NTORI VRS OWUSU (A2/31/2018) [2023] GHADC 806 (11 October 2023)

CORAM: IN THE DISTRICT COURT HELD AT KODIE IN THE ASHANTI REGION ON WEDNESDAY THE 11TH DAY OF OCTOBER, 2023 BEFORE HER WORSHIP MRS CHRISTIANA ODARKOR BRUCE-ASHIRIFIE (ESQ.), THE DISTRICT MAGISTRATE. JULIET NTORI Suing for herself and on Behalf of her four siblings Vrs. KWADWO OWUSU Of Magazine- Kumasi SUIT NO. A2/31/2018 ] – PLAINTIFF ] – DEFENDANT JUDGMENT The Plaintiff filed this instant suit on the 9th of February, 2018 claiming the following reliefs against the Defendant: 1. An order of the court to compel the Defendant to refund an amount of GH¢11.000.00 being cost of building Plot Number 21 Okofo Osei Akoto Street situate at Bomso-Kodie the Plaintiff bought from the Defendant, which same was sold to another person and as a result Defendant promised refund but refused or defaulted despite persistent demand. 2. Interest on the said amount at the current bank rate from March, 2015 to the date of judgment 3. Cost of litigation 1 | P a g e The Plaintiff testified herself and called two (2) witnesses in support of her case. The Defendant testified himself and also called two (2) witnesses in support of his case. PLAINTIFF’S CASE According to the Plaintiff herein sometime in the year 2013 her mother one Ama Attaa was involved in an accident pursuant to which she was paid an insurance claim of GH¢15,000.00 by Donewell Insurance Company. She averred that her mother decided to use the said money to purchase a Plot of land for herself and her four (4) siblings. The Plaintiff testified that her mother was led to the Defendant herein who claimed he was the owner of Plot Number 21, Okofo Osei Akoto Street, Sasaamo Bomso and that he was offering same for sale. It is the case of the Plaintiff that her mother showed interest in the land and paid the Defendant GH¢10,000.00. According to the Plaintiff the Defendant then gave her mother Allocation Note and a site plan covering the land in the name of one Mrs. Ruth Mensah whom the Defendant claimed to be his wife. She tendered into evidence Exhibit “A” and “B” respectively, which are copies of the said documents. The Plaintiff further added that the Defendant caused a Statutory Declaration to be sworn to the effect that the said Plot has been transferred to her and her siblings. She tendered into evidence a copy of the said Statutory Declaration marked as Exhibit “C”. Plaintiff testified that again her mother paid an additional GH¢1,000.00 to the Defendant to prepare an allocation note in the name of the Plaintiff and her siblings. She added that the Defendant has admitted receiving the said amount of which she tendered into evidence as Exhibit “D”. It is the case of the Plaintiff that 2 | P a g e they faced fierce attack/opposition when they went on the land and so they had a meeting with the elders of her mother’s church and the Defendant herein. It is her case that at the said meeting the Defendant agreed to refund the purchase price of the land to her mother but he has since failed to do so and hence the instant action. The Plaintiff called PW I one Ama Attaa who is her mother and she corroborated the evidence as led by the Plaintiff herein. She also called PW 2, who in his evidence testified that he is one of the elders of the Gethsemane Methodist Church that sat on the case and it was agreed that the Defendant should refund the purchase price of the land to the Plaintiff’s mother. DEFENDANT’S CASE The Defendant per his witness statement filed on the 4th of February, 2019 stated that the chief of Bomso, Nana Osei Akoto gifted him a plot of land numbered Plot 21 Okofo Osei Akoto Street at Bomso. According to him sometime in 2015, Madam Ama Attaa, the Plaintiff’s mother expressed interest to purchase his Plot. He added that it was his friend one Ofori who introduced the Plaintiff’s mother to him. He stated that he sold his Plot to the Plaintiff’s mother at a purchase price of GH¢10,000.00. It is his case that because the Allocation Note and the site plan covering the land were not in his name, he executed a Statutory Declaration transferring ownership of the land from one Ruth Mensah into the name of the Plaintiff herein and her siblings because the Plaintiff’s mother indicated to him that she was purchasing the land for them. This he tendered into evidence as Exhibit “1” which is the same as Plaintiff’s Exhibit “C”. The Defendant stated that later the Plaintiff’s mother requested to have an allocation note in the name of the Plaintiff and her siblings and so paid an 3 | P a g e additional GH¢1,000.00 through him to Nana Osei Akoto, the chief of Bomso for the preparation of a new allocation note. It is the case of the Defendant that, thereafter the Plaintiff’s