TREBI AND ANOTHER VRS. AMARHNKPA AND ANOTHER (PA/0563/2023) [2025] GHAHC 48 (17 January 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, PROBATE AND L/A DIVISION, COURT ‘1’ HELD IN ACCRA ON 17TH JANAURY 2025 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, HIGH COURT JUDGE. --------------------------------------------------------------------------------------------------- SUIT NO. PA/0563/2023 IN THE MATTER OF THE ESTATE OF GEORGE TREBI ANYANKOR (LATE) AND IN THE MATTER OF PROBATE BY OSUMANU ASHITEI AMARHNKPA AND IN THE MATTER OF AN ACTION BY TABITA TREBI AND LYDIA TREBI FOR DECLARATION BY COURT THAT THE PURPORTED WILL OF THE TESTATOR IS INVALID (ORDER 66 R 28 (1)) 1. TABITA TREBI 221 LOMO ADAWU STREET, LA DIGITAL ADDRESS GL-039-3098 } } } 2. LYDIA TREBI } …PLAINTIFFS HOUSE NO, 202, TOP HERBAL ROAD AGBOBA GA EAST DISTRICT DIGITAL ADDRESS 192-0263 VS 1. OSUMANU ASHITEI AMARHNKPA, LA } 2. FRANK TREBI } } } } Z14 LOMO ADAWU STREET, LA }…DEFENDANTS DIGITAL ADDRESS GL-039-3094 } SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 1 | P a g e -------------------------------------------------------------------------------------------------------- PARTIES: PLAINTIFFS PRESENT DEFENDANTS PRESENT COUNSEL: KWASI AFRIYIE BADU FOR THE PLAINTIFFS PRESENT LIVINGSTON DEY FOR THE DEFENDANTS ABSENT JUDGMENT -------------------------------------------------------------------------------------------------------- [1] Introduction The Plaintiff seeks a declaration and prays for the invalidity of the deceased George Trebi Anyankor last Will and Testament on the basis that the sole property, property Z14, Lomo Adawu Street, La described in the Will as Plot No. 46 East Cantonments with registration Number GA28993 is rather the self-acquired property of their late mother Ernestina Atswei Adjetey and therefore the deceased lacked testamentary capacity over same. This version of the issue is hotly contested by the Defendants (Executor and Son) that the property in contention is the self-acquired property of the late Goerge Trebi Anyakor (deceased) and that therefore the deceased had the requisite testamentary capacity. The Plaintiffs issued a Writ of Summons with an accompanying Statement of Claim for the following reliefs: 1. “A declaration that the Will of GEORGE TREBI ANYANKOR (deceased) dated 31st day of January, 2020 is invalid as he never owned ‘the property’ Z14, Lomo Adawu Street, La (however so described). SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 2 | P a g e 2. An order for the cancellation by the Lands Commission of land title certificate no. GA 28993 volume 8 folio 260 which stands in the name of George Trebi Anyankor (late). 3. An order for Frank Trebi to hand over to Tabita Trebi her two chamber and halls which he has hijacked since completion in 1999 and to account to her for all the accrued rent income. 4. Any other relief as this Honourable Court may deem appropriate.” The Defendants caused appearance to be entered on their behalf and filed a Statement of Defence on 31st May 2023 and counterclaimed for the following reliefs:- 1. “A declaration that the Will of George Trebi Anyankor (deceased) dated 11/1/2020 is valid. 2. An order declaring the Land Certificate No. GA 2993 Volume 8 Folio 260 which stands in the name of George Tebi(sic) Anyankor (deceased) as valid. 3. An order confirming Frank Trebi Anyankor, 2nd Defendant herein owner of the 2 chamber and hall apartment he build them. 4. Any other order or orders the Court would deem feet (sic)”. [2] The antecedent contentions which necessitated the disputations before this Court can be gleaned from the respective pleadings of the parties as follows: [2.1] The Plaintiffs Case It is the case of the Plaintiffs that they were invited to the reading of a Will of their late father George Trebi Anyankor dated 31st January 2020 who died testate on 10th November 2020. The major devise in the Will was a parcel of land belonging to their late mother who died in 2015. According to the Plaintiffs their mother Ernestina Atswei Adjetey acquired a plot of land measuring 0.22 in September 1956 from Nii Tetteh James, Head of Leshie Quarters of La in the Ga Traditional Area for residential purposes. The land was numbered Z14, Lomo Adawu Street, La. Same plot of land is described as Plot No. 46 East Cantonments with registration number GA 28993 in the Will of the deceased George Trebi Anyankor. The Plaintiff pleaded that their mother initially built a 4-bedroom house on the land in the 1960s and later added 5 chamber and hall. Their late mother also gave portions of the land SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 3 | P a g e to five of her six children as means of encouraging them to build. The five children are Grace A., Kennedy A., Frank, Tabita and Lydia Trebi. Out of the five children Plaintiffs and 2nd Defendant have put up structures on the land with the 1st Plaintiff being assisted by 2nd Defendant to build her two chamber and hall. The Plaintiffs pleaded that there is the issue of reconciliation of accounts between the 1st Plaintiff and 2nd Defendant. 