NUAMA VRS NYARKO (AR/AC/DC3/C1/08/20) [2024] GHADC 282 (31 January 2024)

IN THE DISTRICT COURT, HELD AT EJISU, ASHANTI REGION ON WEDNESDAY THE 31ST DAY OF JANUARY, 2024, BEFORE H/H ROSEMARY EDITH HAYFORD, CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE ` SUIT NO. AR/AC/DC3/C1/08/20 GLADYS ANTWI NUAMA -- PLAINTIFF @ GLADYS ANTWI SHUTTER VRS AKOSUA NYARKO DEFENDANT Time: 10:28 a.m. -- Parties: Plaintiff – Absent represented by Hagan Amaning Defendant – Present ------------------------------------------------------------------------------------------------------------ JUDGMENT This is a matter that has a checkered history. It is a suit that emanated from the judgment of this court differently constituted dated the 14th of December, 2011 before His Worship Mr. Euguene Obeng Ntim. On the 5th of June, 2013 the said judgment was set aside by His Lordship Justice G. H. K. Debrah. He made further orders that the matter be tried de novo before another District Magistrate within the Kumasi Metropolis. Subsequently, the matter suffered some administrative challenges. On the 1 7th of May 2020, the then Supervising High Court Judge, directed the then sitting Magistrate to hear the matter de novo with notice to the parties. During the course of the trial, the 1st Defendant passed on. On 5/6/2020 her name was struck out pursuant to a prayer made by the Counsel for the Plaintiff. The matter then proceeded against only the 2nd defendant as a defendant. On that same day the court ordered the parties to file their written statements (pleadings). Plaintiff filed her Statement of Claim on 26/6/2020 but the defendant failed to file her statement of defence. The court granted the Defendant an extension of time to file same but again she failed to do so. On 10/08/2022 the court proceeded and ordered the parties to file their witness statement. Thereafter, the matter was struck out for want of prosecution on 16/09/2022. Same was relisted on 16/11/2022. It was again struck out on 20/12/2022 and further relisted on 10/3/2023. The court differently constituted once again gave the defendant an extension of time to file her statement of defence and witness statement failing which the court would proceed to hear the matter. Again, the defendant failed to comply, consequently, the court proceeded with the matter without any process filed by the Defendant. THE PLAINTIFF’S CASE The witness statement filed on 23/08/2023 was just in line with the pleadings of the Plaintiff. One Christiana Darko, the sister-in-law of the plaintiff testified on her behalf. She stated that the deceased 1st Defendant was her mother-in-law and the current defendant is also her sister-in-law. The witness averred that about 20 years ago, one Mr. Ben Kusi Mensah together with his sister approached her mother-in-law in respect of the disputed land. According to the witness, the said Mr. Ben Kusi told her mother-in- law to enquire from the Plaintiff about the possibility of the plaintiff purchasing same. When the Plaintiff was contacted, she expressed interest and agreed to purchase same. According to the witness, the Plaintiff instructed her mother to use some of the 2 proceeds of the sale of a 207 Benz bus the plaintiff had brought from Germany for sale to purchase the disputed land. The witness said she accompanied her mother-in-law to Accra to buy 100 bags of cement with the rest of the proceeds from the sale of the said vehicle. The cement was used to mold 5000 pieces of blocks for Plaintiff’s project. The witness stated that, upon the plaintiff’s return to Ghana, her mother-in-law could not render proper accounts and that brought a disagreement between the Plaintiff and her mother. The witness further averred that the document that the mother-in-law produced did not include an allocation paper and so the three (Plaintiff, her mother and herself) went to the chief of Ejisu Nana Aboagye Adjei II for regularization. Following that the Chief caused a site plan to be prepared for the plaintiff with an inscription at the back that he had allocated the disputed land to the Plaintiff. The said site plan was tendered and admitted as Exhibit “A”. The witness further averred that Nana Aboagye Adjei II subsequently executed a lease document as well as a plan of land in favour of the plaintiff sometime in 2016. The same were tendered as Exhibits “B” and “C” respectively. It is the Plaintiff’s case that the defendant has trespassed on her land thus she prays for the following reliefs: a) An Order for Declaration of title to Plot No. 37 Block ‘E’, Ejisu which plot the Defendants have encroached upon b) An Order for the recovery of possession of the said property Plot No. 37 Block ‘E’, Ejisu. c) An Order compelling the Defendants to yield vacant possession of the subject land, Plot No. 37 Block ‘E’, Ejisu within sixty (60) days from the date of judgment d) Damages for trespass. It must be noted that the only evidence on record is that of the Plaintiff since the Defendant failed to file her statement of defence and witness statement. However, the defendant exercised her right to cross-examine the plaintiff’s witness. 