Alhaji Abdul-Samed Abubakar v Joseph Tetteh & 1 Other

By a writ of summons issued on 27th May 2015, the plaintiff claimed the following reliefs against the defendants:

i. Declaration of title to all that piece or parcel of land situate, lying and being at Nganoman-Oyibi, Accra in the Greater Accra Region of the Republic of Ghana containing an approximate area of 0.462 acre or 0.187 hectare and bounded on the North-East by lessor’s land measuring 198.9 feet more or less, on the South East by existing road measuring 100.2 feet more or less on the South-West by lessor’s

 

land measuring 201.7 feet more or less on the North-West by a proposed road measuring 100.1 feet.

ii. Recovery of possession of the said land.

iii. Damages for trespass.

iv. Perpetual injunction restraining the defendant, his agents, assigns, servants, workmen or whoever from continuing to develop the land.

v. Costs inclusive of legal and administrative cost.

It is the plaintiff’s case that he acquired the land in dispute from the Okunekatawele family by a lease dated 9th January 2015 and signed by its head of family Nii Andrews Kotey Nmashie. He asserts that before acquiring the land, he conducted various investigations and was satisfied that the land belonged to his grantors and that there had not been any early grant of the land to the defendants. His search rather revealed that the land was part of a larger land which was the subject of a noted proposal in favour of the Ministry of Agric for sheep project which was later released to his grantor family by the government of Ghana as confirmed in a judgment of a High Court.

It is the plaintiff’s case that at the time he acquired the land, it was vacant, unencumbered and bushy. He took possession of the land, hired a bulldozer, cleared the land, erected corner pillars, constructed a three bedroom structure, erected a shed, mounted a block moulding machine, built a platform, connected electricity to the site and commenced a block factory on the land.

The plaintiff asserts that sometime in April 2015, he was at a training in Koforidua when he got a call that the defendants had entered the land with men, cement blocks, sand, chippings and water and had commenced the construction of a fence wall around the land. The plaintiff states that he lodged a complaint with the Adenta Police the following day and the Police went onto the land to stop the defendants from continuing with their activities until they had fully investigated his complaint of criminal trespass. The defendants however continued with their activities at night and eventually completed the wall and fixed a gate to the land, this time with the assistance of the Police thereby forcing him out of business.

The plaintiff further states that he had earlier applied to the Lands Commission for registration of his title but he was notified of multiple requests for survey and preparation of parcel plan as the defendants had apparently also applied for registration of portions of the land in their names.

The plaintiff asserts that he reported the conduct of the defendants to his grantor who assured him that he had not at any time made a grant of the land in dispute to the defendants. His grantor upon sighting the plaintiff’s title documents which were apparently signed by him, lodged a complaint of forgery against the defendants at the Property Fraud Unit of the Ghana Police Service because he had never executed those documents. He also caused his solicitor to write to the Lands Commission to caveat the registration of the parcels of land in the names of the defendants. The defendants have however failed to heed all warnings to desist from their acts of trespass on the plaintiff’s land thereby compelling the plaintiff to institute this action.

1st defendant’s defence

The 1st defendant denied the plaintiff’s claim and asserted that he purchased the land in dispute from the Okunekatawele family in the year 2012, three years before the plaintiff supposedly acquired the land in dispute from the same family. He took possession of the land, cleared it and constructed a dwarf wall which was later demolished by the plaintiff. He asserts that his purchase was facilitated by Kate Kai Kotey who at all material times held a power of attorney over Okunekatawele family lands. The 1 st defendant further asserts that as at the time Nii Andrews Kotey Nmashie supposedly signed the plaintiff’s lease, he had ceased to be the head of the Okunekatawele family. It is therefore the 1 st defendant’s case that the plaintiff is not entitled to his reliefs he is seeking in this action.

2nd defendant’s defence

The 2nd defendant also denied the plaintiff’s claim of title in his defence and maintained that he was the owner of the land in dispute after having acquired it from the Okunekatawele family of Teshie through a lease signed by its head at the time Nii Andrews Kotey Nmashie. The 1 st defendant asserts that his enquiries from the Okunekatawele family revealed that the then head Nii Andrews Kotey Nmashie had been having issues with the family and grantees of the family as he had been denying executing documents for prospective grantees.

He later got to know that as a result of the behaviour of Nii Andrews Kotey Nmashie, he had been made to relinquish his powers by giving a power of attorney to Kate Kai Kotey and he was then advised to have a new document executed on his behalf by Kate Kai Kotey which he did. Madam Kate Kai Kotey therefore executed a new document for him duly witnessed by accredited principal members of the family and stamped at the Lands Commission. He asserts that both indentures that were executed in his favour by Nii Andrews Kotey Nmashie and Kate Kai Kotey were all done before the plaintiff’s lease was executed in his favour by Nii Andrews Kotey Nmashie in January 2015 and as such, the Okunekatawele family had nothing else to have made a valid grant to the plaintiff in January 2015.

The 2nd defendant asserts that after the grant of the land to him, he took possession of the land and has continued to exercise various acts of possession over the land by obtaining the requisite development permits to construct a fence wall and a dwelling house and has also placed a 40 foot container duly roofed on the land for commercial purposes which also serves as a garage for car sales and rentals.

The 2nd defendant further asserts that the supposed grant made to the plaintiff by Nii Andrews Kotey Nmashie is not valid as by the time the said grant was made, the Okunekatawele family had already divested their interest in the land. Furthermore, the said grant was made without the consent and concurrence of the principal members of the Okunekatawele family. Furthermore, they assert that Gladys Tsotsoo is not an accredited member of the family who can validly witness documents emanating from the Okunekatawele family and also the purported thumbprint of Gladys Tsotsoo on the plaintiff’s lease is fake.

