Zilevu Vrs Sabblah & 2 Others [2022] GHAHC 91 (3 November 2022)

P a g e | 1 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT 1) HO HELD ON THURSDAY 3 NOVEMBER 2022 BEFORE JUSTICE GEORGE BUADI, J KWAKU ZILEVU (Substituted by } } Paul Zilevu) Principal/Elder of the Zilevu family of Zilevukope, Tadzewu } SUIT NO. E1/37/2010 …… PLAINTIFF Versus 1 2 3 } BESAVI ADZI SABBLAH } MATHEW KWAKU SABBLAH GERSHON SENYIZE WOVENU } ……. DEFENDANTS JUDGMENT 1 Plaintiff’s case Per his amended writ of summons and statement of claim1, Plaintiff’s suit against the Defendants jointly and severally is for: (i) Damages for trespass. (ii) Perpetual injunction restraining the Defendants, their assigns, workmen and servants from entering the said lands until the final determination of the matter. (iii) Declaration of Title to the said lands. (iv) Cost of the suit. Plaintiff claims to be the head of the Zilevu family of Zilevukorpe near Tadzevu, and that he and his siblings are the third-generation of their grandfather Togbui 1 Filed on 25 Nov. 2021 pursuant to an order of substitution dated 27 Oct. 2021. 1 | P a g e P a g e | 2 Kugbago who he claims first settled on a 60-acre parcel of land that was granted to him (Togbui Kugbago) customarily by Togbui Bani I of Devego. The land in question, the plaintiff claims, is bounded by the Sovisie family on the east, the Dakpo family on the west; the Gli Agbowada family on the South; and the Sovisie family on the North. According to Plaintiff, the 1st and 2nd Defendants' family settled at Devego-Tadzevu, a distance of two kilometres away from Zilevukope, and so does not share boundary with Zilevukope where Plaintiff’s family settled. The 1st and 2nd Defendants are of the Sabblah family of Devego near Tadzevu, whilst the 3rd Defendant is one of the sons of the late Prophet CKN Wovenu, the founder of the Apostles Revelation Society Church (ARS). Plaintiff claims that it is the late CKN Wovenu who was using his influence to claim that the Defendants’ Sabblah family has alienated the land to him despite the plaintiff’s family protests and warnings. Evident by Exhibit A, Plaintiff claims to have confronted the Sabblah family of CKN Wovenu’s claims to have purchased the land. Plaintiff claims further that the Sabblah family denied any such alienation of land to CKN Wovenu; claiming further to have met with CKN Wovenu who appealed to the plaintiff’s family to alienate some of the plaintiff’s family lands to him, as his Church was expanding and wanted lands to develop into dwelling places for members. Plaintiff claims that his family together with their grantors invited CKN Wovenu and the Sabblah family for a discussion over Wovenu’s request, but the latter failed to avail themselves of the opportunity. Plaintiff’s case is that CKN Wovenu’s encroachment onto their family land stopped on his death in 1998, but it was revived around 2004/5 when Defendants started encroaching on the lands and had 2 | P a g e P a g e | 3 not since abated despite plaintiff’s warnings; 3rd Defendant, claiming that the land had been sold to his late father CKN Wovenu. 2 Defendants’ case By an amended common statement of defence and counterclaim, the Defendants deny Plaintiff’s claim, contending that in 1995, CKN Wovenu purchased a piece of land from the Sabblah family represented by 1st Defendant and that in 1998, the Sabblah family prepared an indenture on the said land which was plotted at the Lands Commissions as No. RV194/2002 with the following boundary marks: on two sides by the property of Sovishie family, on one side by CKN Wovenu and the last side with Tadzewu Devego road which passes through Sabblah family land According to Defendants, CKN Wovenu took possession of the land and established a cemetery on the land, which had seen several bodies buried thereon. Besides, the 3rd Defendant, his son, had granted portions of the purchased land to people who had built and are also farming thereon, whilst portions have been reserved for a school and a market. Defendants’ claim further that before the sale of the land to CKN Wovenu by the Sabblah family, Plaintiff had conducted himself in respect of a portion of the land, which compelled the Sabblah family to ask Plaintiff to leave the land. Plaintiff sought refuge in CKN Wovenu who called both families together to resolve the matter but the Sabblah family insisted on their demand for Plaintiff to leave the land. Both sides being members of the ARS, CKN