Yirenkyi and Another (all Suing Per Their Lawful Attorney Asare Kwaku Acquah Vrs Bosompem and Another [2023] GHAHC 11 (31 January 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE LAND DIVISION HELD IN ACCRA ON TUESDAY, THE 31ST DAY OF JANUARY, 2023 BEFORE HIS LORDSHIP ALEX OWUSU-OFORI (JA) JUSTICE OF THE APPEAL COURT SITTING AS AN ADDITIONAL HIGH COURT JUDGE SUIT NO.: LD/0535/2016 1. MRS. CONNIE YIRENCHI - PLAINTIFFS 2. MR. LAWRENCE YIRENCHI (All suing per their Lawful Attorney ASARE KWAKU ACQUAH) Hse No. 77, Blue Road City Bujumbura, Central Region VRS 1. STEPHEN BOSOMPEM & ANOR. - DEFENDANTS 2. GEORGE ANIM PARTIES: PARTIES: PLAINTIFFS’ LAWFUL ATTORNEY ABSENT 1ST DEFENDANT PRESENT 2ND DEFENDANT ABSENT ============================================================== Page 1 of 24 J U D G M E N T 1.0 The Plaintiff Mr. and Mrs. Yirenkyi who are married couples ordinarily resident in the United States of America through their lawful Attorney, Asare Kwaku Acquah issued a writ of summons at the Court’s Registry dated 8th March 2016 against the Defendants claiming for the following reliefs :- a) Declaration of title to the property b) Perpetual Injunction restraining the Defendants, their assigns, privies and all those claiming title through them from dealing with the property. c) Damages for trespass. d) Damages for breach of contract e) Cost including legal fees. 2.0 The 1st Defendant on the 1st day of December 2016 with the leave of the Court filed a defence to Plaintiff’s action when he succeeded in having a judgment obtained by the Plaintiff in default of defence set aside by the Court. The 1st Defendant however did not file a counterclaim. PLAINTIFF’S CASE 3.0 The case of the Plaintiffs through their Lawful Attorney is that by a Lease Agreement made sometime in 2009 between Nai Kwashie Page 2 of 24 Budu, Ebusuapanin of Chocho Botcway family and the Plaintiffs, leased all its interest in the property described as all that piece or parcel of land situate lying and being at Awutu Bereku in the Awutu Senya District in the Central Region of Ghana starting from Pillar SGC1 ICCE/2/01/2 measuring 16061.14 feet more or less to LCY4 measuring 405.32 feet more or less to LCY1 measuring 302.15 feet more or less to LCY2 measuring 395.59 feet more or less to LCY3 measuring 324.22 feet more or less. Then closed at Pillar SGC A 195/08/1 measuring 18878.35 feet more or less approximate area of 1.41 acres more or less. 4.0 It is the case of Plaintiff that the 2nd Defendant signed as a witness to the said agreement. They immediately took vacant possession of the property by constructing a two-bedroom house on the property which was occupied by their lawful attorney till date. 5.0 Plaintiffs aver that sometime in 2012 they discovered that their Lease Agreement was missing from their home in the United States of America. That, pursuant to this development they informed their lessors who agreed to prepare a new lease covering the property for them. 6.0 That true to their word sometime in 2012 their lessors prepared a new lease covering the property for them for a consideration of GH¢5,000.00. This new lease prepared, the Plaintiff says was again signed by the 2nd Defendant. Page 3 of 24 7.0 Plaintiffs averred that they remained in undisturbed possession of the property until 2015 when the 1st Defendant came onto the property with heavily armed thugs to demolish a poultry farm that their caretaker had constructed on the property and a storeroom that they had constructed to store their building materials. 8.0 It is their case that the 1st Defendant informed their caretaker that the 2nd Defendant who succeeded Nai Kwashie Budu as Ebusuapanin of the Plaintiffs lessors sold the property to him. 9.0 Plaintiffs contend that the 2nd Defendant perpetuated fraud on them by selling the property to the 1st Defendant as the 2nd Defendant knowing very well that his predecessor has leased the property to the Plaintiffs for valuable consideration and being a signatory to the said lease between his predecessor and the Plaintiffs yet went ahead to lease the same property to the 1st Defendant knowing very well that his predecessor has leased the said property to the Plaintiffs. 