CHARLES YAW KRAH DONKOR v GRACE DEDAAH, MAJOR T. A. DARTEH (RTD.) & LAWRENCE OSEI MENSAH

Plaintiff’s case

By a writ of summons issued on 24th October 2017, the plaintiff claimed the following reliefs against the defendants:

i. Declaration of title to all that piece of land lying and situate at Ablekuma, the subject matter of this suit. [The land was described at paragraph 5 of the statement of claim as all that piece or parcel of land situate and being at Ablekuma, Accra containing an approximate area of zero point three-two (0.32) acre more or less and bounded on the North-East by proposed road measuring One Hundred and Forty dot zero (140.0) feet more or less, on the South-East by Lessor’s land measuring One Hundred dot zero (100.0) feet more or less, on the South-West by Lessor’s land measuring One Hundred and Forty dot zero (140.0) feet more or less and on the North-West by Lessor’s land measuring One Hundred dot zero (100.0) feet more or less.]

ii. Recovery of possession of the said land.

iii. Damages for trespass.

iv. Costs including legal fees. Any other relief this honourable court may deem fit.

The plaintiff describes himself as a businessman and the Managing Director of Crown Petroleum Company Limited at Ofankor. He asserts that sometime in the year 2006, he heard about the sale of the land in dispute and he visited the site with one Charles Asante (PW1) and they met a woman and her child in a single room on the land. After further investigations, they later found out that the land belonged to one Mr. Atuahene who had had detailed one Mr. Tettey, his caretaker to sell the land on his behalf. Further investigations also revealed that the land was originally conveyed by Nii Oshiu Kwame to one Quaye Tawia.

The plaintiff asserts that he negotiated the sale price with Mr. Atuahene, paid the agreed price and took possession of Mr. Atuahene’s title documents and yellow card. He further asserts that after examining Mr. Atuahene’s documents, he realized that his lessor was Ebenezer Tetteh Annan Nettey, head of the Nii Sempe Mensa family of Ablekuma. He then decided to contact the family for new documents covering the land in order to secure his title. The then head of family Nii Larbie Mensah IV executed a new indenture on his behalf.

He then proceeded to register his title at the Lands Commission but he discovered that the land had been registered in the name of Accra Solid and Liquid Waste. He contacted Accra Solid and Liquid Waste who executed a Deed of Assignment on his behalf in the year 2007. He then proceeded with his registration and a publication was made in the Weekly Spectator newspaper. Later searches he conducted at the Survey and Mapping Division of the Lands Commission revealed that the land had been plotted in his name.

The plaintiff asserts that before the land title certificate could be issued to him, an objection was raised by the 1st defendant. The 2nd and 3rd defendants then began encroaching on the land with the 2nd defendant asserting that he was on the land on the authority of the 1 st defendant. The 2nd defendant had rented part of the land to some traders some of whom sell cars on the land and he had also been preventing tipper trucks bringing sand on his behalf to enter the land. The said 2nd defendant had also recruited land guards who terrorise and threaten the plaintiff’s workers and the workers are therefore afraid to go onto the land for fear of their lives. The plaintiff therefore claims that unless the court intervenes, the defendants will still continue with their acts of trespass hence the present suit.

 

1st and 2nd defendants’ defence and counterclaim

In their joint statement of defence and counterclaim, the 1 st and 2nd defendants denied the plaintiff’s claim in its entirety. It is their case that the plaintiff does not own any land in that vicinity. They assert that the 1st defendant bought the land in dispute from the then Ablekuma chief, Nii Kwaku Fosu III, in 1994 but he could not execute a conveyance for the 1 st defendant before his death. Upon his death, the 1st defendant approached Nii Larbie Mensah IV who, after examining her receipt, executed a conveyance in her favour in September 2005. She then stamped her documents and commenced registration.

She took possession of the land and constructed a two bedroom house up to the lintel level but this was destroyed by the plaintiff and one Charles Asante claiming that they had purchased the land from one Nii Borkorborkor. The matter was reported to the police and they warned the plaintiff off the land but he did not heed to the warnings. The 2 nd defendant claims that he was then compelled to engage some military friends to drive off the land guards from the land. The 1st defendant then instituted an action against the plaintiff and his associates but they were unable to serve the plaintiff with the writ. The 1 st and 2nd defendants therefore counterclaimed for the following reliefs:

i. Declaration of title to all that piece and parcel of land situate and lying at Ablekuma containing an area of 0.16 acre bounded on the North by a road measuring 70 feet more or less, on the East by Ablekuma Stool land measuring 100 feet more or less, on the South by Ablekuma Stool land measuring 70 feet more or less and on the West by Ablekuma Stool land measuring 100 feet more or less.

ii. General damages for trespass.

iii. Perpetual injunction restraining the plaintiff, his agents, assigns, privies and anybody claiming through him from interfering with her quiet enjoyment of her property.

3rd defendant’s defence

In his defence, the 3rd defendant also denied the plaintiff’s claim and rather asserted that he acquired part of the land in dispute from one Lawrence Osei Mensah in the year 2016 and he was put in possession. At the time he bought the land, his vendor had walled the land as far back as 2002 and he had a single store room on the land where he was selling cement. He asserts that his vendor had been in possession of the land as far back as 2002 and part of the land was affected by the construction of the N1 through to Pokuase for which his vendor was duly compensated by the government.