Wovenu proposed to both sides to buy a portion of the land including the portion on which Plaintiff lives, a proposal, Defendants claim was agreed to by Plaintiffs. According to the 3rd Defendant, before the purchase of the land from the Sabblah family, his father CKN Wovenu sought and obtained confirmation from Charles Agboada that the Sabblah family are owners of the land. CKN Wovenu bought the 3 | P a g e P a g e | 4 land and permitted Plaintiff to retain the portion that Plaintiff’s village, Zilevukope is situated and gave several portions of the purchased land to other members of ARS Church. Defendants contend further that Plaintiff once sold a portion of the land to Rev. AA Kwade (deceased) but the Sabblah family retrieved the land and did not permit Rev. Kwade to develop it. Besides, the Sabblah family granted pieces of the land to the following persons: the Fudoglo family who established Fudoglokope close to Zilevukope; the Kassapa Telecom Limited; and the Revival Church over 14 years ago, contending further that between 2000 and 2010 the Sabblah family had granted portions of the family land to Yawo Zilevu and Norvi Gawu to farm on a fee-paying basis. Defendants contend further that in 2002 the Water Committee Board of Ketu North District Assembly sought to sink a borehole on the land that had been sold to C.K.N. Wovenu. The plaintiff, who is a member of the local Water Board sent two persons to obtain 3rd Defendant’s permission to sink the borehole. Defendants describe the Sabblah family land as bounded “on two sides by [the] Sovishie family land headed by Gbede Semabia; [o]n one side by the Anasu family land; [o]n the other by Dakpo family land and land belonging to C.K.N. Wovenu”. Denying Plaintiff’s claims, 1st and 2nd Defendants counterclaim against Plaintiff as follows: i Declaration of title to the land situate at Tadzewu and bounded … : On two sides by Sovishie family land headed by Gbede Semabia On one side by the Anasu family land On the other by Dakpo family land and land belonging to CKN Wovenu 4 | P a g e P a g e | 5 ii iii iv Recovery of possession. Injunction. Damages for trespass. 3 Issues settled for trial The court on 16 February 20112 set down the following issues for determination: a Whether or not Plaintiffs family are the owner of the parcel of land at Zilevukope near Tadzewu b Whether or not 1st Defendant and his family had title and capacity to grant such land to the 3rd Defendant's father which 3rd Defendant claims to be a successor-in-title. c Whether or not Plaintiff’s family have [been] in possession since the land was customarily granted to Plaintiff's grandfather with its quiet enjoyment. d Whether or not 1st and 2nd Defendants are descendants of Kugbagbo from whom 1st and 2nd Defendants' family inherited the said land as gift. 4 Finding of facts: preliminary and primary The decision of a trial court survives upon the correct findings of facts the trial judge makes. I deem it necessary to fall back on the record of proceedings to make some findings of preliminary facts, as I did not hear this suit from its opening. I inherited the suit and continued with its hearing to the conclusion. On 16 February 2011, the court presided over by Abada J considered and gave directions for the 2 Presided by Anthony Abada J 5 | P a g e P a g e | 6 trial of the suit that did not include an order for the parties to produce their site plans, or for a composite site plan covering the land in dispute to be drawn. Neither was there an order for the parties to submit documents they intend to rely on as proof of their case. It was later as a result of an objection to the tendering of a document by the plaintiff that the court truncated the hearing and gave an order “for both parties to file their respective documents that they intend to rely on”. Evidence of the plaintiff was taken orally, but later upon assumption of the court, the lawyers agreed with the court for defendants to provide their testimony by filing witness statements. Hearing of the suit commenced on 24 January 2012 before Abada J. Plaintiff summed up his root of title in his oral evidence in chief, thus: My grandfather Kugbagbo from Norlofi came and lodge[d] with Togbe Bani at Devego and Togbe Bani gave him that portion of land and those people I mentioned are those whom he shares boundaries with. He had a cottage on the land called Kugbagbokofe and he married and begat children. He begat four children. They are Sedzro … , Shikpo … , Sawoshie … and Zilevu …. And they live[d] there and that was where my father was born and my father also begat us there and it has become our land.3 (Emphasis added) Thus, according to Plaintiff, his family is in court because “[a]bout ten years back [CKN] Wovenu trespassed unto our land. When we questioned him he said it was sold to him by the children of Sabblah”.4 Plaintiff does not appear to be claiming 3 4 See page 2 of 24 Jan 2012 proceedings As n4 above. 