10.0 Plaintiff stated further that when he confronted the 2nd Defendant about the said development on the property, the 2nd Defendant confirmed the sale of the land to the 1st Defendant and offered to relocate the Plaintiffs onto a different land further away from the property. 11.0 Plaintiff stated, the property being a family land belonging to the Chocho Botcway family and the 2nd Defendant having divested the family’s interest in the property to the Plaintiffs the 2nd Defendant Page 4 of 24 does not have any interest in the land to divest same to the 1st Defendant. 12.0 The Plaintiff further claim that the 2nd Defendant having witnessed the Lease Agreement between his predecessor, Kwashie Budu, Ebusuapanin of Chocho Botcway family and the Plaintiffs is estopped from leasing same to the 1st Defendant. THE 1ST DEFENDANT’S CASE 13.0 In the Statement of Defence as well as the witness statement filed, the 1st Defendant stated that sometime in the year 2011 he needed a parcel of land to buy and was introduced to the Chocho Botcway family of Awutu Breku with its head being the 2nd Defendant. 14.0 That the family showed him the subject matter and gave him a site plan on same. And with the site plan he conducted a search at the Lands Commission, Cape Coast and discovered that the land was free from encumbrances. He then became convinced and concluded the transaction with the family on the land. He paid a total amount of GH¢58,000.00 as consideration for the acquisition of the subject matter. 15.0 It is 1st Defendant’s case that he was put in possession of the land and he erected corner pillars on same since the year 2011 and the land being bushy and unoccupied, regularly cleared same of weeds. The family eventually executed in his favour a Deed of Conveyance Page 5 of 24 dated 16th day of August 2014 when he eventually completed payment for the land. 16.0 1st Defendant averred that he caused the land to be registered in his name at the Lands Commission, Cape Coast without any let or hindrance. That 2nd Defendant actually accompanied him to the Lands Commission for the registration to be effected. 17.0 That in 2016 he gathered building material on the land purposely for the construction of a building on the land when Plaintiffs through their attorney started harassing him with police so he had to stop the construction. But whilst the matter was still pending the Attorney in connivance with the Police hurriedly used his building materials to construct a small building on the boundary of the land. 18.0 It is 1st Defendant’s case that Plaintiffs Attorney continued with the said unlawful development even in the face of an interlocutory injunction order until he was cited for contempt and accordingly convicted. 19.0 1st Defendant says that Plaintiffs are not entitled to the claims endorsed on the writ of summons at all. 20.0 The 2nd Defendant having entered appearance to the writ and filed a statement of defence passed on. His lawyer Joseph Nicholas Nkrumah also died during the pendency of the suit and it is on record that no effort was made to substitute the 2nd Defendant. Briefly this was the case for the Plaintiffs and the 1st Defendant. Page 6 of 24 21.0 After the close of the parties’ case the following issues were set down for the Court’s determination. 1) Whether or not Plaintiff acquired the subject matter in 2009; 2) Whether or not the 2nd Defendant’s family executed a Lease Agreement for Plaintiffs in 2009; 3) Whether or not 2nd Defendant signed as a witness in the said 2009 lease agreement; 4) Whether or not the 1st Defendant in 2011 genuinely acquired the subject matter from 2nd Defendant’s family; 5) Whether or not 1st Defendant is a bona fide purchaser for value without notice; 6) Any other issues following from the pleadings; 22.0 The 1st Defendant in this suit though did not file a counterclaim to the Plaintiffs action from the pleadings and witness statement filed are both claiming title to that same piece or parcel of land they both alleged acquired from the same grantors the Chocho Botcway family of Awutu Breku in the Awutu Senya District in the Central Region. BURDEN OF PROOF 23.0 In Civil cases the general rule is that the party who in his pleadings or his writ raises issue(s) essential to the success of his case assumes the onus of proof. Page 7 of 24 See the Cases of FAIBI V STATE HOTELS CORPORATION (1968) GLR pg. 471. 