Benjamin Kwabena Nkansah (suing per his lawful attorney Kwabena Owusu Mensah) and Kwabena Owusu Mensah v Nii Kwaku Dartey II and Nii Adam Kwartei Quartey and Mr Seidu

The 1st Plaintiff’s claim against the 1st and 3rd defendants jointly and severally are as follows:

i. The recovery of ONE CORROLLA SALOON CAR (2002 Model) and ONE FRONTIER KINGCAP PICKUP CAR OR,

In the ALTENATIVE, the assessed value of the cars

ii. The recovery of an amount of three thousand Ghana Cedis (GH¢3,000.00)

iii The payment of interest on the amount of Three Thousand Ghana cedis (GH¢3, 000.00) from 2015 until the final date of payment.

iv. General damages

v. Cost

The 2nd Plaintiff claims against the 2nd and 3rd Defendants jointly and severally as follows:

i. The recovery of ONE CORROLLA SALOON CAR (2002 Model) and ONE YARIS SALOON (2008 MODELCAR) OR,

In the ALTENATIVE, the assessed value of the cars. ii General damages

iii. Cost

CASE OF 2ND PLAINTIFF

The 1st and 2nd plaintiffs are Ghanaian businessmen and owners of the piece of land described in SCHEDULE "A" herein and SCHEDULE "B" respectively.

The 1st and 2nd plaintiffs reside in the United States and Ghana respectively. The 2nd Plaintiff is also the lawful attorney of the 1st Plaintiff.

The 1st Defendant is the Chief of Manhean and representative of the Manhean stool. The 2nd Defendant is the Head and Lawful Attorney of the Gbawe Kwatei Family of Accra.

The 3rd Defendant is the person who acted together and also represented the 1s t and 2nd Defendants and dealt with the Plaintiffs in the sale of the land to the Plaintiffs by the 1st and 2nd Defendants.

It is the case of 2nd Plaintiff that in 2006, the 2nd Plaintiff showed interest in a land sale from the 3rd Defendant. 2nd Plaintiff agreed to buy the land and the 3rd Defendant agreed to prepare and execute an indenture to 2nd Plaintiff. The 2nd Plaintiff also agreed to provide two cars for the land.

The 2nd Plaintiff claims he gave the 2nd and 3rd Defendants one Corrola Saloon car (2002) model and one Yaris 2008 model car in exchange for land, which the 3rd Defendant collected. The 2nd Plaintiff also claims that the 2nd and 3rd Defendants sold him a piece of land at Sakumono, Mallam Junction, Accra, on 14th day of December 2006 after collecting the cars as per an indenture executed between the 3rd Defendant and himself.

The 2nd Plaintiff avers further that the indenture is registered at the Lands Commission as LVD 19906A/2011. The 2nd Plaintiff says the 3rd and 2nd Defendants have since not put him in possession of the land despite persistent demands on them. 2nd Plaintiff says a search he conducted shows that the land is situate and lying at Winneba. The 2nd Plaintiff says the 2nd and 3rd Defendants have defrauded him and pleaded fraud.

PARTICULARS OF FRAUD

 

A) That the 2nd and 3rd Defendants have no piece of land to sell to him but pretended they have.

B) That the 2nd and 3rd Defendants collected 2nd Plaintiff's cars to give him land when they knew they did not have the land to give Plaintiff.

C) That the land they purported to sell to him in Accra is located at Winneba.

The 2nd Plaintiff says all attempts that he has made to retrieve his money from the 2nd and 3rd Defendants have proved futile and that it is only through the coercive power of the court that they would refund his money to him.

CASE OF 1ST PLAINTIFF

The 1st Plaintiff avers that somewhere in the year 2014, the 3rd Defendant told him that he had some land to sell and 1st Plaintiff showed interest and subsequently agreed to buy the land.

1st Plaintiff says it was agreed among them (1st Plaintiff and 1st and 3rd Defendants) that 1st Plaintiff should provide two (2) cars for the piece of land and in lieu of cash, 1st Plaintiff gave the 1st and 3rd Defendants ONE CORROLLA SALOON CAR (2002 Model) and ONE FRONTIER KINGCAP PICKUP CAR and that the 3rd Defendant collected the cars from him.

The 1st Plaintiff says the 3rd Defendant told him the 1st Defendant would prepare and execute the indenture for him.

The 1st Plaintiff avers that after receiving the cars, the 2nd and 3rd Defendants sold to him a piece of land at Odoben-Manhean in the then Ga West District evidenced by an indenture dated the 3rd day of April, 2014, executed between the 1st Defendant and himself.