6 | P a g e P a g e | 7 direct title and ownership of the land as founders, but rather, one on a derivative title and ownership, as, he claims that the land was granted to his grandfather Kugbagbo by Togbe Bani. Defendants Sabblah family’s claim on the other hand is that “the land was the property of Etoe from whom Kugbagbo inherited…”. They claim that Kugbagbo during his lifetime did not have a child of his own and so adopted his nephew Sabblah as his son who served Kugbagbo until his death and that on his death, the Kugbagbo family gifted the land to Sabblah whose family permitted Plaintiff’ family to live where they are at present. Plaintiff stated further in his oral evidence in chief that the Defendants’ Sabblah family somewhere in 1997 sought “to sell the land to 3rd Defendant father [CKN Wovenu]” for which he made a report to the surviving representative of the plaintiff’s family grantor – Chief Togbe Adigblor Bani - who per his lawyers wrote to Prophet CKN Wovenu on 31 July 1998 warning him and the Sabblah family of the latter’s trespass unto the land in issue. I deem it crucial to reproduce the full text of the letter Plaintiff tended as Exhibit A: UNLAWFUL SALE OF LAND TO YOU I act for and on behalf of the Elders of Bani Stool of Dovego – namely Togbui Adigblo III, Fiatorgbor Ekpe and Kosi Normesi. My instruction is that sometime in 1997 my clients heard that one Madam Agoe Sabla and some other persons were negotiating to sell to you pieces and parcels of land around Zilevu’s village. They, therefore, approached you to inform you that Madam Agoe Sabla and the others are not the beneficial owners of the land and that they are not in any way members of 7 | P a g e the Bani Stool and therefore have no authority or power to deal with the Bani Stool land or do anything that will interfere with the rights of the stool P a g e | 8 members. … I therefore have my client’s instruction to warn you to desist from any further development of the land until the issue between the elders of Bani Stool and [the Sabbla] and others is resolved. (Emphasis added) See Exhibit A. Defendants denied service on them of Exhibit A, saying they are seeing it for the first time in court. According to Plaintiff, Wovenu died shortly after the letter, but his son 3rd Defendant “entered the land and continued to sell to others” whilst “the [Sabbla] family leased part of the land to Vodafone for their mast”. See Exhibit B. Further in his evidence in chief, Plaintiff stated what I perceive to be of crucial importance; that is, “[s]ince the trespass into the land we no longer have access to farm on it”, and further that “when they trespassed unto the land we did not farm on the land and we summoned them before Togbe Bani” but “they failed to attend to him”. Whilst still being led in evidence in chief, his lawyer asked him “Defendants say Yaw Zilevu and Norvi Gawu had farm on Sabblah’s land subject to paying rent from the year 2000. Plaintiff responded, admitting in my view, that “[t]hat year we paid rent to enable us [to] farm, it was the next year that we summoned them to Togbe Bani”. Beyond this, though Plaintiff denied any prior consultation with and permission of the Sabblah family when a borehole was proposed to be drilled on the subject matter land, I find as a fact that the local Water Board Committee of which Plaintiff was a member, led the government delegation around 2005 to consult and to seek 8 | P a g e P a g e | 9 permission from the 3rd Defendant before the sinking of the borehole in part of the subject matter land in dispute. Further to these crucial statements in his evidence-in-chief, the plaintiff under cross-examination admitted that Exhibit A was written not by or in the name of his Zilevu family but rather “in the name of persons who claim to be elders of the Bani Stool”. He added however that “it is the chief who granted the land to our grandfather” and that if anything is going on the land he can intervene. Plaintiff states