Habib Vrs Abdul and 3 Others [2022] GHADC 48 (30 November 2022)

CORAM: HER WORSHIP (MRS.) ROSEMARY EDITH HAYFORD, ESQ. MAGISTRATE, DISTRICT COURT B, SEKONDI HELD ON THE 30TH OF NOVEMBER, 2022 __________________________________________________________________ SUIT NUMBER A1/19/2021 CHIEF HABIB ALHAJI SOLDIER - PLAINTIFF VRS ABDUL RASHID LAMISI AKUMBONO NAHIMATU MUSTAPHA - DEFENDANTS JAMILATU MOHAMMED (ALL OF KWEIKUMA, SEKONDI) --------------------------------------------------------------------------------------------------------- TIME: 11.06 AM PLAINTIFF - ABSENT REPRESENTED BY ABDULLAI RAMANI NUNOO DEFENDANTS - 1ST AND 2ND DEFENDANTS ABSENT 3RD DEFENDANT PRESENT __________________________________________________________________ JUDGMENT By an amended Writ of Summons filed on 20/5/2021, Plaintiff claims against the defendants the following reliefs: a) Recovery of Plaintiff’s piece of land Plot No. 134B, situate at Kweikuma, occupied by the Defendants b) Perpetual injunction restraining the Defendants, their agents, workmen, assigns etc. from having anything to do with the Plaintiff’s land. Per the Statement of claim filed on 25/11/2020 the Plaintiff, a chief, and a businessman, avers that sometime on 7th July 2022 he acquired Plot 134B situate at Kweikuma in Sekondi from Issaka Sawadogo through Mohammed Tanko. Plaintiff says that prior to the acquisition of the land, he caused his lawyer to invite all occupants of the land including the Defendants to make them aware of the said acquisition whereby the Defendants agreed to atone tenancy to him. Plaintiff avers that he required his land for development and all attempts at getting the Defendants to yield vacant possession have proved futile. Hence this writ. The action was initially instituted against only the 1st and 2nd defendants. The 3rd and 4th Defendants later applied and were joined to the suit. Even though the 1st and 2nd Defendants filed separate statements of defence, the contents are the same. The 1st and 2nd Defendants aver that they are just licensees on the disputed land and that they are on the land as a result of an oral grant made between them (separately) by the land owner. They further aver that although their land owner is deceased, he was survived by his children who have been in possession and have a reversionary interest. They acknowledge that Plaintiff wrote to them but say that Plaintiff has no right to evict them since he is not their land owner. They aver that the proper persons to defend the suit are the owners of the disputed land, that is, the 3rd and 4th Defendants, and not them. 3rd and 4th Defendants filed a joint Statement of Defence on 3/8/2021. They denied that Plaintiff is the owner of the disputed land. They contend that the disputed land belongs to their grandfather and not the grantor of the Plaintiff. They aver further that their grandfather acquired the disputed land from the Kokrodo Ebiradze Stool Family over 40 years ago and they have been in occupation and possession of the disputed land since its acquisition. They aver that their grandfather put up two buildings comprising three (3) rooms but same collapsed. It was the portion that collapsed which was given to the 1st and 2nd Defendants by their “family father” sometime in 1994. They have been on the said land and operated their bar since. 3rd and 4th Defendants contend that their family had been in undisturbed possession until recently Plaintiff began to make an adverse claim over the land. They say that Plaintiff is not entitled to his claim. At the end of the trial, the issue that came up for determination is Whether or not the Plaintiff is entitled to recover the disputed land from the defendants APPLICABLE LAW It is trite learning that the burden of proof lies on the person who is making a positive assertion. The burden of persuasion and burden of proof lies on Plaintiff to produce evidence under Sections 10, 11, and 14 of the Evidence Act 1975 (NRCD 323) SEE: Odoi v Hammond [1971] 2 GLR 375 CA. The standard of proof is proof on the preponderance of probabilities per section 12 of Act 323. It is trite that a party who claims possession and perpetual injunction must prove his title. In Asante-Appiah v Amponsah alias Mansa [2009] SCGLR 90 at 98, Brobbey JSC (as he then was) stated that “the law is well established that where a party’s claims are for possession and perpetual injunction, he puts