2nd Defendant has been collecting rent from tenants who live in 1st Plaintiff rooms to help offset the expenditure incurred by him but fails to update the 1st Plaintiff on the state of her indebtedness. It is the further case of the Plaintiffs that there is a land title certificate that vests the land in the name of their late father despite efforts by their late mother to raise an objection when the publication was done in the Ghanaian Times Newspaper of 9th September 2008. [2.2] Defendants’ Case The Defendants states that their deceased father died testate and the land devised in his Last Will and Testament belonged to him. Their late mother Ernestina Atswei Adjetey did not acquire any land from Nii Tetteh James. It is the further case of the Defendants that a search concluded on 21st June 2007 shows that a noted proposal dated 30th May 1963 was made by Atta Mensah Tsofatse to Ernestina Adjetey. The 2nd Defendant say that Plaintiff’s mother put up a four-bedroom building with the consent of Plaintiffs father George Trebi Anyankor on the land in 1969. The 2nd Defendant avers that his late mother did not put a 5 chamber and hall units but it was rather the 2nd Defendant who put up a two chamber and hall units to be rented and the rent used for the upkeep of their mother Ernestina Adjetey. The 2nd Defendant asseverates that it was the rent accruing from the tenants in the two chamber and hall units that was used by their mother to put up three additional hall and chamber units and she subsequently occupied one of the chamber and hall units. 2nd Plaintiff when evicted was allowed to gratuitously occupy one of the chamber and hall units built by 2nd Defendant. 2nd SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 4 | P a g e Defendant contends that their mother did not make a gift of any piece of land to any of the five (5) siblings. According to 2nd Defendant the 2nd Plaintiff used income generated from 2nd Defendant’s sales business to put up a three chamber and hall building without the permission of their late father Geroge Trebi Anyankor. As regards 1st Plaintiff 2nd Defendant avers that she has not built on the land in dispute. When he was putting up his buildings 1st Plaintiff requested that he permits her and the husband to occupy two of the rooms when construction was completed. The 1st Plaintiff later gave him GHC100,000.00 as her contribution towards the cost of construction but demanded same subsequently to boost her trading activities and she obliged him. It is the further case of 2nd Defendant that he invited his late father to occupy a chamber and hall but he decided to occupy one room. According to 2nd Defendant he permitted 1st Plaintiff to occupy a room after her husband and herself were evicted from Palm Wine Junction for failure to pay rent and so it was not 1st Plaintiff who rented out the room in question to a tenant but rather their late mother. According to 2nd Defendant their mother Ernestina Atwei Adjetey gifted one of the rooms to him which he lived in for several years while he put up his own building on part of the land. 2nd Defendant avers that the deceased Will is valid and there is a valid Land Certificate attesting to the fact that the land belongs to their father. [3] Issues for determination At the application for direction stage on 8th March 2022 the Court set down the following issues for determination of the case: 1. “Whether or not the conveyance dated 30th September 1956 from Nii Tetteh James, Head of Leshie Quarters of La to Ernestina Atswei Adjetey and measuring 0.22 acres is the same as the property numbered as Z14 Lomo Adawu Street, La. SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 5 | P a g e 2. Whether or not this is the same land that has been described as Plot No. 46 East Cantonments with registration number GA 28993 in the purported will of George Trebi Anyankor dated 31st day of January 2020. 3. Whether or not there are search results from the Land Registration Division of the Lands Commission testifying to the ownership of the said land by Ernestina Atswei Adjetey. 4. Whether or not the Land Registration Division of the Lands Commission complied with its own policy in the alternative rules of natural justice in the purported grant of Land Title Certificate GA in favour of the late George Trebi Anyakor. 