Dr Samuel Boateng Asamoah v Sulley Mohammed

THE PLAINTIFF’S CASE

The Plaintiff claimed to have acquired the disputed land from one Charles Kwesi Gyasi in August 2014 per an indenture. According to him he has registered his interest in the said land and has been issued with a Land Title Certificate No. GA 47249 dated the 19th day of April, 2015. It is his case that he has constructed a storey building on the disputed land which he did by giving monies to people who were coming down from the UK to be given to his grantor (Charles Kwesi Gyasi) to put up that said storey building for him.

The Plaintiff' further alleged that in or about 2020, Defendant in this suit trespassed unto the disputed land with the aid of land guards and all efforts to remove them from the land proved futile hence the present action which are for the following reliefs

“a. A declaration of title to land and building erected thereon as described in the schedule.

b. An order of eviction from the property Defendant and all his agents.

c. An order of perpetual injunction restraining.

d. An order of perpetual injunction to restrain the Defendant, his agents, assigns, workers and all who cometh unto the land at the instance of the Defendant.

e. General Damages for Trespass.”

The Plaintiff is seeking the said declaration in respect of

“ALL THAT piece or parcel of land in extent 0.28 hectare (0.68 of an acre) more or less being parcel No. 10, Block 12 , Section 135 situate at Pantang in the Greater Accra Region of the Republic of Ghana aforesaid as delineated on Registry Map No. 005/135/1993 in the Land Title Registry, Victoriaborg, Accra and being the piece and parcel of land shown and edged pink color on Plan No. 555/200”

THE DEFENDANT’S CASE

The Defendant denied the claims made by the Plaintiff supra and contends that he accompanied his friend John Mensah-Bonsu to purchase a piece of land situated at Pantang from Charles Kwesi Gyasi at the cost of GHc34,000.00 (Thirty Four Thousand Ghana Cedis). Part payment of Twenty Six Thousand Ghana Cedis (Ghc 26,000.00) was paid to the said Charles Kwesi Gyasi. However when a search was conducted by John Mensah- Bonsu he observed that the land had been plotted in the name of Osamanpa Company Ltd. As a result John Mensah-Bonsu asked for a refund from the said Charles Kwesi Gyasi but he failed to make a refund. To save the situation he (Defendant) opted to purchase the said plot after Charles Kwesi Gyasi had assured him that he would atone tenancy to the said company to enable him (defendant) register the land subsequently. As a result he refunded the GHC 26,000.00 to John Mensah Bonsu and paid the outstanding balance of GHC 8000 to Charles Kwesi Gyasi. According to the Defendant Charles Kwesi Gyasi did not not atone tenancy to Osamanpa Company and this led to a protracted court case which Charles Gyasi eventually lost. As a result Charles Kwesi Gyasi gave the disputed land to him by way of replacement to develop. According to the Defendant he has since constructed a two storey apartment on the land which construction was supervised by the said Charles Kwesi Gyasi due to his proximity to the land. It is his case that he started the construction before 2016 and has been in effective possession all this while without any interference from anyone

including the Plaintiff. Out of the blue Charles Kwesi Gyasi started terrorizing his workers when the building reached the roofing stage. He therefore reported him to the police and upon his arrest Charles Kwesi Gyasi denied collecting money from him. At the various Police Stations that he reported Charles Kwesi Gyasi to, the police said the issue between them was civil in nature and so should they should resort to the civil court. He therefore sued Charles Kwesi Gyasi only for the matter to struck out because the value of the land exceeded the jurisdiction of the District Court. The Defendant claimed that the Plaintiff and the said Charles Kwesi Gyasi fraudulently registered the land and obtained a Land Title Certificate because they were aware that the Defendant built the storey building and was in possession of same. He therefore counterclaimed as follows;

(a) “A declaration of title to All that piece or parcel of land situate lying and being at PANTANG in the Ga East District in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.12 acre or 0.05 Hectare bounded on the North-West by open space measuring a distance of 69.9 feet more or less on  the North - East by open space measuring a distance of 77.2 feet more or less on the South- East by proposed road measuring a distance of

71.5 feet more or less on the South-West by open space measuring a distance of

75.1 feet more or less which piece or parcel of land is more delineated on the site plan given to Defendant.

