Kingsley Kwabena Benjamin v Nii Annang Tetteh and Others

1.0 INTRODUCTION:

Per his Amended Writ of Summons dated 13th July, 2018, the Plaintiff seeks the following reliefs against the Defendants:

i. Declaration that the land described in the indenture as land situate at Kwabenya in the Ga East District in the Greater Accra Region of the Republic of Ghana and bounded on the North-West by Lessor’s land measuring 99.1 feet more or less on the North-East by lessor’s land measuring 69.2 feet more or less on the South-East by lessor’s land measuring 10.8 feet more or less on the South-West by a proposed road measuring 68.1 feet more or less and continuing an approximate area of 0.6 Hectares and which piece or parcel of land is more particularly delineated on the plan attached thereto belongs to the Plaintiff.

ii. Recovery of possession of the land in dispute from the 2nd Defendant on the Plaintiff’s land.

iii. General damages against the Defendants for the trespass of the 2nd Defendant on the Plaintiff’s land.

iv. An order of perpetual injunction to restrain the 2nd Defendant, his agents, workmen, servants, assigns or any other person(s) acting for or on his behalf or claiming through him from interfering in any way

with the Plaintiff’s land.

v. An order against the Defendants to pay the cost of this action inclusive of legal fees assessed at 10% the value of the land in dispute.

vi. Any other reliefs that this honourable court deem fit.

Or in the alternative:

i. A declaration that the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants have perpetrated fraud on the Plaintiff.

ii. General damages against 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants for defrauding the Plaintiff.

iii. An order against the 1st, 3rd, 4th, 5th, 6th, 7th and 8th defendants to refund to the Plaintiff the money he paid for the land and for all the money the Plaintiff spent on the land before it was forcibly taken over by the 2nd Defendant.

iv. An order against the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants to pay interest on item iii supra at the prevailing commercial rate from 2015 up to the date of final payment.

v. General damages against the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants for the inconvenience they have caused to the Plaintiff.

vi. An order against the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants to pay the cost of this action inclusive of legal fees assessed at 10% the value of the land in dispute.

vii. Any other reliefs that this honourable court deems fit.

1.1 The case of the Plaintiff as captured by his amended statement of claim is that sometime in or about January, 2015, he acquired a piece of land from the 3rd to 8th Defendants through the 1st Defendant. The Plaintiff says that the Odai Ntow Family represented by the 3rd to 8th Defendants also collected a total of GhS10,500.00 for picking the plot and for documentation.

1.2 The Plaintiff says that he was given an indenture by the Odai Ntow Family to evidence the acquisition and that the indenture was executed by the 3rd to 8th Defendants as representatives of the various branches of the Odai Ntwo Family.

1.3 The Plaintiff says that the land he acquired from the Odai Ntow Family is described in the indenture as land situate at Kwabenya in

the Ga East District in the Greater Accra Region of the Republic of Ghana and bounded on the North-West by lessor’s land measuring

99.1 feet more or less on the North-East by lessor’s land measuring 69.2 feet more or less on the South-East by lessor’s land measuring

69.2 feet more or less on the South-East by lessor’s land measuring 10.8 feet more or less on the South-West by a proposed road measuring 68.1 feet more or less and containing an approximate are of 0.6 acres or 0.06 hectares and which piece or parcel of land is more particularly delineated on the plan attached thereto.

1.4 According to the Plaintiff he quickly moved into possession of the land by mounting on same corner pillars and placed four (4) trips of sand and two (2) trips of stone on the land. The Plaintiff says that he constructed a fence wall all-round the land and put up a one room structure on same.

1.5 The Plaintiff avers that on three occasions the 2nd Defendant demolished his one room structure and the fence wall, for which reason the Plaintiff had to reconstruct same upon each demolishing. The Plaintiff says that in April, 2017 he reported the 2nd Defendant to the police at Kwabenya after the first demolishing but the 2nd Defendant did not stop the demolishing after the Plaintiff had reconstructed his wall and the single room.