24.0 In ACKAH VS PERGAH TRANSPORT & OTHERS (2010) SCGLR 728 AT 738 Sophia Adinyira JSC delivered herself as follows: “It is the basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of fact in issue that has the quality of credibility short of which his claim may fail… It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable that its non-existence.” 25.0 This general position of the burden of proof has also been affirmed by Kpegah J. A (as he then was) in the case of ZABRAMA V SEGBEDZI (1991) 2 GLR at Pg. 246 it was held as follows: “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden” 26.0 The Supreme Court case of: KLAH VRS PHOENIX INSURANCE CO. LTD. (2012) SCGLR 1139 is also worth mentioning on this principle. The Court held that “where a party makes an averment capable of proof in some positive way e.g.: producing document, description of things, reference to other facts, instances and his averment is denied, he does Page 8 of 24 not prove it by merely going into the witness box and repeating the averment on oath by his witnesses. He proves it by producing other evidence of facts and circumstances from which the Court can satisfy that what he avers is true”. 27.0 The Court also finds it very relevant to make reference to the Supreme Court case of: JASS CO. LIMITED VRS APAAU (2009) SCGLR 265 where the Court in holding (1) stated the law on proof in land cases thus: - “the burden of proof was always on the Plaintiff to satisfy the Court on a balance of probabilities in an action for a declaration of title to land. Where the Defendant has not counterclaim and the Plaintiff has not been able to make out a sufficient case against the Defendant, then the Plaintiff claim would be dismissed. Whenever the Defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the Defendant just as it was used to evaluate and assess the case of the Plaintiff against the Defendant.” 28.0 Also in the Supreme Court case of YEHANS INTERNATIONAL LIMITED VRS MARTEY TSURU FAMILY & ANOR. (2018) Suit No. J4/34/2018 dated 24th October 2018 Adinyira JSC had this to say: - “It is settled and trite law that a person claiming title has to prove i) ii) iii) his root of title mode of acquisition and various acts of possession exercised over the land”. Page 9 of 24 29.0 In our jurisprudence the law on proof has also received statutory backing as the maxim has always been that “he who alleges must proof” 30.0 Section 14 of the Evidence Act 1975 (NRCD 323) provides that: - “except 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 that party is asserting.” 31.0 The Supreme Court in the case of ADWUBENG V. DOMFEH (1996/97) SCGLR pg. 660 emphasised that by the combine effect of Section 11(4) and 12 of the Evidence Act the standard of proof in civil cases is proved by preponderance of probabilities. 32.0 The Plaintiff at the close of pleadings in the Application for Directions dated 30th June 2012 set down six (6) issues in all for the Court’s determination which includes any issue(s) flowing from the pleading. 33.0 This Court being fortified under the decisions of: IN RE ASAMOAH (dec’d) (2013/14) 2 SCGLR 909 and FATAL V. WOLLEY (2013/2014) 2 SCGLR 1070 which states: - The Courts are not tied down to issues identified and agreed upon at Pre-trial. They can within the scope of the pleadings and evidence on record determine the relevant issues for trial. 34.0 Issues 1, 2 and 3 can conveniently be merged for the Court’s resolution as to 1) Whether or not the Plaintiff acquired the subject matter in 2009 and whether Chocho Botcway family executed a Lease Agreement for Page 10 of 24 the Plaintiff in 2009 with 2nd Defendant signing as a witness for the family. 2) Whether or not the 1st Defendant genuinely acquired the land from the 2nd Defendant’s family in 2011 and whether 1st Defendant can claim to be a bonafide purchaser for value without notice to any defect in the grantors title to the land. 35.0 One issue which was not specifically set down as an issue at the Application for Directions stage, but featured prominently when evidence was being led and cannot be simply swept under the carpet and proceed without resolving same is on the issue of the capacity of the Lawful Attorney, ASARE KWAKU ACQUAH to institute this action for and on behalf of the married couples as Plaintiffs who are resident in the U. S. 36.0 Counsel for the Plaintiffs in his written address filed in the Court dated 28th October 2022 submitted that even though the issue of capacity was not set down as an issue for determination, the Defendant having raised same in his written submission, they are obliged to respond appropriately. 