5. Whether or not a Court of competent jurisdiction has ruled in the matter of the property dispute between Tabita Trebi (1st Plaintiff) and Frank Trebi (the 2nd Defendant) and if so whether the parties have complied with the Court’s order.” Additional issues 6. Whether or not the Will of George Trebi Anyankor is valid?” [3.1] Case Management Conference After setting down the above issues, the Court ordered the parties to file their respective witness statements and attach all documents they intended to rely on. The parties duly complied and after the mandatory Case Management Conference the matter was set down for trial. The 1st Plaintiff testified and called no witness in support of their case. The 2nd Defendant testified and called one witness Nii Oshila Kakalor Komierteh I. The Plaintiffs’ Counsel filed his written address on 28th June 2023 and the Defendants’ Counsel filed his written address on 19th June 2024. [4] Standard of Proof, Burden of Proof and Persuasion/ Burden of Proof SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 6 | P a g e It is the position in our law that 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, 1975 (NRCD 323) 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.” Where the Plaintiff has been able to lead sufficient evidence in support of his case, then it is incumbent upon the defendant to lead sufficient evidence in rebuttal otherwise the defendant risks being ruled against on that issue or 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 at page 867 of the report 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.” I cannot exhaust the issue of the burden of proof enough, without a reference to the Supreme Court’s decision in Osei vs Korang [2013] 58 GMJ 1 at page 22 where Ansah JSC (as he then was) notes thus: “Where in an action, the parties claim and counterclaim for declaration of title to the same piece of land, each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a counter claimant is as good as a plaintiff in respect of a property which she/he assays to make his/her own…” SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 7 | P a g e See also: Fosua & Adu-Poku vs. Dufie (Deceased) & Adu Poku-Mensah [2009] SCGLR 310 at 325-327 Per Atuguba JSC; Yorkwa V. Dua [1992-93] GBR 278 at 282 Per Brobbey JA (as he then was); Amidu Alhassan Amidu & Another vs. Mutiu Alawiye & 6 Others [2019] DLSC 6573 at page 5 per Pwamang, JSC quoting Amissah J. A. in Ricketts v. Addo [1975] 2 GLR 158 at 166, CA, on standard of proof-burden to be established in land disputes-declaration of title. Nartey V Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, per Adade JSC, on the burden on a person who comes to court to make a good case for the court to consider otherwise he must fail; and Odametey vs Clocuh [1989-90] 1 GLR 14, on the time-honoured principle that if the plaintiff totally failed to make out a case for title to land, he could not rely on the weakness in the defence. Where the Defendant has filed a counterclaim, per the rules of court he becomes a Plaintiff with respect to the counterclaim and the same burden that is placed on the Plaintiff is also placed on the Defendant with respect to the counterclaim. Failure by the Defendant to lead sufficient evidence in support of his counterclaim will lead to his counterclaim being dismissed. The Supreme Court in the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, laid down the nature of the evidence that a party who seeks declaration of title to land must lead in order to get a ruling in that person’s favour. The Supreme Court speaking through Georgina Wood CJ (as she then was) noted at page 475 of the report 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 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.” [Emphasis mine]. Similarly in Abbey v. Antwi [2010] SCGLR 17, the Supreme Court held at holding 2 of the headnotes as follows: SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 8 | P a g e “In an action for a declaration of title to land, the plaintiff must prove, on the preponderance of probabilities, acquisition either by purchase or traditional evidence; or clear and positive acts of unchallenged and sustained possession or substantial user of the disputed land.” I note that per the reliefs sought in this matter title to the property has been put in issue by the parties to the suit i.e. whether it belongs to Ernestina Atswei Adjetey or George Trebi Anyankor. [5] The Court’s Evaluation & Analysis of the Evidence The Court shall determine the main issues as set out above based on the facts and evidence adduced at the trial. Indeed, it is the policy of the law that only those issues that are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See the case of Domfe vs Adu (1984-86) 1 GLR 653. A Plaintiff or defendant-counterclaimant in an action for declaration of title to land has a duty to establish his mode of acquisition. The critical requirement has been clearly stated in landmark cases such as - Kponuglo vs Kodadja [1933]2 WACA at 25; - Odoi vs Hammond [1971] 2 GLR 375 at 