1.6 The Plaintiff says that in August, 2017 he reported the matter to the Property Fraud Unit of the Ghana Police Service but that did not deter the 2nd Defendant from continuing with the illegal demolitions. According to the Plaintiff several reports to the 1st Defendant and the Odai Ntow Family to stop the 2nd Defendant from interfering with the Plaintiff’s land has proved futile and the 1st Defendant and the Odai Ntow Family have also refused to refund the money he paid for the acquisition of the land and for documentation.

1.7 The Plaintiff says inclusive of the acquisition and documentation he expended a total amount of GhS86,950.00 on the land. The Plaintiff says that the 2nd Defendant has now cleared the land, off the Plaintiff’s fence wall and building and he is now constructing a building on the Plaintiff’s land.

1.8 The Plaintiff says that unless this court intervenes, the 2nd Defendant will succeed in depriving him of his land while the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants look on unconcerned after receiving payment for same from the Plaintiff. The Plaintiff says that after receiving payment for the land in dispute there is every indication that the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants have

sold the land in dispute to the 2nd Defendant.

1.9 The Plaintiff says that the 9th Defendant claim to have acquired the land in dispute through a public auction and that the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants had no land to grant to the Plaintiff. The Plaintiff says that if the claim by the 9th Defendant to have acquired the land in dispute at a public auction is anything to go by, then the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendant have perpetrated fraud on the Plaintiff.

2.0 PARTICULARS OF FRAUD:

i. The 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants granting to the Plaintiff the land in this dispute which they knew or ought to have known did not belong to 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants.

ii. The 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants issuing documents to the Plaintiff purporting to evidence the lease of the land in this dispute to the Plaintiff when the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants had no interest in the land, hence the instant action.

2.1 It is salient to note that notwithstanding service of the amended writ of summons and the statement of claim on the Defendants, the action was only contested by the 2nd and 9th Defendants who entered appearance and also filed a statement of defence.

2.2 At the Application for Directions’ stage following issues were set down for trial:

1. Whether or not the 9th Defendant acquired the subject-matter of the dispute in a properly conducted public auction sanctioned by a court of competent jurisdiction.

2. Whether or not the Plaintiff’s grantors had interest in the land in dispute to grant same to the Plaintiff.

3. Whether or not the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants have perpetrated fraud on the Plaintiff.

4. Any other issues arising from the pleadings.

5. Whether or not the Plaintiff is entitled to his reliefs.

6. Whether or not the 2nd and 9th Defendants are entitled to their counterclaim.

2.3 In articulating his case, the Plaintiff testified that sometime in or about January, 2015, he acquired the land in this dispute from the 3rd to 8th Defendants through the 1st Defendant and an amount of GhS34,500.00 to the 1st Defendant for the land in dispute.

2.4 The Odai Ntow Family represented by the 3rd to 8th Defendants also collected a total of GhS10,500.00 for picking the plot for him and for documentation. He was given an indenture by the Odai Ntow Family to evidence the acquisition and the indenture was executed

 by the 3rd to 8th Defendants as representatives of various branches of the Odai Ntow Family. A copy of the said indenture was tendered as Exhibit “A”.

2.5 He then took possession of the land by mounting corner pillars on it and also placed four (4) trips of sand and two (2) trips of stone on the land. He also constructed a fence wall around the land and put up a one room structure on it. The Plaintiff states that on three deferent occasions, the 2nd Defendant demolished his one room structure and the fence wall and was forced to reconstruct same upon each demolishing. See Exhibit “B” series, Pictures of demolitions by the 2nd Defendant.