37.0 Counsel for the Plaintiff argued that prior to the interlocutory processes and the filing of witness statements the Defendant had not raised the issue of capacity of the Plaintiffs Attorney to maintain the suit on behalf of the Plaintiffs. 38.0 It was only after the witness statement of Asare Kwaku Acquah was adopted as his evidence in chief that during cross examination on his Page 11 of 24 testimony on 31st March, 2021 that the Defendant raised the issue of the Attorney’s capacity. 39.0 Counsel submitted that the Court after hearing arguments on the matter adjourned the Suit to 13th May, 2021 at 10:30am for a Mini Trial to determine the issue of capacity since it was raised during cross examination. 40.0 Counsel argued that the records will bear witness that at the next adjourned date counsel for the Defendant objected to holding of a mini trial for the Asare Kwaku Acquah’s Power of Attorney to be tendered and be cross examined on, in effect the Defendant abandoned the issue of capacity and elected to proceed with cross examination. It is therefore to them strange that the Defendant will turn around to argue the issue of capacity in his written submission. 41.0 This Court in fact is not aware where at a point in time of the trial the issue of capacity of the attorney of the Plaintiffs coming up where the 1st Defendant through his counsel emphatically stated that he is abandoning the issue of capacity. 42.0 This is a legal issue which even if not raised by the parties from the inception of the trial and it comes up subsequently during trial the Court suo motu can raise it. 43.0 The 1st Defendant through his counsel during cross examination on the Attorney’s evidence in chief when his witness statement was tendered in evidence alleged that he has not been given Power of Page 12 of 24 Attorney by the Plaintiffs to mount the instant action on their behalf; Thus Asare Kwaku Acquah lacks capacity to file the suit. 44.0 THE BLACK’S LAW DICTIONARY 8TH EDITION defines capacity as follows:- 1. The role in which one performs an act. 2. The power to create or enter into a legal relationship under the same circumstances in which a normal person would be the power to create and enter into such relation. 3. The mental ability to understand the nature and effect of one’s act. 45.0 In the Supreme Court case of ASANTE APPIAH VRS AMPONSAH alias MANSAH (2009) SCGLR 90. The apex Court in holding (2) stated as follows:- “where the capacity of a person is challenged, he has to establish it before his case can be considered on its merit”. “In the instant case the Defendant challenged the capacity of the Plaintiff right from the inception of the trial. The challenge was explicit in the 1st paragraph of the Statement of Defence and in the cross examination of the person who gave evidence on his behalf as the holder of the Power of Attorney which has been declared as invalid and inadmissible. The Plaintiff had to establish his capacity before he could expect the trial Court to have considered its case on its merit. He woefully failed to establish the capacity in which he sued by his reliance on the invalid “Power of Attorney””. Page 13 of 24 46.0 Also in the Court of Appeal case of MOZAMA DISCO CHRISTO CHURCH VRS JEHU APPIAH (2010) MLRG 56 at 71 & 73. The Court per Kusi Appiah J. A stated as follows:-“It is trite law that the issue of capacity or locus standi is a point of law which can be raised at any time or stage of the trial and even after judgment … A plea of locus standi is in the nature of objection in limine. It strikes at the very root of the writ of civil summons. It is like a plea as to jurisdiction. If it is sustained that must be the end of the matter. The plea connotes that the capacity of the Plaintiff to bring this action is challenged …in such a situation the Plaintiff cannot succeed without proving the relevant capacity to sue.” 47.0 In NII KPOBI TETTEH TSURU III (Subst. by NII OBODAI IV for and behalf of LA STOOL & 2 ORS. VRS AGRIC CATTLE & 4 ORS. (Civil Appeal No. J4/15/2019) dated 18th March 2020, the Supreme