(b) An order or perpetual injunction restraining the Plaintiff, his agents, assigns from dealing with and or interfering with Defendants right to possession and enjoyment of the property.

( c )Any other order(s) as the justice of this case requires.

(D) Costs, assessed at full indemnity basis.”

THE ISSUES

The issues settled for determination were

(a) Whether or not Plaintiff has been in possession of the subject matter land since the year 2014.

(b) Whether or not the Plaintiff is the owner of the land and the property constructed thereon.

(c) Whether or not Plaintiff is the person constructing the property the subject matter of this action.

(d) Whether or not defendant is the owner of the land and the property constructed thereon.

(e) Whether or not Plaintiff's land title certificate was obtained by fraud.

From the evidence, both parties trace their root of title to Charles Kwesi Gyasi. Again both parties have alluded to the fact that they at a point in time gave monies to the said Charles Kwesi Gyasi to build the storey building on the disputed land for them.

Where an issue is not germane to the determination of the real issue between the parties, nothing stops the court from discarding that issue even though same had been set down as an issue for trial. Wood CJ (as she then was) aptly stated that proposition of the law in these terms in the case of FATAL V WOLLEY (2013-2014) SCGLR 1070 thus;

“it is a sound basic learning that courts are not tied down to only the issues identified and agreed upon by the parties at pre-trial. Thus if in the course of the hearing an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out but emanates at trial from either the pleadings or the evidence the court cannot refuse to address it on the grounds that it is not included in the agreed issues”

From the pleadings and the evidence, I am of the view that the two germane issues are

1. As between the parties, who did Charles Kwesi Gyasi grant the disputed land to.

2. As between the parties who built the storey building on the disputed land.

BURDEN OF PROOF

In civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made or denied, the party on whom the burden of proof lies is enjoined by the provisions of Sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead such credible and admissible evidence such that on the totality of the evidence on record, the court will find that party's version of the rival accounts more probable than its non-existence. In this case since the Defendant has also counterclaimed against the Plaintiff he also have the responsibility of proving his case on the balance of preponderance of probability stipulated under the said sections (supra). In the case of NORTEY VRS AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION AND OTHERS)(J4 47 of 2013)

[2014] GHASC 125 (delivered on 26th February 2014 ) Akamba JSC (as he then was) placed the burden on a Defendant who counterclaim as follows;

“Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323 the Evidence Act (1975).”

Since both parties have sued I would relate the evidence led by them on the two issues and thereafter evaluate same with the view to ascertaining whose account is more probable than not.

The Plaintiff’s Attorney, on his acquisition gave this terse evidence at paragraphs 4 and 5 of the witness statement as follows;

“4. I became the owner of the land the subject matter of this action through a grant of it made to me by Charles Kwesi Gyasi and an indenture evidencing the said grant executed on the 10th of August 2014

5. Following my acquisition of the land I applied to the Land Title Registry of the Lands Commission for my interest in the land to be registered in its records and after following the due procedure and publishing my interest without any caveat whatsoever, a Land Title Certificate was granted me numbered GA- 47249. I attach as Exhibit B a copy of my Land Title Certificate.”

On the development of the building the said Attorney testified that after the grant the Plaintiff appointed his grantor Charles Kwesi Gyasi as his caretaker who he gave money to, to develop the said building. According to the Plaintiff’s Attorney the Plaintiff used to call her from abroad and inform her that he has given monies to people returning from the UK to Ghana, to be given to Charles Kwesi Gyasi for the development of the building. According to the Attorney, it was sometime in 2020 that

the Defendant trespassed unto the land with Land guards by demolishing the fence wall. This led to the prosecution of the Defendant at the District Court, Adjabeng. Despite the prosecution the Defendant went further to fixed burglar proofs on the windows, fixed doors and laid tiles inside the building. She tendered pictures marked Exhibit “C” series depicting the works done on the building by the Defendant.

