Adatsi Vrs Hlormetsi [2022] GHADC 291 (31 October 2022)

IN THE DISTRICT COURT HELD AT DZODZE ON MONDAY THE 31st OF OCTOBER ,2022 BEFORE HIS WORSHIP NELSON DELASI AWUKU, DISTRICT MAGISTRATE. Suit No. A1/22/20 NORVI ADATSI PLAINTIFF VRS BLIBO HLORMETSI SUBSTITUTED BY DEFENDANTS REGENT TORGBUI AMEFINU II & ANOR. JUDGMENT PARTIES PLAINTIFF PRESENT DEFENDANTS PRESENT CASE OF PLAINTIFF: By a writ of summons and statement of claim filed on 28th May,2020 and 20th November, 2020 the plaintiff claimed the following reliefs against the defendants; a. Declaration of title to the piece of land situated at Amefinukorpe measuring about half plot and bounded as follows; i) ii) On the north by the property of Agbota Lumorvi On the South by the property of Ametefi iii) On the East by the property of Kwaku Senaya iv) On the West by the property of Tornyenyor b. Recovery of possession 1 | P a g e c. Perpetual injunction d. General damages for trespass and e. Cost It is the case of the plaintiff that sometime in 1997, she acquired the piece of land as described in her writ from Mensah Hlormetsi and paid an amount of Three Hundred thousand cedis (₵300,000.00) as the cost for the land at the time of acquisition. The Plaintiff assert that few months after paying for the land, corner pillars were erected for her and she took possession of same and commenced development. The plaintiff assert that following protestations by the daughter of Mensah Hlormetsi claiming that the land sold to the plaintiff had already been allocated to her, she was compelled to pay an additional compensation amount of Two Hundred Thousand Cedis (₵200,000.00) which she did. The plaintiff assert that she caused a foundation to be dug for her and she continued the development of the land to the foot level but due to some circumstances she was not able to continue with the project. The plaintiff assert that after the demise of her grantor she decided to continue with the project by molding blocks on the land. The plaintiff assert that without any cause the defendants trespassed onto the land and started laying claim to it by hurriedly erecting structures on it. The plaintiff assert that all efforts to stop the defendants from their activities on the land yielded no positive results. Hence her action. 2 | P a g e THE CASE OF DEFENDANTS By a statement of defence filed on 11th January,2021, the 1st defendant by himself and on behalf of the 2nd defendant, denied the assertion by the plaintiff that she purchased the land from Mensah Hlormetsi and stated further that the purported receipt that the plaintiff claims to have is fraudulent. The defendants assert that the disputed land is a family land and cannot be sold out by the plaintiff’s grantor without the involvement of the 1st defendant. The defendants assert that the plaintiff, realizing that the 1st defendant was not home but based in the Ivory Coast, hurriedly started the foundation on the land and upon noticing that the 1st defendant had returned was unable to continue same. The defendants denied trespassing on plaintiff’s land and stated that the plaintiff has no interest in the land because she never acquired it. The defendants assert further that the grantor of the plaintiff was present when Torgbui Agorkpa and his elders including PW1 and PW2 shared the land between them and the disputed land fell within the allocation of the 1st defendant. The defendants assert that the plaintiff is not entitled to her reliefs and that same should be dismissed with punitive cost. PROCEDURAL HISTORY The original writ in this suit was issued on 28th May,2020 against Blibo Hlormetsi and Kwashietsey Senaya as the defendants. 3 | P a g e Following the demise of the 1st defendant Blibo Hlormetsi, he was substituted by Peter Amemasor, regent for Torgbui Amefinu II. The case commenced before His Worship Derrick Pardon Eshun and was later taken over by Her Worship Rejoyce Aseye Gadago. The proceedings were adopted before me on 10th May, 2022 and hearing continued with the evidence and examination of the plaintiff’s second witness. ISSUES From the pleadings filed by both parties, the following issues were set down for determination; 1. Whether or not the land in dispute was acquired by the plaintiff? 2. Whether or not the acquisition by the plaintiff if the case was valid? 3. What is the effect of the acquisition of the land by 2nd defendant from the 1st defendant? BURDEN OF PROOF The plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities according to section 12(2) of the Evidence Act (NRCD 323) means; “that degree of certainty of belief in the mind 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” Where the plaintiff has been able to lead sufficient evidence in support of his case, then it behoves upon the defendant to lead sufficient evidence in rebuttal or risk being ruled against on the issues. 