Plaintiff’s reply

In his reply to the defendants’ defence, the plaintiff asserted that Nii Andrews Kotey Nmashie, head of the Okunekatawele family has never executed any lease in favour of the defendants. The plaintiff further states that the power of attorney that was executed by Nii Andrews Kotey Nmashie in July 2010 for Kate Kai Kotey was to allow Kate Kai Kotey represent him in court as head of family and it did not authorise Kate Kai Kotey to alienate or grant family lands. In that event, the lease executed by Kate Kai Kotey in favour of the 2 nd defendant in August 2014 based upon that power of attorney did not pass any title in the land in dispute to the 2 nd defendant.

The plaintiff further states that at the time the 2 nd defendant came onto the land in dispute, the plaintiff was already in effective possession of the land, therefore any developments that the 2 nd defendant made on the land are illegal, unlawful and amounts to trespass. The plaintiff therefore prays that the court grants the reliefs endorsed on the writ of summons.

Issues for trial

At the close of pleadings, the following issues were set down by the court differently constituted:

i. Whether or not Nii Andrews Kotey Nmashie, head of Okunekatawele family ever executed any lease agreement in respect of the land in dispute in favour of the 1st defendant prior to the lease agreement dated 9 th January 2015 executed by Nii Andrews Kotey Nmashie in favour of the plaintiff.

ii. Whether or not Nii Andrews Kotey Nmashie, head of Okunekatawele family ever executed any lease agreement in respect of the land in dispute in favour of the 2nd defendant prior to the lease agreement dated 9 th January 2015 executed by Nii

 

Andrews Kotey Nmashie in favour of the plaintiff.

iii. Whether or not the power of attorney dated 14 th July 2010 and executed in favour of Kate Kai Kotey by Nii Andrews Kotey Nmashie, head of Okunekatawele family was to enable Kate Kai Kotey represent Nii Andrews Kotey Nmashie in court or was for her to alienate/ grant Okunekatawele family lands.

iv. Whether or not the purported lease agreement dated 16 th August 2014 and made between Kate Kai Kotey and Saviour Ahodokpo passed title in the land, the subject matter of this suit to the 2nd defendant.

v. Whether or not the lease dated 9th January 2015 executed by Nii Andrews Kotey Nmashie in favour of the plaintiff passed title in the land to the plaintiff.

vi. Whether or not the plaintiff is entitled to his claim.

vii. Any other issue raised by the pleadings.

Burden of Proof

The plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities, according to section 12(2) of the Evidence Act, 1975 (NRCD 323) means:

“… that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.”

Where the plaintiff has been able to lead sufficient evidence in support of his case, then it behoves upon the defendant to lead sufficient evidence in rebuttal otherwise the defendant risks being ruled against on that issue or issues. Under Section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces “ … sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence” .

The Supreme Court in the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, laid down the nature of the evidence that a party who seeks declaration of title to land has to lead in order to get a ruling in that person’s favour. The Supreme Court speaking through Georgina Wood C.J. noted at page 475 of the report as follows:

“In land litigation … the law requires the person asserting title and on whom the burden of persuasion falls … to prove the root of title, mode of acquisition and

 

various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim .” [Emphasis mine].

Similarly in the case of Mrs. Vincentia Mensah (substituted by Beatrice Tsotso Adjetey)

v. Numo Adjei Kwanko II; Civil Appeal No. J4/17/2016 [2017] GHASC 22 (14 th June 2017), the Supreme Court speaking through Anin-Yeboah JSC (as he then was) held as follows:

“In land suits in which title is in issue, the party claiming title must always plead and prove his root of title to enable him succeed.”

The court is also mindful of one of the cardinal duties of a court in evaluating evidence led during trial which is for the court to assess all the evidence on record in order to determine in whose favour the balance of probabilities should lie. Some cases in point are Adwubeng v. Domfeh [1996-97] SCGLR 660 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882. A more recent rendition of the principle was made by the Supreme Court in In re Presidential Election Petition (No. 4) Akuffo-Addo & Ors. v. Mahama & Ors. [2013] SCGLR (Special Edition) 73, wherethe Supreme Court held at page 322 of the report as follows:

“Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff, or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”

Summary of evidence

The plaintiff personally testified and he subpoenaed his grantor Nii Andrews Kotey Nmashie, head of the Okunekatawele family to testify on his behalf. Nii Andrews Kotey Nmashie however appointed his son Prince Ashie Kotey as his attorney to testify on his behalf. The plaintiff tendered into evidence the following exhibits:

i. Exhibit A – Leased dated 9th January 2015 between Nii Andrews Kotey Nmashie of the one part and Alhaji Abdul-Samed Abubakar of the other part.

ii. Exhibit B – Search Report from the Lands Commission dated 13 th January, 2015.

 

iii. Exhibit C – Judgement of Anthony Oppong J. (as he then was) dated 28 th July, 2011 in the matter Powel Abraham Ashirifi and Another v. Nii Andrews Kotey Nmashie.

iv. Exhibit D – Lease dated 4th February 2015 between Nii Andrews Kotey Nmashie of the one part and Joseph Tetteh of the other part.

v. Exhibit E – Lease dated 6th February 2013 between Nii Andrews Kotey Nmashie of the one part and Saviour Ahodokpo of the other part.

vi. Exhibit F – Letter dated 9th January 2015 addressed to the Land Title Registrar caveating the registration of certain lands at Nganoman near Oyibi.

vii. Exhibit F1 – Letter dated 7th May 2015 addressed to the Land Title Registrar caveating the registration of certain lands at Nganoman near Oyibi.

viii. Exhibit G – Multiple request for survey and preparation of parcel plan from the Lands Commission dated 12th May 2015.

ix. Exhibit H – Copy of plaintiff’s acknowledgement of registration from the Land Title Registry dated 29th January 2015 (Yellow card).

x. Exhibit J – Power of attorney dated 1st February 2016 from Nii Andrews Kotey Nmashie to Etodad Company Ltd.

xi. Exhibit K – Revocation of power of attorney dated 9 th May 2015.

xii. Exhibit L series – Pictures of some activities on the land in dispute.

xiii. Exhibit M – Power of Attorney dated 5th April 2019 from Nii Andrews Kotey Nmashie to Prince Ashie Kotey.