382; - Mondial Veneer (GH) Ltd vs Amuah Gyebi XV [2011] 1 SCGLR 466; - Ogbamey Tetteh vs Ogbamey Tetteh [1993-94] 1 GLR 353; - Akoto & ors v Kavegbe & Ors [1984-86]2 GLR 365; - Duagbor & Ors vs Akyea Djamson [1984-86] GLR 697 and - Mamudu Wamgara vs Gyato Wangara [1982] GLR 639. In judgment the Court is enjoined to take into account every material fact evident on the face of the record and this includes cross-examination of the parties. In the case of Wood (substituted by) Asante-Koranteng vs Tamakloe & Derban [2007-2008] SCGLR page 852, SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 9 | P a g e holding 3 the Supreme Court held that “in an appeal, the court is required to make its determination by taking into account every material fact evident on the face of the record.” [6.1] Issues 1, 2 and 3 I shall consider the three issues together as they are interrelated. At the core of these issues is the ownership of the property in dispute. Both Plaintiffs and Defendants are asserting that the property in dispute was acquired by the other parent. Issue one: Whether or not the conveyance dated 30th September 1956 from Nii Tetteh James, Head of Leshie Quarters of La to Ernestina Atswei Adjetey and measuring 0.22 acres is the same as the property numbered as Z14 Lomo Adawu Street, La. Issue two: Whether or not this is the same land that has been described as Plot No. 46 East Cantonments with registration number GA 28993 in the purported will of George Trebi Anyankor dated 31st day of January 2020. Issue three: Whether or not there are search results from the Land Registration Division of the Lands Commission testifying to the ownership of the said land by Ernestina Atswei Adjetey. The principle is that to successfully maintain an action for declaration of title to land, the appellants had to prove with certainty the boundaries of title to land, the appellants had to prove with certainty the boundaries of the land claimed, how much he bought the land, the price that he had paid for and the documentary proof establishing his title, the plaintiff must establish by positive evidence the identity and limits of the land he claims, Nyikplorkpo v Agbedotor [1987-88]1 GLR 65 at page 171. See Asante Appiah v Amponsah [2009] SCGLR 90 [2009] 7 GMJ SC 75; Osae v Ajeifio [2008] 4 GMJ 149 SC at pages 157-160 [2007-2008] SCGLR 499; per Brobbey , JSC; Mary A. Kissiedu v Kwame Kai & Anor [2011] 37 GMJ 160 CA; Saanbaye Basilde Kangberee v Alhaji Seidu Mohammed [2012] 51 GMJ 173 SC; Sarkodie v F. K. A [2009] 7 GMJ SC 185; Abbey & Others v Antwi [2010] SCGLR 17 and Yaa Kwesi vs Arhin Davies [2006] 2 MLRG 50 SC; SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 10 | P a g e In Mondial Veneer (Gh) Ltd case (supra) Wood CJ as she then was stated that the person asserting title and on whom the burden of persuasion falls, has to prove three things; - The title of his root of title - Mode of acquisition - Various acts of possession exercise over the subject-matter of litigation Since the Plaintiffs had put the title of their mother in issue were they able to discharge the burden of proof on them? Identity of the land The 1st Plaintiff basically testified per her adopted witness statement and reiterated the pleadings in this case. According to the 1st Plaintiff her late mother Ernestina Atswei Adjetey acquired a plot of land measuring 0.22 in September 1956 from Nii Tetteh James, Head of Leshie Quarters of La in the Ga Traditional Area for residential purposes. The land was numbered Z14, Lomo Adawu Street, La. Same plot of land is described as Plot No. 46 East Cantonments with registration number GA 28993 in the Will of the deceased George Trebi Anyankor. The 1st Plaintiff tendered in support of the case Exhibit A which was a conveyance between Nii Tetteh James and Ernestina A. Adjetey on 30th September 1956 which had a plan attached to it. Exhibit B is search results dated 26th June 2009 and the conveyance supra is captured. Exhibit L is search results dated 5th February 2024 and the conveyance supra is captured. There is documentary proof that the Plaintiffs mother acquired land in 1956. As to whether that land is the same as the land in dispute the analysis of all the evidence on record would show presently. The 1st Plaintiff was extensively cross-examined by Counsel for Defendants on the issue of the identity of the land in dispute. Counsel for the Defendants sought to suggest that the Plaintiffs’ mother land if any was different from the land devised in the Will of the late G. T. Anyankor. The following exchanges ensued on 2nd May 2024: SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 11 | P a g e “Q: How old were you when the construction of the building commenced? A: Q: A: Q: A: Q: I was ten years. Have you ever seen your mother’s indenture? Yes. Have you ever seen the indenture