Annan Vrs Buxton and Another [2022] GHAHC 2 (20 October 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE LAND DIVISION HELD IN ACCRA ON THURSDAY, THE 20TH DAY OF OCTOBER, 2022 BEFORE HIS LORDSHIP ALEX OWUSU-OFORI (J) EUSTACE OKO ANNAN - PLAINTIFF SUIT NO.: LD/0005/2018 VRS 1. BENJAMIN BAANI BUXTON DEFENDANTS 2. IRVING BAANI BUXTON PARTIES: PLAINTIFF PRESENT 1ST DEFENDANT PRESENT AND REPRESENT THE 2ND DEFENDANT =============================================================== J U D G M E N T 1.0 The Plaintiff who is an uncle of the Defendants, first on the 5th day of January 2018 commenced the instant action against the 1st Defendant alone asking for the following reliefs: EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 1 of 30 1. A Declaration of title in favour of the Plaintiff to all that land situate at Dodowa bounded on the North by a proposed road measuring 101.4 feet more or less on the South by a proposed road measuring 93.8 feet more or less on the East by Regina Korkor Adu’s land measuring 192.3 feet on the West by Regina Korkor Adu’s property measuring 195.4 feet more or lease and containing an approximate areas of 0.408 acre more or less annexed to land Certificate No. TD 13654 Volume 021 Folio 1049 dated 11th April, 2017. 2. Damages for trespass thereto. 3. Perpetual injunction restraining the Defendant whether by himself, servants, agents, privies, whatsoever from entering on and/or encroaching upon the said land (or any portion thereof). The subject matter of this suit or interfering in any manner with the Plaintiff’s ownership of the said piece/parcel of land. 2.0 The 1st Defendant entered appearance for himself on 17th January, 2021 and filed his statement of Defence and Counterclaim on the 25th of January, 2018. 3.0 The 1st Defendant alleged to have done whatever was done on behalf of the brother who is resident in the United States of America, so he filed a motion for joinder of Irving Buxton and same was granted by the court. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 2 of 30 4.0 The Plaintiff pursuant to the grant of the application for joinder subsequently filed an amended writ of summons and statement of claim. 5.0 By the amended Statement of Defence and counterclaim filed by the 2nd Defendant dated 2nd July, 2019 pursuant to the order of the court the 2nd Defendant asked for the following reliefs by way of counterclaim. a) A declaration that the disputed land forms part of the defendants’ principal land. b) c) An order for recovery of possession from the Plaintiff. An order to demolish the offensive structure and the cost of demolishing surcharge to the Plaintiff. d) An order directed at the Lands Commission to expunge the said registration of the land in issue from its records. e) An order restraining the Plaintiff to cease construction work on the disputed land. f) An order referring the conduct of the Plaintiff to the General Legal Council having acted in bad faith as lawyer of the 2nd Defendant in the transaction. g) Cost including legal fees. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 3 of 30 PLAINTIFF’S CASE 6.0 The Plaintiff by his amended statement of claim is saying that by Deed of Conveyance dated 1st March, 2005 and made between Regina Korkor Adu of the one part and the Plaintiff of the other part all that land at Dodowa bounded on the North by a proposed road measuring 101.4 feet more or less on the South by a proposed road measuring 93.8 feet more or less on the East by Regina Korkor Adu’s land measuring 192.3 feet on the West by Regina Korkor Adu’s land measuring 195.4 feet more or less and containing an approximate area of 0.408 acre more or less. 7.0 That immediately after the conveyance, he entered into possession of the land, put corner pillars and started constructing a building on it. Plaintiff aver that after the acquisition of the land he registered his interest in the land and was issued with a Land Certificate with No. TD 13654, Volume 021 Folio 104a dated 11th April, 2017. 8.0 The Plaintiff contended that the 1st Defendant without any justification unlawfully entered and/encroached on his land and with thugs started excavating a portion of the land and undermining the integrity of his building. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 4 of 30 9.0 It is his case that he caused to be filed a formal complaints and caused same to be lodged with the police against the 1st Defendant and his agents for this unlawful acts. 10.0 Plaintiff contended further that the 1st Defendant claim or purports to be acting on the instructions of the 2nd Defendant and has persisted in his unlawful acts on the land and unless he is restrained by the court, the 1st Defendant will persist in his unlawful acts. DEFENDANTS CASE 11.0 The 1st Defendant filed his statement of defence on 25th January, 2018. According to the 1st Defendant who testified on behalf of the 2nd Defendant through a Power of Attorney, the 2nd Defendant acquired four (4) plots of land from Agnes Adu, who is an uncle and a lawyer for several years standing at the Bar. 12.0 It is the case of the Defendants that the 2nd Defendant who is resident in United States of America paid ¢18,000,000.00 for the land through the plaintiff and was issued with an indenture and a site plan bearing his name. 13.0 It is the case of the 2nd Defendant that the Plaintiff upon travelling to the United States of America sent the documents of the land acquired to the 2nd Defendant. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 5 of 30 14.0 The 2nd Defendant averred that the two (2) plots of land which the Plaintiff claims he bought from Madam Agnes Adu for himself forms part of the four (4) plots which the Plaintiff bought for him. 15.0 By the 2nd Defendant’s amended statement of defence and counterclaim filed dated 2nd July, 2019 the 2nd Defendant pleaded fraud against the Plaintiff particularized the fraud as follows: PARTICULARS OF FRAUD i. The original plan which the Defendant signed shows that the land in issue was 0.69 acre ii. That the Plaintiff having realized the typo in the schedule that the land has been recorded as 0.49 instead of the 0.69 acres now sought to alter the schedule to read 0.44 to carve out the Defendants’ land for himself. iii. That after the said alteration he proceeded to fraudulently register the land in issue. iv. The said Regina Korkor Adu’s signature is markedly different from the signature on the massaged document. 16.0 After the close of pleadings and Application for Directions taken on 28th January, 2019, the court set down the following issues for trial: EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 6 of 30 i) Whether or not 2nd Defendant entrusted the Plaintiff with the purchase of the land. ii) Whether or not at the instance of 2nd Defendant Plaintiff purchased four (4) plots of land from Regina Korkor Adu for the 2nd Defendant. iii) Whether or not Plaintiff’s title to the land was obtained by fraud. iv) Whether or not 1st Defendant is an Attorney of the 2nd Defendant. v) Whether or not the Plaintiff is entitled to his claims. vi) Whether or not Defendants are entitled to their counterclaims. vii) Any other issue or issues arising out of the pleadings. 17.0 Hearing of the suit commenced on the 21st October, 2019 after Case Management Conference had been conducted. 18.0 The Plaintiff testified in person and also called Regina Korkor Adu from whom he allegedly purchased the land from as a witness. 19.0 The 1st Defendant also testified in person on his own behalf and on behalf of the 2nd Defendant. 20.0 At the close of the trial the following documents had been tendered by the Plaintiff and admitted in Evidence. Exhibit – A Plaintiff’s Land Certificate. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 7 of 30 Exhibit – B Deed of Conveyance dated 1st March, 2005 Exhibit – C Picture of Plaintiff and 2nd Defendants properties. Exhibit – D series 1st Defendant’s activities on Plaintiff’s land. 21.0 The following documents were also tendered by the Defendants and admitted in Evidence. Exhibit – 1 Power of Attorney Exhibit – 2 Deed of Conveyance dated 2nd August, 2000. Exhibit – 3 Indenture dated 1st March, 2005. Exhibit – 4 Pictures of a demolished wall and 2nd Defendant’s building. 22.0 Before the court proceed to resolve the issues set-down for trial, I think it is appropriate now to deal with the applicable law and the burden placed on the parties to prove their respective claims. THE APPLICABLE LAW/BURDEN OF PROOF 23.0 The principle relating to the burden of producing evidence was applied in the decided case of FAIBI VRS STATE HOTELS CORPORATION (1968) GLR 471. The Court held that: EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 8 of 30 “Onus in law lay upon the party who would lose if no evidence was led in the case and where prime evidence had been led it lay on a party who would lose if no further evidence was led. In the instant case since the Plaintiff’s contention was that his dismissal was wrongful whilst that of the Defendant was that the dismissal was not wrongful, the