further that the Zilevu family forms part of the Bani Stool, and that at the time of the trespass and the writing of Exhibit A, his brother Emmanuel Zilevu was the family head. I reiterate that Exhibit A was written not by the then head of the Zilevu family, or for the Zilevu family but “for and on behalf of the Elders of Bani Stool of Dovego – namely Togbui Adigblo III, Fiatorgbor Ekpe and Kosi Normesi”. (Emphasis added). Besides, the name of Plaintiff’s elder brother Emmanuel Zilevu, who the plaintiff claim was the family head at the material time of the trespass of their family land was nowhere stated on Exhibit A as one of the elders; neither did the plaintiff in his evidence make any attempt to connect, associate, or link his Zilevu family to the Bani Stool or any of the elders that were recited on Exhibit A as ostensible owners of the land. I need to state here that Exhibit A was written upon the complaints that the plaintiff Zilevu family made to the Bani Stool, who I repeat appear to me to be the owners of the land in dispute. I reiterate what the Plaintiff stated in his evidence, that “when we noticed the trespass [on the land], … we notified Togbe Bani who wrote to Wovenu [3rd Defendant’s father]”. Emphasis added). Both on the pleadings and at the trial, I find the Plaintiff to be repeatedly recognizing Togbe Bani as the grantor of their land, the subject matter in dispute; 9 | P a g e indeed, paying allegiance and deferring to Togbe Bani, ostensibly as owners of the land in issue. P a g e | 10 In our adversarial judicial system, when a party states a fact advantageous to the cause of the other party, the party does not need any better evidence to establish that fact than by relying on such statement or admission, which is an example of estoppel by conduct. See In Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II v. Akotia Oworsika III (substituted by Laryea Ayiku III [2005-2006] SCGLR 637. Indeed, in all these pieces of evidence of recognition and referral to Togbe Bani of issues relating to the land, the inference to be drawn is that plaintiffs have shown not to be owners of the land in dispute as of right but their grantor Togbe Bani of the Bani Stool. The law is settled that a plaintiff who seeks an order of declaration of title to land to be made for him puts his title to the land in issue, and he needs to establish title to and ownership of the land by clear positive evidence. Conca Eng. Co v. Moses [1984-86] 2 GLR 319 (Holding 4). Claiming to be owners of the land, and further in possession thereof, the law expects the plaintiff Zilevu family to be the one to be warding off trespassers off the land including the Defendants’ Sabblah family and that of the 3rd Defendant. The Plaintiff Zilevu family is also therefore expected by law to be the author of Exhibit A. Sam v. Noah [1982-83] GLR 1122; Wuta-Ofei v Danquah [1961] GLR 487. It is within this legal framework that I endorse the learned counsel’s suggestion to the plaintiff under cross-examination that, if the land ever belonged to the Zilevu family, the plaintiff through the then-head Emmanuel Zilevu would have been the author of Exhibit A. Besides, I further agree with counsel that the plaintiff would not have referred the matter to Togbe Bani when the Sabblah family, and also 3rd 10 | P a g e P a g e | 11 Defendant trespassed on the land. I need to repeat here my finding just above that the Zilevu family has been recognising Togbe Bani of the Bani Stool as their grantor of the land in dispute. Indeed, the author of Exhibit A never indicated anywhere in the letter that they were acting as well for the Zilevu family. By strict interpretation and construction of Exhibit A, the Zilevu family cannot be deemed as the owner or even the co-owner of the land in dispute with the Bani Stool. Because of Plaintiff’s constant referrals to the Bani Stool of any trespass on the subject matter land, I paused and struggled in my mind, indeed, questioning the interest and thus the capacity of Plaintiff to mount the action concerning the subject matter land. Plaintiff stated that the Zilevu family is a member part of the Bani Stool, their grantor. All the same, I reiterate that the Zilevu family failed to show on the face of the writ of summons trait of any such link, or association with the Bani Stool including one of holding a representative interest or authority to be clothed with the requisite capacity to mount the action. There is no