4 | P a g e Under section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. In Okudzeto Ablakwa (No. 2) v. Attorney General & Obetsebi Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held as follows; “he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a)…What this rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”. In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, the Supreme Court in dealing with the burden of proof in respect of declaration of title stated through Georgina Wood C. J as follows; “In land litigation….the law requires the person asserting title and on whom the burden of persuasion falls to prove the root of title, mode of acquisition and various acts of possession, exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim”. The Court is also mindful of one of the cardinal duties of a Court in evaluating evidence led during trial which is for the Court to assess all the evidence on record in order to determine in whose favour the balance of probabilities should lie. See the cases of 5 | P a g e Adwubeng v. Domfeh [1996-97] SCGLR 660 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882. SUMMARY OF EVIDENCE The plaintiff testified by herself and called three other witnesses namely Christian Amemasor (PW1), William Adatsi (PW2) and Nutsuago Jonas (PW3). The plaintiffs also tendered into evidence two documents of conveyance which were adopted and marked as Exhibits A and A1. The defendants on the other hand testified through the substituted 1st Defendant, Peter Amemasor, regent of Torgbui Amefinu and Moses Doe Ashiabi (DW1). The defendants also tendered in evidence a copy of statutory declaration in confirmation of the sharing of the late Helu Hlormetsi’s landed properties between the plaintiff’s grantor and the deceased 1st defendant. The defendants tendered in further evidence a copy of the writ issued against the grantor of the plaintiff by the deceased 1st defendant before Torgbui Agorkpa II and a copy of the document of conveyance to the 2nd defendant. These were marked Exhibits D1, D2 and D3. A locus report of the court dated 27th August, 2021 was tendered and adopted in evidence. ANALYSIS Issue 1- Whether the plaintiff validly acquired the land in dispute? 6 | P a g e It is the assertion of the plaintiff that she acquired and paid for the land from Mensah Hlormetsi, the brother of the deceased 1st defendant. The plaintiff stated that she paid a further compensation amount to the daughter of the grantor for the same piece of land following some protestations by her. Exhibits A and A1 tendered by the plaintiff are copies of the instrument of conveyance made to her in respect of the disputed land. Both Exhibits are documents acknowledging receipt of money and transferring of lands to the plaintiff duly thumb printed by Mensah Hlormetsi now deceased as grantor and signed by respective witnesses. It is observed that the boundaries of the lands described in Exhibits A and A1 are different although both lands are stated to be situated at Amefinukorpe. However, the boundaries of the land described in the writ gives the indication that the reliefs sought are in respect of the land described in Exhibit A1. The date of execution notably on both Exhibit A and A1 is 6th July, 1999 but the date of commencement of ownership in respect of Exhibit A1 is 1st day of August, 1997. This is a challenge because the effect of that means the date of execution of the conveyance in Exhibit A1 is two years later ahead of the date of the purported transfer. The errors in the Exhibits however does not constitute sufficient grounds to discount the validity of the documents especially when they bear the thumb print of the deceased grantor and witnesses to the conveyance. 7 | P a g e Under section 281 of Land Act, 2020 (Act 1036) a conveyance is defined to include a document in writing by which an interest in land is transferred. Section 34 of the Land Act further provides that a transfer of an interest in land is not enforceable if the contract is not evidenced in writing and signed by the person against whom the contract is to be proved or a person who is authorized to sign on behalf of that person or exempt under section 36 of the Act. Section 35 of the Land Act also specifies the mode of a valid transfer and the court deems Exhibits A and A1 to be in compliant with the provision. In paragraph 17 of his witness statement, the substituted 1st defendant, Peter Amemasor, the regent of Torgbui Amefinu stated that he was a signatory to all lands sold by the grantor of the plaintiff but the plaintiff never told him that he sold any land to the plaintiff. On the basis of that assertion and other concerns, the defendants disputed the plaintiff’s acquisition of the said land and stated that the receipt was fraudulent. The particulars of the fraud were not stated but the defendants raised concerns about the date on both exhibits and the differences in the boundaries of land as appears on both documents. It was the case of the defendants that, the inconsistency in the boundary descriptions of both documents negate the claim by the plaintiff that she paid twice for the same land. Their position was that if the claim is true then both documents should have same boundaries. As already stated above, this appears to be the case but the contradiction does not constitute enough grounds to invalidate the documents. 