The 1st Plaintiff avers further that the indenture is registered at the Lands Commission bearing Land Title Registry Number 0009809 of 2nd August 2012.

 

The 1st Plaintiff avers that the 3rd Defendant also collected an amount of three thousand Ghana cedis (GH¢3, 000.00) from him through his wife in the year 2015 as additional cost on the land.

The 1st Plaintiff says the 1st and 3rd Defendants have since not put him in possession of the plot of land despite persistent demands on them.

The 1st Plaintiff says all attempts that he has made to retrieve his money from the 1st and 3rd Defendants have proved futile and that it is only through the coercive power of the court that they would refund his money to him.

DEFENCE OF 3RD DEFENDANT

In his defence, 3rd Defendant says that he knew Plaintiffs as loading boys in the Denver, Colorado and became friends and they indicated their interest in getting land similar to 3rd Defendant's land at Mallam Junction, so 3rd Defendant introduced Plaintiffs to his grantors 1st and 2nd Defendants and they negotiated with them.

3rd Defendant says that he is not an agent of 1st and 2nd Defendants and has never represented them.

3rd Defendant says further that he is not the owner of the pieces or parcels of land described in this suit and has never conveyed any land to the Plaintiffs.

3rd Defendant says further that he is not a party to the said indentures and that when the indentures were prepared by 1st and 2nd Defendants, they deposited them at his office and he called 1st Plaintiff's mother called Auntie and 2nd Plaintiff's wife called Esi for the respective indentures on behalf of the Plaintiffs

3rd Defendant says that the said cars were accident cars and that when 2nd Plaintiff brought them for 1st and 2nd Defendants, 2nd Plaintiff's mother and wife Esi called 3rd Defendant who in turn called 1st and 2nd Defendants and she handed over the keys to 1st and 2nd Defendants in presence of 3rd Defendant and they took them away.

 

3rd Defendant says that to the best of his knowledge, the two plots of land described were delivered to the Plaintiffs and they took possession of same. 1st and 2nd Defendants took 2nd Plaintiff himself to his land and he took possession of same and 2nd Plaintiff also went to 1st Plaintiff's land together with his uncle from US and took possession of same in the presence of 3rd Defendant, a surveyor and a representative from 1st and 2nd Defendants.

3rd Defendant says that 1st Plaintiff said he wanted relocation and 1st and 2nd Defendants requested for a return of the indenture and additional One Thousand Seven Hundred Cedis (GH¢1,700.00) for the surveying and the documentation was given to 3rd Defendant who sent same to 1st and 2nd Defendants.

3rd Defendant says in further response that 1st and 2nd Defendants brought a surveyor who took 2nd Plaintiff to the new site, which is just about 30 meters from the old site in the presence of the 3rd Defendant and Plaintiffs said they were satisfied.

3rd Defendant says that the Plaintiffs are not entitled to their claims and same should be dismissed with substantial costs.

Plaintiffs in their reply to 3rd defendant’s statement of defence insisted that the 3RD Defendant collected the cars from the 2ND Plaintiff with the promise to hand over the indentures to the Plaintiffs.

Plaintiffs say the 3rd Defendant did all the transactions on the acquisition of the land for the Plaintiffs, after collecting the cars from Plaintiffs.

Plaintiffs insisted that the 3rd Defendant lured them into the transaction and that the 3rd Defendant is the main actor in the transactions as they the Plaintiffs never met the 1st and 2nd Defendants physically.

Plaintiffs denied in their reply that the cars were accident cars and that they handed them over to the 3rd Defendant as payment for the land.

 

In further reply, Plaintiffs say the 3rd Defendant exposed himself as he was deeply involved in the procurement of the indentures which were handed over to them without the presence of the 1st and 2nd Defendant and it was the 3rd Defendant who alone collected the cars.

Plaintiffs in further reply say they never took possession of the land when 3rd Defended took them to a place close to the Mallam Flyover as the location of the plot with a surveyor but they were sacked by the people around, in the presence of 3rd Defendant himself.

Plaintiffs say in their reply that when they asked 3rd Defendant to take them to their alleged grantor, he informed them that he was dead.

Plaintiffs say the 3rd Defendant again exposed himself for being deeply involved in the transaction by admitting having collected back the indentures and also receiving cash from the Plaintiffs.

Plaintiffs say they were never shown their plots by the Defendants and they also never asked for relocation.

EVIDENCE OF PLAINTIFFS

The Plaintiffs in their evidence-in-chief stated that the 3rd Defendant has defrauded them by false representation that he had land to them by collecting four (4) vehicles from them in exchange of the land but did not give them the land after collecting the cars from the and pray that the court enters judgment in their favour.