3 At the end of the trial Counsel for the Plaintiff indicated to the court he wanted to address the court, but he failed to do so. The main determinable issue is whether or not the Plaintiff is the owner of the disputed land, Plot No. 37 Block ‘E’, Ejisu. BURDEN OF PROOF IN CIVIL SUITS GENERALLY The standard burden and persuasion of proof in civil matters including land are captured under sections 11 (1), (4) and 12(1) of the Evidence Act 1975 (NRCD 323). The relevant provisions provide: “11(1) 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 11(4) In other circumstances the burden of producing evidence requires a party to produce 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…. 12(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.” In Ackah v. Pergah Transport Limited and Others supra, Adinyira, JSC succinctly summed up the law, at page 736: “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This 4 is the requirement of the law on evidence under section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323).” In land matters, the person asserting title must prove his root of title strictly, among others. In the case of Mondial Veneer (Gh) Ltd v Amuah Gyebu XV (2011) SCGLR 466 at page 468 (holding 4), the Supreme Court held that: "In land litigation, even where living witnesses involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on who bore the burden of persuasion... to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It is only where the party had succeeded in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim" EVALUATION, ANALYSIS OF THE EVIDENCE AND DECISION OF THE COURT The evidence of the Plaintiff is that the disputed land belongs to her and that same was acquired through her mother on her behalf from the proceeds of a 207 Benz bus she brought from Germany for sale. The defendant did not file any statement of defence but she challenged Plaintiff’s narration under cross-examination. She avers that the land belongs to her mother and it was her mother who gifted same to her and also permitted her to build on the disputed land and that she has been in possession of same for over 17 years. The law is that a party in possession is presumed to be the owner until and unless the person with a better title is proved. See: Section 48 of the Evidence Act, NRCD 322. The onus of proof is on the Plaintiff who is claiming ownership of the disputed land. In proving her case the plaintiff’s witness tendered Exhibit “A”. This is a site plan Plaintiff averred was prepared for her by the Omanhene of Ejisu Traditional stool in respect of the disputed land. She further claims Nana wrote at the back of the site plan 5 that he had allocated the disputed land to the plaintiff. In the evidence of the witness, Exhibit A was prepared for the Plaintiff because a dispute had erupted between the Plaintiff and her late mother (who was initially the first defendant) regarding the document covering the disputed land. According to the Plaintiff’s witness after the purchase and when the Plaintiff herself returned to Ghana from Germany, it was realized that no allocation paper was issued for which reason the Plaintiff, her mother and the witness went to the then chief of Ejisu Nana Aboagye Adjei II for regularization. Nana then caused a site plan to be prepared for the Plaintiff. For ease of reference, I shall quote the relevant paragraphs below. “7. About 20 years ago, one Mr. Ben Kusi Mensah together with his sister Maame Serwaa approached my late mother-in-law, that he has three (3) plots of land but which he has given a plot to his niece and another person leaving the disputed plot of land, so if my mother in law can find out from the Plaintiff if she may be interested in purchasing the remaining plot which is the land in dispute. 11. My mother-in-law informed the Plaintiff about the disputed land which upon informing the Plaintiff about it, she expressed interest in and agreed to purchase the disputed land. 12. The plaintiff intimated to her mother to use a portion of the proceeds from the sale of a 207 Benz bus she had brought down from Germany to her mother in Ghana, to pay for the purchase price for the disputed land. 20. Plaintiff demanded for the document covering the disputed land from her late mother, madam Yaa Kyaa and same was given to her by her mother. 