The Defendant’s version is that after the botched transaction in respect of the land originally granted to his friend John Mensah Bonsu, which he took over, the said Charles Kwesi Gyasi gave him two plots of land which includes where the disputed land is situate. He said it was further agreed between him and Charles Kwesi Gyasi that the latter would execute a deed, transferring ownership of the property to him (Defendant) in due course.He therefore started the construction of the two storey apartment before 2016 on the land, which was supervised by said Charles Gyasi because he lived next to disputed land. According to the Defendant said he sometimes gave monies to Charles Kwesi Gyasi for the purchase of building materials. The Defendant tendered Exhibit “3” series which are copies of the receipts and Bank statements showing Monies Charles Kwesi Gyasi took from him for the purchase of materials and also as payments for the disputed land.

The Defendant maintained that he was the one who put up the two storey with six

separate apartments on the disputed land. Subsequently the Charles Kwesi Gyasi turned against him by terrorizing his workers when the building had reached the

roofing stage, leaving the finishing touches to complete the buildings on the land. This conduct affected him by bringing the completion to a standstill. The Defendant tendered Exhibit 4 series to show the purchases and monies he expended on the project. The defendant said Charles Kwesi Gyasi began playing hide and seek with him and this compelled him to report him to the Police. Exhibit 5 series are extracts from the police station evidencing the report made and the conclusion reached by the police after their investigations. According to the Defendant when Charles Kwesi Gyasi was interrogated by the police he denied selling the land to him or even collecting monies from him. Charles Kwesi Gyasi rather claimed he entered in a joint venture agreement with Defendant and as part of the agreement the Defendant was to help Charles Kwesi Gyasi build on the other part of the land which allegation he (Defendant) flatly denied. In the end the police advised them to resort to the civil court to settle their differences. As a result he mounted a civil action against Charles Gyasi at the District Court Madina in number A11/71/20. That action was struck out on jurisdictional grounds. Defendant attached to his witness statement and marked as Exhibit 6 the processes filed at the District Court Madina. The Defendant told the court that Charles Gyasi fraudulently registered and obtained a land title certificate covering Defendant’s land to dispossess the Defendant of the disputed land notwithstanding the investment he has made on the disputed land.

EVALUATION OF THE EVIDENCE

The Plaintiff’s terse evidence on his acquisition of the land cannot be overlooked. There is no evidence of the consideration he paid. Even the time he allegedly acquired the disputed land is very suspicious because he claims

Charles Kwesi Gyasi alienated the land to him on the 10th of August 2014. He did not tender the indenture that was executed in his favour in evidence. Strangely he tendered the Land Title Certificate which was tendered as Exhibit “B” . Curiously it has been stated that in the said Exhibit that his interest commenced from the “Twenty-First day of January 2005”. It is trite that the Lands Commission always picks the commencement dates from the indenture submitted to it for registration. It must be borne in mind that the Defendant has accused the Plaintiff and the said Charles Kwesi Gyasi of backdating documents to dispossess him of his land. Hence to extricate himself from that accusation the Plaintiff should have led evidence to the contrary. If indeed the 2005 was a typographical error, the Plaintiff would have said so or at least would have exhibited a copy of the original indenture executed in his favour by the said Charles Kwesi Gyasi. In the alternative if it was an error on the part of the Lands Commission, the Plaintiff could have called the said Commission to give evidence to that effect. The contradiction in the dates of assignment rather affirms the Defendant’s contention that the duo perpetuated fraud on him to dispossess him of the disputed land. Even the parcel plan

attached to the Land Title Certificate is also unsigned. There is no signature of the

Director of Survey on it, thereby giving credence to the fraudulent nature of the Plaintiff’s documents

From the Plaintiff’s narrative his grantor is a material witness who ought to have been called to give evidence on his behalf. In fact he was a material witness for both parties. As the evidence supra shows, save that bare assertion by his attorney he did not find the need to call his grantor as a witness, despite the fact that he is on good terms with the said grantor. This good relationship could be seen in the claim by his Attorney that the said Charles Kwesi Gyasi used to represent her (Attorney) at the Police Station when they lodged a complaint against the Defendant. For instance on the 23rd of November 2023 the Plaintiff’s attorney was asked

“Q. At paragraph of your witness statement you made mentioned of one Charles Kwesi Gyasi as being the person who granted the Plaintiff his supposed interest in the land. Is that correct?