party who would lose if no further evidence was led would be the Plaintiff. The onus was therefore on the Plaintiff to prove that he was wrongfully dismissed. The Plaintiff must prove that he did not contravene the orders of his employers, or if he did, that orders were unlawful and unreasonable and on the evidence he failed to do so” 24.0 In ACKAH VS PERGAH TRANSPORT & OTHERS (2010) SCGLR 728 AT 738 Sophia Adinyira JSC delivered herself as follows: “It is the basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of fact in issue that has the quality of credibility short of which his claim may fail… It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable that its non-existence.” 25.0 By Section 14 of the Evidence Act 1975 (NRCD 323) it states the grounds as to who bears the burden of proof at any given time in any dispute it states: EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 9 of 30 “Except as otherwise provided 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”. 26.0 In the decided case of ZABRAMA V SEGBEDZI (1991) 2 GLR at Pg. 246 it was held as follows: “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden” 27.0 This statutory provision has also been re-inforced and approved in a lot of judicial decision prominent among them worth mentioning is the Supreme Court case of MEMUNA MOUDY AND ORS VS ANTWI (2003-2004) 2 SCGLR at 974-975 where Georgina Wood JSC (as she then was) delivered herself thus: “A cardinal principle of law on proof as enunciated in the age old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases including ZABRAMA V SEGBEDZI (1991) 2 GLR at 246 is that a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the facts he asserts can be properly inferred…” EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 10 of 30 28.0 I need not belabor this known cardinal principle of law on the burden of proof but it is refreshing to state unequivocally that gleaning from Sections 10, 11 and 12 of the Evidence Act 1975 (NRCD 323) a party who bears the burden of proof is to produce the required evidence of the fact in issue that has the quality of credibility short of which his claim may fail. 29.0 It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. See cases of A) ACKAH V PERGA TRANSPORT (SUPRA) B) YORKWA V DUAH (1992-1993) GBR 276 C) GIHOC VS JEAN HANNA ASSI (2005-2006) SCGLR 198 D) TAKORADI FLOUR MILLS V SAMIRA FARIS (2005-2006) SCGLR 882. 30.0 In the instant case the Plaintiff is asking for declaration of title, the land that he has described in the schedule, perpetual injunction and damages for trespass. 31.0 The 2nd Defendant by his counterclaim among other reliefs is equally asking for a declaration of title that the disputed land forms part of his EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 11 of 30 principal land, Recovery of possession and an order for the demolishing of any structure put up by the Plaintiff on the other part of the land which he claims belongs to him. 32.0 This means they all carry equal burden and they need to discharge same by leading cogent and compelling evidence to persuade the court in finding for any of the parties who can do that. 33.0 As the Burden of Persuasion in all Civil Cases is proof by preponderance of the probabilities. This standard or threshold was affirmed by the Supreme Court in the case of ADWUBENG VS DOMFEH [1996-997] SCGLR P. 660. 34.0 The burden finds expression and clearly defined in Section 10 of the Evidence Act 1975 (NRCD 323) it states as follows:- 1) “For the purposes of this Decree the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court” 2) “The burden of persuasion my require a party to raise a reasonable doubt concerning the existence or non-existence of fact or that he established the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt” 35.0 I now proceed to resolve the issue(s) set down, those in my view I find germane in determining the matter placed before the court. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 12 of 30 36.0 On the first issue raised whether or not 2nd Defendant entrusted the Plaintiff with the purchase of the land. 37.0 I do not see any controversy about this issue. There is ample evidence placed before the court that the 2nd Defendant at all material times was resident in the United States of America, negotiation or transaction which led to the purchase of the land was done between the Plaintiff and Madam Regina Korkor Adu, the grantor who was called as the only witness by the Plaintiff as their grantor. 