1st plaintiff asserted that since this new location was a developed area, the defendant demanded an additional payment of Two Thousand Eight Hundred Cedis (GHc 2,800.00) only to cover cost of documentation and also an additional plot of land to which he obliged him. Plaintiff asserted that upon being put Page 5 of 12 into possession he demarcated same with pillars only for same to be developed by another person. The defendant therefore promised to replace the land with another at Nsawam Prisons which also belonged to Isaac Sodoku but has since reneged on his word. The 2nd plaintiff also narrated that he had also fallen victim to the same ploy of Isaac Sodoku. He narrated that he was led by PW1 and PW2 to purchase land from the deceased at a cost of Six thousand Five hundred Cedis (GHc 6,500.00) only which same e was duly receipted. In sup- port of his averment, he tendered Exhibit A series. He narrated that following his personal in- vestigation within the neighborhood he entered into vacant possession of the land and devel- oped same to the tune of Fourteen Thousand Eight Hundred Cedis (GHc 14,800.00) only. He claimed that this land had been allocated to another person who developed same. In this regard, the deceased relocated him to another location at Sapeiman which same he declined as same appeared to be a litigation/violence prone zone inhabited by hooligans. 2nd Plaintiff asserted that he was subsequently led by PW1 and PW2 to visit the defendant for a replacement of his land following the ill-health of the deceased. The 2nd plaintiff narrated that he met the 1st plaintiff at the defendant’s palace as he had also fallen victim to the deceased transaction in land. He corroborated the testimony of the plaintiff with respect to an allocation of two plots of land at Samsam and payment of additional monies for same. He stated that it was at the stage of land allocation at Samsam that the defendant informed plaintiffs that Isaac Sodoku had died and he subsequently collected their original re- ceipts of purchase for land from the deceased. Thus, their inability to produce receipts in sup- port of their averments. He concluded that they have since not been given their original receipts nor land whilst another person had developed the site hence this action. In support of their averments, plaintiffs called two witnesses who corroborated their testimony. EVIDENCE ADDUCED BY DEFENDANT: It is the contention of the defendant that he is a real estate developer and a traditional ruler of the Ewe Community in Sapeiman. He stated that the deceased was his brother who died in Page 6 of 12 March 2019. In support of his averment, he tendered Exhibit 1 which is a death certificate evidencing the date of death of deceased as 17th January, 2019. He stated that the plaintiffs visited him in the year 2020 alone following the death of the deceased. Their purpose of visit was to inform him of an incomplete land transaction between them and deceased and their seeking the assistance of his family for the completion of same. He consequently directed that they submit receipts of this transaction which same they never complied with. He claimed that plaintiffs subsequently engaged with another relative with respect to same and never returned to him. He denied collecting any receipts or monies whatsoever from the plaintiffs. He concluded that he was not the administrator of the estate of the deceased thus the present reliefs mentioned by the defendants must fail. EXHIBITS FILED: In addition to their Witness Statements and viva voce evidence, 2nd Plaintiff and the defendant tendered the following exhibits without objection in support of their case: 1. Exhibit A: Receipt dated 10th October, 2013 for Two Thousand Cedis (GHC 2,000.00) only issued to 2nd plaintiff in respect of one plot of land. 2. Exhibit A1: Receipt dated 12th November, for Two Thousand Cedis (GHC 2,000.00) only issued to 2nd plaintiff in respect of one plot of land. 3. Exhibit A2: Exhibit B: Receipt dated 12th November, for Two Thousand Cedis (GHC 2,000.00) only issued to 2nd plaintiff in respect of one plot of land. 4. Exhibit 1: Photocopy of certified death certificate of Isaac Sedonu. ANALYSIS: It is not in doubt that the plaintiffs engaged in a land transaction with the deceased in his lifetime. Neither is it in controversy that the defendant is the administrator of the estate of the deceased. In the case of Kusi and Kusi v Bonsu [2010] SCGLR 60 at page 65, the Supreme Court held in holding three as follows: “Where no issue was joined as between parties on a specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of that fact or issue.” Page 7 of 12 Section 1 of the Administration of Estate Act, 1961 (Act 63) states that when a person dies his personal properties devolves on his personal representative. The definition section of the aforementioned act defines personal representatives as: “The executor, original or by representation, or the administrator for the time being of a deceased person”. In law the evidential and the persuasive burden was on the Plaintiffs to lead positive evidence to demonstrate that the defendant being the administrator or executor or a director in the de- ceased business was vested with the capacity to grant the plaintiffs their land or monies paid for same following the death of Isaac Sodoku How did the Plaintiff discharge this burden? The Evidence Act, 1975 (NRCD 323) provides in Section 11(1) provides as follows: “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Also, in the case of Grace Asantewaah v. Mark Amankwah Addo [2008] 1 GMJ 2009 @ page 212 it was held that: “Where an attempt is made to charge a dead person in a matter, in which if he were alive, he might have answered the charge, the evidence ought to be thoroughly sifted and the mind of the judge who hears it ought to be first of all, be in a state of suspicion”. This principle was stated as follows also in the case of Apeah and Another v Asamoah (2003- 2004) 1 SCGLR 266. Again, in the case of Duah v Yorkwa 1993-1994] 1 GLR page 217 at page 224 per Brobbey J. (as he then was) in his erudite judgement stated that: The law is now well settled that evidence concerning a dead person should be evaluated so carefully as not to prejudice the dead person who will not be available to controvert it. This was the decision of this court in Moses v Anane [1989-90] 2 GLR 694, CA where it was held that proof in such cases must be utterly convincing.” In the case of Moses and Others v. Anane [1989-90] 2 GLR 694-697 Francois J. A held that: Page 8 of 12 “A claim against a deceased's estate must be viewed with suspicion. Proof must be strict and utterly convincing, as one of the protagonists is dead and cannot assert his