21. When the late madam Yaa Kyaa brought the documents covering the disputed land to the Plaintiff, it was observed there was no issuance of the allocation paper for which reason the Plaintiff herself went with her mother and myself to the then chief of Ejisu, Nana Aboagye Adjei II for same to be regularized. 6 22. That Nana Aboagye Adjei II who was the Omanhene of Ejisu Traditional Stool caused a site plan to be prepared for the Plaintiff to clearly delineate the disputed land and also wrote at the back of the said site plan that he has allocated the disputed land to the Plaintiff herein in accordance with the practice of the stool at the said period. I have hereby annex copy of the said site plan with the allocation and mark same as EXHIBIT A” However, a careful look at the back of Exhibit A shows the date as 10/3/96. From paragraph 7 of the witness statement of Plaintiff’s witness dated 21st August 2023 which I have reproduced above, the witness stated that it was about 20 years ago that Mr. Kusi made the initial contact regarding the sale of the disputed land. Subsequently, after the disagreement between the Plaintiff and her mother, they went to see Nana and a site plan was prepared for the plaintiff. This means that any document that was prepared for the plaintiff must be around the 20-years period or less than 20 years if the said document was prepared after Mr. Kusi’s initial contact. However, 20 years calculated backward from the date the witness statement was prepared will take us to 2003 or sometime later like 2004, 2005, 2006, etc. Meanwhile, the date on this site plan (Exhibit A) is 1996, 7 clear years less the date the supposed site plan was prepared for the Plaintiff by the then Chief of Ejisu. In other words, it is way before the time said Mr. Kusi supposedly expressed his desire to sell the disputed. Assuming the date the new writ was issued was to be used in the calculation, that is, 26/9/2019, twenty years backward will take us to 1999, which would also be three good years after the supposed site plan was prepared for the plaintiff in 1996 per the date at the back of Exhibit A. I do not find the evidence of the witness credible for the variation in the dates. Furthermore, at paragraph 21 of her witness statement, (reproduced above), the witness indicated that three of them (the Plaintiff, her mother and the witness herein) went to Nana to regularize the process. However, under cross-examination when the witness 7 was challenged, she said at the time the Plaintiff’s mother was at home and she was informed about it. Below is what transpired under cross examination on the 5th of December, 2023 at pages 59 and 60 of the record of proceeding” “Q. I am putting it to you that the 20 years that you mentioned in your witness paper it was Nana Dikopim who was the custodian chief at Ejisu and not Nana Aboagye Adjei? A. Your mother bought the plot from Mr. Kusi and Maame Serwaa so when Mr. Kusi brought the site Plan, it bore Nana Dikopim’s name so when Gladys came to Ghana and requested the site plan from Maame Yaa Akyaa (your mother) he got to know that the site plan did not bear Gladys’ name. So Gladys further went to Nana Aboagye’s place and changed the name on the site plan to her name and paid a token to Nana Aboagye. Q. When she went to change the name on the document where was my mother? A. She was at Ejisu she informed her. (emphasis mine) From the above, in one breath (per paragraph 21 of her witness statement) the three of them (Plaintiff, her mother of Plaintiff’s witness) went to see the chief to effect the changes and in another breath (under cross-examination), the mother was at home. I find the evidence of the witness contradictory and I fail to place much weight on same. In the case of Buor V The State [1965] GLR, SC , it was held that “if a witness has previously said or written something contrary to what he has testified at the trial, his evidence should not be given much weight”. It is for this reason that I do not put much weight on the evidence of the witness. It is trite learning that a site plan per se is not an instrument conveying interest in land, neither does it declare ownership in a person. Again, the witness stated at paragraph 23 of her witness statement that Nana subsequently executed a lease document as well as a plan of land in favour of Plaintiff 8 sometime in 2016. She tendered the said indenture as Exhibit “B”. A critical look at Exhibit “B” shows that it is undated and unsworn to. Section 40 of the Conveyancing Decree NCRD 175 provides in; 40(1) “A Conveyance shall be executed in the presence of and attested by at least one witness and 40(2) also provides that; where an individual executed a conveyance, that individual shall sign or place the mark of the individual on it, and sealing shall not be