on your father’s land? No. I suggest to you that the corner pillars of the land bears your father’s initials GT for George Trebi. A: I asked my mother questions pertaining to the land issue and she told me that when they were going to mount the corner pillars she asked the husband to write on the pillar their names that is Ernestina Atwsei Adjetey and George Trebi Anyanko but my father wrote his initials alone. My late uncle who went in the company of my parents to mount the pillars told me that from all indication and conduct of my mother it shows that the land belongs to my mother. Q: I put it to you that it is not the one who is buying the land who write the names on the corner A: Q: A: Q: A: Q: pillar it is the surveyor or the one who is moulding the pillars who writes it. I believed what my late uncle told me. I put it to you that this is hearsay, you were not there yourself to see what happened you were too young. I disagree the land was acquired in the year 1956. And that was before you were born. That is correct. Have you done due diligence to get a competent surveyor to detail the land which is the subject of this suit and to demarcate the land which is on the site plan attached to your mother’s indenture? A: I personally conducted a search at Lands Commission on the 26th June, 2009 and the result indicates that the land belongs to my mother. You have told the Court that you have not seen your father’s indenture, not so? Yes, I have not seen it. Q: A: SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 12 | P a g e Q: A: Have you searched for a copy? No. Q: Why did you not search for a copy. A: I knew my father never acquired any land let alone to own an indenture to cover it but if there is any document covering the land to allege that it belongs to my father then it was. prepared by my brother. Q: Are you saying that the search at the lands commission has not revealed that your father. had any indenture registered in his name in respect of this land. A: No, I have not been there.” What is the evidence of the Defendants particularly 2nd Defendant in relation to the identity of the land in dispute? Testifying per his adopted witness statement the 2nd Defendant stated that the land in contention was by then being farmed by a farmer called Ataa Okang who sow food crops on the land and sent a portion to the late G. T. Anyankor. Due to some pressure from the late Ernestina Atswei Adjetey who requested permission from her husband G. T. Anyankor to construct rooms on his land, the subject of this suit which she subsequently built. 2nd Defendant further testified that the late G. T Anyankor executed an indenture on 13th June 2006 between himself and the Nii Odoi Tsuru Lenshie Mantse of La confirming the transfer of title to him. The indenture was tendered in evidence as Exhibit 5. Exhibit 6 is G. T. Anyankor’s land title certificate received in evidence without objection. The 2nd Defendant testified that though the late Ernestina A. Adjetey raised a caveat against G. T Anyankor’s application for Land Title she failed to furnish the registry with documentary evidence within the time stipulated when asked to do so. 2nd Defendant was subjected to cross- examination on the issue of the identity of the land in dispute and he remained resolute in his answers. The evidence which sounded the death knell on the Plaintiffs’ proof of the identity of the land in dispute being the same as Ernestina A. Adjetey land was the evidence of Nii Oshhila SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 13 | P a g e Kakalor Komierteh 1 (DW1). He testified on 9th May 2024 and tendered in evidence Exhibits 19 to 21 without objection. Counsel for Plaintiff waived his right to cross-examine him. He is therefore deemed to have admitted the findings contained in Exhibit 21. In Ashanti Goldfields Co Ltd vs Westchester Resources Ltd [2013] 56 GMJ 84 CA at page 128 Korbieh JA(as he then was delivered himself thus: “The law is that where the evidence of a witness is unchallenged in cross-examination, it is deemed to be admitted by the other side.” This Court is not told if DW1 was a surveyor. DW1 states “ I am the Dzasetse of the Lenshie Quarter of La. The current matter between the parties has been referred to them for their opinion” Who referred the matter to DW1? However based on Plaintiffs Exhibit A, DW1 is the Grantor of their late mother and per Defendants Exhibit 5 DW1 is the grantor of their late father Mr. George T. Anyankor. Therefore in the Supreme Court in the case of Salomey Shorme Tetteh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker) case1 (infra) decided “There is an obligation on a grantor, or lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest so conveyed to any grantee or lessee…” If therefore the Grantor of both parties gives evidence on behalf of the Defendants and is not subjected to cross-examination by Counsel for the Plaintiffs, in writing the Judgment the Court is enjoined to take into account every material fact evident on the face of the record and this includes cross-examination of the parties. In the case of Wood (substituted by) Asante-Koranteng vs Tamakloe & Derban [2007-2008] SCGLR page 852, holding 3 the Supreme Court held that: “in an appeal, the court is required to make its determination by taking into account every material fact evident on the face of the record.” Exhibit 21 is a “Legend” and a titled “composite plan George T Anyankor & Mad. Ernestina Atsoi Adjetey”. 