Alice Constance Naana Darko v Dr. Sackey

This is a land matter that was initiated by a writ filed on 17th September, 2019 before this court differently constituted. As at 2021 when it was inherited by another magistrate, trial had still not began because parties had not been regular in court. After many more adjournments at the behest of the parties for various reasons including attempts at an amicable settlement of the issues, trial finally commenced on 25th March 2022. The magistrate managed to fully conduct the trial but unfortunately, she retired before she could render her judgment. On the authority of Agyeman substituted by Banahene & Ors v Anane [2013-2014] 1 SCGLR 241 which states that a judge may exercise his discretion to adopt previous proceedings in a matter rather than beginning anew, I have adopted the proceedings so far. It is therefore on the basis of the record of proceedings passed down to me that I shall now proceed to make a determination of this matter.

The Plaintiff in this matter is seeking the following reliefs.

1. Declaration of title, ownership and recovery of possession to all that piece and parcel of land situated, lying and being at “Daakye” Akropong-Akuapem but the Defendant has trespassed unto.

2. Perpetual injunction restraining the Defendant, his agent, assign etc from having anything to do with the Plaintiff’s land.

3. General damages for trespass and cost.

The Plaintiff’s case

The Plaintiff is a seamstress who resides at Akropong. According to her, she is a member of the Asona family of Mampong-Akuapem and her family owns land at Daakye Akropong Akuapem. She was gifted a piece of this land by the family measuring 0.17 acres and she performed the customary ‘aseda’ rites to signify her acceptance of the gift. She then took possession of this land and registered it at the Lands Commission Secretariat at Koforidua. On 6th September 2019, Plaintiff visited her land to find people contracted by the Defendant digging a foundation, hence the present action.

Defendant’s case

The court did not order the Defendant to file a statement of defence probably because this is not a matter for which a written statement is required under Order 18 of the District Court Civil Procedure Rules, 2009 (C.I. 59). However, the Defendant on 16th March 2020 filed an affidavit in opposition to a motion for interlocutory injunction filed by the Plaintiff on 6th November, 2019. From the Defendant’s affidavit in opposition, his case may be surmised as follows. Defendant is a Chartered Accountant and the Group Chief Executive Officer of Ibis Tel Group of companies. He resides both at Akropong and at Accra. According to him, the land in dispute became part of the land he purchased from one Mrs Paulina Darko and her children in 2012. The said Mrs Paulina Darko had acquired the land by purchase in 2001 from Felicia Teiko and Madam Adwoa Kromea who were at the time the heads and lawful representatives of the Ayaw and Akuffo families of Akropong Akuapem. The Defendant therefore insists that the Plaintiff could not be gifted the land in 2018 as that same piece of land had already been sold to him by the heads of her family in 2013.

Issue

1. Whether the customary gift through which the Plaintiff claims to have acquired the land in contention from the Asona Family is valid.

Evidentiary burden.

The principle is that he who alleges must prove. Section 14 of the Evidence Act, 1975 (Act

323) provides that:

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.

The Supreme Court in the oft cited case of Serwah v Kesse (1960) GLR 227 stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. They laid down the tests for who bears the burden as follows:

“The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted in Stroud, Judicial Dictionary (3rd. ed.) p. 1996.”

The Plaintiff is therefore under an obligation to prove the facts that will enable the court conclude that she is the owner of the land as she asserts, and is therefore entitled to the reliefs she seeks. This being a civil matter, the Plaintiff is required to prove her case upon a preponderance of probabilities in accordance with section 12 of the Evidence Act 1975 (NRCD 323).

I shall now proceed to determine the issue.

Whether the customary gift through which the Plaintiff claims to have acquired the land

in contention from the Asona Family is valid.

In the case of Adjei Vrs Hosunu & Another [2023] GHAHC 250 (13 February 2023), Owoahene-Acheampong, J. stated the position of the law in an action for declaration of title to land thus:

“in land litigation where claims have been made for declaration of title and an order for perpetual injunction, the claimant is enjoined by law to effectively satisfy three key or major requirements, namely;

i. Acquisition

ii. Identity and

iii. Possession,

in order to be entitled to his/her claim.

The learned judge then quoted the following holding of the Supreme Court in Mondial Veneer (Ghana) Ltd v Gyebi xv [2011] 1 SCGLR 466.

