PIOUS VRS KUDZO (A1/02/2021) [2022] GHADC 429 (18 October 2022)

1 IN THE DISTRICT COURT HELD AT VE - GOLOKUATI ON TUESDAY THE 18TH DAY OF OCTOBER, 2022. BEFORE HER WORSHIP COMFORT A. APALAYINE. THE DISTRICT MAGISTRATE. -------------------------------------------------------------------------------------------------------------------------------------- SUIT NO. A1/02/2021 ADZOGAH PIOUS VERSUS AGBLETOR KUDZO ----------------------------- Parties present. J U D G M E N T This suit is for declaration of title, ownership and recovery of possession of a piece of land situate at Liati – Dalekpedzi by the plaintiff herein Adzogah Pius. The writ was issued out of the Registry describing the land as follows:  On one side bounded by the property of Mensah;  On another side by the property of Akli Torde Doe;  At another side by Adzogah Clansford; and  Lastly by the road. The defendant pleaded not liable to the claim and subsequently filed his defence opposing the claims alleged by the plaintiff per his writ. According to the plaintiff, his father gave him land located at Liati in 2012 and while he enjoyed possession of the property, the defendant in 2020 encroached a portion of the land and constructed a building. Further findings from the defendant revealed that, Simon Adzogah sold the land to him. Defendant was then instructed by Emmanuel Adzogah (plaintiff’s father) to stop work on the land but he turned deaf ears down. Based on the conduct therefore, he found it prudent to bring an action against him for declaration of title, ownership and possession of the portion trespassed. Plaintiff invited three witnesses to support his case against the defendant. Pw1 was Emmanuel Adzogah a retired teacher resident in Liati – Dalekpedzi, the plaintiff’s father who admitted having inherited the land from his late father (Godfred Yao Adzogah). According to him, he cultivated palm trees on the land in 1976 and when he was ill, he placed the plaintiff his son on it in 2012 and in 2020 he had information that a building was being constructed on it. So after enquiries were made, he noticed the project was for the defendant. Defendant challenged him to the effect that he purchased the land from Simon Adzogah who received the piece of the land from Dotse Jonathan (Defendant’s uncle). Based on these findings, he asked defendant to stop work and communicated his conduct to his family however, his conduct persisted which has resulted in this action, however he added that Simon Adzogah has no capacity to dispose off that land to the defendant. On his part pw2 (Richard Adzogah) said the land is family property of which there are boundary features and family members know their individual features but this particular land in dispute sold to the defendant belongs to Emmanuel Adzogah (plaintiff’s father). PW3 (Florence Awudi) said she was in occupation of the disputed land until plaintiff was given possession of it by his father and later it was revealed that Adzogah Yao Kpekpeme sold it to the defendant. During cross examination, defendant refused to cross examine Pw2 ( Richard Adzogah) and Pw3 (Florence Awudi) and said that he did not know them and never had any interactions with them having regard to his interest and subsequently the dispute over the land. In his defence , he admitted per his defence statement and subsequent testimony outlined in his witness statement that, his uncle Dotse Jonathan assisted him to purchase the land from Adzogah Kpekpeme of Liati who confirmed the land was his. According to him, he enquired from David Adzogah Plaintiff’s brother to verify the boundaries since he the vendor shared boundaries with the plaintiff’s land. He then made payment when he was convinced his grantor was the rightful owner. Defendant said Adzogah Kpekpeme gave him a receipt on payment and therefore based on his transaction which he deemed was a valid disposition by sale to him, he prayed the court to dismiss the suit brought by plaintiff. Not only, in asserting his defence, he attached the land purchase receipt marked exhibit “AG” with four witnesses attesting to the sale. He further invited two witnesses however, it was only the vendor who appeared and all his averment were disputed and challenged by his six paragraph witness statement. On the contrary, the four witnesses who witnessed the sale were not invited to substantiate with facts and evidence their knowledge of the said land and the said disposition made by Dw1 ( Adzogah Yaw Kpekpeme) who claimed ownership. The issues for determination before the court are;  Whether Simon Adzogah had capacity to dispose off land sold without the consent and concurrence of principal members and Head of Family. The evidence of Emmanuel Adzogah the plaintiff’s father was that, he inherited the land from his late father Godfred Adzogah in 1976 and due to ill health later gave custody of the land to his son in 2012 and later had information that the defendant was erecting a building on it. According to him, he was asked to stop but he said Simon Adzogah sold the land to him and turned deaf ears down. It is settled law that family land cannot be alienated without the consent and occurrence of the principal members of the family and Head of family. An alienation by any of these without the others consent is voidable. In the case of Adjei V Appagyei, it was decided that “A sale of land by the head of family without the assent and occurrence of