 

The 3rd defendant asserts that the plaintiff had wanted to purchase the same land from his vendor but his vendor had already concluded the sale with him. When he took possession of the land, the plaintiff approached him on several occasions to try to convince him to sell the land to him but he refused. He asserted that the plaintiff had an adjoining land where he had some uncompleted stores and he wanted to add the 3 rd defendant’s land to it in order to get a larger piece of land for his business.

The 3rd defendant asserts that he has been in undisturbed possession of the land and nobody had challenged his presence until this action by the plaintiff. He asserts that the plaintiff does not have any interest in the land in dispute. He therefore prayed for a dismissal of the plaintiff’s claim.

Issues for trial

At the close of pleadings, the following issues were set down by the court for trial:

i. Whether or not the plaintiff is the owner of the parcel of land, the subject matter of this suit.

ii. Whether or not the 1st defendant has any legal right to authorize the 2 nd

defendant to be on the land.

iii. Whether or not the 3rd defendant has any right of ownership over the land.

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

v. Whether or not the 1st and 2nd defendants are entitled to their counterclaim

vi. Any other issues arising out of 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 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” .

In Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held at page 867 of the report as follows:

“… he who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a) … .What this rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish.”

Where the defendant has filed a counterclaim, per the rules of court he becomes a plaintiff with respect to the counterclaim and the same burden that is placed on the plaintiff is also placed on the defendant with respect to the counterclaim. Failure by the defendant to lead sufficient evidence in support of his counterclaim will lead to his counterclaim being dismissed.

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) Akufo-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.”

In actions for declaration of title to land, the Supreme Court has 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. In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, 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.”

Summary of evidence

The plaintiff testified himself and he called three witnesses namely Charles Asante (PW1), Emmanuel Tettey Quaye (PW2) and Jacob Aidoo (PW3). He tendered into evidence the following exhibits:

i. Exhibit A – An indenture dated 12th May 1999 between Ebenezer Tetteh Annan Nettey of the one part and Mr. and Mrs. Kwaku Atuahene of the other part.

ii. Exhibit B and its attachments – Application for first registration dated 23 rd

January 2003.

iii. Exhibit C – Lease dated 1st January 2007 between Nii Larbie Mensah IV, Sempe Atofotse of the one part and Charles Yaw Donkoh of the other part.

iv. Exhibit D – Deed of Assignment dated 12th November 2014 between Accra Solid and Liquid Waste of the one part and Charles Yaw Donkor of the other part.

v. Exhibit E – Search report from the Lands Commission dated 7 th January 2014.

vi. Exhibit F – Multiple Requests for Survey and Preparation of Parcel plan dated 24th January 2014.

vii. Exhibit G series (G and G1) – Application for first registration with the newspaper publication attached.

viii. Exhibit H – Search report from the Survey and Mapping Division of the Lands Commission dated 11th December 2015.

ix. Exhibit H1 – Search report from the Survey and Mapping Division of the Lands Commission dated 11th July 2018.

x. Exhibit J – Letter dated 14th March 2017 from Ghana Revenue Authority to Accra Solid and Liquid Waste.

xi. Exhibit K – Letter dated 25th May 2017 from S. K. Amoah to the Land Registration Division of the Lands Commission.

xii. Exhibit L series (L and L1) – Maps showing a road layout of the area where the land in dispute is situate.

The 2nd defendant testified on his behalf and on behalf of the 1 st defendant. They called one witness namely Edward Nettey (DW1). They tendered into evidence the following exhibits:

i. Exhibit 1 – Receipt dated 3rd August 1994 from Nii Kwaku Fosu III to Grace Dedaah.

ii. Exhibit 2 – Lease dated 13th September 2005 between Nii Larbie Mensah IV and Madam Grace Afua Dedaah.

iii. Exhibit 3 – Extract from Police Station Diary dated 25 th November 2013.

iv. Exhibit 4 series – Pictures of some activities on the land in dispute.

v. Exhibit 5 series – Acknowledgment of applications for registration from Land Title Registry.

vi. Exhibit 6 – Letter dated 4th August 2016 from Major T. A. Darteh to the Regional Director of Lands Commission.

vii. Exhibit 7 – Letter dated 11th April 2017 from the Lands Commission to Major T.

A. Darteh.

viii. Exhibit 8 – Letter dated 15th April, 2014 from Beyuo & Co. to the Registrar, Land Title Registry.

ix. Exhibit 9 – Motion on notice for interlocutory injunction in Suit No. FAL/274/14; Madam Grace Dedaah v Nii Borkorborkor and 2 others.

x. Exhibit 10 – Rent Demand Notice from the Office of the Administrator of Stool Lands dated 12th April 2012 to Grace Afua Dedaah.

xi. Exhibit 11 – Multiple Requests for Survey and Preparation of Parcel plan dated 25th September 2015.