The 1st defendant testified in person and he did not call any witness. He tendered into evidence the following exhibits:

i. Exhibit 1 – Lease dated 4th February 2015 between Nii Andrews Kotey Nmashie of the one part and Joseph Tetteh of the other part.

ii. Exhibit 2 – Receipt dated 20th January 2015 from Okunekatawele family to Joseph Tetteh.

iii. Exhibit 3 – La Nkwatanang Madina Municipal Assembly Building permit application form dated 23rd April 2015 in the name of Joseph Tetteh.

The 2nd defendant also testified in person. Like the plaintiff, he also called one witness Kate Kai Kotey, a principal member of the Okunekatawele family. He tendered into evidence the following exhibits:

 

i. Exhibit 4 – Search report from the Lands Commission with No. 0/S 11221/14 with a site plan attached.

ii. Exhibit 5 – Lease dated 6th February 2013 between Nii Andrews Kotey Nmashie, head of Okunekatawele family of the one part and Saviour Ahodokpo of the other part.

iii. Exhibit 6 – Power of Attorney dated 14th July 2010 from Nii Andrews Kotey Nmashie to Madam Kate Kai Kotey.

iv. Exhibit 7 – Search report from the Survey and Mapping Division of the Lands Commission dated 1st April 2015.

v. Exhibit 8 – Handwritten receipt by Nii Andrews Kotey Nmashie to Saviour Ahodokpo dated 5th December 2013.

vi. Exhibit 9 – Lease dated 16th August 2014 between Madam Kate Kai Kotey, principal elder and lawful attorney of the Okunekatawele family of the one part and Saviour Ahodokpo of the other part.

vii. Exhibit 10 series – Series of pictures of some activities on the land in dispute.

viii. Exhibit 11 – Receipt dated 22nd April 2015 in the name of Saviour Ahodokpo for an amount of GH¢400.00 being payment for building permit.

ix. Exhibit 12 – Building permit billing from the La Nkwantanang Madina Municipal Assembly dated 22nd April 2015 to Saviour Ahodokpo.

x. Exhibit 13 – Building permit No. 000465 from the La Nkwantanang Madina Municipal Assembly dated 19th June 2015 to Saviour Ahodokpo with a copy of the plan attached.

xi. Exhibit 14 – Temporary structure permit billing form from the La Nkwantanang Madina Municipal Assembly to Saviour Ahodokpo with a copy of the plan attached.

xii. Exhibit 15 – Letter dated 12th May 2015 signed by Rebecca Tsotso Awuni (Mrs.) to Nii Andrews Kotey Nmashie inviting him to a family meeting.

xiii. Exhibit 16 – Letter dated 4th May 2015 from J. K. Yeboah of Akuafo and Co. Chambers to the Executive Secretary of the Lands Commission.

xiv. Exhibit 17 – Copy of a newspaper publication with the heading “Notice of change of Head of family of Nii Nmashie Okunekatawele family of Nganoman”.

xv. Exhibit 18 – Power of Attorney dated 5th January 2016 by Madam Alice Kutorkor Kotey being the substantive head of the Nii Kotey Nmashie Okunekatawele family appointing Madam Kate Kai Kotey as her attorney.

xvi. Exhibit 19 – Power of Attorney dated 1st February 2016 by Andrews Kotey Nmashie to Etodad Company Ltd.

 

xvii. Exhibit 20 – Letter dated 14th June 2016 from Alice Kutorkor Kotey to the Director of BNI.

I will proceed to address the issues set down for trial in the order in which they have been listed.

Issue 1 - Whether or not Nii Andrews Kotey Nmashie, head of Okunekatawele family ever executed any lease agreement in respect of the land in dispute in favour of the 1 st defendant prior to the lease agreement dated 9 th January 2015 executed by Nii Andrews Kotey Nmashie in favour of the plaintiff.

This issue is in two parts, the first being the supposed execution of a lease by Nii Andrews Kotey Nmashie in favour of the 1st defendant and the second being the execution of a lease by Nii Andrews Kotey Nmashie in favour of the plaintiff. The execution of a lease in favour of the plaintiff is the subject matter of issue 5 and as such I will defer any discussions on that issue to the resolution of issue 5 and will proceed to deal with the supposed execution of a lease by Nii Andrews Kotey Nmashie in favour of the 1st defendant.

It is the case of the 1st defendant that he acquired his land by a lease executed by Nii Andrews Kotey Nmashie in the year 2012 and this is clearly captured in paragraph 4 of his statement of defence. In his witness statement filed on 8 th March 2017, he testified in paragraphs 3, 4 and 7 on this issue as follows:

“3. I am the owner of a parcel of land situate at Oyibi Nanoman Greater Accra and covering an approximate area of 0.369 acre, an ordinary 2 plots land.

4. I purchased this land from the Okunekatawele family of Oyibi in the year 2012.

7. I obtained title deed executed by Nii Andrews Kotey Nmashie as grantor on behalf of the Okunekatawele family. …”

The 1st defendant tendered a copy of the title deed into evidence as exhibit 1. Interestingly, the plaintiff also tendered a copy of the said title deed into evidence as exhibit D. Exhibit 1 commences as follows:

“This Indenture made the 4th day of February in the year of our Lord Two Thousand and … (2015) between Nii Andrews Kotey Nmashie, head of Okunekatawele family …” [Emphasis mine.]

 

From the above, the 1st defendant’s indenture is dated 4th February 2015 but he claims he acquired his land in the year 2012. The question this raises is how land that was supposedly acquired in 2012 would have documents bearing a 2015 date. The recital in exhibit 1 is also not helpful as it does not provide any indication as to why the document is dated 4 th February 2015 but the 1st defendant claims he acquired his land in 2012.

It gets interesting along the way because the site plan attached to exhibit 1 is dated 20 th December 2012. The Oath of Proof on exhibit 1 was also sworn on 25 th December 2012 which was obviously Christmas day and instead of it being sworn before the High Court Registrar as is the practice, it was sworn before a Commissioner for Oaths, one Samuel Darko Ababio. 25 th December 2012 being Christmas Day was obviously a public holiday in Ghana per the Public Holidays Act, 2001 (Act 601). The said Oath of Proof could therefore not have been validly sworn on the said day and definitely not before a Commissioner for Oaths.