mother went into possession. He added that three months after, the Plaintiff’s mother called to inform him that another person came claiming ownership of the land when she went on same. According to the Defendant the Plaintiff’s mother summoned him before the elders of her church and it was resolved at the meeting that the Plot should be sold and the Plaintiff’s mother’s money refunded to her. It is the case of the Defendant that the Plaintiff’s mother after the meeting went unto the land to deposit sand and molded blocks on same. He added that he could not sell the Plot as the Plaintiff’s mother’s subsequent actions indicated that she wanted to keep the land. The Defendant called PW 1 by name Clement Opoku and PW 2 by name Okyeame Kwaku Anane. Per their witness statement filed on the 4th of February, 2019 they both corroborated the evidence of the Defendant that the land was gifted to him by the chief of Bomso which he subsequently sold it to the Plaintiff’s mother. ISSUE At the end of the trial, the issue that fell for determination was whether or not the Plaintiff is entitled to her reliefs. EVALUATION OF EVIDENCE AND THE APPLICABLE LAW Our civil law requires that the party who makes a positive averment that a fact exists carries the burden of proving that allegation on balance of probabilities 4 | P a g e against the opponent in accordance with the principles stated under Sections 10 - 17 of the Evidence Act, 1975 (NRCD 323). In respect of the production of evidence Section 11(1) and (4) of NRCD 323 states that: “(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; and (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.” Also, Section 12 (1) and (2) of NRCD 323 provides that: “(1) except as otherwise provided by law, the burden of persuasion requires proof by a preponderance 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.” In light of the above, the Supreme Court held in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 that, in all civil actions, the standard of proof is proof by the preponderance of probabilities, and there is no exception to that rule. The Supreme Court in the case of Sarkodie v FKA Co. ltd [2009] SCGLR held inter alia: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by 5 | P a g e producing documents, description of things, reference to other facts, instances, or circumstances, 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 be satisfied that what he avers is true.” In explaining the principles relating to the duty to produce evidence, the learned jurist S. A Brobbey JSC. stated 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.” From all of the above, it means that where the Plaintiff makes a positive assertion at the start of the trial, that Plaintiff bears the legal burden. At the same time, that person bears the evidential burden to adduce evidence at the start of the trial with respect to his claim. By this measure, the Plaintiff herein is required to lead evidence in proof of her case. This is a simple case, according to the Plaintiff in this instant suit, her mother showed interest in purchasing a Plot of land belonging to the Defendant. She paid GH¢10,000.00 as consideration for the land and an additional GH¢1,000.00 to the Defendant for the preparation of the requisite documents in respect of the transfer of ownership into the Plaintiff and her siblings. 6 | P a g e It is note-worthy to state here that this piece of evidence was admitted by the Defendant at paragraph 6 and 9 of his witness statement filed on the 4th of April, 2019. I have reproduced it here for emphasis. (6) The purchase price of the Plot was fixed at GH¢10,000.00 of which the Plaintiff’s mother paid the purchase price to me through Ofori my friend. (9) The Plaintiff’s mother later informed me that she needed a fresh allocation note bearing the name of the Plaintiff and her siblings, so she paid GH¢1,000.00 through me to Nana Osei Akoto, the chief of Bomso for a fresh allocation note to be prepared. Under cross examination the Defendant maintained the above averments in his witness statement. This is what he said Q: Before, during and after the negotiations you had represented yourself as having title to the Plot, not so? A: Yes Q: And from your negotiations you agreed on an amount of GH¢10,000.00 as consideration for the Plot, not so? A: Yes Q: This GH¢10,000.00 had been paid to you by the Plaintiff’s mother, not so? A: Yes Continuing the cross examination 7 | P a g e Q: And after you were informed by the Plaintiff’s mother you demanded an amount of GH¢1,000.00 to enable you prepare fresh/new allocation note in the name of the Plaintiff and the siblings. A: It is true but because the land was gifted to me by the chief I found it