DZAMESI VRS BAGINI AND ANOTHER (A1/10/2021) [2022] GHADC 422 (28 November 2022)

IN THE DISTRICT COURT HELD AT AGBOZUME IN THE VOLTA REGION BEFORE HIS WORSHIP IDDRISU ISSAH ESQ., ON THE 28TH NOVEMBER, 2022. SUIT NO. A1/10/2021. MAD. EYIE DZAMESI VRS: YAWOVI TONNY BAGINI & ANOR. JUDGMENT:- On the 17th of March, 2021 the Plaintiff madam Eyie Dzamesi issue a writ of summons against the Defendant Yawovi Tonny Bagini. In the cause of the action Mad. Felicia Tadoshie joined the suit as the second Defendant. The Plaintiff’s claim in this suit against the Defendants are as follows: - (1) Declaration of ownership and title to that piece or parcel of land at Agbozume, Gbafakorpe and bounded on all sides as follows: - (a) To the North-West by Gbafa Family and measuring 100 feet more or less. (b) To the North-East by Gbafakorpe road and measuring 100 feet more or less: (c) To the South-East by Kwami Gbafa and measuring 100 feet more or less: (d) To the South West by Ghana’s family house and measuring 100 feet more or less: (2) General damages for trespass. (3) Recovery of possession. (4) Perpetual Injunction to restrain the Defendant, agents, workmen, assigns and privies from further acts of trespass. (5) Costs. The Defendants denied the claims and counters claimed for the following reliefs. (1) Declaration of title and ownership to all that piece or parcel of land situated, lying being at Gbafakope-Agbozume and bounded by the properties of the following people. (a) To the North by Mercy Gbafa. (b) To the South by Ami Gbafa. (c) To the East by Adinamornu feeder road. (d) To the West by Ezu Kormi. (2) Recovery of possession and or ownership. (3) Perpetual injunction restraining the Plaintiff, their workmen or assigns, agents, privies from committing any further acts of trespass on the disputed land. (4) General damages for trespass. (5) Costs. The Plaintiff avers that she purchased the land about twenty-six (26) years ago. It was on the 5th of February, 1998, she entered into the transaction. She paid ₡1500.00 to Madam Dopui Gbafa. She discovered that her Vendor later resold the same land to the second Defendants. She engaged workers to work on the land but they were prevented by Yawovi Tonny Bagini and others. The disputed land does not belong to the new purchaser nor her vendor. Plaintiff tended in evidence a certificate of purchase, an Indenture and a Site Plan. The documents were marked as exhibits A, B and C respectively. The Plaintiff invited two witnesses: Francis Gbafa (PW1) and Yao Gbafa (PW2). According to the PW1 Madam Dopui Gbafa was the one who disposed of this land to the Plaintiff. When Madam Dopui decided to dispose of the land she sought permission from her uncle Kofitse Gbafa. The uncle witnessed the sale of this land to the Plaintiff. The PW2 also stated that the Plaintiff requested him to deposit a trip of sand on the land. The Defendant went on to cover up the trench dug for foundation. The Defendant Madam Felicia Todoshie for and on behalf of the Defendants stated that the subject matter of the suit originally belonged to madam Bertha Gbafa. The said madam Gbafa acquired the land by inheritance from her father Mr. Kormi Ezu. The Vendor sold this land to her on the 13th of October, 2019. The land was sold at GH₡8,800.00 for an area measured at 100 feet by 100 feet. The Vendor transferred all her interest to her. In support of the claim, Defendant tended in a land purchase certificate, a Deed of conveyance and a site plan all marked as exhibits ‘1, 2’ and 3 respectively. The Defendant also invited as witness the following: David C. K. Sokpoli (DW1) and David Tadoshie (DW2). According to the DW1 the first person who made attempt to buy the land was the Plaintiff. The Plaintiff made an advanced deposit of ₡1,500.00. (One million five hundred cedis) and a further five million five hundred cedis) was left unpaid. The Plaintiff was unable to pay the rest of the purchase price in other for her to take a receipt. The Plaintiff asked the Vendor to sell the land, for a refund of her deposit. The head of the Gbafa family asked that the land should not be sold to any outsider. Then recently the Defendant, Madam Felicia Todoshie agreed to buy the said land. When he checked the land documents presented by the Plaintiff they were signed by the Vendors children and mother. The Vendor denied knowledge of the documents in the possession of the Plaintiff. The DW2 stated that the second Defendant purchased the land from madam Martha Gbafa. The payment of the purchase price was effected through him to master Sokpoli. The land purchase receipt had been prepared for the Defendant. The Defendant is the owner of the land since she had made payment in full to the Vendor, Martha Gbafa. Given the evidence from the Plaintiff and her witnesses as well as the Defendant and her witnesses, the Court found as its findings of facts the following. (1) The subject matter of litigation between the parties is the same land purchased by both parties. (2) The same Vendor sold the same piece of land to the two parties at different period of time. (3) Both parties have established their presence on the land by working and placing material on it. From the facts of this case the