1 Civil Appeal No. J4/34/2011 dated 22nd February 2022 SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 14 | P a g e For ease of reference I will set out the findings from the Legend below: ”Therefore per close observation of both properties, these are the FINDINGS. 1. That the site for MR GEORGE T. ANYANKOR and MAD. ERNESTINA ATSOI ADJETEY are two different sites according to the composite plan prepared. 2. The distance between MR GEORGE T. ANYANKOR and MAD. ERNESTINA ATSOI ADJETEY is 162.7 feet’s. Therefor since both persons have 2 different documents from the same quarter, but Site A reflects the true information on the ground. It is the sole responsibility of the Leshie Quarter to be determine who owns the both(sic) properties” The Court has reviewed the composite plan and site A representing MR GEORGE T. ANYANKOR land lies separately from site B representing MAD. ERNESTINA ATSOI ADJETEY land. The crux of the present litigation is that the Will of MR GEORGE T. ANYANKOR (late) be declared invalid because the only property devised belongs to MAD. ERNESTINA ATSOI ADJETEY (late). Therefore the identity of the land in dispute is very crucial. In the case of Salomey Shorme Tetteh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker ) case2 Dotse JSC as he then was stated as follows on the issue of identity of the land in dispute: “The position of the law, following from Fofie vs Wusu [1992-93] GBR 877 is that it is the Plaintiff who bears the burden of establishing the identity of the land she is laying claim to. Failure to prove this identify is fatal to a claim for declaration of title. In the above case, the Court of Appeal, Coram, Lamptey, Adjabeng and Brobbey JJA (as they were then) speaking with one voice through Lamptey JA held as follows: “To succeed in an action for a declaration of title to land a party must adduce evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title. On the evidence the plaintiff failed to prove the identity of the land claimed.” See also: i. Kwabena v Atuahene [1981]GLR 136 2 Civil Appeal No. J4/34/2011 dated 22nd February 2022 SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 15 | P a g e ii. iii. Anane v Donkor [1965] GLR SC and Bedu v Agbi [1972] 2 GLR 238, CA” The clear documentary proof contained in DW1’s Exhibit 21 shows that the land in respect of which the Plaintiffs claim belongs to MAD. ERNESTINA ATSOI ADJETEY, falls outside the disputed area, the area that the Defendants assert belongs to MR GEORGE T. ANYANKOR . In Exhibit 21 the Defendants site plan superimposed in the composite plan is the same area as the land in dispute. That being the case, and since the initial allocation of the burden of proof is on the Plaintiffs before it will shift to the Defendants later, it is apparent that the Plaintiffs have failed to discharge this burden. Sections 10 and 14 of the Evidence Act, 1975 NRCD 323. See the following cases where the Supreme Court took pains to explain sections 10 and 14 of the Evidence Act, 1975 NRCD 323 referred to supra. 1. Dzaisu v Ghana Breweries Ltd [2007-2008] SCGLR 539, holding 1 at 546-547 on Section 14 of NRCD 323 per Sophia Adinyira JSC (as she then was) and 2. Ackah v Pergah Transport Ltd. [2010] SCGLR 728 holding 1 especially at 735-737 per Sophia Adinyira JSC on Section 10 of NRCD 323. The Plaintiffs late mother’s land it appears from the evidence before this Court lies at a place different from the land in dispute. I must note that in making the following findings this Court is seriously handicapped because the Will the subject-matter of this present litigation was not placed before the Court by way of evidence and the Courts have been admonished that a Court of Law is not interested in speculations and conjectures. See the case of Osei vs the Republic [2009] MLRG 24 CA at 217, Piesare JA. This Court notes that the evidence of both sides support the issue that it is the validity of the Will of George T. Anyankor which is the subject-matter of this litigation. SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 16 | P a g e I therefore find that the conveyance dated 30th September 1956 from Nii Tetteh James, Heaad of Leshie Quarters of La