Plaintiffs say that in or around the year 2006, the 3rd Defendant who was a friend to them approached them that he had parcels of land in Ghana, precisely, Accra to sell to them. Plaintiffs say they expressed interest and It was agreed that the Plaintiffs should provide two cars each for their separate land.

The 3rd Defendant collected from the 2nd Plaintiff two cars. The 2nd Plaintiff gave the cars to the 3rd Defendant who in turn gave him the land document, an indenture containing a lease, signed by the 2nd Defendant, NII ADAMA KWARTEI QUARTEY, Head of the Gbawe Kwatei Family of Accra.

In the transaction, 3rd Defendant represented to the 2nd Plaintiff that his grantor was one NII ADAMA KWARTEI QUARTEY, Head of the Gbawe Kwatei Family of Accra.

The 2nd Plaintiff says he was never introduced to the said 2nd Defendant, Nii Adama, despite several demands on the 3rd Defendant to do so. The 2nd Plaintiff says when he was sent on to the land by the 3rd Defendant and they were chased out as the land was not for the 3rd Defendant and that the land had an owner.

The 2nd Plaintiff says the 3rd Defendant has defrauded him in the sense that he did not have any land to sell to him but collected his cars from him.

The 2nd Plaintiff says there is no Nii Adama and that the 3rd Defendant himself prepared the indenture using Nii Adama's name.

The 3rd Defendant repeated the same fraudulent behavior on the 1st Plaintiff when in the year 2014, he represented to him that he had land to sell to him in Accra, Ghana. He once again collected two cars in exchange for the land. The 3rd Defendant gave the 1st Plaintiff an indenture containing a lease signed by the 1st Defendant, Nii Kwaku Dartey III, Head of Family and Chief of Manhean Stool of Gbawe.

The 3rd Defendant refused to introduce the 1st Plaintiff to the alleged grantor.

The 1st Plaintiff was sent to Mallam overpass on the N1 road and shown a parcel of land but never possessed and developed it because he was chased away by the real owners.

The 3rd Defendant, in addition to the cars, also collected cash amount of Three Thousand Ghana Cedis (GH¢3,000.00) from 1st Plaintiff through his ( 1st Plaintiff) wife.

EVIDENCE OF THE 3RD DEFENDANT

 

The 3rd Defendant, on his part, claimed he assisted the Plaintiffs to acquire the land from their respective grantors and that the four cars he collected from them were handed over to the 1st and 2nd Defendants as their payment for the land. The 3rd Defendant says the Plaintiffs were put in possession of their land.

3rd Defendant denied collecting three thousand Ghana Cedis (GH¢3,000.00) from the 1st Plaintiff’s wife for relocation of his land. The 3rd Defendant rather admitted that he collected an amount of One Thousand Seven Hundred Ghana Cedis (GH¢1,700.00) from the 1st Plaintiff's wife on behalf of a surveyor who was to do a new site indenture for the new site for the 1st Plaintiff.

At the close of pleadings, the following issues were adopted for trial.

1. Whether or not the 3rd Defendant undertook all the transactions on behalf of the 1st and 2nd Defendants

2. Whether or not the 3rd Defendant alone and directly collected the cars from the Plaintiffs

3. Whether or not the Defendants put Plaintiffs in possession of the land

4. Whether or not the 3rd Defendant defrauded the Plaintiffs.

5. Whether or not Plaintiffs ever met with the 1st and 2nd Defendants

APPLICATION OF LAW TO FACTS

The standard of proof required in civil actions is on the balance of probabilities. Proof in civil action - burden of proof; burden of persuasion and burden of producing evidence are stated in Sections 10,11 and 12 of the Evidence Act 1975(NRCD 323) as follows:

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

 

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

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

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

(2) "Preponderance of probabilities means the 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".

The courts, per Adinyera JSC, in ACKAH V PERGAH TRANSPORT LTD [2010] SCGLR 728 AT PAGE 736 states that "it is a basic principle on the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. ".

The apex court through Benin, JSC, expatiates this principle in ARYEE V SHELL GHANA LIMITED AND FRAGA OIL (2017-2020) SCGLR 721 at 733 when it states that:

"It must be pointed out that in every civil trial all that the law required is proof by preponderance of probabilities See section 12 of the Evidence

Act, 1975(NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved. IN OWUSU V TABIRI & ANOR (1987-88), (holding 7) it was held that the Plaintiff must win his case on the strength of his own evidence but not the weakness of his opponent's case:

"It was the principle of law that he who asserts must prove and must win his case on the strength of his own case not on the weakness of the defence.  "

 

In BISI V TABIRI & ANOR (1985-88) 1GLR 386 (holding 2) S.C. provided further explanation of the standard of proof when it said:

"The standard of proof required of a party in civil action is to lead such evidence as would tilt in his favour the probabilities in a particular issue".

