Kate Fianyo v Constance Badu

Per a writ of summons and statement of claim filed on the 11th day of November, 2022, the Plaintiffs mounted this action against the Defendant for stated reliefs:

1. A declaration that any discussion of any prior sale agreement for the property situated, lying and being at Chantan in Accra is unlawful void and with no binding effect

2. An order perpetually restraining the Defendant from entering the Plaintiff’s property

3. General damages for trespassing.

4. Cost Case of Plaintiff

The Plaintiff is suing the Defendant for unlawful entry and destruction of property. The property in question was left by the Plaintiff’s deceased husband the late David Fianyo which was subjected to PNDC law 111. The Plaintiff initially at the time of her husband’s passing indicated an intention to sell the property and was approached by a friend that there was a potential buyer for the property. The Plaintiff expressed an interest in selling the property at around Ghc 600,000.00. Plaintiff avers that upon taking legal advice fromher lawyer who she had instructed on her behalf to obtain letter of administration for her late husband’s property, he informed the Plaintiff that she could not sell the property as the property is not vested in her name and that of her children who are all beneficiaries of the property. That following the advice of her lawyer, the Plaintiff cannot make a sole decision for the children as she is holding the property in trust for the children. Upon the advice given by her lawyers Plaintiff avers that she informed her friend she will not be able to sell the property anymore to the potential buyer. That before receiving the legal advice the Defendant whom Plaintiff has never met before had without the Plaintiff’s knowledge deposited monies into her then fidelity bank account number 1050787187519 on 18th December, 2020 for Ghc 300,000.00 and 13th December 2021 for Ghc 100,000 respectively. That the payments were without any expressed and/or implied instruction by the Plaintiff and any sale or discussion of sale is of no legal and /or binding effect. That as a result of the payments made into her account, Plaintiff who was then in the UK had to travel back to Ghana to effect a refund to the Defendant for the monies made into Plaintiff’s account. Plaintiff shall contend that the advice given by her lawyers is that she will be intermeddling with the estate of her late husband for which she has obtained letters of administration and has a duty to vest the property in the names of the beneficiaries of the estate. She had refunded the monies received from the Defendant totaling Ghc402, 000.00 on 27th October, 2022. Furthermore, it has come to her attention that the Defendant has entered the property without consent or any exchange of documents and started demolition work on parts of the building.

The Plaintiff avers that several warnings given to the Defendant to cease the demolition on the building has failed and Defendant continues with her unlawful activities.

Case of Defendant

Defendant aside from what she admitted, denied the allegations contained in the statement of claim. It is the case of the Defendant that somewhere in December, 2020 one Augustine Ofori informed Defendant that the property in dispute was being advertised for sale so she went to see it and saw a banner displayed on the property advertising sale of same. That through one Augustine Ohene Ampong who was marketing the property for the Plaintiff, Defendant had a telephone conversation with the Plaintiff who was alleged to be in the United Kingdom and Plaintiff confirmed that she was selling the property. Defendant states that Plaintiff eventually agreed on the purchase price of the property with her at Ghc 600,000. And urged Defendant to pay at least 50% into Plaintiff’s elected Fidelity bank account in Ghana.

Upon making enquiries on the title documents, the Plaintiff affirmed that the documents were in her husband’s name but same has not been transferred into her name at lands commission from that of her deceased husband and further promised to get the documents to the Defendant immediately she returned to Ghana. According to Defendant on the 18th of December, 2020 she deposited GHc300, 000. Forming 50% of the purchase price into Plaintiff’s nominated fidelity bank account and Plaintiff subsequently issued receipt of payment to cover same. Again, under the direction of the Plaintiff she made a further payment of Ghc100, 000. Towards the payment. That upon payment to Ghc 4000,000 out of the purchase price of Ghc 600,000. Plaintiff ceded possession of the property to Defendant pending Defendant’s (sic) supposed return from the United Kingdom to Ghana to issue documents to cover the sale transaction and for the payment of the differential amount on the purchase price. Also, the Plaintiff submitted copy of the building plan on the property to Defendant to enable Defendant continue the construction works on the building which was not completed at the time of purchase. Therefore, Plaintiff was well informed about the transaction and any afterthought to feign knowledge is only an attempt to unlawfully deceive and sway the wisdom of the court. That Plaintiff entered into a valid contract with her for the sale of the property and the Plaintiff should not be allowed to perpetuate illegality on the Defendant. That a couple of months before Plaintiff issued the writ, Plaintiff started unleashing incessant pressure on Defendant for the parties to resile from the sales agreement and Defendant vehemently rejected such overtures. The Plaintiff demanded an additional Ghc300, 000.00 as a top up to the agreed purchase price of Ghc600, 000.00 before Plaintiff would complete the sales transaction. Defendant therefore caused her lawyers to write to the Plaintiff to demand for the completion of the agreement on the terms originally agreed between the parties. That Plaintiff then surreptitiously transferred the Ghc 402,000.00 which Defendant paid towards the purchase into

