Ahiableame Vrs Gbeve [2023] GHADC 542 (27 January 2023)

IN THE DISTRICT COURT HELD AT DZODZE ON FRIDAY THE 27TH OF JANUARY,2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU, DISTRICT MAGISTRATE. Suit No. A1/15/20 FAYOME AHIABLEAME SUING FOR HIMSELF PLAINTIFFS AND ON BEHALF OF THE AFATSAW FAMILY & ANOTHER. VRS AHORDA GBEVE DEFENDANT JUDGMENT PARTIES PLAINTIFF - PRESENT DEFENDANT - PRESENT INTRODUCTION/BACKGROUND: Per a Writ of Summons and Statement of Claim filed on the 19th of March, 2020 and 5th January, 2021 respectively in this Court, the Plaintiffs prayed for the following reliefs; a. Declaration of title, recovery of possession and perpetual injunction against the defendant, his agents, assigns, privies, workmen and all those claiming through him over the land situated, being and lying at Tekpor near Dzodze and bounded as follows; Page | 1 i. On one side by Bequin ii. On one side by Klu Zegedee iii. On one side by Bequin and iv. On the last side by Xorlali Adwoub. b. Damages for trespass c. Costs CASE OF THE PLAINTIFFS The 1st Plaintiff suing for himself and on behalf of the Afatsawo Ahiableame family stated that the land in dispute was founded by his great grandfather called Torgbui Ahiableame. The 1st Plaintiff stated that, his grandfather Torgbui Ahiableame gave birth to Akakpo, Gbeve and Afatsawo. The 1st Plaintiff stated that, sometime after the death of his grandfather his properties were shared for Akakpo, Gbeve and Afatsawo. The 1st Plaintiff stated that, Kwashie Gbeve, the younger brother of the Defendant once stole goat meat from a man called Wonder boy and absconded to Kadjebi to escape arrest and prosecution. The 1st Plaintiff stated that, based on that development, the father of the defendant pleaded with Akakpo and Afatsawo to give him a piece of land from their father’s yet to be shared estates to sell and pay the cost of his son’s offence and they accepted. Page | 2 The 1st Plaintiff stated that, after the death of Gbeve and Akakpo, Afatsawo decided to share their late father’s estates among the family. The 1st Plaintiff stated that, Afatsawo called upon one Peter Ahamah to share the property among the various families. The 1st Plaintiff stated that, prior to the sharing, it was agreed that because a piece of the land was earlier given to Gbeve, a portion of the land due the Gbeve family will be taken out and sold for the proceeds to be distributed. The 1st Plaintiff stated that, the defendant alone went to sell a portion of the reserved land to one Yao Kaleku but his father objected to the sale, so the purchaser came to pay another amount of GHS 2,500.00 to his father despite having paid the same amount earlier to the defendant. The 1st plaintiff stated that the amount of GHS 2,500.00 received by Afatsawo was shared between members of the family but the Defendant kept the GHS2,500.00 he earlier received from the purchaser. The 1st Plaintiff stated that his father Afatsawo sold the remaining half plot to the 2nd Plaintiff but did not document the sale before his demise so the 1st plaintiff was directed to do that by the family as his customary successor. The 1st Plaintiff stated that, the matter currently before the court was determined by this same court differently constituted in Suit Number A1/17/2013 and the defendant’s case was struckout as without merits but the defendant continues to trespass. THE CASE OF DEFENDANTS Page | 3 In a statement of defence filed on 21st July, 2021, the defendant denied the claim that his father Gbeve requested for and was given a piece of land to sell to pay for the offence of his brother Kwashie Gbeve. The defendant denied the claim that Gbeve was allocated four plots of land during the distribution and stated that Gbeve died long before the distribution but was also allocated five plots to his estates. The defendant stated that, it was his own land that he sold to the carpenter Yao Kaleku for an amount of GHS 400.00 and not a reserved land for the family as claimed by the 1st plaintiff. The defendant admitted that the 1st plaintiff’s father resold the land to Yao Kaleku but denied the assertion that the proceeds from that sale was shared among members of the family. The defendant stated that he is the owner of the land in dispute and has sold same to one Madam Adzo Ahiagah. The defendant denied the claim that the suit that came before the court was struck out but stated that the matter was withdrawn for settlement out of court. The defendant stated that he has since transferred his interest in the land to Madam Adzo Ahiaga and that the plaintiffs are not entitled to their reliefs. PROCEDURAL HISTORY Page | 4 The writ in this suit was originally issued on 19th March,2020 by the 1st plaintiff against the defendant only. With the realization that his interest was at stake, the 2nd plaintiff applied for and was joined to the suit because of his claim to have acquired interest in the land. ISSUES From the pleadings filed by both parties, the following issues were set down for determination; 1. Whether the issues pertaining to the ownership of the land in dispute had been determined by the court differently constituted? 