The courts in Ghana have identified fraud as false representation of a matter of fact that deceives and where that representation has been made with the intention of deceiving another to act upon it for his or legal injury. Judgments obtained in such situation is not on intrinsic merit of the case and cannot operate as estoppel. SEE (DJOTEFE V HAHORMENE (1987-880 2 GLR, BRUTUW V AFERIBA (1984-86) 1 GLR; BROWN V QUASHIGAH (2003-2004) SCGLR 930; IN RE AGYAPONG (DECD); POKU V ABOSI & ANO (1982-83] GLR 254.

The standard of proof required to sustain an allegation of fraud was set out in LE LIEVRE V GOULD [1993] 1QB 491 @ 498 where Lord Esher wrote:

"A charge of fraud is such a terrible thing to bring against a man that it cannot be determined in any court unless it is shown that he had a wicked mind".

In Common law, fraud was established in DERRY V PEEK [1889] AC 337 @ 374 as follows:

"Fraud is proved when it is shown that a false representation had been made (1) knowingly or (2) or without belief in its truth or, (3) recklessly careless whether it be true or false".

Fraud in all cases implies a willful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means of what he was entitled to.

In OSEI-ANSONG & PIS V GHANA AIRPORTS COMPANY LTD [2013-2014] SCGLR 25

@ 27, the apex court said:

"Per Curiam. [The Supreme Court] must stress that fraud is not fraud merely because it has been so stated in a writ to excite the feelings of the court".

 

The challenge in the proof is buttressed at Section 13(1) of the Evidence Act 1975 (NRCD 323) which touches on the difficulty of the standard of proof required to sustain an allegation of the proof of the commission of a crime in a civil action:

"In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt".

The courts have given judicial pronouncements on this in JOHN KWADWO BOBIE V 21ST CENTURY CONSTRUCTION & ORS. CIVIL APPEAL NO. 14/5/2014, DATED 9

MARCH, 2016. SC (UNREPORTED), Pwamang, JSC, minced no words when he said

"The well-known rule of evidence is that when fraud is alleged, even in civil proceedings, it must be proved beyond reasonable doubt.

The 1st and 2nd Defendants were not identified and were served by substituted service. Judgment in Default of Appearance was entered against them.

The issues in this matter are discussed as follows: ISSUES 1, 2 & 5

1. WHETHER OR NOT THE 3RD DEFENDANT UNDERTOOK ALL THE TRANSACTIONS ON BEHALF OF THE 1ST AND 2ND DEFENDANTS.

2. WHETHER OR NOT THE 3RD DEFENDANT ALONE AND DIRECTLY COLLECTED THE CARS FROM THE PLAINTIFFS

5. WHETHER OR NOT PLAINTIFFS EVER MET WITH THE 1ST AND 2ND DEFENDANTS.

In his evidence- in- chief, 2nd Plaintiff was emphatic that the 3rd Defendant did all the transactions and that the 1st and 2nd Defendants were never seen or directly involved:

To quote verbatim, 2nd Plaintiff testified as follows:

 

"P37: I say that the 3rd Defendant did all the transactions on the acquisition of the land for the Plaintiffs, after collecting the cars from Plaintiffs”.

"38: I say that the 3rd Defendant represented the 1st and 2nd Defendants throughout the transactions and collected the four cars and money on their behalf”.

The 3rd Defendant's defence is that he only assisted the Plaintiffs to acquire their land from their grantors and during cross examination of 3rd Defendant by Counsel for Plaintiff these ensued.

Q. So in all the problems that arose on the possession of the land, the Plaintiffs reported the matter to you as the person they know for selling the land to them but not any grantor is that not so?

A. My lord there was no problem with the land and I have never sold any lands to them. There was a request, an offer was made, the offer was accepted and executed so I just mediated because he was my friend.

Q. You mediated between the 1st Plaintiff and who?

A. I mediated between Kwabena, Benjamin and Quartey family of Gbawe who was represented by Ayuba Quartey.

In the evidence-in-chief of 3rd Defendant, 3rd Defendant testified that he made enquiries about the land and later informed 2nd Plaintiff in a telephone conversation that 3rd Defendant’s friend Ayuba Quartey agreed to contact the elders of the Gbawe Palace and that sometime in 2005, he got a feedback that a plot was available for sale and he duly informed the 2nd Plaintiff.