his title in issue: He thereafter assumes the onus of proving his title by a preponderance of probabilities like any party who claims declaration of title to land”. See also Adwubeng v Domfeh [1996-97] SCGLR 660; Yaa Kwesi v Arhin Davis [2006-2008] SCGLR 580 ANALYSIS OF THE ISSUE In proving his case, Plaintiff testified himself and called one witness (PW1). According to the Plaintiff he purchased the disputed land from one Issaka Savandogo (Sawadogo) sometime in July, 2020. He tendered Exhibit A, the contract of sale agreement duly stamped in evidence. Said Exhibit A clearly states the land, the parties, the consideration taken etc. Plaintiff says that before the purchase he conducted a search at the Lands Commissions which showed that the disputed land was in the name of his grantor. Exhibit B is a copy of the search result. Paragraph 2b of said Exhibit B dated 22nd July, 2020 confirms that there was an assignment between one Kandey (Kendey) Zaria and Issaka Sawadogo on the 6th of January, 2003 for the unexpired term of the Head lease. Plaintiff further tendered Exhibit C, another search from the Lands Commission dated 12/12/03 in respect of the same plot 134B which he said was given to him by his grantor. Paragraph 3 of this search states as follows: “The site is the subject matter of a lease dated 30th December, 1982 and made between Joseph William Essien, Head of Korkodu Eberadzi family of Fijai and Kendey Zaria for a term of Ninety-Nine (99) years” Plaintiff testified that his grantor also purchased the disputed land from PW1 (Gariba Alhassan). PW1 purchased the disputed land from Kandy Zaria. However, the document was executed directly into the name of Plaintiff’s direct grantor (Sawadogo) after he (Sawadogo) purchased same from PW1. The search conducted, that is, Exhibit B shows the direct transfer from Kandy Zaria to Sawadogo confirming the testimony of PW1 that the document was prepared directly. The plaintiff armed with all these searches went ahead and purchased the disputed land. Subsequently, a deed of assignment was executed between Plaintiff’s direct guarantor and Plaintiff. The same was tendered by Plaintiff as Exhibit E. Exhibit E is a registered instrument that was executed between Issaka Sawadogo and Plaintiff herein. In this document, the recital of the land has been enumerated from how the disputed land was leased from Joseph William Essien, Head of Kokordu Ebiradze family of Fijai, and his Elders to Kandey Zaria in December 1982. It further shows that in January 2003 there was an assignment between Kendey (Kandey) Zaria and Issaka Sawadogo. In his evidence, PW1 indicated that even though he was the one who purchased the land from Kendey (Kandey) Zaria, no document was executed then. Subsequently, when he sold the land to Issaka he made Kendey (Kandey) execute the document directly into Issaka Sawadogo’s name. It must be noted that no objections were raised whatsoever in the tendering of these documents and they all conform to the law. Besides the above, throughout the trial, the evidence of PW1 has been consistent. He was the one who was sued by the uncle of the 3rd Defendant in respect of the disputed land in which judgment went against the said uncle. To further support his case Plaintiff tendered this judgment as Exhibit D (I shall discuss this judgment later on in this judgment) For the records, both the Plaintiff and 3rd Defendant are laying claims to Plot No. 134B lying and situate at Kweikuma. Whereas Plaintiff claims he purchased same from his grantor after conducting due diligence, 3rd Defendant claims that the disputed land is for her family. There is no doubt about the identity of the said land. Both parties are ad idem it is the same land that is in dispute. Under cross-examination of the defendants, they all confirm that the land in dispute is what they are all laying claims to. On 28th April 2022, this is what the 1st Defendant said Q: The plot in dispute is 134B at Kweikuma, is that correct A: It is correct This is what the 2nd Defendant also said under cross-examination on the 23rd of May, Q. You have told the court in your evidence that you have your structure on plot number 134B Adiembra, is that so A. That is so it is at Kweikuma Q. So, the disputed land at Kweikuma that is what the Plaintiff is claiming A. Yes, that is so 3rd Defendant also confirms below on the 21st of June, 2022 Q. The land