 

xii. Exhibit 12 – Deed of indenture dated 24th May 1996 between Ebenezer Tetteh Annan Nettey, head of Nii Sempe Mensah family of the one part and Oheneba Kwame Osei of the other part.

The 3rd defendant testified himself and he called one witness, one Lawrence Osei Mensah (DW2). He tendered into evidence the following exhibits:

i. Exhibit 13 – Handwritten receipt dated 26th July 2016.

ii. Exhibit 14 – Site plan in the name of Lawrence Osei Mensah.

iii. Exhibit 15 – Search report from the Lands Commission dated 7 th April, 2016.

iv. Exhibit 16 – E. I. 19 of 2006 – State lands (Statutory Wayleaves-Awoshie Pokuase Road) Instrument, 2006.

v. Exhibit 17 – Letter dated 12th July 2009 from the Department of Urban Roads to ‘Affected property owners’, Awoshie Pokuase Road.

vi. Exhibit 18 – Letter dated 17th March, 2011 from the Land Valuation Division of the Lands Commission.

vii. Exhibit 19 – k Letter dated 16th May, 2011 from Lawrence Osei Mensah to the Land Valuation Division of the Lands Commission.

I will proceed to address the issues as set down for trial.

Issue 1 – Whether or not the plaintiff is the owner of the parcel of land, the subject matter of this suit.

In attempting to prove his title over the land in dispute, the plaintiff traced his root of title to one Kwaku Atuahene. This is in consonance with the principle laid down by the Supreme Court in cases such as Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (supra) and Mrs. Vincentia Mensah (substituted by Beatrice Tsotso Adjetey) v. Numo Adjei Kwanko II (supra) that in an action for declaration of title, the claimant must prove his root of title amongst others.

It must be stated that the root of the plaintiff’s title can be traced to the said grant by Kwaku Atuahene to the plaintiff in 2006. According to the plaintiff, he negotiated the sale price with Mr. Atuahene, paid the agreed sale price and took possession of Mr. Atuahene’s documents. It can therefore be said that it is the documents of Mr. Atuahene that supposedly gave the plaintiff the right to be on the land in dispute.

 

The plaintiff tendered the said documents from Mr. Atuahene into evidence as exhibits A and B. Per the site plan attached to exhibit A, the land belonging to Mr. Atuahene which was supposedly transferred to the plaintiff lies just to the north of grid line 345000 and lies almost close to the east of grid line 115500. The same site plan was the subject of the search report in exhibit E.

The plaintiff has asserted that after identifying the grantors of Mr. Atuahene, he decided to approach them for documentation in respect of the land granted to him by Mr. Atuahene in order to secure his title. When he approached them, they executed exhibit C on his behalf. One would have thought that since exhibit C was supposed to have confirmed the land that was supposedly granted to the plaintiff by Mr. Atuahene, there would not have been any difference in the location of the land.

Exhibit C however tells a different story as the site plan attached to exhibit C shows that the land that was supposedly granted to the plaintiff as confirmation of Mr. Atuahene’s grant is located at an entirely different place. The said land lies to the south of grid line 345000 and quite a distance to the east of grid line 115500.

The plaintiff further asserts that when he attempted registering the land, he had issues as the land was registered in the name of Accra Solid and Liquid Waste. A Multiple Request for Survey and Preparation of Parcel plan was issued which was later resolved and this led to Accra Solid and Liquid Waste executing a Deed of Assignment on plaintiff’s behalf (exhibit D). The location of the land in the site plan attached to exhibit D is similar to the location of the land in exhibit C. This is not surprising as it is the land in exhibit C that the plaintiff attempted to register which led to the issues with Accra Solid and Liquid Waste.

If the plaintiff originally got his grant from Mr. Atuahene which land is as is depicted in exhibit A, it beats the mind of the court how the plaintiff’s land moved or shifted to the site which supposedly belonged to Accra Solid and Liquid Waste. It therefore appears that though Mr. Atuahene supposedly transferred a specific land to the plaintiff as is depicted in exhibit A, the plaintiff attempted to take possession of a different land being occupied by the defendants and he was able to procure documents from the Nii Larbie Mensah family and Accra Solid and Liquid Waste as depicted in exhibits C and D. This therefore raises issues with respect to the plaintiff’s assertion of title over the land in dispute.

In her address filed on behalf of the plaintiff, counsel for the plaintiff drew the court’s attention to the fact that regardless of the supposed root of title of the plaintiff, the plaintiff is actually claiming through Accra Solid and Liquid Waste and the court should therefore not lose sight of that claim. She noted at page 5 of the address as follows:

 

“Plaintiff led evidence to the fact that he paid the initial lessor Kwaku Atuahene who gave him documents covering the land (exhibits A and B). Subsequently plaintiff, through Charles Asante went further to have another document prepared by the allodial title holders (exhibit C) in a bid to secure his title. Eventually, both these documents proved inadequate when plaintiff discovered that Accra Solid and Liquid Waste (ASLW) had been granted title to that land by the allodial title holders (exhibit F). Plaintiff then approached ASLW and after paying some consideration, he was given a deed of assignment (exhibit D) in respect of that portion of land. As it stands therefore, plaintiff traces his root of title to the grant made by ASLW and not exhibits A or C. And since he obtained the assignment from ASLW, plaintiff has done everything in his power to perfect his title but has been impeded by the defendants on baseless claims of ownership.” [Emphasis mine.]