38.0 The Plaintiff in his testimony did not deny the fact that he was asked by the 2nd Defendant who is his nephew to purchase a parcel of land for him to put up a building. 39.0 The question to ask is whether the Plaintiff in doing so was assisting the nephew a relative to acquire a property in the country pro bono or was charging a legal fee for work done. 40.0 I am simply asking this question as the professional competence of the Plaintiff was exhaustively discussed and in one of the reliefs sought for by the 2nd Defendant in his counterclaim he prayed for an order from the court to refer the conduct of the Plaintiff to the General Legal Council for disciplinary action to be taken against him for being fraudulent. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 13 of 30 41.0 I proceed to the second issue whether or not at the instance of the 2nd Defendant, Plaintiff purchased four (4) plots of land from Regina Korkor Adu for the 2nd Defendant. 42.0 On this issue the Plaintiff contended that at the request of 1st Defendant’s brother who was living in United States he bought a parcel of land with an approximate area of 0.44 acres at Dodowa. 43.0 That the land bought is covered by a Deed of Conveyance dated 1st March 2005 between Regina Korkor and Irving referred to as Barnor Buxton which he (Plaintiff) witnessed. 44.0 It is the case of the Plaintiff that the land he bought for Irving (2nd Defendant) was two (2) plots each measuring 98x100 feet and covering a total area of 0.44 acres. 45.0 That the two (2) plots were purchased at GH¢1,800 (then ¢18,000,000) with each plot being GH¢900.00 (then ¢9,000,000) Plaintiff stated that the site plan together with the attached schedule contained error as the land he bought for the 2nd Defendant had not been properly described in the schedule and site plan and upon realizing this, he informed Irving and they all agreed that a new document be prepared. 46.0 That he later took Irving to the land measuring 0.44 acres, showed him the demarcations and put him in possession. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 14 of 30 47.0 The land had boundary pillars with Irving’s name inscribed on it and these pillars remained there at all times. 48.0 He subsequently started construction on the land and had duly signed the corrected conveyance and sent 1st Defendant to collect same for witnessing. 49.0 That the 1st Defendant who collected has not returned it to him for registration. 50.0 Plaintiff contended that the previous document was discarded upon preparation of the corrected Deed of Conveyance. 51.0 In the amended statement of Defence and Counterclaim filed dated 2nd July 2019, the 2nd Defendant stated that he donated a Power of Attorney to the 1st Defendant to prosecute the matter on his behalf. 52.0 He further stated that the plan attached to the indenture the Plaintiff presented to him upon visit to the USA showed that the land was four (4) plots measuring 0.69 acres. 53.0 2nd Defendant again stated that after he acquired the land he started constructing a residential facility on two out of the four (4) plots. 54.0 He alleges that he instructed the 1st Defendant to enter the land in dispute to protect his interest and also to have a fence wall constructed over his land. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 15 of 30 55.0 In the Plaintiff’s amended reply and defence to counterclaim filed dated 16th July 2019 in response to 2nd Defendant’s statement of defence, Plaintiff stated that the question of four (4) plots never featured at all in Plaintiff’s deliberation with the 2nd Defendant to acquire the land. At all material times the agreement was for the Plaintiff to acquire two (2) plots of land for the 2nd Defendant and therefore not entitled to their counterclaim. 56.0 The only witness called in the case Regina Korkor Adu in her evidence told the court that she sold two (2) plots of land to the Plaintiff for GH¢1,800.00 (then ¢18,000.00) which parcel of land she was made to understand was meant for the nephew, the 2nd Defendant. 57.0 Later when she lost a relative and was in dire need of help, the Plaintiff again came to purchase two (2) plots of land from her for the same price. 58.0 These are some of the extracts when the witness was testifying and being cross examined by counsel for the Defendants. On the 21st day of October 2019 these are some of the answers she gave to questions asked by counsel for the Defendant. Q. A. Q. A. Do you know the 1st defendant, Benjamin Baani Buxton? I do not know the 1st defendant rather I know Lawyer Oko Annan. Do you know the 2nd defendant, Irving Baani Buxton? Yes my lord I know him. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 16 of 30 Q. You have told this court per your Witness statement dated 23rd of May, 2018 that sometime in the year 2000 that negotiations started for the purchase of land by the plaintiff for the 2nd defendant. Can you tell the court which month that was? I cannot remember. Did you sell the land to the 2nd defendant in the year 2000 through the plaintiff? Yes my lord. And later on you also sold a parcel of land to the plaintiff. Is that A. Q. A. Q. correct? A. That is correct. 59.0 On the 24th day of October 2019 these are some of the excerpts when PW1 was being cross examined by counsel for the Defendants. Q: The first documents that you signed the Exhibit 2 series the one executed on the 2nd August, 2000, the site plan was prepared by a licensed Surveyor called C. D. Ayam. I do not know him. In the year 2000, Mr. Oko Annan the plaintiff you claim paid an amount of eighteen million old cedis that is (¢18,000,000) (GH¢1,800) to you for the purchase of some land for his nephew who lives in the United States. Is that correct? That is true. Did you give him a receipt to that effect? No my lord. A: Q: A: Q: A: EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 17 of 30 Q: You also claimed that Mr. Oko Annan the plaintiff paid to you another eighteen million old cedis ¢18, 000,000 for the purchase of another A: Q: A: Q: parcel of land for himself. Is that correct? That is so. And that one too did you issue a receipt to that effect? No my lord. You have also told this court that soon after Oko Annan the plaintiff had purchased the land for Barnor (2nd defendant), you claim you lost your brother. Is that correct? A: That is so. Q: What is the name of this brother of yours? A: Andrews Adu. 60.0 The grantor of the parties that is the only witness called Regina Korkor Adu’s testimony remains resolute. She did not waiver but testified to corroborate Plaintiff’s evidence that she first sold two (2) plots of land to the Plaintiff meant for his nephew and he later bought another two (2) plots adjoining the two (2) plots earlier purchased when she lost her brother and needed money for the funeral. 61.0 In the Supreme Court case of HAYFORD V TETTEH (Substituted by LARBI & DECKER) (2012) 1 SCGLR 417 applied the principle of a grantor’s obligation to a grantee as espoused by Ollenu J. in the case of BRUCE V QUANOR & ORS (1959) GLR 292 at 294 when it was held that: EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 18 of 30 “…It is therefore the responsibility of the grantor where the grant to the land is challenged or where the grantees possession is disturbed to litigate his (grantor’s) title to the land. In other words to prove that the right title or interest which he purported to grant was valid” 62.0 It is in the light of this that the vendor stepped in to set the records straight that she made two separate grants one for Plaintiff’s nephew (2nd Defendant) and another for the Plaintiff himself. 63.0 It is trite learning that in an action for declaration of title to land, the party who seeks the declaration in his favour must establish the root of title. The testimony of a grantor in an action where adverse parties claim their title from that same vendors, is very crucial to the determination and resolution of issues in that matter. In the Supreme Court case of OGBARMEY-TETTEH V OGBARMEY TETTEH (1993-1994) the court held in holding (4) as follows:- “In an action for a declaration of title, a Plaintiff who failed to establish the root of his title must fail because such default is fatal to his case. Consequently, where rival parties claimed as having been granted to each by the same grantor, the evidence of the grantor in favour of one of the parties should incline the court to believe the case of the party in whose favour the grantor gave evidence unless destroyed by the other party. In the instant case, the Defendant called the only surviving co-owner of the disputed land, whose evidence was clear that it was the Defendant who actually negotiated and paid for the land. The evidence of that witness is crucial as to who purchased the land and therefore EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 19 of 30 in the absence of any independent counter evidence provided by the Plaintiff, he held the said plot A in trust for the Defendant” 64.0 The evidence placed before the court lend credence to the fact that the vendor PW1 sold two separate plots of which the Plaintiff purchased one for himself and the other for his nephew. 