A.Yes

Q.And so you are aware that this same Charles Kwesi Gyasi has reported the Defendant in this matter to a number of Police Stations with respect to this same parcel of land

A. In various instances I made the report and because of time Charles K. Gyasi had to come in and represent me.

It is therefore strange when the Plaintiff did not call his alleged grantor as a witness and gave no reason for his inability to call him.

In my view the failure to call that material witnesses affected the quality of the Plaintiff’s evidence regarding the acquisition of the land. In other words, the failure by the Plaintiff to call the said witness did not assist its case. See OWUSU v. TABIRI [1987- 88] 1 GLR 287.

With regard to the Defendant he also claimed to have acquired the disputed land from the same Charles Kwesi Gyasi and paid an amount of GHC 34,000.00 as consideration to the said Charles Kwesi Gyasi . He said Charles Kwesi Gyasi promised to execute of transfer in his favour which he failed. The name of Charles Kwesi Gyasi could be seen in Exhibit 3 series which is the Defendant’s Bank Statement. As I have already indicated the said Charles Kwesi Gyasi is also a material witness for the Defendant. However having regard to the evidence led by the Defendant, which points to a strained relationship between Charles Kwesi Gyasi and himself, the non-calling of the said Charles Gyasi is understandable because it is not likely that he would testify in his favour, if called, whether voluntarily or involuntarily. This dilemma of the Defendant has been acknowledged by the Supreme Court in the case of BARIMA GYAMFI AND ANOTHER v. AMA BADU [1963] 2 GLR 596-599 where the position was aptly stated as follows;

“It will be nothing but madness for a party to a suit to rely upon his opponent to prove his case for him; where the only witnesses who could give oral evidence of a party's case are his opponents, the court should not regard his failure to call such persons as fatal; in such circumstances the court will look at other available and material evidence on the record, and if those prove to be sufficient to establish the averment, uphold the averment.”

The available evidence is Exhibit 3 which shows that Charles Gyasi took monies from the Defendant. What were those monies meant for ? These amounts the Defendant said Charles Gyasi took from him was for the purchase of building materials and also as payments for the land. If indeed the Defendant had no business whatsoever with Charles Gyasi in respect of the disputed land, the Plaintiff should have called him as a witness especially as the Plaintiff is in good terms with him to expose the Defendant but he failed or refused to call him.

If the evidence of the parties regarding the acquisition are juxtaposed a reasonable mind would choose the Defendant’s account even though Charles Kwesi Gyasi did not execute the said indenture in his behalf.

Regarding the development of the land the Plaintiff’s account is not convincing to say the least. This is because upon the purported acquisition he appointed his grantor

as caretaker and sent him money through people coming to Ghana from the UK to undertake the construction of the storey building. In the first place, the Attorney who gave that evidence said it was Charles Kwesi Gyasi who told her that. She did not see anyone bringing money to the said Charles Kwesi Gyasi and was only told by the Plaintiff. To that extent that statement is hearsay and would not be relied upon by this court. Secondly with the easiness of transferring money from abroad to Ghana these days , who in his right sense would want to rely on people travelling to Ghana to transfer money bearing in mind the risks associated with that. It appears that the Plaintiff intentionally made that claim, because with that, there would be no need to show proof of transfer of the said monies. In any case the Plaintiff could not produce any document showing the expenses he made on the property. The Plaintiff, in my view did not lead sufficient evidence on this issue if his evidence is measured with the rod forged by Ollennu in the case of MAJORLAGBI V LARBI [1959] GLR R 190 on what constitute proof.