we are talking about is plot number 134B at Kweikuma A. It is the same number that is on our document 1st Defendant claims he was given the land by one Baba Ali, he confirms that the land in dispute is plot 134B, he however says that the plot that he is occupying is plot 78/6 but does not support same with any evidence. What is however instructive is that under cross-examination he confirms that the 3rd Defendant’s father is brother to his landlord. The following ensued Q. So do you know the 3rd Defendant A. Yes, I do Q. What is she to your grantor or landlord – what is the relationship that she has with your landlord A. The 3rd Defendant’s father is a brother to my landlord Xxx Q. Who is currently your landlord A. The son of my landlord call Baba Q. Is Baba alive A. Yes, he is in Spain Q. And he has other siblings in town A. Yes, he has the other siblings in town, 3rd and 4th Defendants During cross-examination of 1st Defendant by counsel for the 3rd and 4th Defendants, 1st defendant admits that he recognizes 3rd and 4th Defendants as his grantors since they are related to his grantor who is outside the jurisdiction. In respect of 2nd Defendant, after confirming that plot number 134b is the land in dispute and also what Plaintiff was claiming, she averred that the land was granted to him by one Baba Sulleman and after his death, Chindu Mustapha entered into a tenancy agreement with her. It must be noted that said Chindu Mustapha is the uncle of 3rd and 4th Defendants. 2nd Defendant further told the court that she was aware that Chindu, her landlord instituted an action against Gariba Alhassan (PW1) in respect of the disputed land. Under cross-examination on the same 23rd of May, 2022 below ensued Q. Are you aware that Chindu Mustapha went to court with PW1 in respect of this disputed land A. Yes, I am aware On that same day Counsel for the 3rd and 4th defendants asked the following: Q. Prior to coming to this court, nobody had challenged you as to the ownership of the subject matter land A. Gariba who came there that the land is for him 3rd Defendant told the court that Chindu Mustapha is her uncle, he comes after her father, and that she is also aware her uncle Chindu Mustapha instituted a legal action against PW1 in respect of the disputed land. Below transpired during the cross-examination of the 3rd Defendant on 21/6/2022 by Counsel for the Plaintiff Q. Do you also know Chindu Mustapha A. He comes after my father (my uncle) Q. You are aware that Chindu Mustapha took legal action in respect of this disputed land against Gariba Alhassan (PW1) and Yatoso Sanunu A. That is correct…. Xxxx Q. The land we are talking about is plot number 134B at Kweikuma A. It is the same number that is on our document Q. It was Chindu Mustapha who on his behalf and that of his relatives sued Gariba Alhassan in respect of this disputed land A. That is so Q. That court gave judgment in favour of Gariba Alhassan A. That is not correct Exhibit D is the said judgment in respect of the disputed land. Indeed, the action was instituted by Chindu Mustapha on his own and on behalf of his family (including the 3rd defendant, the supposed grantor of the 1st and 2nd defendants herein). It has already been established that even though 1st Defendant claims his grantor was Baba, said Baba is the uncle of 3rd Defendant and they agree they are the same family and referred to 3rd Defendant as their grantor. The suit therein was against two defendants, PW1 herein who was 1st Defendant therein, and the grantor of PW1 represented by her daughter. The reliefs sought were “1. Declaration of title to plot number 134B situate and located at Kweikuma with a building 2. Recovery of possession of land with a building 3. An order restraining the defendants from interfering with the said plot or land and the building 4. Any other relief” The honourable court at the end of the trial concluded that the assertion of the then Plaintiff (Chindu Mustapha the uncle of the 3rd Defendant, who was the grantor of the defendants herein and now the 3rd Defendant) that the disputed land was family property, could not be substantiated and concluded that the sale between PW1 and the 2nd Defendant therein was valid. The court, therefore, dismissed the suit against the Chindu Mustapha in its entirety. In that case ownership of the disputed property was determined. It must be noted that the said judgment