Apart from 3rd Defendant informing 2nd Plaintiff that Ayuba Quartey said there was a plot available for sale, 3rd Defendant went on further to testify that 2nd Plaintiff accepted to buy the land at Mallam Junction based on what 3rd Defendant told 2nd Plaintiff. To the extent that 3rd Defendant went on further to say that 2nd Plaintiff did not have cash and

 

suggested a barter system whereby 2nd Plaintiff negotiated with Ayuba and agreed with 3rd Defendant’s grantor to exchange two cars from 2nd Plaintiff for two plots of land.

In 3rd Defendant’s own evidence in chief, this court finds that the 3rd Defendant played the following role in the acquisition of the purported land for sale.

a. 3rd Defendant made enquiries about the purported land.

b. 3rd Defendant informed 2nd Plaintiff during a telephone conversation that 3rd Defendant’s friend Ayuba Quartey has agreed to contact the elders of the Gbawe Palace for a piece of land.

c. 3rd Defendant introduced 2nd Plaintiff to 3rd Defendant’s supposed friend Ayuba Quartey.

d. The introduction by 3rd Defendant of Ayuba Quartey to 2nd Plaintiff, 2nd Plaintiff parted with two cars to the said Ayuba Quartey for land.

e. 3rd Defendant says that when two plots of land were demarcated to 2nd Plaintiff he visited the site and satisfied himself and further informed the 2nd Plaintiff about it.

f. Based on this arrangement 3rd Defendant admits that 2nd Plaintiff shipped one car and 3rd Defendant informed Ayuba Quartey for one car to be taken from 2nd Plaintiff’s house.

g. 3rd Defendant received the keys for a second car to be taken away by Ayuba Quartey.

h. 3rd Defendant called the wife of 2nd Plaintiff to come for four documents on the land from 3rd Defendant’s office.

i. 3rd Defendant handed over four documents passing the ownership to the wife of 2nd Plaintiff.

j. 3rd Defendant was involved in the land transaction with 1st Plaintiff.

From the evidence on record, Plaintiffs have faceless grantors, apart from the 3rd Defendant. There is no indication on record that the Plaintiffs ever met the grantors of Plaintiffs.

 

During cross examination of 3rd Defendant by counsel for the Plaintiffs, the following transpired.

Q: When 1st Plaintiff was denied access to the land did you take him to his grantor?

A: My Lord, I did not take him to his grantors but I took him to the site in the presence of Kwabena.

"Q: Did you ever take Esi to the grantor's residence?

A: No please, I don't even know the grantors' residence.

During cross examination of 2nd Plaintiff by counsel for 3rd Defendant, the following ensued.

"Q: I put it to you that the better approach to your problem would have been to sue the grantors of your land not the innocent 3rd Defendant.

A: Seidu is the one who took the 4 cars from me, (2) Toyota Yaris, Corolla and Nissan Frontier. He is the one to take me to the grantors and he failed to do so. I went to him to take me to the chiefs. He rather told me the chief of Gbawe is dead.

As already indicated, from 3rd Defendant’s own evidence-in-chief, the indentures for the land were given out to the Plaintiffs or their representatives by the 3rd Defendant himself.

During cross examination of 3rd Defendant by counsel for Plaintiffs, 3rd Defendant affirmed that 2nd Plaintiffs wife collected the indentures from 3rd Defendant’s office.

Q. To Whom did you give the 1st Plaintiff’s indenture?

A: When the indenture was ready, it was submitted to my office and I called the wife (Esi) who came to my office, signed and collected the indenture.

A sale of land is where a vendor sells his land to a purchaser for consideration. The vendor by the sale transaction transfers his interest in the land to the purchaser

 

The grantees in this instant action were not put in possession of the land by 3rd Defendant.

During cross examination of 2nd Plaintiff by counsel for 3rd Defendant the following ensued.

Q: I put it to you that the 1st Plaintiff was also taken to the land by the grantors and the 3rd Defendant and he appeared satisfied.

A: That is not correct; Benjamin was not there and I represented him and I went to the land with Seidu but we were not allowed to work and we were sacked and warned not to set foot there anymore otherwise we will be in danger.

Q: Now, after being in possession for all these years, you are now bringing an action against the 3rd Defendant, whose only role in the transaction was to introduce you to the grantor?

A: That is not so, Seidu never took me to my grantors, he never introduced them to me.

3rd Defendant failed to call the 1st and 2nd Defendants to testify in this matter and they remain unknown to the Plaintiffs as at today for which 3rd Defendant claims that the chief of Gbawe was dead.