“In land litigation, even where living witnesses directly involved in the transaction had been produced in Court as witnesses, the law would require the person asserting title and on whom bear the burden of persuasion, as the Defendant’s company in the instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It was only where the party had succeeded in establishing those facts, on the balance of probabilities that the party would be entitled to the claim.”

In addition, a party seeking a declaration of title must be able to identify the land; see the

case of Anane and Others v Donkor and Another (Consolidated) [1965] GLR 188.

From the evidence before this court, the root of title is not in issue as the Defendant is not disputing that the Asona Family are the original owners of the land. The identity of the land is also not in dispute and a composite plan drawn by the Survey and Mapping Division of the Lands Commission, Koforidua confirms that the site plans submitted by both parties indeed relate to the land in dispute. That leaves the question of the Plaintiff’s mode of acquisition, and whether she exercised acts of possession over the land.

It is the Plaintiff’s case that she acquired the land by way of a gift from the family. In the case of In re Suhyen Stool [2005-2006] SCGLR 424, the requirements for making a valid gift under customary law were laid down as follows:

1. A clear intention to make the gift

2. Publicity must be given to the making of the gift

3. The gift must be accepted by the donee.

These three factors stated above are by no means exhaustive; see the case of Giwah v Ladi [2013-2014] 2 SCGLR 1139. Equally important is the issue of the capacity of the donor; see A Concise Guide to the Study of Ghana Land Law by K.A. Gyimah, J. at page 136.

Evidence of the Plaintiff

The Plaintiff testified that she is a member of the Asona Family of Akropong and that around March 2018, the family gifted her the land in contention. To signify her acceptance of the gift, she presented a sheep, a bottle of schnapps and two hundred Ghana Cedis as ‘aseda’. The Plaintiff tendered pictures taken at the said Aseda ceremony. A deed of gift was subsequently executed to evidence the conveyance and a copy of the deed was also tendered into evidence. The Plaintiff subsequently took steps to have the deed registered at the Lands Commission, Koforidua.

The Defendant’s cross-examination did not do much to impugn the testimony of the Plaintiff on the gift that had been made to her. The issue of Plaintiff not being member of the Asona family because she relates to them through her father rather than her mother is immaterial as the family can even decide to gift land to a complete stranger. I am therefore satisfied that the family acting through their lawful representative expressed a clear intention to make the gift to the Plaintiff, that there was the requisite publicity, and that the Plaintiff accepted the gift.

However, as stated previously, these three requirements are not exhaustive. The Plaintiff must also prove that the donor had the capacity to make the gift to her. It is not in dispute that the gift was made to her by the current head of family in concurrence with some other family members. What the Defendant has argued is that the head of family did not have the capacity to make the gift because the family had already conveyed the land to him at the time the gift was purportedly made to the Plaintiff.

The legal principle, nemo dat quod non habet, stipulates that that one cannot convey a better title than he has. The Supreme Court elucidated this principle in the case of Adisa Boya Vrs Mohammed and Another [2018] GHASC 7 (14 February 2018) as follows:

“proof by either party of a prior grant of the land suffices to deprive the owner of title to the land as the basic principle in such cases is that after an owner has granted a clearly determined area of land in favor of a party, he no longer has title to that parcel of land save in circumstances where the grant is affected by vitiating circumstances”.

In the case of Kangberee Vrs Mohammed [2012] GHASC 42 (4 July 2012), the Supreme Court described the operation of this principle of law as ruthless.

The importance of resolving issues relating to claims of a prior grant in cases of this nature was eruditely rendered by the Supreme Court in the case of Adisa Boya Vrs Mohammed and Another case as follows:

Given the very narrow compass in which the dispute revolved, namely the ownership of the disputed property, it was incumbent upon the learned trial judge to have thoroughly considered the evidence for the purpose of determining which of the contestants had a prior grant but surprisingly, he placed much reliance on a conveyance executed by the owners in favor of the plaintiff and the conviction of the 1st defendant for obstruction of the plaintiff. In our view, the above approach lost sight of evidence which was led by the defendants to establish their prior possession of the land based on an allocation letter and their subsequent entry upon the land and in particular the construction of a place of residence thereon as well as the payment of property rates which were previous to those paid by the plaintiff in respect of the land. In our view, the clear evidence of the defendants ’prior grant and the possession which accompanied the grant to their father cannot be superseded by the mere fact that the plaintiff who on the evidence obtained his grant subsequently obtained a conveyance of the disputed property from the owners and succeeded in

having the 1st defendant prosecuted for obstruction. I take a cue from this decision and shall therefore proceed to consider the evidence led on the issue of the alleged prior grant by both parties in the present case.