difficult to approach him on this issue. When I informed him later he asked me to bring the woman to change the name. Q: So after you received the GH¢1,000.00 you agreed that you have not been able to procure the allocation note for which the GH¢1,000.00 was given. A: No, I was not able to procure the allocation note. Continuing Q: You will agree that in total Plaintiff’s mother has paid you the sum of GH¢11,000.00 is that not so? A: Yes It is elementary principle of law that in civil litigation, 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. See the case of Kusi & Kusi vrs. Bonsu [2010] SCGLR 60. In Fori v Ayerebi 1966 2 GLR 627, a most direct and helpful authority on the point about undenied averments, the Supreme Court held that: “When a party had made an averment and that averment was not denied, no issue was joined and no evidence be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross- examined upon it, he need not call further evidence of that fact.” 8 | P a g e See also Hammond v Amuah [1991] GLR 89 at 91, as well as Western Hardwood Enterprises Ltd. v West African Enterprises Ltd. [1998-99] SCGLR 105. Per the evidence before this court I find as a fact that the Plaintiff’s mother paid an amount of GH¢11,000.00 to the Defendant as consideration for a Plot of land that the Defendant claimed to be his and which he was selling. Thus, since the above has been admitted by the Defendant, the Plaintiff need not lead any evidence to establish same. It is trite that in a contract for the sale of land there is an implied obligation on the vendor to make out good title to the property to be sold. This obligation will be implied against the vendor particularly where there is a specific mention of the title or interest to be conveyed by the transaction. Thus there is an obligation on the Defendant herein as the owner of the land to ensure that any grant he purports to convey to any grantee is guaranteed and that he will stand by to defend the interest so conveyed to any grantee. This principle was explained by Ollennu J (as he then was) in the case of Bruce v Quaynor & Others [1959] GLR 292 and 294 as follows:- “by native custom, grant of land implies an undertaking by the grantor to ensure good title to the grantee. It is therefore the responsibility of the grantor where the title of the grantee to the land is challenged, or where the grantee’s possession is disturbed to litigate his title to the land. In other words, to prove that the right, title, or interest which he purported to grant was valid” Please see the case of Hayford vrs. Tetteh (substituted by) Larbi & Decker [2012] 1 SCGLR 417. 9 | P a g e Thus per the above, the Defendant as the grantor of the Plaintiff has an obligation to give a good title to the Plaintiff and her siblings herein. Per the evidence before this court, the documents covering the land that the Defendant purported to have sold to the Plaintiff’s mother do not bear his name as the owner of the land. The said Plot is in the name of one Mrs Ruth Mensah who is not the Defendant herein. The explanation of the Defendant that he initially sold the disputed land to the said Ruth Mensah but since she could not pay the full purchase price he took back his land is untenable. Even if the explanation of the Defendant is something to go by it should be the said Ruth Mensah who is to transfer her interest in the land to the Plaintiff and her siblings and not the Defendant. Per the evidence before this court and per Defendant’s own showing he caused Exhibit “A”, “B” and “C” to be prepared in the name of the said Ruth Mensah and he again signed the said documents and not Ruth Mensah. After considering all the evidence adduced before me, I am satisfied that on the balance of the probabilities the Plaintiff has proven her claim. In light of the above, I enter judgment in favour of the Plaintiff against the Defendant on all of her reliefs as follows: 1. The Plaintiff is to recover from the Defendant an amount of GH¢11,000.00 being cost of building Plot Number 21 Okofo Osei Akoto Street situate at Bomso-Kodie the Plaintiff bought from the Defendant, which same was sold to another person and as a result Defendant promised refund but has refused or defaulted despite persistent demand. 2. The Defendant is to pay interest on the said amount of GH¢11.000.00 at the current bank rate from March, 2015 to date of judgment. 10 | P a g e 3. Cost of GH¢3000.00 awarded in favour of the Plaintiff against the Defendant. ................................................ CHRISTIANA BRUCE-ASHIRIFIE. (ESQ.,) (DISTRICT MAGISTRATE) PARTIES: PLAINTIFF REPRESENTED BY ANGELICA AMANKWAH DEFENDANT PRESENT COUNSEL STEPHEN DAMPTEY FOR IBRAHIM ADAM FOR PLAINTIFF 11 | P a g e