2. Whether or not portions of land were deducted from the benefits of the estates allocated to Gbeve family? 3. Whether or not the land in dispute forms part of the land deducted from the benefits of Gbeve family? 4. Whether or not the deduction from Gbeve family’s benefits constituted a reserve to be sold and the proceeds shared among the families 5. What is the effect of the validity of the separate grants to Yao Kaleku by the 1st defendant and 1st plaintiff’s father? 6. Whether or not the 1st defendant had capacity on his own to alienate the family land to the 2nd defendant. 7. Whether or not the father of the 1st plaintiff on his own had the capacity to alienate the family land to 2nd plaintiff? BURDEN OF PROOF The plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities according to section 12(2) of the Evidence Act (NRCD 323) means; Page | 5 “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” Where the plaintiff has been able to lead sufficient evidence in support of his case, then the burden is upon the defendant to lead sufficient evidence in rebuttal or risk being ruled against on the issues. Under section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. In Okudzeto Ablakwa (No. 2) v. Attorney General & Obetsebi Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held as follows; “he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a)…What this rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”. In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, the Supreme Court in dealing with the burden of proof in respect of declaration of title stated through Georgina Wood C.J as follows; “In land litigation….the law requires the person asserting title and on whom the burden of persuasion falls to prove the root of title, mode of acquisition and various acts of possession, Page | 6 exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim”. The Court is also mindful of one of the cardinal duties of a Court in evaluating evidence led during trial which is for the Court to assess all the evidence on record in order to determine in whose favour the balance of probabilities should lie. See the cases of Adwubeng v. Domfeh [1996-97] SCGLR 660 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882. SUMMARY OF EVIDENCE The plaintiffs gave evidence through the 1st and 2nd plaintiffs. The 1st defendant on the other hand testified for himself and called as his witnesses Adzo Ahiagah and one other. The plaintiffs tendered in evidence a copy of the purchasing receipt issued by the 1st plaintiff to the 2nd plaintiff as evidence of his acquisition of the land which was marked Exhibit A. The plaintiffs also tendered in evidence a certified true copy of court proceedings dated 28th day of August, 2014 and was marked Exhibit B. The 1st defendant tendered in evidence copies of purchasing receipts as evidence of lands he sold to Yao Kaleku and Adzo Ahiagah and were marked Exhibits 1 and 2. Peter Ahamah who both parties admitted in their pleadings did the sharing of the land for the family also testified as the Court’s witness. Page | 7 ANALYSIS Issue One (1): Whether the issues pertaining to the ownership of the land in dispute was determined by the court differently constituted? It is well settled under the rule of estoppel that if a court of competent jurisdiction has tried and disposed of a case, the parties themselves and their privies cannot thereafter bring an action on the same claim and issue. In Agbeshie & Another v. Amorkor & Another [2009] SCGLR 594 the Supreme Court referred to the decision of the learned Chief Justice Azu Crabbe CJ in Asare v. Dzeny [1976] 1 GLR 473 at 478 where it was stated that “ by the doctrine of estoppel per res judicatam a final decision on a concrete issue between parties by any court having jurisdiction to determine that issue will forever thereafter preclude either party from raising the same issue against the other party to the decision, whether the trial is before the same court or before any court of higher or lower jurisdiction”. In paragraph 15 of the statement of claim of the plaintiffs, they stated that the issues bordering on ownership of the land in dispute earlier came before this court differently constituted and it was decided against the defendant. Exhibit B tendered by the plaintiffs however indicates that Suit Number A1/17/2013 entitled