 

Defendant’s account without Defendant’s consent and same was reversed by Defendant from her account into Plaintiff’s account on the same day the Plaintiff returned the transferred funds. That the conduct of the Plaintiff is fraudulent and amounts to perjury

Particulars of fraud

a. That Plaintiff agreed on the purchase price of the property with the Defendant at GHc600,000.00

b. That Plaintiff elected her Fidelity bank account and directed Defendant to make all payments into same

c. That Plaintiff issued a receipt to cover the payment and also executed a contract with the Defendant to cover the sales transaction

d. That the Plaintiff dealt on many occasions with the Defendant but pleaded falsely for not knowing the Defendant nor ever transacting with her purposely to deceive the court

e. That Plaintiff is having custody of the Ghc402,000.00 but proceeded to plead falsehood of transferring same to the Defendant

f. That on the instructions of the Plaintiff to her sister and a military personnel Plaintiff evicted her caretaker and granted vacant possession to the Defendant but Plaintiff pleaded falsehood to deceive the court

 

That it was the Plaintiff who gave her a mason, one Samuel as the right person to continue the job and also released copy of the building plan to the Defendant to proceed on the construction works. Also, Plaintiff granted Defendant possession to the property and directed Defendant to pay further ghc2000 through Defendant’s sister called Jennifer to Plaintiff’s caretaker on the property and same was done before the said Jennifer and the military personnel under the instructions of the Plaintiff evicted the caretaker from the property to enable Defendant assume full and complete possession. Again, Plaintiff advised Defendant to acquire the land adjacent the property when Defendant raised issues with inadequate space around the property for cars to pack and based on the advice she subsequently acquired the adjacent property. Conduct of the Plaintiff amounts of breach of contract and Plaintiff has been using the said military personnel to harass and frustrate Defendant’s peaceful enjoyment of the property

Counterclaim

Defendant repeats paragraphs 1 to 39 of the statement of defence and counter claims against the Plaintiff as follows

a. An order for specific performance compelling the Plaintiff to complete the sale of property described as No A1 52 Manye Adorkor St, Chantan Accra (Digital Address No, GC-003-5361) to Defendant on the terms originally agreed between the Plaintiff and the Defendant

 

b. Declaration of title to property No. A1 52 Manye Adorkor St, Chantan Accra (Digital Address No, GC-003-5361) in the name of the Defendant

c. Damages

d. Costs including legal fees

The Plaintiff filed a reply on 1st March 2023, and defence to counterclaim and denied all he allegations in the defence as well as the counterclaim. Plaintiff denied that there was ever an agreement between the parties

At application for directions stage the following issues were set down for trial

Defendant’s issues

a. Whether or not Plaintiff sold the subject property to the Defendant at a purchase price of GHc600,000

b. Whether or not Defendant paid GHc402,00 of the purchase price of the subject property to the Plaintiff

c. Whether or not Plaintiff granted vacant possession of the property to the Defendant

d. Whether or not Plaintiff breached the contract she entered into with Defendant

e. Any other relief(s) the honourable court may deem fit Additional issues from Plaintiff

 

I. Whether or not the property is a subject matter of an estate

II. Whether or not the property in question was vested

III. Whether or not a property held in trust can be sold without express authority

IV. Whether or not the Plaintiff had the authority of the beneficiaries to sell same

V. Whether or not the alleged contract between the parties is void

Black law’s dictionary translates the maxim, “ei incumbit probation, qui dicit, non qui negat, cum per rerum naturam factum negantis probation nulla sit” which when translated means “the proof lies upon him who affirms not upon him who denies since by the nature of things, he who denies a fact cannot produce proof”, the burden of proof lies on the Plaintiff herein.

It is trite law that a party in a civil case who alleges has the burden of proof and would fail if he fails to discharge this burden. In GIHOC V. HANNA ASSI [2005-2006] SCGLR page 458 at 485, Sophia Akuffo JSC (as she then was) held as follows;

"10. (1) for the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt....

"11. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue....

(4) In other circumstances, (i.e. civil matters) the burden of producing evidence requires a party to produce 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.

"12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities

(2) "Preponderance of the probabilities" 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....

"14. Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting."

Since the enactment of the Evidence Decree, NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue (SEE ODAMETEY V. CLOCUH [1989-90] 1 GLR, 14; ODONKOR V. AMARTEI [1992-93] GLR 59, TUAKWA V. BOSOM [2001-2002] SCGLR 61). Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgment might be given in favour of a party on the preponderance of the probabilities ...rather than can an archaic principle which might not accord with reason or common sense'  (SeeHolding 2, Odonkor v. Amartei).