65.0 Paragraphs 12-19 of her witness statement was very explicit and in concluding on this issue I find it necessary to reproduce verbatim. 12. Soon thereafter I lost my brother so I needed money. I therefore approached the Plaintiff to buy the two (2) other plots adjoining the earlier two (2) plots Plaintiff had purchased for his nephew for himself. 13. The Plaintiff agreed but told me that he did not have money to make a bulk payment immediately so he will pay the agreed ¢18,000,000 for the two adjoining plots in instalments. 14. The Plaintiff paid the ¢18,000,000 to me over a period of two (2) weeks. 15. We then demarcated those two other plots for the Plaintiff, adjacent what he had purchased for his nephew. 16. We also put corner pillars on the land sold to the Plaintiff bearing the name of the Plaintiff himself on his land. These pillars are also there. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 20 of 30 17. I then gave the Plaintiff two separate site plans for the two separate parcels of land. One for his nephew and one for Plaintiff. 18. The Plaintiff requested for documents to be prepared for the two purchases. He opted to prepare the documents himself. 19. I accordingly executed two sets of documents for the Plaintiff. One for the two (2) plots for his nephew and one for the two (2) plots for the Plaintiff himself. 66.0 This piece of evidence in my humble view is a true reflection of whatever transpired as far as the purchase of the property from PW1, the common grantor to Plaintiff and 2nd Defendant is concerned and I so rule that Plaintiff aside purchasing two plots of land for his nephew, the 2nd Defendant who is resident abroad he also purchased one for himself and per the exhibits tendered in evidence they have all put up residential building on same. 67.0 One issue which was extensively discussed is the issue of fraud. 68.0 This then brings the court to the 3rd issue whether or not Plaintiff’s title to the land was obtained by fraud. 69.0 To highlight on this the 2nd Defendant in his amended statement of defence and counterclaim particularized same as follows: 70.0 PARTICULARS OF FRAUD EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 21 of 30 “i. That the original plan which the Defendant signed shows that the land in issue was 0.69 acres. ii. That the Plaintiff having realized the typo in the schedule that the land has been recorded as 0.49 instead of 0.69 acres now sought to alter the schedule to read 0.44 acres to carve out the Defendant’s land for himself. iii. That after the said alteration he proceeded to fraudulently register the land in issue. iv. v. That the said Regina Korkor Adu’s signature is marked differently from the signature of the massaged document. Paragraph 6 is denied and the Defendants will say that the purported conveyance he claims he has with the said Regina Korkor Adu is an alteration to deny the Defendant the benefits of his four (4) plots which the Plaintiff acquired on behalf of the Defendants” 71.0 The Defendant in crying loud for fraud did not limit it to the acquisition of the property in question but extended it to the conduct of the Plaintiff relating to his profession as a lawyer. 72.5 This is what counsel for the Defendants said in the written address filed by the lawyer on behalf of the Defendants. “My Lord here was a lawyer of several years of experience at the bar flouting the very rules which must guide his professional practice transacting a business on behalf of a client without collecting a receipt specifying the purpose of the EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 22 of 30 payments made. This clear breach of the laws governing the legal practice must not go unpunished. The conduct of the Plaintiff unless he can convince the court for such a flagrant professional misconduct, must be referred to the Disciplinary Committee of the General Legal Council for sanctions to be exacted if found culpable” He continued “My lord, the Plaintiff’s own showing is that he has registered the land with an indenture issued and executed on the 1st day of March 2005. How does a lawyer acquire a parcel of land few weeks after August 2000 and be issued with an indenture executed on the 1st March 2005 almost 5 years later? This story with respect must be told to the marines who would disbelieve same. However, the common grantor (PW1) claims she sold the land in dispute to the 2nd Defendant through the Plaintiff