There is a principle of law that evidence against a deceased person must be scrutinized with the utmost suspicion. Proof of such evidence must be strict and utterly convincing, SEE MOSES V ANANE [1989-90] 2 GLR 694, CA.

The consideration for the purchase of the land is the provision of two cars by each of the Plaintiffs. The cars were collected by the 3rd Defendant himself, but not the supposed grantors, as told by the 2nd Plaintiff during cross-examination:

From the pieces of evidence adduced during trial and the role played by the 3rd Defendant in this transaction, this court makes a finding of fact that the 3rd defendant undertook all the transactions on behalf of the 1st and 2nd and collected four cars from the Plaintiffs on behalf of 1st and 2nd defendants who are faceless people and unascertained.

 

ISSUES 3&4

3. WHETHER OR NOT THE DEFENDANTS PUT PLAINTIFFS IN POSSESSION OF THE LAND

4. WHETHER OR NOT THE 3RD DEFENDANT DEFRAUDED THE PLAINTIFFS.

The nemo dat quod non habet principle is well rooted in sale transactions. SEE TETTEH & ANOTHER V HAYFORD (SUBSTITUTED BY) LARBI & DECKER [ 2012] 1 SCGLR 417

It is the case of Plaintiffs that they were not put in possession of the land by 3rd Defendant himself which culminated in this trial and that 3rd Defendant has defrauded them.

To Plaintiffs the 3rd Defendant's behaviour implies a willful act on his part, which sought to deprive the Plaintiff, by illegal or inequitable means, of what they are entitled to.

"fraud is proved when it is shown that a false representation had been made (1) knowingly or (2) or without belief in its truth or, (30 recklessly careless whether it be true or false".

The 3rd Defendant deprived the Plaintiffs of their four (4) cars and a cash of Three Thousand Ghana Cedis (GH¢3,000.00) with nothing in exchange.

The action of the 3rd Defendant is pure fraud.

This is repeated at paragraphs 34, 35 and 36 of the 2nd Plaintiff's Witness Statement filed on the 6th of July, 2022:

"P34: I say that in both transactions, it was the 3rd Defendant and or persons under his instructions, who physically collected Toyota corolla cars, both silver in colour, in the presence of my wife from my sprayer called Kwaku Arhin, with the promise to hand over the indentures to us and the cars to the 1st and 2nd Defendants, through the 3rd Defendant".

"P35: I say that the 2nd Pickup was handed over to the 3rd Defendant by myself".

 

“P 36: I say that my wife also handed over the Nissan Pick up to the 3rd Defendant".

Plaintiff's witness Kwaku Arhin, under cross-examination, corroborated 2nd Plaintiff’s evidence that 3rd Defendant personally collected the cars.

"Q: In paragraph 5 of your witness statement, you alleged that 3rd Defendant came to your shop with 2nd Plaintiff's wife to collect some two cars is that correct?

A: It is true, My Lord.

Q: I put it to you that it was the 2nd Plaintiff’s wife who took the cars away not the 3rd Defendant.

A: My Lord, the 3rd Defendant (Seidu) was the one who drove the car from the shop with the 2nd Plaintiff’s wife"

Q: I put it to you that the 3rd Defendant was not there at all, you have never met him before.

A: My Lord Seidu came to my shop; he is short and fair in complexion he came for the car".

The witness knows Seidu as he gave a correct and vivid description of him, even though Seidu was not in court that day.

PW1 stated that he sprayed scratched portions of three (3) of the cars:

"Q: Those three cars you mentioned in paragraph 4 of your witness Statement, tell this court the make of the cars

A: One Toyota Corolla and two Nisan Frontier Pickups"

According to PW1 the cars were all in excellent conditions except few scratches that happened in transit:

 

"Q: These cars can you tell this car the state or condition of cars when they were brought to you

"A: My Lord, there were scratches on the car and I sprayed it for them". The 3rd Defendant does not deny that four cars were involved in the deal:

"Q: I am putting it to you that you collected 4 cars and you failed to give the Plaintiffs the two plots of land as the two attempts to give them land at different sites failed because you did not have any land to give them.

A: My Lord, there are no two attempts".

From the evidence on record, Plaintiffs have indentures in their hands but no land to develop. The 2nd Plaintiff who received his indenture from the 3rd Defendant has still no land and says that is why he has come to court for a refund of his money.

Plaintiffs were moved from one land to another but never succeeded in getting their land.

It is the case of Plaintiffs that the 3rd Defendant lured them into parting with the four cars for nothing as they were chased out twice in an attempt to possess two separate sites after the first sites were unsuccessful.