8 | P a g e The standard of proof where crime is pleaded or raised in civil proceedings is stated in the case of Aryeh Akakpo v Yaa Iddrisu [2010] SCGLR 891 as follows; “The standard of proof of allegations in civil cases is proof by preponderance of probabilities. It is only when crime is pleaded or raised in the evidence that the allegation sought to be proved must be proved beyond reasonable doubt”. See also the case of Fenuku v John Teye [2001-2002] SCGLR 985. In the proceedings on 1st March, 2021 the 2nd defendant stated that the signature of Torgbi Amefinu on the exhibit is forged and that the signature of the Assemblyman on the document is also different. The proceedings for the day are reproduced below; Q. I want to tell her that the signature of Torgbui Amefinu is forged. Torgbui is my Uncle and that is not his signature? A. I am speaking the truth Q. Your Worship, the signatures of the Assembly man are also different on the documents? A. That will be up to the Assembly man. I am not educated. In the case of IN RE ESSIEN ALIAS BAIDOO (DECD.); ESSIEN v. ADISAH AND OTHERS [1987-88] 1 GLR 539 it was held that, “the proof of any signature might be established by producing from the proper custody other documents bearing the signature of the person whose signature was in dispute and thereby affording an opportunity to the witnesses who 9 | P a g e knew the signature of that person and also to the court to compare the signatures in such documents directly with the disputed signature”. It is the defendants who allege fraud and seeks to challenge the validity of the signature. The onus of proof was on them in that case. Sadly, their claim only remained at the level of an assertion. The evidence given by witnesses for both plaintiff and the defendants attest to the fact that the plaintiff’s grantor prior to the sharing of their father’s estates sold some lands to some people. The substituted 1st defendant admitted that he was a signatory to such transactions but did not know about the acquisition by the plaintiff. In the opinion of the court his lack of knowledge about the transaction and the errors pointed out by the defendants are not enough basis to declare the agreement as invalid. Fraud is criminal and the threshold to hold that the Exhibit tendered by the plaintiff is fraudulent has not been met. In effect, the instrument is deemed valid. Issue 2: Whether the land was validly acquired by the plaintiff? The defendants raised the concern that the land in dispute is a family land and cannot be sold by the plaintiff’s grantor without the consent of the deceased 1st defendant his brother. In paragraph 5 of the witness statement of the substituted defendant, he stated that the land in dispute forms part of a large tract of land owned by Helu Hlormetsi the father of the deceased 1st defendant and the late Mensah Hlormetsi the plaintiff’s grantor. 10 | P a g e A family land by definition is a land belonging to members of a family and treated as such. At customary law the self-acquired property of a deceased person who dies intestate devolves unto his immediate family and it is the customary successor of the deceased who can alienate the properties of the deceased with the consent of the principal members of the immediate family of the deceased. See Kwakye v Tuba [1961] GLR 535. From the indication in paragraph 5 of the witness statement of the 1st defendant, this appears to be a land owned by a father and the family referred to could best be the immediate family to which the deceased 1st defendant and plaintiff’s grantor belong as children of the deceased and beneficiaries to his estates. The plaintiff in this situation can be described as a bonafide purchaser without notice and the position of the law is that the sale of a family property to a bonafide purchaser without the family’s consent may be set aside if the family acts promptly. See Kusi & Kusi v. Bonsu [2010] SCGLR 60. In the case of Adjei v. Appiagyei [1958] 3 WALR 401,404 cited at page 34 of the book Land Law, Practice and Conveyancing in Ghana, 2ND Edition by Dennis Domnic Adjei, the Court of Appeal stated that; “A sale of land without the assent and concurrence 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”. See also the case of Fianko v. Aggrey [2007-2008] SCGLR 1135. 