Court in discussing the issue of capacity had this to say:- “The law is trite that capacity is a fundamental and crucial matter that affect the vey root of a suit and for that matter, it can be raised at any time even after judgment on appeal. The issue is so fundamental that when it is raised at an early stage of the proceedings a Court mindful of doing justice ought to determine that issue before further proceedings are taken to determine the merits of the case. Thus, a Plaintiff whose capacity is challenged needs to adduce credible evidence at the earliest opportunity to satisfy the Court that it had the requisite capacity to invoke the jurisdiction of the Court. If this is not done, the entire proceedings founded on an action by a Plaintiff without capacity would be nullified should the fact of non-capacity be proved.” Page 14 of 24 48.0 When the Plaintiffs’ Attorney was in the witness box being cross- examined by counsel for the 1st Defendant, this is an extract at pg. 2 of the record of proceedings dated 31st March 2021. “Q: You do not have any exhibits attached to your witness statement filed on the 22nd June 2018; is that correct? A: I have. Q: Take a look at your witness statement. Tell this court if you have attached any document to the said witness statement. A: I did not attach it in my statement but I gave it to my lawyer. Q: What document are you claiming you have given to your lawyer? A: It is an indenture given to me by my Auntie the Plaintiff concerning that land. Q: Is that the only document you gave to your lawyer? A: Yes my lord. Q: The Plaintiff is suing through you as a Lawful Attorney; is that correct? A: Yes my lord. Q: Did the Plaintiff give you the authority to issue this writ verbally? A: She gave me a Power of Attorney and also told me on phone. Q: And the said Power of Attorney, when were you given same? A: I do not have the date but I have a copy attached to my documents. Page 15 of 24 Q: Where was this Power of Attorney executed? A: It was sent to me from the United States of America. Q: I put it to you that no Power of Attorney was executed in your favour to institute this action. A: I was given the power of attorney. Q: Where is the Power of Attorney? Without an answer coming forth the Court repeated the question asked By Court: Where is the Power of Attorney? A: I gave it to my lawyer. Counsel for 1st Defendant continued: I am suggesting to you that at the time of issuance of this writ you did not have any Power of Attorney. A: I had it long time ago. Q: I am suggesting it to you further that if you had any Power of Attorney you would have attached it to your witness statement. A: I had it long time ago. Q: I therefore put it to you that you do not have the capacity to institute this action. A: That is not true.” 49.0 This Court hold the view that the issue of capacity is the lifeblood of every litigation and once it is challenged, the Plaintiff is legally Page 16 of 24 obliged to lead cogent evidence to establish same in order to resuscitate such an action. 50.0 In my humble view, from the authorities cited above the issue of capacity when it is challenged is so fundamental to the sustenance of the suit, it is non-negotiable as counsel for the Plaintiff wants to describe it in his written address filed that “he thought the Defendant has abandoned it” When a mini-trial was not conducted for same to be proved. 51.0 It is a burden cast on the Plaintiff to satisfy the Court in this case that at the time he issued the writ for and on behalf of the Plaintiffs he was the Lawful Attorney to do so. 52.0 Thus, for the attorney to simply say he had the Power of Attorney long ago and that he gave it to his lawyer without attaching it to his witness statement for verification is simply to beg the question. 53.0 I have gone through the documents filed and its attachments but I have seen none. 54.0 I will say it is too late than never for the 1st Defendant to raise the issue of the capacity of Asare Kwaku Acquah to mount the instant action for and on behalf of the Plaintiff, because the authorities cited all sing with one voice that it can even be raised after judgment is delivered. The attorney having failed to discharge the burden placed on him by law for failing to adduce cogent evidence that he in fact wielded the power to mount this action I find the suit to be wobbling with no legs to stand on. Page 17 of 24 55.0 The reason given should have truncated any further discussion on the issue(s) raised but the Court nonetheless will proceed to find solution to the issues raised. 