During cross examination of 3rd Defendant by Plaintiffs’ counsel, the following ensued.

Q: 2nd Plaintiff in his evidence in-chief at paragraph 51, has said that the Surveyor went with them to another site at the Mallam Flyover but were again chased away, is that not an attempt by you to replace the land for them?

A: My lord nobody chased anybody. There was nothing like that. He requested for possible replacement for which he was shown the possibility if he meets the condition and he never met the conditions, may be, he had a change of mind, I don't know".

The 3rd Defendant himself took 2nd Plaintiff to site and this is captured during cross examination of 2nd Plaintiff.

 

"Q: Now do you also remember that your grantors took you, Seidu Arosa, the 3rd Defendant and Ayuba Quartey to the site and handed over the site to you?

A: Seidu only took me to site'

"Q: Then, I put it to you that you are not telling the truth to the court

A: Am telling the truth My Lord; we decided to develop the land but we were attacked hence we couldn't do anything on the land in dispute".

The 2nd Plaintiff was promised a new site but was never allotted, even after collecting cash from him:

"Q: Now, do you remember that after the said attack, the grantors took you to another site?

A: That is not so, My Lord".

The 2nd Plaintiff was promised a relocation, but that never materialized as the 3rd Defendant had no intention of giving Plaintiffs any land and also was only demanding money.

The 1st Plaintiff suffered a similar fate as he was also driven away:

"Q: I put it to you that the 1st Plaintiff was also taken to the land by the grantors and the 3rd Defendant and he appeared satisfied.

A: That is not correct; Benjamin was not there and I represented him and I went to the land with Seidu but we were not allowed to work and we were sacked and warned not to set foot there anymore otherwise we will be in danger"

The 2nd Plaintiff’s land was claimed by an Indian whilst the 1st Plaintiff’s land was made inaccessible by the overpass.

The 3rd Defendant per his paragraphs 20 and 27 of his Witness Statement clearly indicate that the Plaintiffs had no access to their land:

 

“P 20: After handing over the documents to her, Mrs. Esi went to the site and she called me and informed me that when she went there some

people said an Indian man once came there and claimed that the place belonged to him without any proof”.

“P 27: After the construction of the Mallam Junction overpass as part of the N1 Highway, sometime in 2009 and 2010, access to 1st Plaintiff's plots became difficult so he requested for a replacement from the grantors if it was possible".

This court makes a finding of fact that the 3rd Defendant had no land and defrauded Plaintiffs then feigned an attempt to replace the plots.

With regard to the 1st Plaintiff, the 3rd Defendant after long denial that he took Three Thousand Ghana Cedis (GH¢3,000.00) from 1st Plaintiff's wife, Agyeiwaa, but refused to replace his land finally agreed he took money from the lady.

During cross examination of 3rd Defendant by Plaintiffs’ counsel, the following ensued. Q: So you now agree that Agyeiwaa paid the money to you?

A: Yes, My Lord, Agyeiwaa paid the money through me to the surveyor".

In spite of this payment the 1st Plaintiff did not get any replacement of the land.

The 1st Plaintiff paid for a new place but 3rd Defendant took the money without giving him any new land.

A similar demand was made on the 2nd Plaintiff for a new site but 3rd defendant was unsuccessful in his attempt to extort money from him. This was only a strategy to collect more money from Plaintiffs as the 3rd Defendant said under cross-examination:

Q. I am putting it to you that the GH¢3,000.00 that the 2nd defendant’s wife paid to you which you have admitted that it was GH¢1,700 was used to prepare new indentures for the new plots to replace the 2 old ones they did not have access to?

 

A: My Lord, that is not true, the money was the fee the Surveyor charged to demarcate possible land for replacement if they were able to meet the condition. There was a discussion of new indenture, the Surveyor does not give indenture. And my lord there were no GH¢3000.00 anywhere mentioned, the surveyor fee was GH¢1,700.00 which they paid and was given to the surveyor and he demarcated the intended plot and I went to the new site with the 2nd Plaintiff after the surveyor has done his job".

The 3rd Defendant admits of a new site that was to be re-allocated the Plaintiffs because the 1st land allocated were taken away from them because they were not for the 3rd Defendant.

The 3rd Defendant was very much aware that the Plaintiffs had no access and possession to the land.

During cross examination of 3rd Defendant by Plaintiffs’ counsel, the following ensued.

Q. When 1st Plaintiff was denied access to the land did you take him to his grantor?

A: My Lord, I did not take him to the grantors but I took him to site in the presence of Kwabena.