In ABABIO v AKWASI 111 [1994-95] GHANA BAR REPORT, PART 11, 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. See also RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420 which further elucidate the burden of proof as statutorily provided.

Exhibits tendered by Plaintiff

a. Copy of bank statement evidencing transfer of GH₵402,000 to the Defendant (Exhibit ‘A’).

b. Copy of an indenture made between Anthony Minta Sam & Children of one part and Mr. David Fianyo of the other part (Exhibit ‘B’).

c. Copy of Letters of Administration (Not will annexed) granted in respect of the Estate of David Fianyo (Exhibit ‘C’).

d. Copy of bank statement evidencing receipt of GH₵402,000 from the Defendant (Exhibit ‘D’).

Exhibits tendered by Defendant

1. Copy of WhatsApp conversations between Plaintiff and Defendant (Exhibit ‘1’)

2. Copies of Prudential Bank statements of Defendants account (Exhibit ‘2’)

3. Copy of Payment Receipt issued by Plaintiff to Defendant (Exhibit ‘3’)

4. Copy of Purchase Agreement made between the Parties (Exhibit ‘4’). However, this piece of evidence was rejected as being inadmissible by virtue of it not being stamped as required by the Stamp Duty Act.

5. Copy of architectural drawing for David Fianyo. (Exhibit ‘5’)

6. Copy of building permit billing form from Ga Central Municipal Assembly for David Fianyo (Exhibit ‘6’)

7. Copies of building photographs (Exhibit ‘7’ Series)

8. Copy of Indenture made between Anthony Mintah Sam and the Defendant. (Exhibit 8)

9. Copy of photograph of an uncompleted building (Exhibit ‘9’)

10. Copy of Prudential Bank statement of Defendants account evidencing debit of Ghc100,000 (Exhibit ‘10’)

11. Copies of building photographs (Exhibit ‘11’)

12. Copy of Site plan in the name of Plaintiff (Exhibit ‘12’)

13. Copy of demand notice written by Counsel for Defendant to the Plaintiff seeking transfer of the property to Defendant (Exhibit ‘13’)

14. Copy of Prudential Bank statement of Defendants account evidencing a credit and subsequent debit of GHc402,000 (Exhibit ‘14’)

A witness statement filed on behalf of the Plaintiff Kate Fianyo on 17th May 2023 had attached to it exhibits ‘A’-‘C’.

Plaintiff admits putting up the property for sale through one Akofi at a purchase price of Ghc600, 000.00. Plaintiff also admits that a total amount of ghc 402,000.00 was paid into his fidelity bank account number 1050787187515 by the Defendant as part payment for the purchase of the said property. Plaintiff contends that she did not give the said bank account to the Defendant but rather her bank account was with her friend Mr. Akofi who used to pay funds collected form her customers on her behalf to pay into her account. Therefore the Defendant did not have her express or implied instruction or approval to make those payments; albeit all this was done prior to her receiving legal advice.

 

In exhibit A Plaintiff makes a case that she sought to refund the monies paid into her accounts back the Defendant. Exhibit ‘B’ is an indenture on the property. The letters of administration taken after the demise of Plaintiff’s husband is exhibit ‘C’. Exhibit ‘D’ Defendant paid back the amount of Ghc402, 000.00 back into the Plaintiffs account.

Plaintiff contends that after she got legal advice she realized she could not make a sole decision over the property as her children were also beneficiaries and so she informed the friend that she was unable to sell the property to any potential buyer and same should be conveyed to the potential buyer.

A witness statement filed on behalf of Defendant Constance Badu also was not different from her defence. Exhibit 1 contains all correspondence between Defendant and Plaintiff on whats app phone numbers 0557345189 and +447538801231 respectively. Exhibit ‘2’ is a bank statement for Defendant from prudential bank. Exhibit ‘3’ is a receipt. Exhibit ‘4’ a purchase agreement was rejected for failing to meet the threshold of laws on stamping. Exhibit ‘5’ is proposed architectural drawings for proposed shops. Exhibit ‘6’ is a copy of building permit billing form on the land from Ga Central Municipal Assembly dated 2016. Works done on the property are seen on exhibit ‘7’ which are photographs dated 18th March 2023. Exhibit 8 is an indenture on the land in question. Exhibit ‘9’ is photograph of building works dated 18th March 2023 Exhibit 10 is a bank statement from Prudential Bank Exhibit ‘11’ is a photograph of building taken on 28th August 2021. Site plan in the name of Plaintiff is exhibit ‘12’.

Witness statement of DW2 Kwesi Asiedu Koomson was his evidence in chief at the trial. He corroborated the testimony of the Defendant and stated that the Defendant had asked him somewhere in 2021 to represent her in the purchase of the subject matter property. That he personally dealt with the Plaintiff on behalf of the Defendant on the subject matter property. Later the Plaintiff handed over a signed copy of a purchase agreement and a building plan of the property to him for onward transmission to the Defendant (exhibits ‘4’ and ‘5’) That together with Plaintiff they went to the Lands commission to see one Oduro Sarfo who Plaintiff introduced to him as the one working on the transfer of documents into Plaintiff’s, name from that of her deceased husband and he was assured that the process of transfer was going on.