56.0 On the issue whether or not the Plaintiff acquired the subject matter in 2009 and whether Chocho Botcway family executed a Lease Agreement for the Plaintiff in 2009 with 2nd Defendant signing as a witness for the family? 57.0 It is Plaintiffs’ case that by a Lease Agreement made sometime in 2009 between the Nai Kwashie Budu, Ebusuapanin of Chocho Botcway family and the Plaintiffs all its interest in the property described in the statement of claim was leased to them. 58.0 That they took vacant possession of the property by constructing a two bedroom house on the property which has been occupied by their attorney till date. 59.0 It is Plaintiffs case that sometime in 2012 they discovered that the lease agreement was missing from their home in the United States of America, they informed their lessors who agreed to prepare a new lease for them and this they did for a consideration of GH¢5,000.00. 60.0 That in the new lease prepared, the 2nd Defendant again signed as a witness. To establish their claim to the land, Plaintiffs called two (2) witnesses, their caretaker Asare Kwaku Acquah whom they placed in two-bedroom house they built on the land and Kwame Wiredu who is a member of the Chocho Botcway family who they claimed facilitated the acquisition of the disputed land. Page 18 of 24 61.0 The 1st Defendant denied that the Plaintiffs in 2009 acquired any parcel of land from the Chocho Botcway family being the subject matter of the instant suit which got missing in the United States of America where they reside. 62.0 That the Plaintiff failed to produce a copy or a photocopy of the said original document allegedly made for them in the year 2009. 63.0 That they equally failed to exhibit a copy of the purchase receipt from the grantors relating to the 2009 transaction. 64.0 1st Defendant also say that what was tendered in evidence by the Plaintiffs Exhibit “B” purported to be emanating from the Chocho Botcway family, the grantors supposedly being a replacement to the 2009 documents has nothing in it indicating that it was a replacement of a supposedly missing one. 65.0 PW2 Kwame Wiredu in paragraph 4 of his witness statement stated that by a Lease Agreement made sometime in 2009 between the Nai Kwashie Budu, Ebusuapanin of Chocho Botcway family and the Plaintiffs, the Plaintiffs leased all its interest in the property the subject matter of dispute to the Plaintiff for a consideration of GH¢70,000.00. 66.0 That a deed of conveyance was executed for the Plaintiffs and documents the Plaintiffs claimed is missing from their home in the United States of America. Page 19 of 24 67.0 In my humble view it will be very difficult for the Court to come to a conclusion that a Deed of Conveyance was in fact executed by the Chocho Botcway family in favour of the Plaintiffs in the year 2009. 68.0 The person whose name was mentioned as playing a dominant role in the execution of the alleged conveyance in 2009 did not survive the action and was also not substituted. 69.0 The Plaintiffs claim he succeeded Nai Kwashie Budu as the Ebusuapanin of the Chocho Botcway family of Awutu Breku and he witnessed the transaction between them and the family and by selling the same land to the 1st Defendant has perpetuated fraud on them. 70.0 The Plaintiffs failed to tender at least a photocopy of the said indenture dated 2009 to enable the Court draw an inference that in fact what they are alluding to is true. 80.0 The Plaintiff through their attorney did not also tender in evidence any receipt of a whooping amount of GH¢70,000.00 which they claimed they paid as consideration for the acquisition of the land in 2009. 90.0 The 2nd Defendant is deceased and any testimony against him comes with its own legal ramifications. There is no document before me dated 2009 to assist the Court in holding that he (2nd Defendant) signed the said document. 91.0 I will discuss briefly the issue whether the 1st Defendant genuinely acquired the disputed land from the 2nd Defendant’s family. Page 20 of 24 92.0 The 1st Defendant testified that he acquired the said land in the year 2011 but had his deed of conveyance executed in his favour in the year 2014 on completion of the payment of the entire purchase price. 