Victor Ahorda Gbeve v. Amegbletor Ahiableame was struckout and not determined on its merits. The court is therefore convinced that, it is this development that have caused the plaintiffs to initiate another suit to have title declared in their favour and that the principles of an abuse of the court process will not be applicable in this situation. Page | 8 The copy of proceedings tendered did not contain enough details for the court to know the nature or actual description of the land that constituted the subject matter of that suit. Issues 2, 3 and 4 The issues above border on whether or not there was a deduction from the allocation of Gbeve family and if that is the case whether the land in dispute form part of the portions deducted. In his statement of defence, the defendant admitted that the family’s lands were shared for them by Peter Ahamah but denied the claim by the 1st plaintiff that the Gbeve family had their allocation reduced. Dumega Peter Ahamah however gave evidence in the court on 31st October, 2022 and confirmed that the disputed land was reserved during the sharing and was not given to any of the parties so none of them can sell it on his own without the consent of the others. Issue 5: What is the effect of the validity of the separate grants to Yao Kaleku by the defendant and 1st plaintiff’s father? The 1st plaintiff stated that the defendant on his own sold a portion of the reserved land to Yao Kaleku and kept the amount of GHS 2,500 received to himself but the late father of the 1st plaintiff upon coming to the realization objected to the sale and Yao Kaleku went to pay him another GHS 2,500.00 which was shared to members of the family. Exhibit 1 tendered by the defendant which was not challenged by the plaintiffs however indicated that, the actual amount received by the defendant in that sale was GHS 400.00. It is fair to conclude that Yao Kaleku did not want to be caught up in litigation with any of the factions so decided to atone tenancy to both. Both payments made by Yao Kaleku Page | 9 constituted a different transaction and it was not for the father of 1st plaintiff to expect that the defendant will bring what he collected for the family to share. If that had happened, it would have meant that the family sold the land to Yao Kaleku at a double value when the appropriate situation would have been for one of the parties to refund the amount collected. This therefore cannot be the basis for any of the parties to dispose of further portions of the family land without the requisite consent of the other families. Issues 7 & 8: The effect of the grants to the 2nd plaintiff and Adzo Ahiagah? From the evidence given by Dumega Peter Ahamah and as admitted by the parties, the land was reserved for the whole family and not given to any of the parties exclusively. The law is that where land is owned by separate or different families together, the alienation of the land shall be made by all the heads of the separate families. An alienation by some of the heads of families or individuals without the prior reference to the others is void unless there is evidence that the other heads of families who did not take part in the alienation concurred in the grant either expressly or by conduct through silence or inaction after he or they became aware of it. See the case of Dzefi v Ablorlor VI [1999- 2000] 2 GLR 101. The effect is that, both parties not having the capacity to grant the family land on their own, the alienation to the 2nd plaintiff and Adzo Ahiagah are both void and any of the parties could have acted within a reasonable promptitude to invalidate the sale on grounds that it is void. CONCLUSION Page | 10 The 1st plaintiff issued this suit on behalf of the Afatsawo family, whereas the defendant is also seeking to claim for himself and not the Gbeve family. None of the parties have demonstrated that they were suing also on behalf of the Akakpo family or that the Akakpo family had been consulted and they have given their consent or are unwilling to join the action in defence of the land owned by the three families. The evidence by Dumega Peter Ahamah confirms that the land in dispute is a family land, which means the plaintiffs lack the capacity to apply for declaration of title and recovery of possession in favour of the Afatsawo family alone. The defendant’s counterclaim also fails on the ground of his lack of capacity since the land is not an individual property. Although earlier attempts at settlement through the court’s connected Alternative Dispute Resolution mechanism failed, the parties are still advised to consider the option of settlement having regard to the nature of the issues. The court will dispense with the issue of cost. NELSON DELASI AWUKU MAGISTRATE Page | 11