Gyimah Vrs Marfo [2022] GHADC 130 (28 October 2022)

IN THE DISTRICT COURT AT WASSA AKROPONG HELD ON THURSDAY, 28THOCTOBER, 2022, BEFORE HIS WORSHIP MR. AKOANDE. A. BRIGHT ESQ – THE DISTRICT MAGISTRATE. SUIT NO. A11/55/2022 AKWASI GYIMAH VRS. ADDAI MARFO Counsel: No Legal Representation for the Plaintiff. Paul N. Yeboah for defendant. JUDGMENT The plaintiff’s claim is as follows: “A. Declaration of title to cocoa farm B. An order to account for twenty (20) bags of dried cocoa beans”. The case of the plaintiff as gathered from his statement of claim and evidence is that his father, Kwame Gyimah (now deceased), during his life time gave a piece of land to one Kwabena Akrasi to cultivate cocoa on abunu basis. The tenant farmer, Kwabena Akrasi then cultivated the cocoa on the land. At the time that the cocoa matured for sharing, the plaintiff’s father had died and so the cocoa farm was shared equally between the customary successor of plaintiff’s father, (one Kwabena Arhin) and the twnant farmer, Kwabena Akrasi pursuant to the abunu tenancy agreement. The plaintiff avers that Kwabena Akrasi later sold his share of the cocoa farm to the defendant without the consent of the family of plaintiff’s late father. So it is Kwabena Akras’s share of the cocoa farm that is the subject matter of this suit. The plaintiff describes the farm in dispute as “situate and lying at cedim on Wasa Mampong stool land and bounded by the properties of Mr. William and Joe”. He avers that he challenged the sale of the said farm to the defendant by taking the matter to the Wasa Mampong chief’s palace for arbitration. He asseverates that the panel ruled that he should pay the defendant GHc6000 and take over possession of the farm in dispute. According to the plaintiff he paid the said amount to the defendant but the defendant refused to vacate the farm and hence this action. The case of the defendant as gleaned from his statement of defence and evidence is that the said Kwabena Akrasi sold the cocoa farm in dispute to him absolutely for a consideration of GHc11,000.00 in 2015. The defendant avers that the sale was with the consent of the principlal members of the maternal family of the late Kwame Gyimah (father of the plaintiff). He denies that the dispute was settled at the Wasa Mampong chief’s Palace. The defendant avers that the plaintiff has no capacity to institute this action. After carefully examining the pleadings and evidence, I am of the considered opinion that the issues for determination are (1) Whether or not the plaintiff has capacity to institute this action, (2) Whether or not the matter has already been settled and therefore res judicata, (3) Whether or not the plaintiff has title to the cocoa farm in dispute, (4) Whether or not the sale of the disputed farm to the defendant by the tenant farmer is valid and (5) any other issue or issues arising from the pleadings. Before I determine the issues, I will briefly touch on the burden of proof. The law is settled that the plaintiff who makes allegations, averments or assertions is required to provide proof on preponderance of probabilities if he or she is to succeed in his or her claim; see Fori Vrs. State Hotels Corporation [1968] IGLR471. The burden of proof is statutorily defined under sections 11 and 12 of the Evidence Act, 1975 (Act 323. The standard of proof in land cases as in the instant case is proof on a balance of probabilities, see Adwubeng Vrs. Domfeh [1996-97] ISGLR 660. Therefore, in the instant case, the burden is on the plaintiff to adduce sufficient credible evidence to convince the court on a balance of probabilities that his claim is more probable than not. I now proceed to determine the issues. The first issue is whether or not the plaintiff has capacity to institute this action. The defendant avers in paragraph 30 of his statement of defence that “the plaintiff has no capacity to institute the instant suit as the land in dispute has never ever been his property”. The defendant repeated this averment in paragraph 30 of his witness statement. Capacity is a fundamental legal principle in judicial proceedings. A Person’s capacity to sue, whether under a statute or rule of practice, must be found to be present and valid before the issuance of the writ of summons, else the writ will be declared a nullity, see Standard Bank Offshore Trust Company Ltd. Vrs. National Investment Bank Limited and Two Others, Civil Appeal No. J4/63/2016 