93.0 The 1st Defendant in support of his case tendered in evidence Exhibit “1” being a receipt indicating paying for the land purchased from the family dated 1st December 2011. 94.0 The 1st Defendant also tendered in evidence Exhibit “2” a Deed of Conveyance executed in his favour by his grantors, this is dated 16th August 2014. 95.0 The 1st Defendant in his testimony also informed the Court that to satisfy himself that the land he was going to purchase was not in any way encumbered also conducted a search at the Lands Commission. 96.0 Exhibit “D” tendered in evidence by PW2 confirmed the search conducted by the 1st Defendant which revealed that the land in dispute has been duly registered in the name of the 1st Defendant. This unfolding events clearly shows at the time the 1st Defendant purchased the land from the 2nd Defendant’s family, the land was free from any encumbrances. 97.0 After the purchase he succeeded in registering the land in his name without any let or hindrance. 98.0 That his presence on the land and the subsequent registration of the land in his name became glaring before the Plaintiff after the purported search was conducted on the land. Page 21 of 24 99.0 The Plaintiffs in their own testimony confirmed that Ebusuapanin Nai George Anim was the head of the Chocho Botcway family who hold the allodial interest in the disputed land and they sold it to the 1st Defendant. 100.0 It was based on this that the Plaintiffs alleged in paragraph 16 of the statement of claim that the 2nd Defendant had perpetuated fraud on them and went ahead to particularize the alleged fraud. The 2nd Defendant died and this allegation of fraud the Plaintiff failed to prove. 101.0 The Court from the reasoning above will conclude that the 1st Defendant lawfully acquired the land from the Plaintiff as there is ample evidence showing that at the time of the acquisition the land in 2011, the land was free from any encumbrance. 102.0 The Plaintiff asserted that they were in possession of the land and that they built a two-bedroom house on the land and placed on the land their caretaker who constructed a poultry farm on the land and 1st Defendant with heavily armed bodyguards came onto the land to destroy the poultry farm as well as a storeroom they kept their building materials. 103.0 Reference was made to the Supreme Court case of OSEI (Subt. By) GILARD VRS. KORANG (2013-2014) 1 SCGLR 221 at 234 where the principle on possession was stated as follows: - “Now in law, possession is nine-tenths of the law and a Plaintiff in possession has a good Page 22 of 24 title against the whole world except the true owner, he cannot be ousted from it” 104.0 But it is also trite learning that one cannot forcefully or aggressively take over the land of another person and then start claiming to be in possession of it amidst protestations by the true owner. 105.0 In my humble view the Plaintiffs claim that they acquired the disputed land from the family in 2009 and built a 2 bedroom house and put in a caretaker who constructed a poultry farm and that in the year 2015, the 1st Defendant came with heavily armed thugs to destroy the poultry farm and a storeroom are all not true. 106.0 The Court laboriously tried to resolve the germane issues raised or formulated for the Court’s determination. 107.0 The Judgment in fact should have been curtailed and the curtains drawn to a close when the Court made a finding of fact that there was no power of attorney granted by the Plaintiffs to Asare Kwaku Acquah to commence or institute this action. 108.0 The said Asare Kwaku Acquah was not testifying as a witness but as a Lawful Attorney who has no power to do so. 109.0 The legal implication is that there is no evidence of the Plaintiffs even for the Court to evaluate to begin with. 110.0 I therefore proceed to dismiss the action of the Plaintiffs and all the reliefs sought for in its entirety as same remained unproven and Page 23 of 24 award cost of GH¢25,000.00 in favour of the 1st Defendant against the Plaintiffs. COUNSEL: (SGD) ALEX OWUSU-OFORI (JA) GIDEON GABOR HOLDING BRIEF FOR ASSAD GBADEGBE FOR THE PLAINTIFFS PRESENT ROBERT ALLOTEY FOR THE 1ST DEFENDANT PRESENT Page 24 of 24