evidence that all of the elders or members of the said Bani Stool named on Exhibit A are not alive, and that presently the Zilevu family holds a beneficial interest or even an interest like customary usufructuary use of the land. If the plaintiff Zilevu family is clothed with any such representative capacity, Order 2 Rule 4(a)I of the High Court (Civil Procedure) Rules, 2004 (CI. 47) mandates them to disclose and endorse same on the writ as having commenced the suit for and on behalf of the Bani Stool. In The Republic v High Court, Accra; Ex Parte Aryeetey (Ankrah Interested Party) (2003-2004) SCGLR 398, Kpegah, JSC delivering the judgment of the court held at page 405 that the requirement that a party endorses on the writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually vested with that capacity and 11 | P a g e P a g e | 12 therefore has the legal right to sue on behalf of that person. This is because if a party brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and judgment founded on it. Evidence of want of capacity, therefore, puts the validity of the writ in issue. Akrong v Bulley [1965] GLR 469 SC. Per the totality of the plaintiff’s evidence, particularly regarding Exhibit A, I have the calmness to find that it is most probable that the land the subject matter in dispute belongs, rather to the Bani Stool, not the Zilevu family, who may belong to or be associated with the Bani Stool. All the same, I reiterate that any such link, association, indeed derivative or representative authorization and capacity to sue must be endorsed on the writ as required by Order 2 Rule 4(1)a id. The plaintiff did not provide any such indication that they are vested with authorization from the Bani Stool to commence this suit when all along they have been referring to the Bani Stool as its grantors to whom they refer all acts of trespasses on the land. 5 Conclusion Having by their evidence and conduct shown to be still deferring to and recognizing Togbe Bani of the Bani Stool as their grantors to whom they report trespasses on the land, my view is that the Plaintiffs have not shown to be clothed or vested with the requisite authorization from the Bani Stool to initiate this action and therefore lacks the requisite capacity to commence this suit. Per the totality of the plaintiff’s evidence, I have the calmness to hold that it is probable that the land the subject matter in dispute belongs to the Bani Stool, not the Zilevu family. Plaintiff may be a part of the Bani Stool; all the same, they failed to state on the writ as representing the Bani Stool in this suit. Plaintiffs have by their evidence not shown to be clothed with the capacity as owners or representatives of their 12 | P a g e grantors/owners of the land to mount the action. I am of the view that the right parties are not before the court. P a g e | 13 It is a settled principle of law that a person who lacks the capacity to sue puts the validity of the writ in controversy. The Republic v High Court, Accra; Ex Parte Aryeetey (Ankrah Interested Party) id. See also Yorkwa v. Duah [1992-93] GBR 278. With such a finding and conclusion, it will be a wasteful exercise, indeed a nullity for me to seek to proceed to make any determination concerning the ownership and title of the subject matter land; not only of the plaintiff’s claims but also of Defendants’ counterclaim. If the Plaintiff is not vested with the authority and capacity to sue for any claim on the land, they cannot also be sued per a counterclaim concerning the same land. The rightful persons vested with authority as owners of the land are not before the court to properly engage the court to make any declaration concerning claims of title and ownership of the subject matter land. Plaintiff’s action fails on the ground of capacity. I declare the writ of summons as a nullity and therefore strike it out. The defendants’ counterclaim, in consequence, is struck out since a counterclaim cannot be maintained when the writ that initiated the action had been declared a nullity. There is no suit properly so-called to form the basis for a counterclaim. Ampratwum Manufacturing Co. Ltd v. DIC. [2009] SCGLR 692.5 5 End of the judgment – Kwaku Zilevu (Substituted by Paul Zilevu) v. Mathew Sabbla & Ors (Suit No. E1/37/2010 13 | P a g e (Sgd.) George Buadi, J. High Court (1) Ho. Lawyers: 1 2 Victor Kwadzoga Adawudu, Esq. for the plaintiff. SMK Dzikunu, Esq. for the Defendants. P a g e | 14 14 | P a g e