Furthermore, per the Oath of Proof, Kate Kai Kotey who was the deponent to the oath claimed that she was present and saw Nii Andrews Kotey Nmashie execute exhibit 1 on 25 th December 2012. This is a falsehood as exhibit 1 is dated 4 th February 2015. There is therefore no way Nii Andrews Kotey Nmashie could have signed exhibit 1 on 25 th December 2012, about three years before the said document came into existence.

The Oath of Proof also states that Nii Andrews Kotey Nmashie ‘cannot read and write’. With this being the case, there was the need for there to be a jurat with respect to Nii Andrews Kotey Nmashie’s execution of exhibit 1. There is however no jurat as required by law. The evidence on record however reveals that Nii Andrews Kotey Nmashie is literate. This is evidenced by one of his most recent documents, the power of attorney he gave to his son Prince Ashie Kotey to testify on his behalf in this suit (exhibit M).

The said power of attorney was executed without a jurat and this presupposes that Nii Andrews Kotey Nmashie is literate. That being the case, the statement in the Oath of Proof in exhibit 1 that Nii Andrews Kotey Nmashie cannot read and write cannot be true. If it is true that he cannot read and write, then the absence of a jurat will affect the validity of exhibit 1. If however the 1st defendant insists that the said statement in the Oath of Proof is true, then it cannot be referring to the Nii Andrews Kotey Nmashie who is the head of the Okunekatawele family.

It is the 1st defendant’s case that when he bought the land, he was issued with receipts and he tendered one of the receipts into evidence as exhibit 2. Exhibit 2 is an official receipt from the Nii Nmashie Okunekatawele family dated 20 th January 2015 for the benefit of the 1st defendant. The receipt provides in part as follows:

“Received from Joseph Tetteh the sum of Sixty Thousand Ghana Cedis only being part

 

payment of 2 plots of land purchased at Oyibi.”

From exhibit 2 therefore, on 20th January 2015, the 1st defendant made a payment of GH¢60,000.00 to the Okunekatawele family in respect of a purchase of two plots of land. That amount was described as ‘part payment’. If the 1 st defendant’s claim that he bought the land in 2012 was true, then his receipt of payment should have been in 2012 and not in 2015 as evidenced by exhibit 2. It is unthinkable for land that was supposedly bought in 2012 to be paid for in 2015 unless the land was bought on credit. That is however not the 1 st defendant’s case before this court.

Furthermore, exhibit 2 being the receipt of payment was signed only by Kate Kai Kotey and not by Nii Andrews Kotey Nmashie though his name appears on the document but his signature portion is blank. It therefore appears that the 1 st defendant dealt with Kate Kai Kotey and paid monies to her but the said Kate Kai Kotey was able to procure a document that was supposedly signed by Nii Andrews Kotey Nmashie for the benefit of the 1 st defendant. The evidence on record however reveals that Nii Andrews Kotey Nmashie could not have signed and did not sign exhibit 1 as the 1st defendant wants the court to believe.

Exhibit 3 is also an application for building permit by the 1 st defendant and it is dated 23rd April 2015. Though a building permit can be applied for years after purchase of a parcel of land, the totality of the documents that have been tendered by the 1 st defendant reveals that the 1st defendant’s assertion that he bought the land in 2012 cannot be true. If anything at all, the 1st defendant came onto the land sometime in 2015 as depicted by the documents he has tendered into evidence.

Nii Andrews Kotey Nmashie did not come to court to testify personally. He however testified through his attorney Prince Ashie Kotey. It is the evidence of Prince Ashie Kotey that Nii Andrews Kotey Nmashie never executed exhibit 1 in favour of the 1 st defendant. This is captured in paragraph 11 of his witness statement in the following terms:

“The purported lease agreement dated 4th February 2015 and made between Nii Andrews Kotey Nmashie and Joseph Tetteh is a forged document as it was never executed by Nii Andrews Kotey Nmashie. This document has been tendered in evidence as exhibit D.”

PW 1 was extensively cross-examined on this issue and he was resolute in his answers. On 25 th October 2019 when he was being cross-examined by counsel for the defendant with respect to exhibit 1 (same as exhibit D) and other documents supposedly signed by Nii Andrews Kotey Nmashie, he was positive that exhibit 1 was not executed by Nii Andrews Kotey Nmashie. Portions of the said piece of evidence given on 25 th October 2019 will be referred to later in the judgment.

 

In his address filed on behalf of the 2nd defendant, counsel for the 2nd defendant stated that as an attorney of Nii Andrews Kotey Nmashie, his evidence is binding on Nii Andrews Kotey Nmashie. I agree perfectly with counsel for the 2 nd defendant on this issue. That being the case, the evidence of PW 1 with respect to exhibit 1 reflects the position of Nii Andrews Kotey Nmashie that he did not sign the said exhibit. From this piece of evidence coupled with the other issues I have identified with exhibit 1, I hold that Nii Andrews Kotey Nmashie, head of the Okunekatawele family did not execute any lease agreement in respect of the land in dispute in favour of the 1st defendant Joseph Tetteh.

Issue 2 – Whether or not Nii Andrews Kotey Nmashie, head of Okunekatawele family ever executed any lease agreement in respect of the land in dispute in favour of the 2 nd defendant prior to the lease agreement dated 9 th January 2015 executed by Nii Andrews Kotey Nmashie in favour of the plaintiff.

This issue is also in two parts just like the first issue I have just discussed. I will deal with the aspect dealing with the execution of a lease agreement by Nii Andrews Kotey Nmashie in favour of the 2nd defendant. It is the 2nd defendant’s case that Nii Andrews Kotey Nmashie executed a lease for him in respect of his land in February 2013. This is captured in paragraph 6 of his statement of defence and also in paragraph 5 of his witness statement. He tendered a copy of the said lease into evidence as exhibit 5. The plaintiff also tendered into evidence a copy of the said lease as exhibit E.