who at all material times acted as the representative of the 2nd Defendant who was resident in United States…” 73.0 The 2nd Defendant through the address filed by his lawyer was imputing fraud on the part of the Plaintiff regarding his conduct surrounding the whole transaction that he has been shortchanged by his own uncle who was acting as his lawyer in the purchase of the building plots from PW1. Simply put he has duped him. 74.0 Counsel for Plaintiff also in his written address did not agree to any of these submissions. He made reference to the Black Law Dictionary 9th Edition, 2009 which defines fraud as EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 23 of 30 “1. A knowing representation of the truth or concealment of a material fact to induce another to act to his or her detriment. 2. A misrepresentation made recklessly without belief in its truth to induce another person to act or 3. A tort arising from a knowing misrepresentation, concealment of material fact or reckless misrepresentation made to induce another to act to his or her detriment”. 75.0 He submitted that there are plethora of cases on the effect of pleading fraud and the burden on a party that pleads fraud. Reference was made to OKWEI MENSAH (DECD) (ACTING BY) ADUMUWA OKWEI V. TEYE LARYEA (DECD) (ACTING BY) ASHIE-TEYE LARYEA & ANOR. (2011) I SCGLR 317 at Pg. 318 where the Supreme Court held as follows: “Fraud qua fraud was a very serious allegation in legal proceedings. It should not be lightly made. The courts would look with disfavor on a party who made it and was unable to substantiate it and would sometimes dismiss his action with heavy penalties, consequently, fraud should not be pleaded when counsel could not from available instruction form a strong opinion in favour of it. Thus when fraud was intended to be charged, it must be distinctly charged and its details specified. General allegations, however strong were insufficient to amount to EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 24 of 30 an averment of fraud of which the court might take notice. And a representation must be a matter of fact and not of law” 76.0 Reference was again made to the case of ECOBANK NIGERIA PLC v HISS HANDS HOUSING AGENCY & ACCESS BANK (GHANA) LIMITED (CIVIL APPEAL NO. J4/49/2016 in judgment delivered on 6th December 2017 where the Supreme Court speaking through Gbadegbe JSC had this to say on allegation of fraud. “In our view although the parties in their written briefs submitted to us in the matter herein spent much time in discussing ground “f” relating to alleged admission by the 1st Defendant of paragraph 2 of the statement of claim by which it was averred that the 1st Defendant entity was set up to defraud Plaintiff, we would like to say that fraud is a legal concept whether existing at law or equity and in either case is made up of distinct acts which when considered together in the light of the circumstances of the case might lead to a series of facts to such a conclusion. Fraud therefore is independent upon facts which must first be established in an action before such a conclusion is reached.” 77.0 Counsel submitted that the Defendant has woefully failed to meet the standard required. In my humble view the allegation being made by the Defendants particularly the 2nd Defendant does not hold any water and need to be discarded. The grantor, Regina Korkor Adu (PW1) admitted in evidence without mincing words that she was the author of both EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 25 of 30 signatures of Exhibit “2” the earlier document which the Plaintiff sent to the United States which 2nd Defendant signed and Exhibit “3” the document which the Defendants claim to have been “massaged”. 78.0 Defendants’ assertion that both signatures on Exhibits “2” and “3” are not genuine in my humble opinion has not been successfully proved. 79.0 Fraud vitiates everything done and it is expected that in proving same there should not be any lingering doubt. 80.0 The Plaintiff is a lawyer of several years standing at the bar that is close to forty (40) years as the Defendants themselves admit, so any allegation of perpetrating fraud against him need to be established without any shade of doubt. 81.0 I therefore rule out any fraud in the transaction which resulted in the purchase of the two (2) plots of land for the 2nd Defendant and two (2) plots for Plaintiff himself. 82.0 Plaintiff’s title therefore to the land was not obtained by fraud. 