The question is, if exhibits A and C are not that relevant to the plaintiff’s case, why did the plaintiff bring them into the picture if not to prove his root of title and mode of acquisition of the land in dispute? The evidence led has also shown the relevance of exhibit A as it is very clear that the land that the plaintiff supposedly bought from Mr. Atuahene is not the land that the plaintiff is litigating over in this court.

In any case, there are a few issues with the grant from Accra Solid and Liquid Waste (exhibit D) which I need to address in this judgment. Firstly, in paragraph 12 of the plaintiff’s statement of claim, he stated that Accra Solid and Liquid Waste executed a Deed of Assignment for him in the year 2007. The Deed of Assignment the plaintiff tendered into evidence coming from Accra Solid and Liquid Waste (exhibit D) is however dated 12 th November 2014, about seven years after the said supposed execution in 2007.

Secondly, the plaintiff asserts that Accra Solid and Liquid Waste also got its land from the Nii Larbie Mensah family of Ablekuma. There is no evidence before the court to attest to the truth or otherwise of this assertion. The only document the plaintiff used in support of this assertion is the said Multiple Request for Survey and Preparation of Parcel plan (exhibit F). There is no evidence on exhibit F that shows that Accra Solid and Liquid Waste got its land from the Nii Larbie Mensah family.

Thirdly, Exhibit D, the Deed of Assignment from Accra Solid and Liquid Waste in favour of the plaintiff has five recitals and I will quote the first three recitals for further discussion. The said recitals are as follows:

“Whereas 1. The Onamrokor Adain family of Accra are owners in possession of the land herein demised.

2. The Lessee herein has approached the Lessor as Ag. Head of the said Onamrokor Adain family for a lease of the land herein demised for a term of ninety

 

nine years with an option to renew same as is hereinafter appearing and the lessor with the knowledge and consent and concurrence of the principal elder of the said family has agreed to lease the said land to the lessee for the consideration and upon the terms and conditions herein below appearing.

3. Whereas by a lease dated 13th May 2000 stamped as No. LVB and made between Nii Larbie Mensah IV, Sempe Atofotse, head and lawful representative of the Nii Larbie Mensah family of Ablekuma-Accra (therein described as the Lessor) of the one part and Accra Solid and Liquid Waste (therein described as the lessee) the assignor herein of the other part the property therein described was demised unto the assignor for the term of 99 years from the 6th day of February 1991 …” [Emphasis mine.]

The first and second recitals state that the land, the subject matter of exhibit D, belongs to the Onamrokor Adain family. The third recital however states that the land belongs to the Nii Larbie Mensah family. It is a mystery how land that supposedly belongs to the Onamrokor Adain family will later belong to a different family being the Nii Larbie Mensah family. The first and second recitals also refer to the parties as ‘Lessor’ and ‘Lessee’ though the document was supposed to be an assignment. The third recital however refers to the parties as ‘Assignor’ and ‘Assignee’ which are the correct designations for the parties in such a transaction.

Fifthly, there is also no indication as to the corporate status of Accra Solid and Liquid Waste on exhibit D, neither is there any indication as to who Accra Solid and Liquid Waste was acting through. Somebody signed on behalf of Accra Solid and Liquid Waste but neither the name nor the designation of the person was given.

Sixthly, every land document must have an Oath of Proof and a Certificate of Proof all duly sworn to. There is an Oath of Proof on exhibit D. There is however no person deposing to the said Oath of Proof and there is also no Certificate of Proof but it surprisingly went through other processes including stamping, and the plaintiff was attempting to register the said document at the Lands Commission to acquire a land title certificate. From the above, it can be seen that exhibit D tells a lie about itself and it appears it was hurriedly prepared to overreach the defendants in this suit. It therefore casts doubts on the plaintiff’s claim before this court.

Quite apart from these inconsistencies in the plaintiff’s documents, there are also some inconsistencies in the plaintiff’s pleadings and testimony before the court that I need to address. In paragraph 6 of the statement of claim, the plaintiff asserts that he visited the land in dispute with Charles Asante and when they got there ‘ they met one woman and her child in a single room on the land’. Thus, per the plaintiff’s pleading, at the material time that he wanted to buy the land from Mr. Atuahene, Mr. Atuahene had a single room on the land which was occupied by the said woman and her child but Mr. Atuahene had given instructions to his caretaker one Mr. Tettey to advertise the sale of the land.

 

In their evidence before the court however, the plaintiff and his witnesses’ story slightly changed or if I may say, was embellished. In paragraph 7 of his witness statement filed on his behalf on 17th July 2018 which was admitted as his evidence in chief on 4 th April 2019, this is what the plaintiff stated with respect to the state of the land at the time he visited the land:

“After this assurance from Mr. Atuahene, I visited the land with Charles Asante. At the site, we saw a single room structure on the land. A man by name Jacob Aidoo lived there in this structure with his wife and child . He confirmed to me that Kwaku Atuahene was the owner of the land and he gave him permission to live there and take care of the land. Aside the single room, there was no other structure on the land. There was no two bedroom house on the land as is being claimed by the defendants. The land was entirely bare, with the single room as the only structure.” [Emphasis mine.]