Exhibit 5 is dated 6th February 2013 and it is supposedly signed by Nii Andrews Kotey Nmashie and witnessed by Kate Kai Kotey and Jacob Oko Kotey. Generally, prima facie, exhibit 5 appears to be a regular document. A critical look at exhibit 5 will however reveal some worrying findings. Firstly, the Oath of Proof was deposed to by Kate Kai Kotey on 6 th February 2013 and she claims in her oath that Nii Andrews Kotey Nmashie cannot read and write. If that is the case, then there should have been a jurat with respect to Nii Andrews Kotey Nmashie’s execution of exhibit 5 but there is no such jurat.

The jurat was however unnecessary because the evidence on record reveals that Nii Andrews Kotey Nmashie can read and write. Thus the said statement in the Oath of Proof that Nii Andrews Kotey Nmashie cannot read and write was either made mistakenly or made to deceive. The question however is how Kate Kai Kotey who claims to know Nii Andrews Kotey Nmashie so well make an averment bordering on the literacy status of Nii Andrews Kotey Nmashie which is not true unless she had some other motive which the court is not aware of.

In any case, in PW 1’s evidence before the court, he stated categorically that his principal Nii Andrews Kotey Nmashie who is his father never executed exhibit 5 in favour of the 2 nd defendant. Counsel for the 2nd defendant rightly captured the effect of this piece of evidence in his address when he noted that “it is trite learning that the statement of the attorney binds the principal”. I am in total agreement with counsel for the 2 nd defendant on this score.

That being the case, with the positive evidence from PW 1 that exhibit 5 was not executed by Nii Andrews Kotey Nmashie, there is no question about any corroboration by Kate Kai Kotey with respect to the execution of exhibit 5 by Nii Andrews Kotey Nmashie. This is more so because even Kate Kai Kotey herself in deposing to the Oath of Proof in exhibit 5 deposed to some facts about Nii Andrews Kotey Nmashie which are not true. On the basis of the above, I therefore hold that Nii Andrews Kotey Nmashie, head of the Okunekatawele family did not execute any lease agreement in respect of the land in dispute in favour of the 2 nd defendant.

Issue 3 – Whether or not the power of attorney dated 14 th July 2010 and executed in favour of Kate Kai Kotey by Nii Andrews Kotey Nmashie, head of Okunekatawele family was to enable Kate Kai Kotey represent Nii Andrews Kotey Nmashie in court or was for her to alienate/ grant Okunekatawele family lands.

Issue 4 – Whether or not the purported lease agreement dated 16 th August 2014 and made between Kate Kai Kotey and Saviour Ahodokpo passed title in the land, the subject matter of this suit to the 2nd defendant.

The defendants, especially the 2nd defendant, have asserted that Nii Andrews Kotey Nmashie executed a power of attorney in favour of Kate Kai Kotey in July 2010 and that power of attorney, amongst others, gave Kate Kai Kotey power to alienate Okunekatawele family lands. Based on this power granted Kate Kai Kotey, she executed a lease in favour of the 2 nd defendant on 16th August 2014 (exhibit 9). The plaintiff has however denied this assertion and has however stated that the said power of attorney only gave Kate Kai Kotey power to represent Nii Andrews Kotey Nmashie in court and it did not give her the power to alienate family lands. The 2nd defendant tendered a copy of the power of attorney into evidence as exhibit 6. I will reproduce the power of attorney in this judgment for further analysis:

“This power of attorney is made this 14th day of July 2010.

I Nii Andrews Kotey Nmashie, head of Nii Kotey Nmashie Okunekatawele family of H/No. AX 34, Community 7, Tema hereby appoint Kate Kai Kotey, a principal elder of Nii Kotey Nmashie Okunekatawele family to be my lawful attorney for the following purposes:

(1) To testify for and on my behalf [in] any action that Nii Kotey Nmashie Okunekatawele family may institute in any court in Ghana through me.

(2) To testify and defend any action that may be brought against me in my capacity as the head of Nii Kotey Nmashie Okunekatawele family.

(3) To testify for and on my behalf in a case entituled: Suit No. AL 21/2007 –

 

Powell Abraham Ashirifi Gogo & another v. Andrew Kotey Nmashie & another.

(4) To compromise and or settle any action or proceedings before any court in Ghana.

(5) Generally to act as my attorney in relation [to] all Nii Kotey Nmashie Okunekatawele family lands and in relation to all other matters concerning my said family of which I am the head.

(6) As head of the family herein mentioned, I undertake to ratify all that my attorney herein mentioned may do or cause to be done in pursuance of this Power of Attorney.

In witness whereof I have hereunto set my hands and names the day and year first above written.”

The power of attorney as can be seen above is made up of six main clauses. The first four clauses are in respect of a power given to Kate Kai Kotey to represent Nii Andrews Kotey Nmashie in court and testify on his behalf. The 5 th clause is a somewhat general rendition which gave Kate Kai Kotey power to act ‘in relation to all other matters’ concerning the Okunekatawele family. It is this provision that the defendants have stated gave Kate Kai Kotey the power and the right to alienate Okunekatawele family property.

Powers of attorney are usually given by a person to another person to act on his behalf in respect of certain issues. A power of attorney can be a general power of attorney or a specific power of attorney. A general power of attorney is usually given by the donor to the donee and it empowers the donee to act in respect of all matters that the donor has the capacity to personally do. A general power of attorney is therefore not limited in its scope and extent.

A specific power of attorney however empowers the donee to undertake certain specific acts which have been clearly stated in the power. Thus when a power is specific, the donee can only act based on the specific acts stated in the power and he or she cannot go beyond the said specific acts.