relevant issue for determination is whether or not ownership and title to the land is in either of the parties. The general rule under our Civil Procedure is that a party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof. The same principle applies to the Defendant who makes a counter claim. Section 12(1) of the Evidence Act, 1975, NRCD 323 provides as follows: - 12(1): Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. Also section 12(2) of the Act, NRCD 323 defines the preponderance of probabilities to mean that degree of certainty of belief in the final of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence”. Further section 14 of the Act, 1975 states as follows: - “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact that existence or non- existence of which is essential to the claim or defence he is asserting”. The main issue for determination is whether ownership and title to the land is in either of the parties. According to section 64(1) of the lands Acts 2020, Act 1036 good title is derived from” (a) An enactment (b) A grant, vesting order or conveyance from the state. (c) A final judgment of a Court of competent jurisdiction or (d) A grant, an acquisition under customary law, conveyance, assignment or mortgage which is at least thirty years old and establishes that a person is entitled to convey an interest in the land. The matter of law as stated above are matters of evidence to be proved by the parties is the suit. The proof of title to landed property in the case of Rukayatu Usumani v Zongo Naa Kungari and 16 others (2021) DLSC 10171 at page 6 as follows: - “The reliefs the appellant is seeking in this suit include declaration of title and recovery of possession. She is asserting title to the property by her claims, as such the burden falls on her to produce evidence on the balance of probabilities establishing the following: (a) Her root of title (b) Her mode of acquisition and (c) Various acts of possession. This is the present position of the law and the Supreme Court in several decisions had emphasized these ingredient of proof the law requires from a party who asserts title to a landed property.” In this case the Plaintiff stated that she acquired the land by purchase from her Vendor, madam Dopui Gbafa at the cost of ₡1500.00. In support of the claims Plaintiff tended a certificate of purchase, on indenture and a site plan respectively as exhibits A, B and C. The Plaintiff witness PW1 testified to the purchase and the PW2 stated that he deposited sand on the land for construction. Similarly, the Defendant also testified to her acquision of the same land from the same Vendor madam Dopui Gbafa at GH₡8,800.00 in 2019. The Defendant witness DW1 stated that the Plaintiff tried to buy the land by making a part payment to the Vendor. The DW2 also stated that he made the payment of the purchase price to the Vendor on behalf of the Defendant. Since both parties evidence evidenced transactions with supporting documents from the same vendor, unless there is a law to the contrary, priorities among encumbrances shall be in order of time subject to the application of the equitable doctrine of rules on frond, estoppel for gross negligence or otherwise, purchaser of valuable consideration without notice of prior interests and priority of legal over equitable interests where the equities are the same. In the case of Dora Boateng Vrs: Mckeown Investment Ltd. (2020) DLSC 8525 at page 22 the Court stated as follows: - “The evidence having been overwhelming that Kwame Kissiedu Kwaasi sold the property in dispute first to the Plaintiff in 2000 and later to the Defendant’s grantor in 2006…In our opinion it would be inequitable to deny the Plaintiff title to the land she was granted by the Vendor. In effect the Vendor could not have granted what she had already conveyed thus Nemo dat quod non habit. The apex Court earlier applied the principle in various decisions. In the case of Amuzu v Oklikah (1998 – 1999) SCGLR 112, the Court held ‘’that registration of a conveyance did not abolish the equitable doctrines of notice and fraud and also did not confer on a registered instrument a state- guaranteed title. Thus the grant to the Plaintiff by the stool was null and void. This is because at the time the stool granted the land to the Plaintiff, the stool had long divested itself of any interest it once had in the land in favour of the father of the defendants. Thus a later executed conveyance can only obtain priority over an earlier one if the later was obtained without fraud and without notice of the earlier unregistered instrument.’’ Further of significance to the matter would have been the testimony of the Vendor. However, she was identified as having been sitting through the proceedings, hence on objection to her. Given the evidence in its entirety the Court is of the view the grant to the Plaintiff was valid. Hence the vendor could not have validly granted same plot of land to another. The claim by the Plaintiff is therefore allowed. The Defendant the vendor and all other through them are injuncted from dealing with the land. Costs of GH₡500.00. against the Defendant. H/W. IDDRISU ISSAH 28/11/2022. IN THE DISTRICT COURT HELD AT AGBOZ