In a written address filed on behalf of Plaintiff Counsel argued that it is trite that an administrator who acts beyond their lawful authority especially in executing sales or leases does so ultra vires and their actions can be nullified by the court. The sale of property by an administrator without proper probate or letters of administration is invalid as such sale passes not valid title and the transaction can be declared null and void with orders for the property or relevant documents to be delivered up for cancellation. Furthermore in the case of Edmund Bannerman V Kate Priscilla Bannerman suit No, LD/0350/16, the High Court held that even if the administrator seeks ratification of sold property, actions outside their lawful authority remain ultravires and liable to be invalidated if they contravene statutory requirements, The selling of the estate property without authority constitutes wrongful intermeddling and such transactions are generally void ab initio. Therefore the alleged sale of the property of the late David Fianyo by the Plaintiff coupled with the lack of due diligence on the part of the Defendant is void ab initio.

Written address filed on behalf of the Defendant by her Counsel which contained an executive summary is to the effect that, the Defendant has discharged the burden of proof by Defendant cogent evidence on the balance of probability that the Plaintiff as the Administrator of the Estate of the late David Fianyo by an agreement lawfully sold the uncompleted property situated at Chantan and being part of the estate of the late David Fianyo (deceased husband of plaintiff) to the Defendant. That the Defendant being in possession of the said property in dispute is presumed owner, which contention has not been controverted by the Plaintiff .see section 48 of the Evidence Act, NRCD 323 . That the Plaintiff’s admission of receiving payments of GHC402, 000. From the Defendant as part of the payment of the contractual sum of GHc600.000, the price of the property in dispute, is scoped from denying the sale of same. That Plaintiff being the Administrator of the Estate of the late David Fianyo had the requisite capacity at all material times under sections 1 and 2 of the Administration of Estates Act, 1961, (Act 63) to deal with the Defendant regarding the sale of the property culminating in the instant suit. That the Plaintiff failed to substantiate by cogent evidence at the trial that she was entitled to her claims and so her claim must fail.

Issues ‘a’ ‘b’ ‘c’

Whether or not Plaintiff sold the subject property to the Defendant at a purchase price of GHc600, 000

Whether or not Defendant paid GHc402, 000. of the purchase price of the subject property to the Plaintiff

Whether or not Plaintiff granted vacant possession of the property to the Defendant

It is not in dispute that the Plaintiff sold the subject property to the Defendant at a purchase price of GHC600, 000. The Plaintiff herself in paragraph 4 and 5 of her statement of claim admits to same thus;-

Para 4 the Plaintiff initially at the time of her husband’s passing indicted an intention to sell the property and was approached by a friend that there was a potential buyer for the property

Para5. The Plaintiff expressed an interest in selling the property at around (sic) of GHC600, 000.00

 

It is trite that were facts are not in dispute there is no joinder of issues.

Concerning the payment of GHC402, 000 by Defendant into the Plaintiff’s account, the position of the Plaintiff in her pleadings at paragraph 9 was that the said amount was paid without her knowledge and consent into her account by the Defendant. However under cross examination the Plaintiff actually acknowledge receipt of the monies paid by the Defendant. See below cross examination on the 15th Day of December 2023 at pages 2 and 3 of Plaintiff by counsel for Defendant where she acknowledged receipt of the monies.

Q. Following the payment of GHC300, 000. into your account, you personally acknowledged receipt of the money. I am suggesting to you.

A. That is so my lady. I put up the property with my husband. After the demise of my husband, I decided to sell the property. I therefore gave instructions to by husband’s friend that he was working with at the time.

Proceedings of 15th December 2023, at page 4

Q. I am suggesting to you that upon the payment of GHC100, 000. you acknowledged receipt of same.

A. That is so. I saw that the defendant had paid GHC100, 000.000. into my account

 

A. Following the payment of the total sum of GHC400, 000. you prepared a purchase agreement between you and the defendant. That is so?

A. That is so

Also during cross examination of Plaintiff on the same 15th December 2023 at page 5 of the proceedings the Plaintiff confirmed her admission at paragraph 16 of her witness statement that she received a sum of GHC402, 000. from the defendant as payment towards the purchase of the property and having received a total of the said amount in her account during the proceedings of 20th March 2024 at page 3 .

The law is that, ‘’where a party makes an admission on a certain state of facts, the defendant is relieved from her duty to provide evidence on the admitted facts.’’….see In Kwadwo Dankwa & Ors v AngloGold Ashanti Limited [2019]137 GMJ @ 30, the dictum of Vida Akoto-Bamfo (Mrs.) JSC.