PW1 Charles Asante similarly repeated this piece of evidence at paragraph 8 of his witness statement filed on 28th June 2018 which was admitted as his evidence in chief on 27 th February 2019. The said Jacob Aidoo also came to testify for the plaintiff as PW 3. He also restated the said piece of evidence in paragraphs 4 and 7 of his witness statement filed on 28 th June 2018. It can be argued that since it is a cardinal rule of pleadings that one does not plead evidence but facts, the later addition of Jacob Aidoo in the witness statements of the parties was in the nature of evidence. This may have been acceptable but later events proved that the plaintiff and his witnesses were not being candid with the court.

Per the said paragraph 7 of his witness statement, the plaintiff asserted that when he went onto the land with Charles Asante, he met Jacob Aidoo on the land who confirmed to him that Mr. Atuahene owned the land in dispute. This then means that the plaintiff knew the said Jacob Aidoo and even had an interaction with him. When the plaintiff was being cross-examined by counsel for the 3rd defendant on 28th July 2020, he however denied knowing the said Jacob Aidoo but rather asserted that Charles Asante did everything on his behalf and he will be the best person to speak on the issue of Joseph Aidoo. This is the nature of his evidence on this issue:

“Q: You remember you also invited Jacob Aidoo to testify as your witness number three.

A: My Lord, I do not know the said Jacob Aidoo.

Q: And from his evidence, he said there was a single room on the plot. A: I do not know the said Jacob Aidoo.

Q: And then he testified further that there was another single room on the other plot which was opposite the block factory.

 

A: I would not be able to tell.” [Emphasis mine.]

This is a witness who in his verified witness statement which was admitted in evidence after having been duly sworn had stated that he met Jacob Aidoo and he confirmed that Mr. Atuahene is the owner of the land in dispute but in his evidence under cross-examination, he stated that he did not know the said Jacob Aidoo.

Similarly, in paragraph 6 of the plaintiff’s witness statement, he stated that Charles Asante came to see him with the caretaker of Mr. Atuahene in the person of Emmanuel Tettey. The said Emmanuel Tettey came to testify on his behalf as PW2. When he was being cross-examined by counsel for the 1st and 2nd defendants on 4th April 2019 however, he denied any knowledge of the said Emmanuel Tettey and rather pushed everything on Charles Asante. This is the nature of his evidence on this issue:

“Q: How did you come to know Emmanuel Tettey?

A: I do not know him.

Q: If you do not know him, how come that you got him to write a witness statement on your behalf?

A: What happened was that I gave that job to Mr. Charles Asante who made me know that there is a case with that land and that he has asked Mr. Emmanuel Tettey to be a witness in that case.

Q: What is the nature of instruction you gave that Charles Asante?

A: It was Mr. Charles Asante who bought the land for me and that is why he knows that man.” [Emphasis mine.]

It is therefore very difficult for the court to believe the story of the plaintiff with respect to the acquisition of the land in dispute. It appears that the plaintiff either did not want to help the court come out with the truth or he was just being evasive because he knew his story was not plausible. The evidence of Charles Asante (PW1) did not also help the plaintiff that much as there were also some inconsistencies which cannot be glossed over by the court. In paragraphs 13 and 17 of his witness statement, PW1 stated that they buried tanks on the land in dispute and the 1st defendant did not raise any objection to the burying of the tanks. Part of the said paragraphs state as follows:

“We were able to clear the land and we also buried tanks without any hindrance from anyone in 2007. After burying the tanks, we also constructed the foundation of a building which was to serve as a mart at the filling station. … As at 2007 when we were burying the tanks, the 1st defendant never raised an objection by herself or by any agent that her land was being encroached on. There was also no objection from anyone claiming to be the owner of the portion the 3 rd defendant has encroached on. ”

The plaintiff also testified on this issue at paragraphs 11 and 12 of his witness statement. Per these pieces of evidence, the plaintiff and his witness are asserting that there are tanks buried on the land in dispute. But when the plaintiff was under cross-examination by counsel for the 3 rd defendant on 28th July 2020, the plaintiff was not forthcoming with respect to the particular piece of land the tanks were buried on. This is the nature of his evidence on this issue:

“Q: How many plots of land did you purchase through Mr. Charles Asante at Ablekuma?

A: I would not be able to tell because I left everything in the care of Mr. Charles Asante.

Q: Mr. Charles Asante was invited by you to testify in this matter as P. W. 1. Is that the case?

A: That is correct.

Q: And from his evidence, the plots he acquired were two. A: I would not be able to tell.

Q: And then he said the first one measured 140ft x 100ft. Did he tell you that? A: No my Lord. He did not.

Q: And he said the second one also you buried tanks. A: That is correct.

Q: So these three tanks that were buried on the ground were done on only one plot?

A: I would not be able to tell that it was buried on one plot because Mr.

Charles Asante showed me the land.