dated 21/06/2017 per the venerable Benin J S C. Capacity to sue is a very critical component of any civil litigation without which the plaintiff cannot maintain any claim. In an article titled ‘In Locus standi, commentary on the Law of standing in Canada (Toronto: Cars well, (1986), proof, Thomas Cromwell, who later became a judge of the Supreme Court of Canada says of capacity as follows: “Capacity has been defined as the power to acquire and exercise legal rights. In the context of the capacity of parties to sue and be sued, to say that a party lacks such capacity is to acknowledge the existence of some procedural bar to that party’s participation in the proceedings-one that is personal to a party and imposed by law for one or more of various reasons of policy usually divorced from the substantive merits, it concerns the right to initiate or defend legal proceedings generally”. Capacity to sue must be present before the writ is issued. A writ that does not meet the requirements of capacity is null and void. The law is settled that when a plaintiff’s capacity is challenged, the plaintiff must prove that he has capacity to institute the action. In the instant suit, the defendant’s contention is that the plaintiff is not the owner of the cocoa farm in dispute and therefore he has no capacity to institute this action. Is this contention true? The undisputed evidence on the record is that the disputed cocoa farm is situate on land that was acquired in its virgin state by the late father of the plaintiff, Kwame Gyimah. Kwame Gyimah entered in to abunu tenancy agreement with a tenant farmer, one Kwabena Akrasi, to cultivate cocoa. The disputed farm was Kwabena Akrasi’s share pursuant to the abunu tenancy agreement. The defendant bought the disputed farm from Kwabena Akrasi. See both the evidence-in-chief of the plaintiff and the evidence-in-chief of the defendant regarding the history of ownership of the farm in dispute. Also, the pleadings of the parties show that the plaintiff’s late father acquired the land in its virgin state and entered in to the abunu agreement mentioned above. There is also evidence that the plaintiff is not the customary successor of his late father. Again, there is evidence that the plaintiff is not a personal representative of his deceased father. Learned Counsel for the defendant subjected the plaintiff to rigorous cross-examination in an attempt to establish that the plaintiff does not have capacity to institute the instant suit. The Relevant portion of the cross-examination is as follows: “Q. Upon the death of your late father he was customarily succeeded by his nephew known as Kwadwo Arhin. A. That is true but the nephew’s name is Kwabena Arhin and not Kwadwo Arhin. Q. Kwadwo Arhin inherited your late father’s properties in trust for the Agona family of Wasa Mampong. A. That is correct. Q. Upon the death of Kwadwo Arhin, he was succeeded by Kofi Akomaning. A. That is correct” From the answers the plaintiff gave to the questions above, it is clear that the plaintiff is not the customary successor of his deceased father. It is also significant that the plaintiff admitted during cross-examination that he never obtained letters of administration in respect of his father’s estate. So on the evidence, I find as a fact that the plaintiff is not the customary successor of his late father Kwame Gyimah who is the owner of the land where the disputed farm is situate. I also find as a fact that the plaintiff has not obtained letters of administration in respect of his late father’s estate or properties. Interestingly and strangely, the plaintiff wants to be declared title owner to the disputed cocoa farm. The law is settled that when a person dies testate or intestate, his estate devolves on the executor or personal representatives respectively until a vesting assent has been executed to the beneficiaries or devisees and until the grant to them of a vesting assent, the beneficiaries and devisees have no title or locus standing over any portion of the estate; see Okyere (deceased) Vrs. Appenteng and Adoma [2012] I S C G L R 65. Also, see section I of the Administration of Estates Act, 1961 (Act 63). From the foregoing analysis, it is clear that the plaintiff lacks capacity to sue. For the reasons given above, the suit fails and it is hereby dismissed. Costs of GHC8,000.00 is awarded in favour of the defendant. MR. A. A. BRIGHT DISTRICT MAGISTRATE (SGD)