11 | P a g e In the evidence of the 1st defendant, he stated that the deceased 1st defendant upon his return from Ivory Coast and realizing that his brother was selling the lands reported the matter to Torgbui Agorkpa for the land to be shared. The panel’s effort in dealing with the problem is demonstrated in paragraph 6 of Exhibit D2 which is a statutory declaration. The panel declared as unlawful all lands sold by Mensah Hlormetsi the plaintiff’s grantor alone and directed further that all such persons were to be issued with a purchasing receipt by the Helu Hlormetsi family after paying the necessary penalties. It was not stated what the nature of the penalty was and whether such persons were adequately notified considering the fact that they were not parties to the issue the deceased 1st defendant took to Torgbui Agorkpa. In paragraphs 14, 15, 16 and 17 of his witness statement, the substituted first defendant stated as follows; “14. That those Mensah Hlormetsi sold the lands to were asked to submit their purchased receipts as those who bought various portions of the land from him were five (5) in number and their names are Frank Kwashie Nyamavor, Patricia Amemasor, Anthony Ayivor, Axadzi and Sosoo. 15. After the sharing, the portions sold to Patricia Amemasor, Anthony Ayivor and Frank Kwashie Nyamavor went to the 1st defendant deceased and they were asked to see Mensah for another portion to be given to them at a different location which falls within his land. 16. The portion now in dispute was sold to Patricia Amemasaor by Mensah Hlormetsi who was my sister, so Mensah gave her another portion at a different location at a place called Avelebi. 12 | P a g e 17. That I am a signatory to all the lands sold by Mensah Hlormetsi and he never told me he sold any land let alone the disputed land to the plaintiff and the plaintiff did not produce any receipt to the family that she also bought land from Mensah”. Contrary to the claim by the substituted 1st defendant that the plaintiff’s vendor did not disclose to the panel that he had sold that land to the plaintiff, the evidence of PW1 who was a member of the Arbitration panel indicated that the panel had notice the disputed land had already been sold to the plaintiff herein, so that was taken into consideration in their sharing and the deceased 1st defendant was duly compensated. Paragraphs 13 and 14 of the witness statement of PW1 are reproduced as follows; “13. The land in dispute was sold to the plaintiff by Mensah Hlormetsi and was taken into account when we were sharing the land between the 1st defendant and his brother Mensah Hlormetsi. 14. The land in dispute is owned by the plaintiff and she has been in possession for several years now”. PW2 who together with PW1 led the deceased defendant to Torgbui Agorkpa’s Arbitration and was also a witness to the sharing by the panel corroborated the assertion of PW1. The entire paragraphs 9 to 13 of the witness statement of PW2 are reproduced as follows; “9. That on the day of the sharing of the land, as the Assembly member for the area I was among the panel who visited the land including the unit committee members of the area. 13 | P a g e 10. That on the day of the sharing when we visited the land we noticed that portions of the land was sold by Mensah Hlormetsi including the land now in dispute. 11. That when the panel noticed this occurrence, the panel upon consideration decided that though portions of the land were sold already to other persons by Mensah Hlormetsi including that of the plaintiff herein, the 1st defendant needed to be compensated for those lands. 12. That after this consideration the land was shared between the 1st defendant and Mensah Hlormetsi the vendor of the plaintiff herein. 13. That after those was done and the 1st defendant was duly compensated for the lands that had been sold without his knowledge we all left”. Prior to his demise and substitution, the deceased 1st defendant had the opportunity to cross examine PW2 on his evidence. The expectation was that he would have taken the opportunity to examine the witness on his claims that he was adequately compensated by the panel. Strangely, the deceased 1st defendant completely ignored that assertion and failed to cross examine the witness on it. The substituted 1st defendant also had the opportunity to cross examine PW1 but failed to cast doubts on the assertion that the deceased 1st defendant was compensated for lands sold by his brother without his consent including the disputed land. PW1 had some difficulty in recalling off head the distributions made by the panel but was emphatic that the deceased defendant was compensated. Aspects of the proceedings of court on 23rd May, 2022 covering cross examination of PW1 by substituted 1st defendant is reproduced below; 14 | P a g e Q. Are you saying you were among the elders who shared the land between the 1st defendant now deceased and his brother? A. