SAFENU VRS GHANA HIGHWAYS AUTHORITY (NR/BB/DC/A2/17/2023) [2024] GHADC 424 (3 May 2024)

IN THE DISTRICT COURT HELD ON WEDNESDAY THE 3RD DAY OF MAY, 2024 AT BIMBILLA BEFORE HIS WORSHIP PETER KOBBLAH AMETSOWU. SUIT NO. : NR/BB/DC/A2/17/2023 VICTORIA SAFENU, PER HER LAWFUL ATTORNEY SAFO MERCY } PLAINTIFF OF H/NO. BS/A 90, BIMBILLA VRS. GHANA HIGHWAYS AUTHORITY } DEFENDANT INTRODUCTION JUDGMENT 1. The parties to this suit are the lawful attorney of the Plaintiff resident in Bimbilla. The Defendant is a public entity known as Ghana Highways Authority carved out of former Public Works Department. The Plaintiff appointed Safo Mercy as her lawful attorney to prosecute this matter on her behalf. 2. On the 6th day of June, 2023 Plaintiff through her attorney issued out of the registry of this court a Writ of Summons against two Defendants (1. The Eastern Corridor Construction Company 2. Ghana Highways Authority) and claimed for the following reliefs: (i) Declaration of title to all that piece of land situate at Madina (South Nayilifong),Bimbilla known as plot No. 108 which shares boundaries with the eastern corridor road to the West, plot No. 107 owned by Zor Muniru to the North, to the East is plot No. 115 owned by Mr. Braimah and to the South is plot No. 109 owned by Mr. Iron is the bonafide property of Victoria Sapenu and that Safo Mercy her attorney. (ii) General damages of One Hundred Thousand Ghana Cedis (GHȼ100,000.00) for intentionally and arrogantly trespassing on the said land. (iii) Cost inclusive of legal fees. PLAINTIFF’S CASE. 3. The Plaintiff in her Writ of Summons and Summary of Subject Matter of Claim sought for a declaration of the disputed land and some other reliefs. It is the case of the Plaintiff that the land the subject matter of this dispute as described in relief (i) is her property known as plot No. 108 and shares boundary with the Eastern Corridor Road to the West. She went on to say that sometime in 2006 she acquired the said land from the Jilo Naa who is the allodial owner of the area. Subsequent to this, documents covering the said land were issued in her name. Plaintiff further averred that the said land was free from any encumbrances until 2014 when two persons including MEILIGA FIRDAUS and AFA FUSHEINI trespassed unto the land. Consequently, she sued them and had judgment. It is the same land that the Defendant has been brought to court for damages for trespass when Defendant’s contractor who was working on the Eastern Corridor Road used the said land as part of the newly constructed Roundabout. Prior to the expansion of the road Plaintiff was operating her chop bar with the assistance of her attorney. She alleged inconvenience and economic hardship she is facing because she no longer operates the chop bar. DEFENDANT’S CASE. 4. The Defendant, on the other hand, contended that the disputed land or plot has buildings of the Defendant and the Public Works Department (PWD) a statutory body out of which the Defendant was carved. That the metal container of the Plaintiff was placed on a portion of the land just at the junction and abuts the road. Defendant further averred that the portion of the land on which the Plaintiff placed her metal container shop is very critical for the ongoing road works. That the position is on intersection of two roads, which per the project design, is to be upgraded to a roundabout to ease traffic on the road. Also, Defendant stated that usually it gives Supplemental Assistance to owners of temporary structures to help them relocate their structures. Among the affected owners of these temporary structures is the Plaintiff who has so far benefited from this, but Plaintiff mounted this action claiming ownership of the disputed land with documents Defendant did not accept as credible proof. ISSUES FOR DETERMINATION. 5. The issues for determination identified from the processes filed by both parties include the following: (i) Whether or not the disputed land was legally acquired and belongs to the Plaintiff. (ii) Whether or not the Public Works Department (PWD) has its old buildings around the disputed land. (iii) Whether or not the Plaintiff’s attorney is clothed with capacity to prosecute this matter. STANDARD OF PROOF, EVALUATION AND ANALYSIS. 6. To resolve the issues identified above the court will analyse and evaluate both the fact and evidence put forward by both parties vis a vis the applicable laws. The issues are determined when the party with the burden to establish the existence or nonexistence of an allegation is able to produce credible evidence to that effect. This is provided under section 14 of the Evidence Act, 1975 (NRCD 323) as follows: “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” 7. In the case of ABABIO VRS AKWASI III (1994-95) GBR 774 at 777, AIKINS JSC stated the principle thus: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not he loses on that particular issue. See Bank of West Africa Ltd v Ackun [1963] 1 GLR 176”. 8. In effect, the task to produce sufficient evidence to prove or establish one’s case is the responsibility of the Plaintiff to adduce credible evidence to enable him or her win his or her case on the balance of the probabilities. 9. The burden of producing credible evidence by the parties as well as the burden of persuasion are determined on the preponderance of the probabilities. This is provided under section 12 (1) of NRCD 323 as follows: “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.” Subsection (2) of section 12 of NRCD 323 defines what preponderance of probabilities means as follows: "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.” 10. It is important to make mention of the fact that as the case progresses the then 1st Defendant through their lawyers on the 21/07/2023 filed an application for an order striking out the name of the 1st Defendant as a party to this suit. This application was moved on the 7th day of August, 2023 without objection from the Defendant striking out the name of the 1st Defendant as a party to this suit. 11. In resolving the dispute between the parties the court will first tackle issue (iii) which deals with capacity that is, whether or not the Plaintiff’s attorney is clothed with capacity to prosecute this matter. It is trite that a person who goes to court must indicate the capacity in which he or she is suing. Capacity is very important and one thing that goes to the root of every matter. A person who comes to court without properly clothed with capacity will have his case struck out for want of capacity under Order 16 of the District Court Rules, 2009 (C.I. 59). Hence, the Plaintiff sued through her lawful attorney Safo Mercy. 12. I must state that the Power of Attorney was filed on 19/07/2023 save that the Power of Attorney did not meet some other statutory requirements set out in the Power of Attorney Act, 1998 (Act 549) and Stamp Duty Act, 2005 (Act 689). But what does the Power of Attorney Act, 1998 (Act 549) require of a valid power of attorney? Section 1 of Act 549 provides as follows: “Section 1 entitled Execution of Powers of Attorney.(1) An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorised by him in the presence of the donor. (2) Where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument. (3) Where the instrument is signed by a person authorised by the donor, two witnesses shall be present and shall attest the instrument. (4) The section shall apply in addition to any requirement under any enactment in respect of witnessing of an instrument creating power of attorney including any rules relating to the execution of instruments by bodies corporate.” 13. Section 1 of Act 549 (supra) requires the signatures of both the principal as donor and that of one witness who shall attest to the power of attorney. On the face of the Power of Attorney before this court it is the sign mark of the donor, that of the Commissioner for Oaths and the donee (Safo Mercy) that can be seen. The donee in the person of Safo Mercy is not required to sign any part of the document as required by law. Clearly, the conclusion would be that the power of attorney is defective because it does not meet the statutory requirements under section 1 of Act 549. See the case of ASANTE-APPIAH VRS. AMPONSAH [2009] SCGLR 90 at page 94. 14. Surprisingly, the donee of the Power of Attorney was the same person who thumb printed the instrument instead of the Plaintiff. The attorney admitted this under cross examination that she was the person who thumb printed the document. This is a portion of what transpired between the Plaintiff’s attorney and counsel for the Defendant on 08/08/2023: Q. Where is Victoria Safenu? Ans. She is in Volta Region, Mansi Kumasi. Q. Is she alive? Ans. Yes, she is alive. Q. Who thumb printed Exhibit ‘A’ Ans. I thumb printed it. 15. This act of the attorney is repugnant to the requirements of Act 549 and the Criminal Offences Act, 1960 (Act 29). It is highly unacceptable for a person to prepare a document in the name of another and present it before the court in judicial proceedings. 16. Counsel for Defendant in his written Address also raised the issue of capacity on the side of Plaintiff’s attorney. Counsel relied on plethora of authorities including HUSSEY VRS. EDAH [1992-1993] PART 4 GBR 1703 AT 1714, ASANTE VRS. MAERSK [2003-2005] 2 GLR 43-58, ASANTE-APPIAH VRS. AMPONSAH [2009] SCGLR 90 at page 94 and section 1 of Act 549 all to the effect that the power of attorney (Exhibit ‘A’) is invalid, and therefore should be rejected by the Honourable court for same could not provide legitimate basis on which Safo Mercy could prosecute this instant action. 17. But what is the recent position of the law on this statutory requirements under section 1 of Act 549, especially the requirement of one witness who shall be present and shall attest the instrument? The Supreme Court has since departed from Asante-Appiah’s case (Supra) and concluded that a Commissioner for Oaths is more a credible person as a witness to attest to power of attorney than one stated on a paper signed by the donor and attested by a witness without an oath. This conclusion was made in the case of FLORINI LUCA & 1 OR VRS. MR. SAMIR & 2ORS, Civil Appeal No.J4/49/2020, dated 21st April 2021 where the apex court, per Pwamang JSC, held as follows: “That holding, in our clear thinking, is not right and just having regard to the purpose and plain meaning of the provisions of Act 549 as a whole. If our decision in Asante-Appiah v Amponsah has been interpreted as disqualifying a commissioner for oaths from acting as a witness to a power of attorney, or to mean that a power of attorney cannot be validly constituted by a statutory declaration sworn to before a commissioner for oaths, then we hereby depart from that decision pursuant to Article 129 (3) of the Constitution. In our view, a power of attorney constituted by a statutory declaration attested by a commissioner for oaths or Notary Public has more gravitas than one stated on a paper signed by the donor and attested by a witness without an oath so it cannot be right and just to hold such a power of attorney invalid.” 18. Had the Plaintiff herself thumb printed Exhibit ‘A’ and not witnessed by a witness sworn before a Commission for Oaths, Exhibit ‘A’ would have passed the validity test per the case of Florini Luca (supra). On the strength of the above authorities, I am emboldened to hold that the power of attorney (Exhibit ‘A’) in this instant case does not meet the requirement under section 1(2) of Act 549 and same is not valid for the fact that the Plaintiff did not sign or thumb print the document herself. The invalidity of the said power therefore does not cloth the donee, Safo Mercy, with capacity to prosecute this matter on behalf of the Plaintiff. 19. Also, granted that the power of attorney is valid, it has not been stamped as required by section 32 of the Stamp Duty Act, 2005 (Act 689). Subsection 1 of Act 689 tasks the judge, arbitrator or referee to take notice of an omission or insufficiently stamped documents produced before them as evidence. Subsection 1 reads as follows: “Where an instrument chargeable with a duty is produced as evidence (a) in a court in a civil matter; or (b) before an arbitration or referee, the judge, arbitrator or referee, shall take notice of an omission or insufficiency of the stamp on the instrument. 20. In their Written Address counsel for Defendant forcefully argued for insufficiently stamped instruments affecting land which renders Exhibits ‘A’ and ‘A1’ inadmissible. Counsel relied on the authorities of NII AFLAH II VRS BENJAMIN K. BOATENG, Civil Appeal no. J4/08/2022 dated 22nd day of March 2023 and WOODHOUSE LTD VRS. AIRTEL GHANA LTD [2017-2018] among others which cases have put the issue of the admissibility of unstamped documents to rest. 21. The Supreme Court in the cases of Lizori and Woodhouse (supra) was emphatic that stamping is a condition precedent for the admissibility of documents and instruments liable to stamping and therefore trial courts have no discretion to admit such documents subject to stamping. 22. As a trial court and magistrate I have dutifully taken notice of the fact that the power of attorney chargeable to duty has not been stamped. The admissibility of the power of attorney in this case is dependent upon payment of duty and subsequent stamping of same. For the fact that the Power of Attorney is invalid and has not been stamped same cannot be admitted, and to accept Safo Mercy as Plaintiff’s lawful attorney to prosecute this matter on Plaintiff’s behalf. See the case of FRANCIS APPIAH-MENSAH VRS. GIFTY ANANE-WIREKU, suit No. J4/28/2023 dated 19th day of July 2023. 23. But can the court proceed to adopt and accept the Witness Statement of Safo Mercy to be Plaintiff’s witness in this case? The position of the law, however, is that a plaintiff can succeed based on the testimonies of his witnesses without himself testifying. This is supported by the case of IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU AND OTHERS VRS. KOTEY AND OTHERS [2003-2004]1 SCGLR 420-448, where the court held that: “There was no rule of law stating that a party would succeed in his case only if he testifies at the trial.” 24. Also, in the case of ROBERT AMASSAH KOTEY VRS. ISAAC MANTEY & 3ORS, suit No. FAL/23/12, dated 26th day of November 2018, the High Court treated the witness statement of plaintiff’s attorney as evidence of a witness for the plaintiff but not evidence tendered in the capacity as an attorney for the Plaintiff. The learned high Court judge arrived at this position by relying on the case of ADJEI FIO VRS. MATE TESA [2013-2014] 2 SCGLR 1537. 25. On the basis of the above authorities I have no option than to follow these decisions, and treat the evidence of Safo Mercy, the supposed attorney of the Plaintiff as evidence of a witness for the Plaintiff. 