2.6 The Plaintiff further testified that in April, 2017, he reported the 2nd Defendant to the police at Kwabenya after the first demolition but the 2nd Defendant would not stop the demolition even after he had reconstructed his wall and single room for which reason he reported the matter to the Property Fraud Unit at the Police Headquarters. He was accompanied to the site by the police. From the site they went to the palace of the 8th Defendant looking for the 2nd Defendant but met the family members as the 2nd Defendant could not be readily located, the policemen asked the

Plaintiff to come to their station office for a statement form to deliver to the 2nd Defendant to write his statement. When the Plaintiff went back to the palace with the statement form, the 2nd Defendant was called and in the presence of his family members he dictated his statement to the Plaintiff which he wrote down for him. He signed it and the Plaintiff made a copy before delivering it to the police. A copy of the 2nd Defendant’s signed statement was tendered as Exhibit “C”.

2.7 According to the Plaintiff, his report to the Property Fraud Unit of the Ghana Police Service did not deter the 2nd Defendant from continuing with the illegal demolitions as he had then received money from a police officer for the same land. It had to take several trips and a letter from his lawyers before he was given a Police Investigations Report on the matter by the Property Fraud Unit. A copy of the letter from his lawyers to the Property Fraud Unit of the Ghana Police Service which had to be posted by registered mail to the police as they refused to receive same was exhibited as Exhibit “D” series. Exhibit “E”, a copy of the Police Investigations Report on the matter from the Property Fraud Unit of the Ghana Police Service.

2.8 It is the Plaintiff’s testimony that several reports he made to the 1st Defendant and the Odai Ntow family to stop the 2nd Defendant from

 interfering with his land was fruitless and therefore made several demands on the 1st Defendant and the Odai Ntow Family for a refund or the money he paid to them towards the acquisition of the land and for its documentation but they refused to refund same to me. And that inclusive of the acquisition and documentation he expended over GhS86,950.00 on the land at that time. See Exhibit “F”, a summary of Expenses the Plaintiff incurred. The Plaintiff therefore instituted the instant action.

2.9 The 2nd Defendant a caretaker of the 9th Defendant testified that he was the caretaker of the land in dispute for the 9th Defendant in the instant suit and that the 9th Defendant acquired the land in dispute at a public auction sanctioned by the High Court, Accra on 10th November, 2014 and a Certificate of Purchase was issued to her as evidence of her acquisition at the said auction. See Exhibit “1”, a copy of the Certificate of Purchase.

3.0 And that a deed of assignment dated 22nd December, 2014 was executed by the Registrar of the High Court; Catherine De Souza in favour of the 9th Defendant to evidence her acquisition. The Deed of Assignment was subsequently stamped at the Lands Commission with number LVD850A/2015. See Exhibit 2, a copy

of the Deed of Assignment.

3.1 According to the 2nd Defendant, the 9th Defendant took immediate possession after acquiring the land in dispute by dumping trips of sand and stones on the land. The 9th Defendant has since constructed a dwelling house on the land. See Exhibit “3” series, Pictures of the building.

3.2 And that he knew the 9th Defendant acquired her land before the purported grant to the Plaintiff whose grantors did not have any interest in the land to purportedly alienate same to the Plaintiff.

3.3 The standard of proof in Land suits and indeed in all civil suits, is proof by proof by preponderance of probabilities. See sections 11 (4) and 12 of the Evidence Act 1975 (Act 323). This standard represents a deviation from the former higher standard of proof beyond reasonable doubt. The present state of the law, with regard to the standard of proof required of a party in title cases, therefore involves a consideration or evaluation of the relative merits of the rival claims of the parties based on the preponderance of the probabilities. To the extent that the parties aver, by their pleadings, positive facts in support of their rival claims, they bear the burden to adduce credible, admissible and sufficient evidence to establish those facts and to convince the court that the existence of those facts are more probable than their non-existence.

See SERWAH V. KESS [1960] GLR 227 at 229; ODAMETEY V. CLOUCH [1989-1990] 1 GLR 14 Supreme Court and ODONKOR V. AMARTE [1992-1993] GLR 57 Supreme Court, where the proper purview of the burden of proof was exhaustively examined and put its truer perspective by Hayfron-Benjamin JSC.