the rest of the family is not void it is voidable at the instance of the family but the court would not avoid the sale if it is not satisfied that the family has acted timeously and with due diligence and that the party affected by the avoidance of the sale can be restored to the position in which he stood before the sale took place” In the circumstance, Simon Adzogah is not known as a member of the Adzogah family or tracing through Pw1’s immediate family to vest him with any beneficiary interest and rights to dispose off the land in dispute. Reasonably Simon Adzogah lacks capacity under customary law to assume any rights to sell land customary law to assume any rights to sell land which his roots do not trace to as a member. Adversely, even if Simon Adzogah had any alternate right and capacity to act as done, he failed to authenticate the sale by the approval of the family head and his principal elders. It is also not on record that Simon Adzogah had a sole right of ownership to the land against everybody to dispose it off alone as his bona fide property. Capacity to dispose off family land vest in the head of family and his principal elders. Nevertheless, where the head of family was seen dissipating family property to the disadvantage of the entire family, the holding in Kwan V Nyieni will be applied to preserve and restore the land from being wrongfully alienated and any other form of disposition. The second key issue is, whether the said sale by Simon Adzogah to the defendant gave him good title. An individual is entitled to sell his own land or self-acquired land. A contract of sale of land is effective where the vendor passes into the purchaser good title. Some rituals or ceremonies have been established by customary law which have been practice over the years and accepted as a common practice are performed to effect the sale. These include the customary rights of trama and guaha as illustrated in the case of Tei Angmor & oy V Yiadom III and another. Performed by the Ewes is the rite of Ahatutu Anyigba dzi. Indeed, it was adduced that Simon Adzogah could not receipt Agbletor Kudzo (defendant) for the consideration given for the land. It stands to reason that the process of sale to transfer his right and interest in the land was not completed. Perhaps, Simon Adzogah’s capacity to dispose of the said land is confirmed in this situation. The law provides that where an individual disposes off land which he has no ownership rights is void and therefore no title has passed in the sense that the seller sells out what he has not got. In the circumstance the defendant has no good title. Similarly, it is clear that Simon Adzogah has no capacity and right to sell out what he does not own. Therefore, Richard Adzogah’s testimony confirms the route of title to Emmanuel Adzogah, plaintiff’s father who justified his heritable rights to the land since 1976. Additionally, the question is whether the defendant has a bona fide title to the land by purchase. There’re two types of sale in land transactions which are customary sale and under the law. The vendor must have title to the land. It is in evidence that Simon Adzogah has title to the land. However Simon Adzogah was not invited to confirm the allegation or dispute same that he has title to the land in any of the land owing titles in Ghana. It is also presumed that defendant gave him notice that the land is in dispute and hence if he was mindful of protecting his interest should have applied to join the suit to clear the doubts the court may be confronted with. The principle of memo dat quod non habet is rooted in purchase of land. Any sale of land done by a vendor who lacks capacity to sell and fails to establish his/her root of title to the land is void. Per the customary land law in Ghana, Ollenu J analyzed the need to do away with local customs such as quaha, trama or Ahatutu anyigba dzi to modern system of sale of land. “it should be borne in mind that documents which are prepared after alienation of the land by the vendor transferring interest in the vendee by customary law serve merely as documentary evidence of the transaction, but they do not alter the nature of the transaction” In fact, the defendant failed to file any documents which he deemed was to transfer the interest of the grantor being Adzogah Yao Kpekpeme. There was no indenture with a site plan indication the layout of the land. However, the boundary tenants as mentioned namely; Akolitse Alowu, Ameleke Kofi, Adzogah Emmanuel (plaintiff’s father) and Adzogah Juli to testify in support of the said disposition. By the evidence adduced and also per the evaluation of evidence, I have found as a fact that plaintiff by the preponderance of probabilities established and proved his claims assent the defendant. I am therefore enjoined to enter judgment in his favour for the reliefs sought per his writ of summons on relief (1) for declaration of title and recovery of possession of the parcel of land situated and lying at Liati – Dalekpedzi bounded by Mensah’s property, Akli Torde Doe, Adzogah Clansford and lastly by the road. Also, a perpetual injunction is hereby granted restraining the defendant, his assigns, workmen, privies, servants, agents and any person tracing through him and their behest from exercising any rights and interest on the land. Cost of Seven Hundred Ghana Cedis for instituting the action. (SGD) H/W COMFORT A. APALAYINE MAGISTRATE