A careful look at exhibit 6 will reveal that it was given to Kate Kai Kotey purposely to enable her represent and or testify for and on behalf of Nii Andrews Kotey Nmashie in respect of family litigation. That is what the main clauses of the power of attorney (clauses 1 to 4) speak to. This therefore means that the apparently general clause as captured in clause 5 should be construed as dealing with matters that are related to litigation in respect of Okunekatawele family lands and not in respect of any other matter. If I am to hold otherwise, this will create an absurdity in the sense that alienation of family land is a very important duty of a head of family and any delegation of such powers must be expressly done. Nowhere in exhibit 6 was it expressly stated that Kate Kai Kotey was authorised to alienate family lands.

 

If exhibit 6 was a general power of attorney which made no reference to any specific duty of the head of family, I would have been inclined to go with the defendants on this issue. However, considering the fact that the said power was geared towards certain specific duties of the head of family, it should be restricted to the said specific duties and nothing more.

The 2nd defendant has given us a perfect example in exhibit 18 which was tendered into evidence by DW 1 Kate Kai Kotey on 9th July 2020. It is a power of attorney dated 5 th January 2016 from Madam Alice Kutorkor Kotey to Kate Kai Kotey. The said power of attorney is also a specific power of attorney detailing certain acts Kate Kai Kotey can perform on behalf of the Okunekatawele family. Apart from it giving Kate Kai Kotey the power to represent the donor in court in respect of family lands, it also specifically gives her the power to sign family land documents in the following terms:

“To do everything and anything (including the signing of family land documents) which I am by law entitled to do in my capacity as the head of family.”

It also further goes on to give Kate Kai Kotey the power to ‘ perform all the functions bestowed on [Madam Alice Kotey] in capacity as the head of family ’. Exhibit 18 is quite unlike exhibit 6 and it is detailed and it has chronicled all the duties of the attorney in such a way that it leaves no room for ambiguity. Thus, quite apart from the power to represent the donor in court and also to sign family land documents on her behalf, it also gives the donee the power to perform all functions as the head of family.

This is a typical example of a power which though looking specific in form, is however general in outlook unlike exhibit 6. It appears that the defendants and their supposed grantors realised the inadequacy with exhibit 6 with respect to the actions of Kate Kai Kotey in using it as a basis to make grants of family lands that is why when they were giving out a similar power in 2016, they were so detailed.

I therefore hold that the power of attorney dated 14 th July 2010 and executed in favour of Kate Kai Kotey by Nii Andrews Kotey Nmashie, head of Okunekatawele family was a specific power that was donated to Kate Kai Kotey to enable her represent Nii Andrews Kotey Nmashie in court but it did not give her any power to alienate or make grants of Okunekatawele family lands to third parties. That being the case, Kate Kai Kotey could not have validly made a grant of the land in dispute to the 2nd defendant when she purported to do so on 16 th August 2014 under the authority of the said power of attorney. The said lease dated 16 th August 2014 between Kate Kai Kotey and the 2nd defendant did not therefore pass any title over the land in dispute to the 2nd defendant.

Issue 5 – Whether or not the lease dated 9 th January 2015 executed by Nii Andrews Kotey Nmashie in favour of the plaintiff passed title in the land to the plaintiff.

 

The above holdings do not necessarily mean that the plaintiff has been able to prove his claim. The authorities are clear that the plaintiff has to win on the strength of his case and not on the weakness of his opponents’ case. I will therefore proceed to assess the evidence on record to determine whether the plaintiff has been able to prove his case on a balance of probabilities. This will lead me to the resolution of issue 5 which deals with the plaintiff’s lease dated 9 th January 2015.

It is the plaintiff’s case that the land in dispute and over which he has sued the defendants was granted to him by Nii Andrews Kotey Nmashie, head of Okunekatawele family by a lease dated 9th January 2015. The defendants have denied this assertion and it was incumbent on the plaintiff to lead evidence in support of his claim. The plaintiff attempted to do just that. He testified and also subpoenaed his grantor to testify on his behalf. His grantor gave a power of attorney to his son Prince Ashie Kotey to testify on his behalf.

Throughout the proceedings, one of the nagging questions I tried finding an answer to was why Nii Andrews Kotey Nmashie being the head of the Okunekatawele family could not appoint any of the principal members of the family as his attorney to testify on his behalf when the issue at stake had to do with family property but he rather had to appoint his son as his attorney to testify on his behalf. One may argue that this is as a result of past experiences he had had when he appointed Kate Kai Kotey as his attorney (exhibit 6).

This is however far from the truth as the evidence on record reveals that there is a total disconnect between Nii Andrews Kotey Nmashie and the principal members of the family and there have even been attempts by the principal members to depose him as a head of family. Exhibits 16, 17, 18 and 20 refer. Irrespective of these concerns, I still have to assess the plaintiff’s case in the light of the evidence on record and the law on the subject.

The plaintiff testified himself and he tendered his lease dated 9 th January 2015 from Nii Andrews Kotey Nmashie as exhibit A. Counsel for the defendants raised some issues with exhibit A in their respective addresses. Prominent among them being the fact that exhibit A, though it is a lease, does not have any consideration stated on it. They have also stated that though Gladys Tsotsoo who witnessed the execution of the document thumb printed the document, there is no jurat on the document testifying that the contents were read over and explained to her. I have also identified some few issues with exhibit A which I will deal with shortly.

I will firstly deal with the issue of jurat on exhibit A. It is obvious on exhibit A that the only witness to the document, Gladys Tsotsoo thumb printed the document. Does a thumb print necessarily mean that the person who thumb printed is an illiterate? That may not necessarily be the case unless there are other pieces of evidence that point to the fact that the person was an illiterate. When the plaintiff was being cross-examined by counsel for the defendants, they suggested to him that the said Gladys Tsotsoo was an illiterate but he said he could not tell though at all material times, he communicated with her in the local language.

The question as to whether Gladys Tsotsoo was an illiterate or not can easily be answered when one looks at exhibit J which was tendered into evidence by the plaintiff. Exhibit J is a power of attorney by Nii Andrews Kotey Nmashie to Etodad Company Ltd. One of the witnesses to exhibit J is Gladys Tsotoo. She thumb printed exhibit J just as in exhibit A. In exhibit J however, there is a jurat indicating that the contents were read over to her in the Ga language and she duly made her mark after understanding the contents. Exhibit J therefore reveals clearly that Gladys Tsotsoo is an illiterate.