3.4 In the case of IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU AND ORS. V. KOTEY AND OTHERS [2003-2004] SCGLR 420, Justice Brobbey JSC, explaining the relevant provisions of the Evidence Act at page 464 and 465 stated as follows:

“The effect of sections 11 (1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: a litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of

a factor or an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…”

3.5 It must be emphasized that the burden of producing evidence is not fixed. In an explanation of the relevant provisions of the Evidence Act, Brobbey JA (as he then was) explained in the case of YORKWA V. DUAH [1992-93] GBR, at 282 that:

“However, the Evidence Decree makes provision for the duty or obligation to adduce evidence to shift from one party to the other.”

3.6 In a situation the duty or obligation could shift from the plaintiff to the defendant. If and when it is shifted, the defendant would be required to lead evidence to establish the sale once he claimed to have had possession by reason of sale of the house to him when the duty or obligation to adduce evidence shifts, and the defendant fails to adduce evidence or any evidence on the sale, the ruling of the court on the sale will be against the defendant. This is the reason for the provision in section 14 of the Evidence Act (Act 323) which states:

“Except as otherwise provide 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.”

3.7 The Supreme Court further explained the point in the case of ADJETEY AGBOSU & OTHERS V. EBENEZER NIKOI KOTEY & ORS. [2003-2005] 685 at 710 that;

“It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed, but shifts from party to party at various stages of the trial, depending on the issues(s) asserted or denied or both.”

3.8 COUNTERCLAIM:

To the extent that the defendants counterclaimed, they carried an equal burden as the plaintiffs. In the case of JAAS CO. LTD. &

ANOTHER V. APPAU & ANOTHER [2009] SCGLR 263 at 270, the Supreme Court, per Dotse JSC, commenting on the burden of proof where a defendant also counterclaims, stated:

“We wish to observe that the burden of proof is always put on the plaintiff to satisfy the court on a balance of probabilities in an action for declaration of title. Where the defendant has not counterclaimed and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claims be dismissed.”

3.9 Continuing at page 21, the held thus:

“Thus, whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the Defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant.”

“In the instant appeal, the defendants counterclaimed and that meant that they also assumed the position of a plaintiff in respect to

their counterclaim.”

4.0 It is in the light of these statutory provisions and judicial pronouncements on the burden of proof and persuasion as enshrined in sections 11, 12 and 14 of the Evidence Act, 1975 (Act 323), and placed on the parties, that the issue and facts of this case will be measured.

4.1 In land litigation, the law requires a party to prove his or her root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation. In the case of YEHANS INTERNATIONAL LTD. V. MARTEY TSURU FAMILY

& ANOR (2018) DLSC 2488 at page 8. Justice Adinyira (Mrs.) JSC, had this to say on proof of title with respect to land:

“It is settled and trite law that a person claiming title has to prove:

i. His root of title

ii. Mode of acquisition and

iii. Various acts of possession exercised over the disputed land.”

4.2 Also in MONDIAL VENEER (GH) LTD. V. AMUAH GYEBU XV [2011] 1SCGLR 466 at 475, where Georgina Wood (Mrs.) JSC (as she then was), stated as follows:

“In land litigation even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title and on whom the burden of persuasion requires the person asserting title and on whom the burden of persuasion falls, as in this instant case, to prove his root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation.”

See also the case of AWUKU V. TETTEH [2011] 1SCGLR 366.

4.3 To these may be added that, once the issue of identity of the land is in dispute, issues relating to the identity of the land becomes material and must be proved. In the case of NYIKPLORKPO V. AGBEDOTOR [1987-1988] 1 GLR 165 at 171, the court

considered the requirements essential to success in an action for declaration of title, injunction and recovery of possession thus:

“The principle of that to successful maintain an action for declaration of title to land, the appellants had to prove with certainty the boundaries of the land claimed…and the documentary proof establishing his title, the plaintiff must establish by positive evidence the identity and limits of the land he claims.”

4.4 This clearly depicts that the 9th Defendant bears the same burden of claim since he counterclaimed against the Plaintiff. Throughout the trial the 2nd Defendant mentioned that the 9th Defendant acquired the subject at a Public Auction sanctioned by a High Court, Accra. He tendered copies of Certificate of Purchase and that Deed of Assignment evidencing the purchase of the subject land as Exhibits “1” and “2”.