Even though the Plaintiff had notice that the Defendant’s entire defence to this action is that a prior grant had been made to him, she herself did not lead any evidence on the issue of whether the Asona family was still the owner of the land at the time it was purportedly gifted to her. Her witness, Kwame Boamah Dwira who described himself as the lawful representative of the Asona family of Akropong, however testified that the family had not sold or given the disputed land to any other person. Under cross-examination, Kwame Boamah Dwira admitted that he knew both Madam Felicia Teiko and Madam Adwoa Kromea. He admitted that both the Defendant and the Defendant’s grantor, Mrs Paulina Darko, had bought land from Madam Felicia Teiko and that he had been out of the country when Madam Felicia Teiko sold the lands to them. He also admitted that it was after the death of Madam Teiko in 2018 that he gifted the land to the Plaintiff.

In my respectful view, the mere statement made by the Defendant’s witness that the family had not sold or given the disputed land to any other person without more is not adequate to prove that the family had not made a prior grant to the Defendant’s grantor at the time the gift was made to the Plaintiff. In the case of Majolagbe v Larbi [1959] GLR 190, Justice Ollenu, quoting his dictum in the case of Khoury and anor. V. Richter delivered on the 8th December, 1958 explained as follows:

Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”

Further more, Mr Boamah Dwira’s answers suggest that he was not privy to the details of the transactions between the Defendant, his grantors, and Madam Teiko and can therefore not say with any degree of certainty that the disputed land had not been given to them to replace the portion of the land that had been affected by the demarcation of the proposed road.

For his part, the Defendant testified that he came to own the land in dispute in 2012. The land had been previously been acquired by Mrs Paulina Darko. She bought 3 adjoining plots in 2001 from Madam Felicia Teiko and Madam Adwoa Koromea who happened to be the heads and lawful representatives of the Asona family at the time. The Municipal Assembly subsequently earmarked a portion of Mrs Paulina Darko’s land for construction of road. She decided she was no longer interested in buying the land because the family had not disclosed to her that the land would be affected by a road project. The family offered to compensate Mrs Darko with a plot that measured the same as the portion affected by the road but she declined. The family therefore needed to raise the money in order to pay Mrs Paulina Darko so they approached the Defendant and asked him to buy the land from her so that she would convey the land to him.

Since the land in dispute is right behind property he had already acquired from the family, he agreed. Under cross-examination, the Defendant clarified that he had actually been dealing with one Madam Diana Dwira who appears to have been the one handling land transactions on behalf of the family heads at the time. He explained that Diana fell sick and unfortunately died before she could assist him to perfect the documentation covering the land that had been offered as a replacement for the portion affected by the road construction. The Defendant named the twin sister of Madam Diana Dwira and one Addoquaye as key witnesses to the transaction.

Portions of the Defendant’s testimony were corroborated by the Plaintiff. She testified that the land in dispute shared a boundary with the land that had been acquired by Mrs Darko. Under cross-examination, she also answered that was Diana Dwira who sold the land to Mrs Darko. She also testified that the land acquired by Mrs Darko had indeed been affected by the proposed road project and because of that Mrs Darko decided she was no longer interested in the land. She also testified that the Defendant had subsequently bought the land.

Having heard both parties, I find the Defendant’s case that the land in dispute was offered to him as a replacement for the portion affected by the road construction more probable than that of the Plaintiff who insists that the family owned the land at the time it was gifted to her. Such an offer by the family to replace the affected land with another parcel of land is the reasonable thing to expect under those circumstances. In any case, the onus lay on the Plaintiff to prove the family owned the land when it was gifted to her and she has failed to discharge this burden. Consequently, on the balance of probabilities, I find that there was a prior grant of the land in contention made by the Asona family to the Defendant, and that said grant nullifies the subsequent gift made to the Plaintiff. Having made this determination, the issue of whether or not the Plaintiff exercised acts of possession over the land in dispute is inconsequential, and for this reason I shall not bother to interrogate it.

In conclusion, I hold as follows:

1. A prior grant had been made by the Asona family to the grantor of the Defendant and for that reason, the subsequent gift made by the family to Plaintiff is void.

2. The Plaintiff is not entitled to any of her reliefs.

3. Cost of GHS 20,000 is awarded against the Plaintiff.