claim. Thus, in In Re Garnett; Gandy v. Macaulay (1885) 31 ChD.1 at 9 Brett M. R. said: "The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive, he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any Judge who hears it ought to be, first of all, in a state of suspicion;” The plaintiffs testified that the defendant engaged with them in respect of the transactions in his capacity as brother of the deceased. They were fully aware that the deceased was not avail- able or physically present. It is an administrator's job to gather all of the assets of the estate, pay the debts of the estate, and distribute the assets to the beneficiaries in accordance with the will or the laws of intestate succession. Section 33 of the Administration of Estates Act 1925 (Act 63) provides that: 33 Trust for sale. (1) On the death of a person intestate as to any real or personal estate, that estate shall be held in trust by his personal representatives with the power to sell it. It is unknown to this court if the deceased directed them to the defendant as his personal relative nor did they demonstrate by any tangible evidence that the defendant was the right and proper person to deal with in respect of the completion of their contract with the deceased when he was not a party to their negotiations. The Court consequently holds that clearly the plaintiffs were on a frolic of their own as they failed to undertake prudent checks to ensure that they were dealing with the right and proper person in the absence of the deceased. Consequently, the Court holds that with respect to the recovery of their lands, same cannot be retrieved from the defendant as he is not the executor or administrator of lands which form part of the deceased estate. The final issue for determination in respect of this suit is whether or not the plaintiffs can recover the Five Thousand six Hundred Cedis (GHC 5,600.00) only which they paid to the defendant in respect of additional land and documentation covering same. In making this assertion, the Page 9 of 12 plaintiffs assumed the burden of proof in establishing the alleged monies paid to the Defendant. Section 11 (1) of the Evidence Act, 1975 (N. R. C. D. 323) provides that: “For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Regarding the burden of proof, the dictum of the Supreme Court in the case of Klah v Phoenix Insurance Co Limited [2012] SCGLR 1139, is relevant. In that case, the court held that; “Where a party makes as averment at capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.” The records show that although both plaintiffs testify to the payment of same, they led no cogent evidence in support of their mere events. The plaintiffs did not identify or describe the specific piece(s) of land which the defendant was going to add to their outstanding transactions nor did they tender any receipts in support of these second payments made. Particularly with the his- tory of this matter, the court is puzzled that plaintiffs could extend further payments to the defendant and not seek any documentation covering same. Section 34 of The Land Act, 2020 (Act 1036) provides that 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 provisions of Section 3 of The Land Act, 2020 (Act 1036). It stipulates as follows: “Section 3—Customary law freehold (1) Customary law freehold is an interest which arises from a transaction under custom- ary law, and it is (a) an absolute interest in land which is not subject to any proprietary obliga- tions but is subject to the jurisdictional and cultural rights of the stool or skin, or clan or family which holds the allodial title; (b) acquired when a person or group of persons, where the law permits, pur- chase land outright from the stool or skin, or clan or family which holds the allodial title or acquired by gift or inheritance; and Page 10 of 12 (c) of perpetual duration and is inheritable and alienable without the consent of or payment to the stool or skin, or clan or family. Section 34—Contract for transfer A contract for the transfer of an interest in land is not enforceable if the contract is not (a) evi- denced in writing, and (b) signed by (i) the person against whom the contract is to be proved; or 26 (ii) a person who is authorised to sign on behalf of that person; or ( c) exempt under section 36. Additionally, the plaintiffs called two witnesses in support of their case, these witnesses however testified to only the outstanding transaction between the deceased and the plaintiffs. The golden thread that run through their testimony was that they were oblivious to the negotiations held between plaintiffs and defendant. Section 1(4) of the Evidence Act, 1975 (NRCD. 323) stipulates as follows: “Where the Court determines that a party has not met the burden of producing evidence on a partic- ular issue the Court shall as a matter of law determine that issue against that party.” In the absence of sufficient evidence, the court holds that the assertion of the plaintiffs seems implausible. In the case of Wahin v London South Western Railway Co. Ltd. [1882] 12 App. Case 4 the English Court of Appeal held thus; “Where the available evidence is so scanty as to render it impossible to reach a definite conclusion the party to suffer for this state of affairs must be the one on which lies the burden of proof on the issue”. Therefore, in this case I have no reason to doubt the evidence of the defendant with regard to the payment of monies to him by the plaintiffs herein. It was unshaken during cross-examina- tion. The plaintiffs could not surmount the hurdle of the defendant’s evidence placed before the court. For all the reasons I have set out on the above I hold that the defendant does not owe the plaintiffs any money. In light of the above, the claim of the Plaintiff against the Defendant as endorsed on her Writ of Summons supra, fails in its entirety and same is accordingly dismissed. On this note, I cannot Page 11 of 12 rest without citing the case of Hawkins v Powells Tillery Steam Coal Co Ltd [1911] 1 K. B. 988@ 996 where Buckley LJ. said: "When it is said that a person who comes to court for relief must prove his case, it is never meant that he must prove it with absolute certainty. No fact can be proved in this world with absolute certainty. All that can be done is to adduce such evidence as that the mind of the tribunal is satis- fied that the fact is so. This may be done either by direct evidence or by inferences from facts. But the matter must not be left to rest in surmise, conjecture or guess" Cost incidental to the filing of this suit awarded against the plaintiffs in favour of the defendant is three Hundred Cedis (GHC 300,00) only. H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 12 of 12