The 3rd Defendant's paragraphs 27, 28,29 and 30 clearly shows that he made an attempt to replace 1st Plaintiff's land but unsuccessful because he had no land.

The 3rd Defendant also gives a hint that they intended to replace 2nd Defendant’s land:

"Q: Now, do you remember that after the said attack, the grantors took you to another land?

A: That is not so, My Lord".

It is strange that 3rd Defendant was able to negotiate with people he never knew or met with them and buy land from them in exchange of cars when both parties stay in Accra here, not far from each other, Dansoman (3rd Defendant) and the grantors at Gbawe. The

 

3rd Defendant either has been reckless, careless or the grantors never existed at all. The latter is the case otherwise he could have supported his case with a witness from the grantors' family, even if they were dead. Again, when there was even a problem with the possession by the Plaintiffs, the 3rd Defendant never put the issue before the supposed grantors but decided to solve it himself.

During cross examination of 3rd Defendant by Plaintiffs’ counsel, the following ensued. Q: When 1st Plaintiff was denied access to the land did you take him to his grantor?

A: My Lord, I did not take him to his grantors but I took him to the site in the presence of Kwabena".

This is all because there were no such grantors but he himself was the grantor.

The conclusion here is that there existed no grantor and that the 3rd Defendant was himself the grantor.

The law is that “Whereby a person by his conduct or words knowingly induces another to believe in the existence of a state of things, and if in that belief the latter acts to his detriment, the former will be prevented from setting up against the latter a different state of things as existing at the relevant time. This principle is codified in section 26 of NRCD 323.”

This court makes a finding of fact that the 3rd Defendant deceived the Plaintiffs to part with their four cars to him for nothing in return. Per the facts above it is clear "that he had a wicked mind" (LE LIEVRE V GOULD [SUPRA] where Lord Esher).

The Plaintiffs have demonstrated before this Honorable court all the intentions of the 3rd Defendant against them to determine fraud against 3rd Defendant.

This court makes a further finding of fact that 3rd Defendant had no land but made a false representation to the Plaintiffs that he could sell to them what he did not have as

 

postulated in the authority of DERRY V PEEK [SUPRA] "(1) knowingly or (2) or without belief in its truth or (3) recklessly carelessly whether it be true or false.

Fraud, in all cases, implies a willful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means of what he was entitled to. This is exactly what the 3rd Defendant has done to Plaintiffs.

The 3rd Defendant did not under any circumstances disclose the location of the grantors to the Plaintiffs. When they needed them to possess their plots, he told them they were dead. This is family land and there is perpetual succession in families and, therefore, somebody would always be available to take responsibility as the head of family.

Where is Ayuba, the "representative" of the grantors? If there were an Ayuba, he would have appeared in court to support 3rd Defendant's case. Indeed, there is no Ayuba, but a faceless person created by the 3rd Defendant to help him execute his fraudulent agenda.

This court makes a finding of fact that the indenture provided to the Plaintiffs was fake, prepared by the 3rd Defendant himself. The 3rd Defendant, planned, rehearsed and executed the fraud against the Plaintiffs. He knew that they would not get the land but would take their cars for free.

The elements of fraud have been established through improperly executed indenture without land; no land for replacement; harsh conditions for replacement which cannot be met; free cars for no consideration and an inaccessible location.

The 3rd Defendant acted alone and for himself in this fraudulent act. There are no other parties as 1st or 2nd Defendant. He hired persons to serve his purpose and, therefore, was unable to support his case with any witness. The Plaintiffs want the recovery of their cars (or cash equivalent) and cash paid and nothing else and Plaintiffs have been successful in proving their case on the balance of probabilities.

 

Judgment is entered in favour of 1st Plaintiff against 3rd Defendant for the recovery of ONE CORROLLA SALOON CAR (2002 Model) and ONE FRONTIER KINGCAP PICKU CAR) OR,

In the ALTENATIVE, the assessed value of the cars

i. The recovery of an amount of three thousand Ghana Cedis (GH¢3,000.00)

ii Payment of interest on the amount of Three Thousand Ghana cedis (GH¢3, 000.00) shall be calculated at the commercial bank interest rate from 2015 until the final date of payment.

Iv. General damages of GH¢ 10,000

v. Cost of GH¢ 20,000

Judgment is entered in favour of 2nd Plaintiff against 3rd Defendant for the recovery

i. The recovery of ONE CORROLLA SALOON CAR (2002 Model) and ONE YARIS SALOON (2008 MODELCAR) OR,

In the ALTENATIVE, the assessed value of the cars. ii General damages of GH¢ 10,000

iii. Cost of GH¢ 20,000.