On the part of the Defendant he has maintained that he was the one who built the storey building and that the Plaintiff is in collusion with the said Charles Kwesi Gyasi to dispossess him of his property. The bare denial of this piece of evidence by the Plaintiff is not enough to discount that piece of evidence. The Plaintiff should have called the said Charles Kwesi Gyasi to enable the Defendant subject to him to vigorous cross-examination, but alas he has been shielded by the Plaintiff for obvious reasons. In

my view the Plaintiff’s evidence that he spent huge sums of money is supported with Exhibit “3” series. The reports he made against Charles Kwesi Gyasi in respect of the property is corroborative of his investment in the building. Hence the Plaintiff branding the Defendant as a criminal trespasser who had no links with the property and only gained access into the building by breaking the wall would be rejected by this court. As I have already indicated the failure on the part of the Plaintiff to call Charles Kwesi Gyasi is fatal to has case relative to the issue under discussion. See the case of TETTEHV. REPUBLIC [2001/2] SCGLR 854. Once again the Defendant’s evidence on the development of the property is more credible than the narrative of the Plaintiff.

On the totality of the evidence I am of the view that the Plaintiff is not entitled to any of the reliefs he seeks.

What about the Defendant? It is true that Charles Kwesi Gyasi has not executed an indenture for the Defendant as promised. Even though the law requires that a transfer of an interest in land should be in writing to be valid or enforceable equity would hold as valid if a transfer is not in writing provided there is part performance or consideration has been provided. In other words, even though Charles Kwesi Gyasi did not formally transfer same to him, it would be inequitable to dispossess the Defendant of the land having regard to his possession of the land and the huge investment he has made on the land. Equity under the doctrine of part performance would step in to rectify the situation. A. K. P. Kludze in his book “MODERN PRINCIPLES OF EQUITY” at page 69 stated the position in these terms “the doctrine of part performance means that, although the formal requirement as to writing has not been complied with, equity will hold that there is a binding contract if all the essentials of a contract exist, provided the party who seeks to enforce the contract has performed at least a part of its obligation under the agreement… Where the Plaintiff has so performed his part of the contract equity considers that it would amount to fraud on the part of the other party if he could take advantage of the absence of writing to avoid his obligations after the Plaintiff has altered his position in reliance upon the agreement.”

Based on the totality of the evidence supra I enter judgment in respect of relief(a) of the counterclaim and declare the Defendant as the owner of All that piece or parcel of land situate lying and being at PANTANG in the Ga East District in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.12 acre or 0.05 Hectare bounded on the North-West by open space measuring a distance of 69.9 feet more or less on the North - East by open space measuring a distance of 77.2 feet more or less on the South- East by proposed road measuring a distance of 71.5 feet more or less on the South-West by open space measuring a distance of 75.1 feet more or less which piece or parcel of land is more delineated on the site plan given to Defendant.

I grant relief 2 of the counterclaim and perpetually restrain the Plaintiff, his agents, assigns from dealing with and or interfering with Defendants right to possession and enjoyment of the property.

Relief ( c ) of the counterclaim is also granted. In respect of this relief the evidence has shown that the Plaintiff’s Land Title Certificate was procured by fraud because the Plaintiff could not proof how he acquired the disputed land i.e. the consideration he paid. He also knew of the presence and possession of the land by the Defendant, yet managed to procure the said Certificate. Clearly the said Land Title Certificate was procured by fraud and there would be the need for an order cancelling same. In the case of CHOU SEN LIN V TONADO ENTERPRISE LTD [2007-2008] 1 SCGLR 135 at 140 the position was aptly stated as follows;

“ This is one case in which the registration by the Defendants cannot inure to their benefit because at the time of the registration, they knew very well that the Plaintiff was already in occupation and possession of the three plots”

I therefore order the Lands Commission to cancel Land Title Certificate no. GA 47249 Vol. 60, Folio 220 for having been procured by fraud.

I further order Charles Kwesi Gyasi to execute an indenture transferring his interest in the land to the Defendant within 1 month upon being served with this judgment or in default the Registrar of this court is ordered to execute an indenture in favour of the Defendant pursuant to Order 43 r 8 (2) of C. I. 47 which provides as follows ;

“8 .Court may order act to be done at expense of disobedient party

(2) If a judgment or order that requires a party to execute a deed or indorse a negotiable instrument is not complied with, any other party interested in having it executed or indorsed may prepare a deed or indorsement of the instrument in accordance with the terms of the judgment or order and tender it to the Court for execution together with the amount of any stamp duty payable and the signature on it by the Registrar shall have the same effect as the execution or indorsement by the disobedient party.

I award cost of GHC 30,000.00 against the Plaintiff.