Q: When were these three tanks buried on the plot? A: About 16 or 17 years ago.” [Emphasis mine.]

From his evidence, the plaintiff also stated that the tanks were buried on the land about sixteen or seventeen years ago. He made this statement on 28 th July 2020. Sixteen or seventeen years ago will take us back to the years 2003-2004. Thus, per the plaintiff’s evidence, he buried the tanks on the land sometime in the year 2003 or 2004.

 

Per the plaintiff’s case before the court however, he bought the land in dispute from Mr. Atuahene in the year 2006 and he approached the Nii Larbie Mensah family who also made a grant to him in the year 2007. All this was done before he supposedly buried his tanks on the land. If the transactions with respect to the land in dispute commenced in 2006, then it cannot be true that the plaintiff buried tanks on the said land sometime in 2003-2004. It may well be that the said tanks must have been buried on another land and not on the land in dispute.

This story of the plaintiff rather resonates with the defendants’ story where they denied the existence of the said tanks on the land in dispute. They have rather stated that the plaintiff buried the tanks on a different land he has in the area and not on the land in dispute and the plaintiff is only trying to annex their lands in order to get a bigger land.

There is also further evidence on record which makes the defendants’ story on this issue more believable than the plaintiff’s story. When he was being cross-examined by counsel for the 1 st and 2nd defendants on this issue on 27th February 2019, the plaintiff’s star witness Charles Asante (PW1) changed his story with respect to the burying of the tanks and however stated that the tanks were buried on another land and not on the land in dispute. This is the nature of his evidence on this issue given on 27th February 2019:

“Q: What was Mr. Charles Yaw Krah Donkor going to do at the place? A: My Lord, a petrol filling station.

Q: Did he sink any tanks around that place?

A: My Lord, he buried three underground tanks; two 45,000lt capacity and one 36,000lt capacity.

Q: Were the tanks subsequently removed?

A: Yes my Lord, when the first place was affected by the road.

Q: The tanks were removed because you had buried them in the new Pokuase – Ablekuma highway.

A: My Lord, that site was also sold to Mr. Donkor by a different person and since he wanted to have enough space, he decided that we should bury the tanks over there to prevent people putting kiosks over there.

Q: I am putting it to you that when you people realised that you had gone to the public highway, that is when you decided to encroach on 1 st defendant’s land.

A: No my Lord.

Q: I am further putting it to you that when Mr. Donkor found that he has encroached on the road, he decided to push the 1 st defendant off her land.

A: My Lord, I think counsel is contradicting the two. The 140 feet x 100 feet site had already been bought and graded before the second site where the tanks were firstly buried was also disposed to him.

Q:Who disposed that site to your master then?

A: My Lord, I was at Tamale as I said so I had no information about that.”

[Emphasis mine.]

If there were no tanks buried on the land in dispute, then it casts doubt on the plaintiff’s claim before the court. What it however tells us is that the plaintiff bought another land and buried his tanks on those lands but in or around 2014, he came onto the land in dispute which was being occupied by the defendants and he tried to wrestle the land from the defendants.

The plaintiff also tendered into evidence as exhibit L the road layout for the Awoshie- Pokuase Road. On the said layout, there is a portion which has been designated as proposed Crown Petroleum Filling Station for Charles Yaw Donkor. Per the plaintiff’s evidence, the said proposed designation covers the land in dispute and as such it should not be in doubt that the land in dispute belongs to the plaintiff. It must be noted that exhibit L is only a proposal and until the plaintiff is able to prove his title over the said land, he cannot bring the said proposal into reality.

The plaintiff’s story so far however, per the evidence on record, does not add up and he has not been able to establish a valid title over the land in dispute. I therefore hold that on a balance of probabilities, the plaintiff is not the owner of the land in dispute.

Issue 2 – Whether or not the 1st defendant has any legal right to authorise the 2 nd

defendant to be on the land.

The holding above should have concluded the case but the 1 st and 2nd defendants have a counterclaim and I therefore have to assess the evidence on record in order to determine whether they have been able to prove their counterclaim. In an attempt to prove their counterclaim, the 1st and 2nd defendants tendered into evidence two main documents – a receipt as exhibit 1 and an indenture as exhibit 2 in addition to other documents. It is the 1 st defendant’s case that she initially bought the land in dispute in 1994 from Nii Kwaku Fosu III, Ablekuma chief and she was issued with a receipt (exhibit 1) but an indenture was made for her by Nii Larbie Mensah IV in the year 2005 (exhibit 2).

When counsel for the plaintiff was cross-examining the 2 nd defendant who testified for himself and also on behalf of the 1st defendant, counsel drew his attention to some anomalies in exhibits 1 and 2. Exhibit 1 is supposedly dated 3 rd August 1994. A careful look at the receipt

 

however reveals that the receipt is a receipt that was made in the 2000s to cater for transactions in the 2000s. The date portion on the receipt without the handwriting on it actually goes as follows: “………………..20………” Thus the day and month was to be inserted before the ‘20’ and the year in the 2000s when the receipt was issued was to be inserted after the ‘20’.