to Ernestina Atwei Adjetey is not the same property numbered as Z14, Lomo Adawu Street, La. I therefore resolve issue 1 against the Plaintiffs. As stated previously this Court cannot be put to speculation. Since I have not had the benefit of alleged Will as part of the evidence before the Court I cannot make findings in respect of issue 2. The same applies to additional relief one. The Plaintiff challenged the validity of the Will of George T. Anyankor. The duty was cast on the 1st Defendant who is the propounder of the will to lead evidence in due execution of the Will and the Plaintiffs would have to prove the invalidity of the Will they allege. Not a scintilla of evidence was proffered in line with In re Blay Miezah case and the plethora of cases. I cannot make any findings in respect of additional issue one. It is not in dispute that there were search results emanating from Lands Commission. Plaintiffs Exhibits B and L regarding the Conveyance made to Ernestina Atwei Adjetey. Search results does not confer title to land. The plethora of cases cited supra demonstrates how title to land is ascertained. I make no findings in respect of issue 3 as consideration of same has been rendered moot by the findings in issue 1. The Supreme Court’s decision in Amuzu vs Oklikah [1997-98] GLR 89 SC, where their Lordships after extensively reviewing authorities on the point took a progressive stand inter alia that registration did not create an absolute title since the Land Registry Act 1962 (Act 122) did not abolish the equitable doctrines of notice and fraud and neither did it confer on a registered instrument a state guarantee title. See Ampomah II vs Yeboah & Assibey [2014] 69 GMJ 137 p. 154 per Irene Danquah JA. The resolution of the issue of the identity of the land effectively resolves the case and I do not intend to deal with the issues of whether Land Registration Division of Lands Commission complied with its policy or estoppel per rem judicata. I find support in the SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 17 | P a g e decision of the Supreme Court in Mrs. Vicentia Mensah v. Numo Adjei Kwanko II, Civil Appeal No. J4/17/2016 (14th June 2017) where the Supreme Court speaking through Anin- Yeboah JSC noted at page 7 of the judgment as follows: “It must, however, be made clear that a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence if in its opinion few of the issues could legally dispose off the case in accordance with the law.” [7] Defendants Counterclaim 1. “A declaration that the Will of George Trebi Anyankor (deceased) dated 11/1/202 is valid. 2. An order declaring the Land Certificate No. GA 2993 Volume 8 Folio 260 which stands in the name of George Tebi(sic) Anyankor (deceased) as valid. 3. An order confirming Frank Trebi Anyankor, 2nd Defendant herein owner of the 2 chamber and hall apartment he build them. 4. Any other order or orders the Court would deem feet (sic)”. Where the Defendant has filed a counterclaim, per the rules of court he becomes a Plaintiff with respect to the counterclaim and the same burden that is placed on the Plaintiff is also placed on the Defendant with respect to the counterclaim. Failure by the Defendant to lead sufficient evidence in support of his counterclaim will lead to his counterclaim being dismissed. Osei vs Korang [2013] 58 GMJ 1 at page 22 where Ansah JSC (as he then was) notes thus: “Where in an action, the parties claim and counterclaim for declaration of title to the same piece of land, each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a counter claimant is as good as a plaintiff in respect of a property which she/he assays to make his/her own…” The Defendants seeks a declaration that the Will of the deceased George T. Anyankor is valid. No evidence was led in respect of the validity of the Will. In respect of relief iii the 2nd Defendant merely mounted the witness box and repeated his averments under oath. Having reviewed all the evidence and taking into consideration my analysis above, it is my SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 18 | P a g e conclusion that Defendants failed to adduced evidence to persuade the Court to grant the reliefs they seek. 1. Consequently, the first declaratory relief I of the counterclaim is dismissed. 2. The second declaratory relief ii is dismissed. 3. Consequently, reliefs iii, iv, and v endorsed on the Defendants’ Counter-claim are dismissed. [8] Conclusion From the totality of the evidence led, I hold that the Plaintiff’s claim fails entirely and same is accordingly dismissed. Specifically, reliefs I, ii, iii and iv are dismissed (SGD.) H/L EUDORA CHRISTINA DADSON (MRS) (JUSTICE OF THE HIGH COURT) SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 19 | P a g e SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – JUDGMENT 20 | P a g e