has not been set aside or appealed against. The effect is that it is still binding on all Chindu’s assigned, dependents, agents etc. etc. Therefore, the said judgement is still binding on the 3rd defendant herein who is the grantor of the 1st and 2nd defendants herein. The 3rd Defendant cannot be seen to be re-litigating a matter that has already been determined I so hold 3rd Defendant tendered Exhibit 1 the indenture covering the disputed property in the joint names of his grandfather and his children to prove that the land subject matter is family land. However, a critical look at the said document does not conform to the required law. Exhibit 1 is neither stamped nor registered. The Oath of proof was not executed. Indeed, apart from the signature of the supposed lessor and lessees, there was nothing more. Section 19 of Stamp Duty Act 2005, Act 689 provides “19. Conveyance other than a sale (1) An instrument and a decree or an order of a court by which property is transferred to or vested in a person, other than through a sale shall be charged with duty as a conveyance on sale or transfer on sale of that property for a consideration equal to the value of that property.’ Section 281 of the Land Act 2020, Act 1036 interprets conveyance as following “Conveyance includes a document in writing by which an interest in land is transferred, an oral grant under customary law this duly recorded in accordance with this Act, a lease, disclaimer, release and any other assurance of property or of an interest in property by an instrument, except a will” Black’s Law Dictionary, Deluxe Ninth Edition also defines Conveyance “The voluntary transfer of a right or of property” Section 19 of Act 689 talks specifically about a decree or order by which property is transferred or vested in a person and same operates as conveyance. In respect of Exhibit 1, which is an indenture executed by Opanyin Kojo Koratsen Amaning Regent of Kukrordu Ebiradze Stool Family of Fijai and Mr. Amadu Zaria and Children, Ali Yaro, Suley Nana, Kandey, Asiby, Asmena, Bala, Chindo and Abrahim, it is an instrument that is transferring an interest in land to Mr. Amadu Zaria and Children. This falls squarely within section 19 of the Stamp Duty Act, Act 689 which stipulates that such a document shall be charged with duty as a conveyance. In effect, it must be stamped. The Supreme Court in the case of Woodhouse Limited v Airtel Ghana, Civil Appeal No. J4/08/2018 unreported, dated 12th December 2018 speaking through BAFFOE-BONNIE, JSC relying on the case of Lizori Ltd v Mrs. Evely Boye, Civil Appeal No J4/8/2012 dated 26th July 2013 where Bennin JSC, stated that: “This provision is so clear and unambiguous and requires no interpretation. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the first place and ask the party to pay the duty and penalty after judgment.” Applying the above to the instant case, it is clear from Exhibit 1 that the indenture is unstamped and the same ought not to have been admitted into evidence. S. A. Brobbey in his book Practice & Procedure in the Trial Courts & Tribunals, 2nd Edition stated on page 167 as follows “The general rule is that if inadmissible evidence is received in the course of the trial (with or without objection), it is the duty of the court to reject it when giving judgment. If it is not so rejected, it would be rejected on appeal, since it is the duty of the court to arrive at its decision upon legal evidence only. See: Tormekpey v Ahiable [1975] 2 GLR 432, CA which was applied in Amoah v Arthur [1987-88] 2 GLR 87, CA. Being fortified with the above, I hereby accordingly reject Exhibit 1 as inadmissible. Having critically examined and analysed the facts and evidence, it is my considered view that the disputed land was validly purchased by the Plaintiff and therefore the action must succeed. I proceed to make the following orders: 1. The Plaintiff is hereby ordered to recover from the Defendants, plot No. 134B situate at Kweikuma and occupied by the defendants. 2. The Defendants, their agents, workmen, assigns etc. are hereby perpetually restrained from having anything to do with the Disputed land. 3. Cost of GH¢1000.00 each is awarded in favour of the Plaintiff against each of the Defendants (total of GH₵3,000 cost) (SGD) H/W ROSEMARY EDITH HAYFORD (MRS.) MAGISTRATE COUNSEL PHILIP FIIIFI BUCKMAN FOR THE PLAINTIFF EBO DONKOR FOR THE DEFENDANTS 13