See also the Supreme Court case of Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon ii V Akotia Oworsika 111 substited by Laryea Ayiku iii (2005-2006) SCGLR 637 this court held as follows;

“Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”

 

Thus where a person makes an admission on certain facts which are not traversed by the opponent then the said facts are deemed to have been admitted. Plaintiff therefore having acknowledged receipt of the said sums of money cannot turn around and say that they were paid into her account by the Defendant without Plaintiff’s consent. If indeed a first payment had been made into Plaintiff’s account on 18th December 2020 for an amount of GHC300, 000.00 and Plaintiff was not in agreement with same why did she sit down for the Defendant to after almost a year, 13th December 2021 to allow the Plaintiff to make a second payment into her account for an amount of GHC100, 000.00.

Plaintiff’s position in paragraph 16 of her witness statement that it came to her attention that Defendant has entered the property without her consent and/or any exchange of documents and started demolition works on part of the building does not support the evidence available. This is because Defendant’s evidence in paragraphs 20 of her witness statement that she paid an amount of GHC2000 to Plaintiff’s sister and after the payment one military officer by name of Nii Lamptey Mills and plaintiff’s sister under the instructions of Plaintiff facilitated her occupation and completer possession of the property was not controverted a the trial. The Plaintiff only denied being the one who requested an amount of GHc2000 to be given to the caretaker and said defendant did it by herself. See page 5 of proceedings of 15th December 2023).Through exhibit ‘7’ series the Defendant provided proof of possession of the property as follows:

 

Copy of architectural drawing for David Fianyo. (Exhibit 5)

Copy of building permit billing form from Ga Central Municipal Assembly for David Fianyo (Exhibit 6)

Again there is evidence on exhibit ‘1’ which is the transcription of audio conversations between the parties at page 7 the Plaintiff had a conversation with the defendant as follows:

‘’Good morning, its daytime now. Please, how are you? The man who is at Lands, he says he’s in America, oh and I have spoken to my uncle the soldier yesterday. He says, so, I have given him your number. He says you should call him; he will accompany you to the Assembly for them to give you … because for two walls there is no need to ask you for the permit they’re asking for; but you must erect the wall…’’

These are documents belonging to the Plaintiff which the Defendant could not have obtained but for the fact that the Plaintiff gave same to Defendant. By their nature also they are documents pertaining to the construction of the building which had been initiated by the deceased, Mr. Fianyo. And from the conversations in exhibit 1 and repeated above, it can be inferred that the Plaintiff having received the monetary consideration from Defendant and thereafter having handed over the building documents and further introduced her uncle to Defendant to help Defendant follow up on building permit at the Assembly, the Plaintiff intended for the Defendant to possess the property and continue the construction thereon

The court from the above finds as a fact that the Plaintiff who is the administrator of the estate of her late husband sold the property in dispute to the Defendant. The Defendant paid Ghc 402,000.00 of the purchase price of GHC600, 000. The Plaintiff then put the Defendant in possession pending the preparation of documents to cover the property. A person in possession of land is presumed to be the owner and has good title against the whole world, except for someone with a better legal right.

All may probably would have ended well but for the fact that the Plaintiff contends that the property in question was left by her deceased husband who died without a will so division of his estate was subjected to PNDC Law 111 and so she was advised that she would be intermeddling with the estate of her late husband for which she had obtained letters of administration at the time and therefore had a duty to vest the property in the names of the beneficiaries of the estate (see paragraph 1 and 15 of the witness statement filed behalf of the Plaintiff on 17th May 2023 as well as exhibit C the Letters of Administration. Hence her purported sale of the property to the Defendant is void as she had no capacity to sell. This will lead us to the discussions of issues ‘I’ –‘IV’

Issues ‘I’ –‘IV’

 

i. Whether or not the property is a subject matter of an estate

ii. Whether or not the property in question was vested

iii. Whether or not a property held in trust can be sold without express authority

iv. Whether or not the Plaintiff had the authority of the beneficiaries to sell same

The following facts are not in dispute as same have been admitted and agreed by either party at various times during this suit, both on paper and during cross examination:

1. The Property in issue belonged to the Plaintiff’s late husband, David Fianyo and therefore forms part of his estate.

2. The Plaintiff was granted letters of Administration to administer the estate of the estate of the late David Fianyo, including the property in issue.

3. The property at the time of the agreement between the parties had not been vested in the Plaintiff but in the name of the Plaintiff’s deceased husband.