In exhibit 1 however, the ‘20’ has been cancelled and the year 1994 has been inserted there. When the 2nd defendant was asked as to why this was the case, he stated, amongst others, that Nii Kwaku Fosu III must have printed a lot of receipts in the 1990s to even cover the 2000s so when they were issuing the receipt to the 1 st defendant, the receipts that were available were the 2000s receipt. That is why they had to cancel it to write the correct year. This is the nature of his evidence on this issue given on 23rd May 2019:

“Q:  I will like you to take a look at Exhibit 1, particularly the date, you will notice that the year begins with ‘20’ which has been cancelled out and 1994 written. Do you agree?

A: Yes my Lord.

Q: Can you explain to the court why this is so?

A: When I asked my mom, I was told that there was a fire outbreak in Nii Kwaku Fosu III’s hut which was at the back of my father’s building in which he kept information about everyone he sold land to. And because of that, they prepared new receipts for all those they had sold land to which included my mom.

Q: In which year did this fire occur? A: Around August 1998.

Q: And that still does not explain why the receipt has ‘20’ on it?

A: What I believe is that receipts are printed with years ahead according to the number of receipts.

Q: And so you want to tell the court that as at 1998, there were receipts bearing 2000 or so?

A: My lord it is the incident that happened in 1998 and not the receipt that was available in 1998.” [Emphasis mine.]

This story is not plausible. It beats the mind of the court how any well-meaning entity or individual will print receipts in 1994 and state the date in the 2000s. What would have been plausible will be the fact that if the receipt was in the 1990s but the date was in the 2000s, then one could have argued that they could not exhaust the 1990s receipts that is why they are still using them in the 2000s but not the other way round. It is therefore more probable than not that the date on exhibit 1 being 3rd August 1994 is not a correct date. The receipt must

 

have been issued in the 2000s but backdated to make it read 3 rd August 1994.

This is more so because exhibit 2, which is the 1 st defendant’s indenture, is dated 13th September 2005. It is therefore more probable than not that when the 1 st defendant approached Nii Larbie Mensah IV for an indenture covering the land, she made them issue a receipt in the name of Nii Kwaku Fosu III and backdated it to the year 1994 in order to support her story of the acquisition of the land in the year 1994.

Exhibit 2 is also between Nii Larbie Mensah IV and Grace Afua Dedaah. On the face of exhibit 2, it generally looks okay but a careful scrutiny of exhibit 2 will reveal some serious issues with the document. The court takes judicial notice of the fact that in most indentures, the dates and sometimes the consideration are left blank to be inserted later and this is usually done in ink by hand. Hardly, if not rarely, would you see the space for the parties being left blank to be filled in at a later date. The parties’ portion are most invariably typed and bear the same font size as the other parts of the document.

In exhibit 2 however, the 1st defendant’s name is stated in the commencement part as ‘ Madam Grace Afua Dedaah’. This is the name the 1st defendant bears in this suit and this should usually not create any problems. The problem however is that while ‘Madam Grace’ bears the same font size as the other parts of the document, ‘Afua Dedaah’ bears a different font size to the other parts of the document. The same is repeated in parts of the attestation portion of the document. They are so conspicuous that one cannot miss them. It can be argued that it is a genuine mistake but other parts of the document, especially part of the attestation portion, reveal otherwise. In the attestation portion of exhibit 2 where the 1 st defendant supposedly thumb printed, it is stated as follows:

“Signed sealed and delivered by the said Madam Grace Mansa Deedai the within named lessee in the presence of: …” [Emphasis mine.]

There is a thumb print which is supposed to be the right thumb print and just by the thumb print is the name ‘GraceMansa Deedai’ written in pen. Thus while exhibit 2 is supposedly an indenture in favour of Madam Grace Afua Dedaah, it was supposedly signed by Madam Grace Mansa Deedai.

The 2nd defendant in his evidence, while admitting that his mother Grace Afua Dedaah, the 1 st defendant, does not have any other name apart from Grace Afua Dedaah, however seemed to suggest that exhibit 2 was a standard document of the Nii Larbie Mensah family where the names of their grantees are inserted after a grant is made to them. He however could not convincingly explain why the name of the 1st defendant on exhibit 2 was in two different type settings. When he was being cross-examined by counsel for the plaintiff on 23 rd May 2019, this is the nature of his evidence on this issue:

 

“Q: Kindly take a look at Exhibit 2, the first page. You will agree with me that at face value, the typeset of the document is the same except where the name of 1st defendant appears?

A: Yes My lord.

Q: On the second page as well, at the bottom part where the name of the 1 st defendant appears as lessee, the typeset is different from the rest of the document. You will agree?

A: Yes My lord.

Q: Can you explain this to the court?

A: My lord this is so because the document is a prepared format that Nii Larbie Mensah IV has been using so when they sell the land to you they would insert your name where it is supposed to be and other information they will need.

Q: So in that case, if you look at the first paragraph, the name “Madam Grace” has the same font as the rest of the document with the exception of Afua Dedaah.

A: Yes My lord.

Q: Whilst the other information such as date and amount paid are handwritten.