If she is an illiterate, does it necessarily mean that there should have been a jurat on exhibit A? Witnesses to a document usually witness the execution of the document by the person making the document and they do not need to know the contents of the document they are witnessing. With respect to land documents emanating from families and also stools however, it is necessary that the witnesses to the documents know the contents of the said documents.

This is because per the parties’ part of the document, such witnesses are necessarily principal members of the family and their consent and concurrence is essential to the alienation of family lands. It is therefore usually stated that the document is made by the head of family acting with the consent and concurrence of the principal members of the family. The said consent is further testified to by some of the principal members witnessing the execution of the document by the head of family. Exhibit A for example states on this issue as follows:

“This indenture made on the ninth (9th) day of January in the year of our Lord Two Thousand and Fifteen (2015) between NII ANDREWS KOTEY NMASHIE, head of Okunekatawele family of Teshie-Accra in the Greater Accra Region of the Republic of Ghana with the consent and concurrence of the principal members of the family whose consent and concurrence are necessary or requisite by customary law for the valid grant, alienation or deposition of any land or other property of the said family which consent and concurrence are hereby testified by some of the principal elders aforesaid witnessing the execution of these presents …” [Emphasis mine.]

From the said rendition therefore, exhibit A should have been witnessed by principal members of the Okunekatawele family as the said witnessing is to testify that the said principal members have consented to the alienation of the land comprised in the said document by the head of family to the lessee. This therefore means that any principal member who witnesses the said document must know and accept of the contents of the said document. Thus if the said principal member is an illiterate, there must be a jurat testifying to the fact that the contents of the said document were read over and explained to her and she understood before making her mark.

There have been a lot of arguments with respect to whether the sole witness to exhibit A, Gladys Tsotsoo was a principal member of the Okunekatawele family or not. Whilst the plaintiff and his witness assert that she is a principal member, the defendants and their witness assert that she is not. Proceeding arguendo that she is a principal member, does the evidence on record reveal that she consented to the alienation of the land to the plaintiff by Nii Andrews Kotey Nmashie? One may argue that her thumbprint on exhibit A presupposes that she consented, but the absence of the jurat casts doubt on this assertion as there is no evidence that she was aware of the contents of exhibit A for her to have consented to the said alienation.

In the light of the above discussion, it therefore appears that no principal member of the Okunekatawele family consented to the supposed alienation of the land in dispute to the plaintiff by Nii Andrews Kotey Nmashie. The authorities are clear that for there to be a valid alienation of family land, it must be done by the head of family with the consent and concurrence of the principal members. Cases such as Hausa v. Hausa [1972] 2 GLR 469, Kwan v. Nyieni [1959] GLR 67, Dotwaah v. Afriyie [1965] GLR 257, Dzefi v. Ablorkor VI [1999-2000] 1 GLR 10 and Fianko v. Aggrey [2007-2008] SCGLR 1135 all deal with this time tested principle.

In Akunsah v. Botchway & Jei Farm Ltd. [2011] 1 SCGLR 288 , an alienation of stool land by the chief alone without the involvement of the principal elders was held to be an invalid alienation of stool land. On the strength of this authority, the non-involvement of the principal members of the Okunekatawele family to the supposed alienation of the land in dispute to the plaintiff therefore affects the validity of the said alienation.

Another issue with exhibit A is the fact that in the Oath of Proof, while there is a thumbprint apparently showing that somebody deposed to the oath, there is however no name in the body of the Oath of Proof and also no date except the year 2012. Thus while the document itself is dated 9th January 2015, the Oath of Proof is supposedly dated 2012. Furthermore, it is stated that the Oath of Proof was sworn to on 26 th January 2015. A careful look at the said date will reveal that the year that was typed was 2012 but a pen was used to change the ‘2’ to ‘5’ in order to make it read 2015. A similar thing also appears in the Certificate of Proof.

What agitates the mind of the court is the fact that the date on the parties’ clause of the lease is neatly typed as 9th January 2015 but when it comes to the Oath and the Certificate of Proof, the year that was typed was 2012 and a pen was used to change it to read 2015. Coupled with the absence of a name on the Oath of Proof but with a thumbprint, it makes exhibit A all the more suspicious.

 

The plaintiff also tendered into evidence a search report as exhibit B which was intended to support the genuineness of exhibit A and the plaintiff’s case in general. In paragraph 4 of the plaintiff’s witness statement, he stated that before acquiring the land, he conducted investigations both on the land and at the Lands Commission. In paragraph 5 of his witness statement, he made reference to a search conducted at the Lands Commission, a copy of which was tendered as exhibit B.

Exhibit B is dated 13th January 2015. Plaintiff’s lease document is however dated 9 th January 2015. This implies that the search in exhibit B was conducted after the plaintiff had supposedly acquired the land. It can therefore not be evidence of due diligence. Per the said search too, there is no reference to the Okunekatawele family.

In paragraph 6 of his witness statement, the plaintiff testified that per exhibit B, a noted proposal in favour of Ministry of Agric had been released to the Okunekatawele family per a judgment of the High Court. Whilst entry 4, being the last entry on exhibit B, mentioned the said noted proposal in favour of the Ministry of Agric, there is no entry on exhibit B confirming the release of the land to Okunekatawele family. It is therefore doubtful whether the results as shown in the search in exhibit B was based on the plaintiff’s site plan attached to exhibits A and B.

What however put the nail on the coffin of exhibit A is the evidence of PW 1. From all the documents tendered in evidence that supposedly bear the signature of Nii Andrews Kotey Nmashie, there are some similarities and also some differences in the signatures and it is difficult to pinpoint exactly that any two of them are the same unless Nii Andrews Kotey Nmashie himself or somebody closely associated with his signature provides some assistance. That is why the evidence of PW 1 with respect to Nii Andrews Kotey Nmashie’s signature was so crucial.