The Defendant stated in her statement of defence and witness statement that when she made enquiries on the title documents of the property, Plaintiff informed Defendant that the documents were at the Lands Commission for transfer into Plaintiff’s name from that of Plaintiff’s deceased husband following the grant of Letters of Administration to Plaintiff. Defendant also stated same during cross-examination on 14th October 2024. This was also corroborated by the witness called by the Defendant, Kwesi Asiedu Koomson (DW2) in Paragraph 7 of his witness statement as follows: “The Plaintiff again met a member of the traditional owners of the land in my presence at the site to the effect of acquiring documents to effect the name change from her deceased husband in Plaintiff’s name. I then accompanied Plaintiff to the Lands Commission, Accra to see one Oduro Sarfo who Plaintiff introduced to me as the one working on the transfer of the documents into Plaintiff’s name from that of Plaintiff’s deceased husband.”

DW2 further stated in paragraph 8 that: “the plaintiff and the said Oduro Sarfo assured me that, the documents covering the property was in the process being transferred into the name of the Plaintiff.”

During cross examination, DW2 answered as follows:

Q: But at all material time you knew the land document and the property was not in the name of the Plaintiff per your paragraph 7 of your witness statement.

A: Yes, I was very much aware that the document were in the name of the Plaintiff’s deceased husband and the Plaintiff had told me that she had Letters of Administration that could enable her transact.

Section 1(1) of the Administration of Estates Act 1961 (Act 63) states that “The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death”.

 

Section 2 (2) of the Act 63 also states that “The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers”.

Personal representative is defined by the Act to include administrator such as the Plaintiff in the present case. However, in dealing with the property such as effecting a sale, vesting assent is required. Vesting assent is the instrument whereby a personal representative, after the death of a tenant for life or statutory, owner, vests settled land in a person entitled as tenant for life or statutory owner – Osborn Concise Law Dictionary 8th Edition.

Section 96(1) of Act 63 provides that: A personal representative may assent to the vesting, in the form set out in the Third Schedule to this Act, in any person who (whether by devise, bequest, devolution, appropriation or otherwise) may be entitled thereto..."

In the case of ASAMOAH V. OFORI ALIAS RENNER (1961) JELR 66213 (HC), the court stated inter alia as follows:

it must be observed that the learned district magistrate fell into the error of thinking that the grant of letters vested the property personally in the administrator as beneficial owner. It cannot be over-emphasised that the grant of administration does not give the grantee any beneficial interest in the estate if he had none otherwise. All that the grant of probate or letters of administration does is to enable the personal representative to get in the estate, and after payment of funeral and testamentary expenses, to protect it for the benefit of persons beneficially entitled to it, whether as creditors, legatees or next-of-kin; see Vol. 16 of Halsbury’s Laws of England, (3rd ed.) page 121, para. 176. There being no evidence of any creditors of the estate, it is incumbent upon the defendant, the administrator, to surrender the property to the successor, the lawful representative of the family in whom the property is vested.

The Supreme Court in OKYERE (DECEASED) SUBSTITUTED BY PEPRAH VRS APPENTENG AND ADOMA (2012) 1 SCGLR 65 decided that vesting assent was a necessary precondition before beneficiaries could exercise control over their property. The court stated that when a person died testate or intestate, his estate dissolves on the executor or personal representative until vesting assent have been executed to the beneficiaries or devisees; until that granted the beneficiaries and devisees have no… or locus standi over any portion of the estate.

The court in AKUA GYANKYE OF PAKYI NKRUMAH V. KWADWO MENSAH FOR HIMSELF AND ON BEHALF OF HIS FAMILY MEMBERS OF PAKYI NKRUMAH THE REPUBLIC (2018) JELR 64433 (CA) state that: Until that is done any dealings with the property by the beneficiaries would be of no legal consequence… Any alienation by a beneficiary under a Will or intestate estate without a valid registered vesting assent is void for want of capacity.

 

A person cannot give what he does not have as explained in the legal principle of nemo dat quod non habet.

The Supreme Court in the case of SAANBAYE BASILDE KANGBEREE V. ALHAJI SEIDU MOHAMED (2012) JELR 66777 (SC) explained the principle as follows:

This principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance and since by the evidence on record, Anna Benieh Yanney, had divested herself of title in the same parcel of land to Emmanuel Yaw Nkrumah, the plaintiff’s vendor on 12 – 12 – 1986, there was definitely no title left in her to convey to any other person, at the time the conveyance to defendants vendors was effected.