26. The next issue to resolve are issues (i) that is, Whether or not the disputed land was legally acquired and belongs to Plaintiff and (ii) Whether or not the Public Works Department (PWD) has its old buildings around the disputed land. 27. The principle of law is that in land suits, the Plaintiff is required to prove his or her case by adducing credible evidence. In the case of DOWUONA II V OLEWOLON (2006-2007) 7 MLRG 1534, the Supreme Court succinctly stated as follows: “It is trite learning, plaintiff seeking title, the onus rests upon him to prove his case.” 28. Basically, there are two main essentials which the plaintiff is required to prove. These are his root of title and the identity of the land he claims. On root of title, see the case of HENRY DOE SAMLAFO VRS. GREDA AND ANOR (2010) 26 GMJ 94 CA. 29. Related to root of title, is the identification of the land in dispute, this was established in the case of BISSAH VRS. GYAMPO III (1964) GLR 381 where the Supreme Court held at Holding 1 as follows: “It is the duty of a plaintiff who claims a declaration of title to land to identify clearly to the court the area of land to which his claim relates…” I observed that the Plaintiff traced her root of title to the disputed land through the traditional leaders, specifically the Jilo Naa. Plaintiff tendered exhibit ‘B’ entitled Nanumba Skin Land/Plot Allocation to establish her root of title. The Plaintiff also described the boundaries of the disputed land which shares boundaries with the Eastern Corridor road to the West, plot No. 107 owned by Zor Muniru to the North, to the East is plot No. 115 owned by Mr. Braimah and to the South is plot No. 109 owned by Mr. Iron. But does the satisfaction of these requirements for proof of land ownership make a strong case for the Plaintiff? The answer is no. 30. The Plaintiff’s exhibits ‘B’ and ‘C’ entitled: Nanumba Skin Land/Plot Allocation and Site Plan, respectively, are documents affecting land which are chargeable to duty and therefore needed to be stamped at the Lands Commission to pass the test of admissibility. Again, I refer to the authorities cited at paragraphs 19, 20 and 22 of this judgment in respect of insufficiently stamped documents tendered as evidence. Hence, the purpose of tendering exhibits ‘B’ and ‘C’ cannot be accepted for any probative value to be placed on them. 31. The Defendant, on the other hand, contended that the land in dispute is a government land, and dotted in the area where the disputed land is located are buildings of Ghana Highways Authority and Public Works Department which buildings have been there for decades. Defendant vehemently maintained that the proof of ownership of the disputed land presented to them was not convincing and therefore rejected it. This proof of ownership documents presented to Defendant included an application for a lease title by the Plaintiff to Lands Commission, dated 18th July, 2006. This was exhibited at paragraph 15 of Defendant’s Witness Statement but Plaintiff did not exhibit this document in her Witness Statement. 32. The court, upon oral application by counsel for Defendant for locus in quo, on 18/10/2023 moved to site for the said inspection to have firsthand information related to the disputed land. The court observed that where the disputed land was located now part of the newly constructed roundabout, there are old government buildings scattered around which belong to PWD now Ghana Highways Authority. 33. For the benefit of appreciating the reasoning of this judgment, the contents of the said application to Lands Commission for a lease title by the Plaintiff dated 18th July, 2006 are reproduced and read as follows: Dear Sir, APPLICATION FOR A LEASE TITLE PLOT NO. 108 SOUTH NAYILIFONG (MADINA) RESIDENTIAL AREA-YENDI. I wish to apply for a lease title in respect of my site shown edged red on the attached site plan. I wish to state that the area has not yet been developed. Kindly consider me as a proposed lessee, pending on the readiness of the area for development. I hope this my humble application will meet your favourable consideration and approval. Yours faithfully, Sgd. MADAM VICTORIA SAFENU THE SECRETARY LANDS COMMISSION DEPARTMENT P.O.BOX 164 ……. Cc: The Dist. Town Planning Officer Town & Country Planning Dept. Post Office Box 70 Yendi 34. Plaintiff in her evidence and to prove her case tendered a copy of a judgment of this court in her favour in respect of the disputed land marked as exhibit ‘D’. She obtained this judgment against two other defendants when they trespassed unto the disputed land in 2014. Notwithstanding this judgment in favour of Plaintiff, exhibit ‘2’ which was erroneously marked as exhibit ‘B’ clearly implies that the disputed land is a government land. As a government land it is the state agency or institution constitutionally mandated that can grant leases to individuals upon consideration and subsequent approval. 