Though in his witness statement PW 1 claimed that the signatures of Nii Andrews Kotey Nmashie on the lease dated 9th January 2015 (exhibit A), Power of Attorney dated 14 th July 2010 (exhibit 6) and the Revocation of Power Attorney dated 9 th May 2015 (exhibit K) were Nii Andrews Kotey Nmashie’s signatures, when the said signatures were shown to him during cross-examination, he could not positively identify the signature of Nii Andrews Kotey Nmashie on exhibit A. This is not surprising because per his own testimony, when Nii Andrews Kotey Nmashie signs a document, he makes a certain distinct mark and though there appeared to be such a mark on exhibit A, it is not as he described it to the court. This is what transpired between him and counsel for the 2nd defendant on 25th October 2019:

“Q: Take a look at Exhibits, A, D, E, J and K. They contain signatures purporting to be signatures of your father.

A: Yes my Lord.

Q: Which of the signatures do you identify as belonging to your father?

 

A: My Lord, Exhibits J and K. …

Q: Would you agree with me that your father will not arrive at very similar signatures when he is signing on different occasions?

A: My Lord, the signature is always the same. It never changes. ” [Emphasis mine].

Exhibit A is the plaintiff’s lease supposedly executed by Nii Andrews Kotey Nmashie but PW 1 claims the signature on exhibit A is not his father’s signature. Exhibit D is the 1 st defendant’s lease and exhibit E is the 2nd defendant’s lease all supposedly executed by Nii Andrews Kotey Nmashie. PW 1 was very emphatic that the signatures on the said documents did not belong to his father. He further went on to state some characteristics that are associated with his father’s signatures (which he had earlier stated in paragraph 20 of his witness statement) which he claimed were absent on exhibits A, D and E in the following terms:

“Q: You have indicated in paragraph 20 of your witness statement some features that are present in your father’s signature. Can you tell the court which of them is not present on the signature on that receipt (exhibit 7)?

A: Anytime my father signs a document, he authenticates it with a check sign beneath the letter ‘k’. In this case the check sign is not beneath the letter ‘k’. …

Q: Take a look at Exhibits J and K. You will agree with me that the check mark touches the letter ‘k’ just as it appears in the rest.

A: My Lord, the argument here is not about whether it touches or not but it is beneath the letter ‘k’.

Q: You will also agree with me that all the other exhibits you have rejected so far [A, D and E], the check marks are all beneath the letter ‘k’ just as those you have identified as being your father’s signature?

A: Yes My Lord. They are not beneath the letter ‘k’. ” [Emphasis mine.]

One may argue that because a number of documents were given to the witness to try and identify his father’s signature, he might have been confused. This argument can however not hold as down the line on page 12 of the proceedings of 25 th October 2019, PW 1 further confirmed that the said exhibits A, D and E were not executed by his father. This is the nature of the interaction between counsel for the 2 nd defendant and PW 1 on this issue:

“Q: You will again agree with me that all the signatures you have denied as being your father’s signature on Exhibits A, D and E have straight, sharp

 

handwritings with the check marks below the ‘k’ just as these features appear on Exhibit J and on Exhibit K, Power of Attorney and revocation respectively.

A: My Lord about the sharpness, I can’t say anything about it but counsel made mention that A, D and E were below the letter ‘k’ which is not so .” [Emphasis mine.]

The most recent document signed by Nii Andrews Kotey Nmashie is exhibit M which is the power of attorney he gave to PW 1 which was executed on 5 th April 2019. A comparison of Nii Andrews Kotey Nmashie’s signature on exhibit M will reveal that while in exhibit M there is a check sign below the letter ‘k’ in the signature and the said check sign has a sharp point facing downward resembling the letter ‘v’ to an extent, in exhibit A there appears to be a check sign but it is beneath the letters ‘k’ and ‘o’ and almost touching the letter ‘t’. Furthermore, the said check sign has a blunt point facing downward which resembles the letter ‘u’ more than the letter ‘v’. It is therefore not surprising that PW 1 denied that exhibit A was executed by his father.

Little did PW 1 know that in his attempt to dent the respective cases of the defendants, he also unknowingly succeeded to punch holes in the plaintiff’s case by denying the execution of exhibit A by Nii Andrews Kotey Nmashie. In the light of the discussions above, I hold that the lease dated 9th January 2015 supposedly executed in favour of the plaintiff by Nii Andrews Kotey Nmashie did not pass title to the land in dispute to the plaintiff.

Issue 6 – Whether or not the plaintiff is entitled to his claim.

That being the case, the plaintiff has not been able to prove his case on a balance of probabilities. The plaintiff is thus not entitled to his claim and I so hold.

Concluding remarks

In the course of the trial, the court directed the conduct of a survey and the drawing of a composite plan. From the composite plan, it is evident that all the parties have certain things on the land in dispute which reveal some amount of possession exercised by the parties.

For example, the composite plan reveals that the plaintiff has a three bedroom wooden structure and a metal structure block factory on the land in dispute. The 1 st defendant has a single room with a porch, a concrete wall on three sides, a 40 foot container and some stones on the land in dispute. The 2nd defendant has a single room structure, quarry dust, chippings, stone and sand, and a 40 foot container on the land in dispute. He also has a concrete wall around three sides of the land and a wire mesh fence on the other side of the land.

 

The plaintiff is in this court claiming reliefs of title, injunction and recovery of possession. The authorities are clear that recovery of possession cannot be declared for a plaintiff who fails to prove title. The relief of recovery of possession being sought by the plaintiff also implies that the defendants are in possession, hence the said relief. Thus though the plaintiff might have exercised some acts of possession over the land in dispute in the past, currently, it is the defendants who are in possession as the record reveals.

The defendants did not make any counterclaim and as such they were not under any obligation to prove anything. Though per the holdings above none of the parties has been able to prove title over the land in dispute, I will not disturb the defendants’ possession over the land in dispute. I award cost of GH¢5,000.00 in favour of each defendant against the plaintiff.