83.0 On the issue whether or not the 1st Defendant is the Lawful Attorney of the 2nd Defendant, Counsel for the Plaintiff discussed it extensively in his final written address filed arguing that the Power of Attorney was not properly obtained but I will not let it engage my precious time in this judgment as doing so will merely be for academic purpose as the germane issue before the court as to whether or not the 2nd Defendant EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 26 of 30 was entitled to four (4) plots of land or the Plaintiff own two (2) plots he purchased for himself had already been resolved by the court. 84.0 I now proceed to the penultimate issue whether or not the Plaintiff is entitled to his claims. 85.0 What are the reliefs sought for by the Plaintiff? 86.0 It is for declaration of title to the parcel of land described in the schedule, Damages for Trespass and Perpetual Injunction to restrain the Defendants in this case the 2nd Defendant in particular and all those who claim through him. 87.0 Plaintiff asking for a declaration of title led evidence to show that by a deed of conveyance dated 1st March 2005 and made between Regina Korkor Adu of the one part and the Plaintiff on the other part, the land which is described in the schedule which I need not rehash was sold to him. 88.0 That immediately after the conveyance, he entered into possession of the land, put corner pillars and started constructing a building on it. 89.0 That after the acquisition of the land he registered his interest in the land and was issued with a land certificate with No. TD 13654, Volume 021 Folio 1049 dated 11th April 2017. 90.0 Plaintiff also led evidence to show that the 1st Defendant without any justification unlawfully entered and/or encroached on his land and with EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 27 of 30 thugs started excavating a portion of the land undermining the integrity of his building. 91.0 That the 1st Defendant did not deny this but claim to be acting on the instructions of the 2nd Defendant. 92.0 At the end of the trial I ask myself whether or not Plaintiff is entitled to his claim? And my answer was yes because he has led credible evidence to prove his case. 93.0 This Court cannot gloss over or fail to determine or pronounce on the relief sought for by the Plaintiff herein against the Defendants. 94.0 In the Supreme Court case of NYAMAH VRS AMPONSAH [2009] SCGLR 361 at 365, the court speaking through Baffoe Bonnie JSC stated the position of the law as follows: “It is the duty of the court to make pronouncement on the reliefs that a party seeks. An omission by a trial judge to determine a relief sought by a party must be explained with reasons. In all, the court is to ensure that the issues that it set down to deal with will aid it in making justifiable decisions on the reliefs sought” 95.0 Thus, from the totality of evidence on record the Plaintiff had succeeded in proving his case against the defendants and is granted the reliefs sought for in his claim. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 28 of 30 96.0 The Defendants that is 2nd Defendant in particular having woefully failed to prove his case against the Plaintiff, his counterclaim in its entirety is hereby dismissed. 97.0 ORDERS I) This court makes an order that all that parcel of land with property thereon situate at Dodowa bounded on the North by proposed road measuring 101.4 feet more or less on the South by a proposed road measuring 93.8 feet more or less on the East by Regina Korkor Adu’s land measuring 192.3 feet more or less on the West by Regina Korkor Adu’s property measuring 195.4 feet more or less and containing an approximate area of 0.408 acres annexed to land certificate No. TD 18654 Volume 021 Folio 1049 dated 11th April 2017 belongs to the Plaintiff. II) This court hereby restrain the Defendants whether by themselves, servants, privies, agents, whomsoever from entering on and/ or encroaching upon the said land (or any portion thereof) the subject matter of this suit or interfering in any manner with the Plaintiff’s ownership of the said piece or parcel of land. III) Damages of GH¢50,000.00 is awarded in favour of the Plaintiff against the Defendants for trespass. IV) Cost of GH¢30,000.00 is awarded in favour of the Plaintiff against the Defendants. EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 29 of 30 (SGD) ALEX OWUSU-OFORI (J) COUNSEL: MAAME SARPONG FOR G. A. SARPONG FOR THE PLAINTIFF PRESENT NIIBI AYI-BONTE FOR THE DEFENDANTS PRESENT EUSTACE OKO ANNAN V BENJAMIN BAANI BUXTON & ANOR. 30 of 30