In the present suit the Plaintiff only had the title “Administrator” to the extent that Letters of administration was granted her to administer the estate of her late husband in accordance with the Intestate Succession Law (PNDCL 11), under which law she is not the only beneficiary of the estate of the late Mr. Fianyo. In the case of REPUBLIC VS HIGH COURT, SEKONDI; EX PARTE MENSAH AND ORS [1994-95] GBR 491, the

court set out the duties of administrators of an intestate estate as follows:

The duties of the administrators did not include the right to possess and run an estate, whether the estate comprised a business or not. The administrators’ duties upon receipt of the Letters of Administration were to gather in the estate and distribute it to persons who were beneficially entitled. Those persons might include some or all of the administrators but that did not detract from the primary function of the administrators”

Even assuming without admitting that the Plaintiff is the only beneficiary of the Estate of the late Fianyo, as discussed supra, the Plaintiff as a beneficiary could not deal with the property without a vesting assent legally executed in her favour. An administrator has capacity to administer the property not to sell, the one with right to sell is the one with beneficial interest and the one with vesting assent. Administering of estate may include selling but with consent of beneficiaries. Therefore the contention made by counsel for Defendant in his written address (page 18) that the capacity to deal with the property of the estate vests only with the personal administrator and the administrator needs no authorization from any would be beneficiaries on how to deal with the estate is misconceived and so the court holds. Therefore having found that the Plaintiff as administrator could not deal with the Estate of the late Fianyo without a vesting accent what then is the legal implications of the contract of sale made between the Plaintiff and the Defendant. This will lead us to issues‘d’ and ‘v’

Issues‘d’ and ‘v’

Whether or not Plaintiff breached the contract she entered into with Defendant Whether or not the alleged contract between the parties is void.

 The Purchase agreement executed by the Parties and tendered as Exhibit 4 by the Defendant was rejected as being inadmissible by virtue of it not meeting the requirements of the Stamp Duty Act. This notwithstanding, the present issue can be analyzed on the basis of the payment of money already established as well as the various conversations between the parties evidencing some agreement to sell and purchase the property which is subject matter of the present suit.

It is trite learning that for a contract to be valid, the parties must have capacity to enter into the contract. Having concluded that the Plaintiff as the administrator of the Estate of the late Fianyo could not deal with the subject matter of the present suit, she lacked the capacity to enter into any contract for the sale of the property which undisputedly forms part of the estate of the late Fianyo. By contracting to sell the land Plaintiff at all-time held herself out as having the authority when indeed she did not have such authority to sell. The Defendant was prepared to complete the payment but was stopped from performing her side of the contract by the Plaintiff. The Plaintiff did not have the capacity or title to sell, this fact also makes the contract void.

Whether or not the Defendant is entitled to her counter claim.

I shall proceed to discuss the counterclaim of the Defendant as contained in the Defendant Statement of Defence and Counterclaim.

 

a) An order for specific performance compelling the Plaintiff to complete the sale of property described as No. A152 Manye Adorkor St., Chantan Accra (Digital Address No. GC-003-5361) to the Defendant on the terms originally agreed between the Plaintiff and the Defendant

EMMANUEL AMONOO - NEIZER V. JOHN ADDAI (2014) JELR 66137 (CA) the Court of Appeal explaining the nature of the remedy of specific performance stated as follows:

“it is trite learning that an order for specific performance is an equitable remedy. It is an order by the court directing a defaulting party or a party in default to perform his contractual obligation or his part of the bargain. Where damages would adequately compensate the victim, the court will not order specific performance. However, there are situations where the court will not order specific performance although damages will be insufficient. An order for specific performance is thus a discretionary remedy. The discretion is exercised on well-settled principles.”

The Court further stated that: For a party to be entitled to an order of specific performance there must be in existence a valid contract and the plaintiff must be a party to that contract. The contract must be mutual and binding on the parties at the time it was made. There must also be part-performance of the contract on the part of the plaintiff and the act performed must be exclusively and unequivocally referable to the contract alleged. And the act performed must be a substantial one and not merely introductory or preparatory.

 

In GORMAN & GORMAN VRS ANSONG [2012] 1 SCGLR 174, the Supreme Court per Ansah JSC on iinstances when a Court cannot order specific performance as follows:

“However, it is trite law that specific performance will not be granted in certain situation: if damages will be an adequate remedy; where there is want of mutuality, where performance requires the court’s supervision, if it will be pointless granting it, if the contract cannot be enforced in its entirety; if the order will cause severe hardship to the defendant and if defendant’s personal freedom will be restrained by it. In essence, the court will only exercise its discretion in granting an order of specific performance only if it is appropriate in the circumstances of the case to do so”.

From the above this present case falls under one that the court cannot order for specific performance because it has been already been established that the purported purchase agreement was of no legal effect and hence unenforceable. For this reason and by the application of the case of GORMAN & GORMAN VS ANSONG, this honourable court cannot order for specific performance.

b) A declaration of title of property No. A152 Manye Adorkor St., Chantan Accra (Digital Address No. GC-003-5361) in the name of Defendant

The presumption that person in possession of land is presumed to be the owner and has

good title against the whole world, except for someone with a better legal right., is a rebuttable one. From all the discussions of various cases and the analysis of the legal principles in the preceding paragraphs, it can be concluded that the Defendant never had title to the land as no title was passed to her and so the court cannot grant the relief of declaration of title by to the Defendant. Beneficiaries hold a better title

c) Damages

The following facts are accurate and can be confirmed in respect of the present suit:

- That the Plaintiff agreed with Defendant to sell the property at a price of GHC600,000 and GHC402,000 of the said price was paid by the Defendant to the Plaintiff

- A payment receipt was duly signed and issued by Plaintiff acknowledging receipt of part of the purchase.