4.5 There is no evidence before the court that the said documents were fraudulently procured by the 9th Defendant for which reason I take same as authentic. See Section 157 of the Evidence Act, NRCD 323.

4.6 In contrast the Plaintiff traces his root of title to the 1st, 3rd to 8th Defendants. Surprisingly, they failed to attend court to state how they came by the land and the kind of interest they transferred to the Plaintiff.

4.7 Their failure/refusal to attend court to contest the Plaintiff’s claim depicts they have no defence to the Plaintiff’s claim. Paragraph 22

of the Plaintiff’s statement of claim reads:

“The Plaintiff says that if the claim by the 9th Defendant to have acquired the land in dispute at a public auction is anything to go by them the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants have perpetrated fraud on him.”

5.0 The locus classicus on the position of fraud is the case of DZOTEPE V. HAHORMENE III [1987-88] 2 GLR 681 where

the court made reference to Kerr on Fraud and Mistake and Ampah JA delivered himself as follows:

“I am of the opinion that they were entitled to do so, for fraud whenever and wherever found, would vitiate all proceedings even the most solemn proceedings of a court of justice.”

5.1 In OPANIN KWASI ASAMOAH V. KWADWO APPEAH AND NANA OWUSU SENYA Civil Appeal No. 8/2000 delivered on 17th December, 2003 the court in discussing the effect of fraud made reference to the case of Okofoh Estates and said thus;

“Indeed, fraud vitiates everything. A relevant statement on this that will be found in OKOFOH ESTATES LIMITED V. MODERN SIGNS LIMITED [1996-97] SCGLR AT 253 reads:

“An allegation of fraud goes to the root of every transaction. A judgment obtained by fraud passes no right under it and so does a forged document or a document obtained by fraud passes no right.

The lease that Asare obtained by fraudulently presenting himself as the owner of the house created no right nor passed any title to Asare. The judgment obtained with such lease similarly create4d no right nor passed any title.”

5.2 Also in the case of HARRIS V. HARRIS, 438 PA 438 PA. 47 [PA. 1968] the Supreme Court of Pennsylvania had this to say about fraud;

“The court below, in sustaining appellant’s preliminary objections, concluded that a judgment based on a forged instrument is merely voidable and consequently will not hamper the passage of good title to one considered a bona fide purchaser for value.

We disagree. The cases are legion, at least with respect to negotiable instruments that a forged, fraudulent and spurious instrument is not binding on any person and is wholly inoperative to transfer any title or right to property whether the holder is an innocent or guilty purchaser.”

5.3 Sections 13(1) and 15(1) of the Evidence Act, NRCD 323

read:

“13(1). 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.

15(1). Unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue.”

5.4 The refusal of the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants to contest the Plaintiff’s claim clearly depicts that they had no defence to the issue of fraud levelled against them by the Plaintiff.

5.5 In the circumstance, I hold that at the time they sold the land to the Plaintiff they knew they had no interest in same yet they sold same to the Plaintiff, which conduct amount to perpetuating fraud on the Plaintiff.

5.6 In the circumstance, I accordingly enter judgment for the Plaintiff as follows:

A. I declare that the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants perpetrated fraud on the Plaintiff on reliefs

(ii) and (v). I award the Plaintiff GhS40,000.00 as damages against the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants.

B. I further order them to pay GhS45,000.00 to the Plaintiff paid to them for the cost of the land.

C. I further order them to pay an interest on the GhS45,000.00 from the date of payment till trial payment.

D. I award the Plaintiff General Damages of GhS40,000.00 against the 1st, 3rd to 8th Defendants in favour of the Plaintiff.

E. Cost of GhS20,000.00 against the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Defendants and in favour of the Plaintiff.

In contrast I enter judgment for the 9th Defendant for her counterclaim. I award her cost of GhS10,000.00 against the Plaintiff.