A: Yes My lord. The explanation is my mom was known as Madam Grace. Everybody called her Madam Grace. The ‘Afua Dedaah’ was not known till we started the registration when we had to tell them to insert the name. So at the back you will see that the ‘Madam Grace’ was typed the same but Afua Dedaah was added later.

Q: Who made the insertion to put in Afua Dedaah? A: It was the Nii Larbie Mensah IV. …

Q: Aside the name Grace Afua Dedaah, does your mother have any other name? A: No My lord. Apart from the three names being used interchangeably.

Q: Can you then explain to the court why the name Grace Mensah Deedai appears beside the thumbprint of 1st defendant in Exhibit 2?

A: It is not Mensah it is Mansa.”

Coupled with the fact that the first two names ‘Madam Grace’ are the same, it is more probable than not that exhibit 2 was not made in favour of the 1 st defendant but it was rather made in favour of one Madam Grace Mansa Deedai. The 1 st and 2nd defendants were however able to ‘amend’ some of the names to reflect Grace Afua Dedaah but they could not completely ‘amend’ all the names. This therefore exposed them and it casts doubt on the genuineness of exhibit 2 before the court. Since the 1st defendant’s claim of title over the disputed land is based on exhibit 2, I hold that on a balance of probabilities, the 1 st defendant does not have a valid title over the land in dispute.

Issue 3 – Whether or not the 3rd defendant has any right of ownership over the land.

The 3rd defendant claimed to have acquired the land from one Lawerence Osei Mensah in the year 2016 and the said Lawrence Osei Mensah also acquired the land in dispute in the year 2002. Both the 3rd defendant and his grantor testified in support of the 3 rd defendant’s case. Neither the 3rd defendant nor his grantor tendered into evidence any document evidencing the 3rd defendant grantor’s right or ownership over the land in dispute except a site plan which bore the name of the 3rd defendant’s grantor (exhibit 14). The said site plan is very blurred and there are also no grid lines to enable the court to determine whether the said site plan actually covers the land in dispute.

The other documents they tendered were documents with respect to compulsory acquisition and payment of compensation in respect of part of the land in dispute. Another document that bore the name of the 3rd defendant’s grantor was exhibit 19 which is a letter the said grantor supposedly wrote to the Director of the Land Valuation Division accepting the payment of compensation. The other documents are however not addressed to the 3 rd defendant’s grantor but to ‘All affected property owners’. It could thus have been addressed to anybody. There is also no direct link of any of the said documents to the land in dispute.

The 3rd defendant did not also tender any indenture evidencing his title, either from his grantor Lawrence Osei Mensah or from any other person. On the basis of the above and on the balance of probabilities, it is more probable than not that the 3 rd defendant’s claim to ownership of the land in dispute cannot substantiated.

Issue 4 – Whether or not the plaintiff is entitled to his claim.

Issue 5 – Whether or not the 1st and 2nd defendants are entitled to their counterclaim

There are so many suspicions and inconsistencies surrounding the parties’ documents that they are relying on in this court and the evidence that they have given that I am unable to grant the

claims of the plaintiff nor the counterclaim of the 1 st and 2nd defendants. I therefore dismiss

the plaintiff’s claim and the counterclaim of the 1 st and 2nd defendants.

Issue 6 – Any other issue arising out of the pleadings

 

Suffice it to say however that the defendants are in possession of the land in dispute but the plaintiff has not been able to prove any act of possession. It is on record that one of the plaintiff’s claims before the court is recovery of possession. This is a tacit admission that the defendants are in possession. Considering the fact that none of the parties has been able to prove a valid title over the land in dispute, I will not disturb the defendants’ possessory rights as possession they say is nine tenths ( 9/10s) of the law.

I am fortified in this view by section 48 of the Evidence Act, 1975 (NRCD 323) and authorities such as Bucknor v. Essien (1963) 1 GLR 426, Aidoo v. Adjei [1976] 1 GLR 431, Mensah

v. Peniana (1972) 1 GLR 337 and Divine Healers Church v. Kwabla Sanaki; Civil Appeal No. H1/42/2011, CA (31st July 2012). In Bucknor v. Essien (supra) the Court of Appeal speaking through Crabbe JSC noted at page 431 of the report as follows:

“… any possession is a legal possession against a wrongdoer, and the wrongdoer cannot set up the title of a third party to excuse his trespass unless he claims under or by authority of such person.”

In Mensah v. Peniana (supra) the court held amongst others that “against a wrongdoer possession is good title” and in Divine Healers Church v. Kwabla Sanaki (supra) the Court of Appeal held that “greater or better is the condition of the possessor where neither of the two has the right or title.”

From the authorities referred to above, it follows that if another person has a better title, then the condition of the possessor is endangered and the one with title can assert a better claim over the land to the one in possession. The evidence in this case has however revealed that none of the parties has a better title over the land in dispute. In the circumstances, since the plaintiff is not in possession and he has also not been able to establish a better title over the land in dispute, the defendants’ possession of the land cannot be disturbed and I so hold.

The plaintiff is restrained from interfering with the possessory rights of the defendants. I award cost of GH¢8,000 against the plaintiff in favour of the 3 rd defendant.