35. Plaintiff being very much aware of the fact that the disputed land is government land applied to the Lands Commission to regularize her ownership of the land. But at the time of writing this judgment there is no such lease document in the name of the Plaintiff to establish her alleged ownership of the disputed land. Plaintiff made strong argument to the effect that she acquired the disputed land from the chiefs who are the allodial title holders. Plaintiff’s attorney was quizzed under cross examination in respect of Exhibit ‘2’ and these are her responses recorded on 17/10/2023: Q. If any person sold that portion of land to you then the person erred. A. The land belongs to the chiefs and they are the people who sold same to us. Q The plaintiff wrote to the Lands Commission sometime in 2006 requested that she be granted a lease in respect of the plot number 108, not so? A. Yes. I was not the one who applied for it but my mother (Plaintiff) and the husband. Q. Your mother, the plaintiff made such application to the Lands Commission because she recognized the fact that the said land was situate at state land. A. I do not know much about this document that was why I said it was my mother and the husband who did the transaction. Q. As we speak, the Lands Commission has not yet granted any lease in respect of the subject property to the plaintiff, not so? A. I do not know much about this document counsel is saying. I was not told by my mother and the husband. 36. I must state that chiefs in Ghana are custodians of most lands, government as well by Executive Instruments compulsorily acquired some lands for specific purposes and reasonable compensations paid to those land owners. In the event where government fails to use the land so acquired for the purpose of which it was acquired, the land reverts to the owners in the same manner it was acquired. In this instant case there is no evidence whatsoever that the allodial holders had their land back and for that matter can demarcate same for prospective individuals for valuable consideration. 37. Exhibit ‘2’ confirms the Defendant’s assertion that the disputed land is a government land and dotted in the proximity of the subject matter of this dispute are government bungalows. And under cross examination Plaintiff’s sole witness agreed with counsel for Defendant that there are government bungalows around the disputed land. This is a portion of what transpired between counsel and Plaintiff’s witness on 18/10/2023: Q. Put: that the disputed land does not belong to the plaintiff. A. It is for the plaintiff. Q. In any case the Defendant restricted its construction project to existing road reservation which belongs to it. Ans. It is not true Q. I believe you have seen all the government bungalows dotted in the vicinity of this disputed land. Ans. it is true. The plots are more than 100 which they sold to individuals which the disputed land is part. We bought this disputed land from the chiefs. They are the same people who sold the land to other individuals. We were given documents that cover the disputed land. We have been on the land operating for the past 17 years. Q. The only thing the plaintiff was doing on the land was the temporary structure she was selling food, not so? Ans. It is true. It is because the plaintiff own the land that was why she occupied the land without any permission from anybody. Q. Put: that the government has not sold any portion of its land within the enclave to anybody whatsoever. Ans. It is the chiefs who own the lands not government. Even when the government wants lands it takes it from the chiefs. 38. In land cases the person making the alienation should be clothed with the necessary capacity to do so else the principle of nemo dat quod non habet will prevail against him or her. The nemo dat quod non habet rule is paramount in land transactions a person cannot give what he does not have. This principle was summed up by the Supreme Court in the consolidated case of EDITH & ANO. VRS KEELSON AND YIMAH & ANOR VRS. KEELSON [2011] dated 16th March 2011 thus: ‘It can thus be safely concluded that, the principle nemo dat quod non habet applies whenever an owner of land who had previously divested himself of title in the land previously owned by him to another person, attempts by a subsequent transaction to convey title to the new person in respect of the same land cannot be valid. This is because an owner of land can only convey what he owns, and having already divested himself of title, the new occupant … cannot revoke what his predecessor had done.’ 39. On the basis of the Latin maxim ‘Nemo dat quod non habet’, the traditional rulers or chiefs who erroneously conferred ownership of the disputed land to Plaintiff had no interest or capacity to do so. A person who does not have adequate ownership of a property cannot transfer same to someone else to make it valid. CONCLUSION. 40. The court, after evaluation and analysis of evidence adduced by both parties, has found that the Plaintiff’s evidence is sufficiently negated by that of the Defendant. It is highly improbable that the Plaintiff legally acquired the disputed land which formed part of government land with government bungalows in close proximity. 41. Accordingly, the court makes the following orders: (i) Plaintiff’s action against Defendant for declaration of title of the disputed land and damages fails and same is dismissed in its entirety. (ii) No order as to Cost. SGD HIS WORSHIP PETER KOBBLAH AMETSOWU DISTRICT MAGISTRATE COURT