necessary”. Section 5 of the Land Registry Act (1962), Act 122, stipulates “Proof of Instruments (1) Every instrument presented for registration (except a will or an instrument which may be registered without proof under the provisions hereinafter contained), shall be proved by the oath of the grantor or one of the grantors, or of the grantee or one of the grantees or of one of the subscribing witnesses to have been duly executed by the grantor” Even though NRCD 175 and Act 122 (supra) were repealed, the sections were saved by Section 282 of Act 1036. Section 209(1) of the current Land Act, 2020 (Act 1036) provides “An instrument presented for registration shall be proved to have been duly executed by the grantor, by the oath of one of the subscribing witnesses of the grantor”. The above is to the effect that the indenture must be attested to and the oath of proof also sworn to by at least one of the witnesses of the grantor to make the instrument valid. In this regard same was not done. The indenture is not dated and the oath of proof was also not sworn to thus making Exhibit B invalid. It seems to me that the said indenture was done in haste to possibly outwit the court. In the case of MRS. ERNESTINA ABOAH NDAW vs. MR. FRED ASAMANI [2013] DLCA6530, the Court of Appeal speaking through GYAESAYOR, JA, (as he then was) faced with a similar situation stated that “In their haste to procure a document for the purpose of this ligation, they failed to have the oath of proof 9 sworn to in accordance with Section 40 of the conveyancing decree NCRD 175… The oath of proof which has her Vendor as the deponent has not been sworn to and also remains undated. The indenture is clearly defective for want of proper execution and cannot be relied upon.”(emphasis mine). Applying the above authorities to the facts of the case, this scenario is on all fours with Exhibit “B”. As earlier stated, the indenture is not dated, the oath of proof is also unsworn. Consequently, I find Exhibit “B” defective for want of proper execution and cannot be relied upon. Apart from the findings above, it can further be seen that the said Exhibit “B” was prepared way after the initial suit was instituted by the Plaintiff. This can clearly be seen from paragraph 23 of the witness statement of the Plaintiff’s witness. She stated emphatically that Exhibits “B” and “C” were executed by Nana in favour of the plaintiff in 2016. Below is what she stated “23. That Nana Aboagye Adjei II, subsequently executed a Lease document as well as Plan of land in favour of the Plaintiff sometime in 2016 (emphasis mine) I annex a copy of the said lease document as well as the Plan of land and mark same EXHIBIT “B” and “C” However, it must be noted that by 2016 the date the witness claims Exhibits “B” and “C” were executed for the Plaintiff, the order for the trial denovo of this matter had already been made way back in 2013. During the course of the trial, an application to set aside the new writ was filed by the Defendant wherein she attached a copy of the judgment that was set aside. The said judgement was delivered on 14th December 2011. Comparing the two dates, it means Exhibit “B” was supposedly executed five clear years after the said judgment was delivered in 2011. By extension, Exhibit “B” did not 10 form part of the records in the first trial. It was non-existent then. Clearly, Exhibit “B” was prepared by the Plaintiff purposely for the retrial to overreach and deceive the court and that is totally unacceptable I so find. The Plaintiff witness also tendered Exhibit “C”. Exhibit “C” is a site plan inserted in Exhibit “B”. It is to be recalled that the witness stated that Nana executed both Exhibits “B” and “C” in 2016 for the Plaintiff. Strangely, Exhibit “C” is dated 2009. This clearly raises doubt about the authenticity of the document tendered by the plaintiff’s witness. The probative value of all the documents tendered by the witness has seriously been undermined. On the whole, I do not find the plaintiff’s witness as a credible witness and fail to put any weight on her evidence. Section 1 (4) of the Evidence Act 1975 NRCD 323 provides that where the court determines that a party has not met the burden of producing evidence on a particular issue, the court shall as a matter of law determine that issue against that party. CONCLUSION I have critically examined and analyzed the facts and evidence and it is my humble view that the Plaintiff has failed to establish her claim on a balance of probabilities. Consequently, Plaintiff’s action fails and the same is accordingly dismissed. There is no order as to costs. H/H ROSEMARY EDITH HAYFORD CIRCUIT COURT JUDGE SITTING AS 11 ADDITIONAL MAGISTRATE COUNSEL: D. K. BOAMAH OKYERE FOR THE PLAINTIFF - ABSENT 12