- The defendant is in possession of building plans and permit that suggests that the Plaintiff ceded possession to Defendant and was agreeable to Defendant developing the property.

From the forgoing, there was a clear intention to sell the property and Plaintiff acted on that intention in various ways as listed above. The Plaintiff knew or ought to have known that in her position she had no right to dispose off the said property as she had no title to the land.

The Defendant in her pleadings specifically pleaded fraud. In the case of S.A. TURQUI & BROS VRS. DAHABIEH [1987-88] 2 GLR 486 as cited in CORNELIUS OGBU V. ACCESS BANK (GH) LTD (2015) JELR 69870 (CA), the Supreme Court per Taylor JSC stated as follows:

“In my opinion, a charge of fraud in law can be taken to be properly made against a party who knowingly or recklessly, whether by conduct or words, uses unfair, wrongfully[sic], or unlawful means to obtain a material advantage to the detriment of another party. It is an insidious form of corruption and it therefore a charge involving moral obloquy. Bluntly put without equivocation, it is a species of dishonest conduct. In law, it involves a false representation whether exhibited by words or conduct or otherwise which in the well-known words of Lord Herschell in the locus classicus, Derry vrs Peek [1889] 14 App Cas. 337 at 374 HL is: “. made (1) knowingly, or (2) without belief in its truth, or

(3) recklessly, careless whether it be true or false.”

Plaintiff held herself out as having authority to deal with the person and acted thereupon to falsely represent to Defendant causing Defendant to dispense with money for the purchase of the property and for the construction of the property. In the case of Bookes

v. Barnard (1964) 1 All E.R 367, the court stated that “the object of damages in the usual sense of the term is to compensate”

The Defendant is therefore entitled to damages to compensate her for the actions of the Plaintiff as discussed supra.

 

In the case of EMMANUEL NII ODARTEY V. THE INSPECTOR GENERAL OF POLICE & ORS. (2016) JELR 108289 (HC), the court stated that: “In assessing compensation however, the court may look at all the circumstances, including the pecuniary loss suffered by the plaintiff as well as the motives of the defendant”.

In the circumstances of the present case, the court may look that the loss suffered by the Defendant, as well as the motivation of the Plaintiff, i.e. Plaintiff’s intention to sell the property even though she had no title to same.

In determining the damages that the Defendant has suffered, it is important for this Honourable Court to also take into consideration whether or not Defendant did any due diligence. Specifically, in the case such as the present which involves the sale and purchase of property, it was important for the Defendant to do due diligence and ascertain that the Plaintiff who purported to sell the said property had title and authority to do so. Was the Defendant a Bonafide purchaser for value without notice?

The Court of Appeal in the case of ADIZA MOHAMADU V. ALI ADAMU AND HARUNA AMIDU (2014) JELR 63945 (CA) explained this doctrine as follows:

The equitable doctrine of purchaser without notice provides that a legal right may be enforced ‘against all the world’ by a purchaser for valuable consideration who takes property without knowledge of any defect in title. Thus where a person purchases a legal estate for valuable consideration and, at the time, is without notice of an equitable interest in that land, the legal estate will pass to him free from the equitable interest.

In the case of BANK OF AFRICA LTD. V. GRACEFIELD MECHANTS LTD. & ORS.

(2020) JELR 80041 (SC), the Supreme Court stated that in assessing whether a purchaser of land had acted prudently, and for that matter entitled to seek comfort under the plea of bona fide purchaser for value without notice, we think that each case must be determined based on its peculiar circumstances.

The court has found that the sale of the property to the Defendant is void and of no legal effect as there is no valid registered vesting assent because the Plaintiff lacked capacity to sell the property. Therefore the actions of the Plaintiff were reckless and hence ought to attract some damages awarded in favour of the Defendant. The Defendant on her part having failed to conduct due diligence as to the legal ownership of the property as not a bona fide purchaser for value without notice. Again after the Plaintiff returned the money of the Defendant, it was not prudent for the Defendant to have retransferred the money back to the Plaintiff’s account. Defendant should have mitigated her loss. Defendant is only entitled to a refund of her money together with interest from 18th December 2021 on the sum Ghc 300,000.00 and 13th December, 2021 on sum ghc 100,000.00 until date of refund which is 27th October, 2022. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded. DELMAS AGENCY GHANA LTD. v. FOOD DISTRIBUTORS INT. LTD. [2007-2008] 2 SCGLR 748 @ 759.

Plaintiff is to pay Defendant general damages of Ghc 100,000.00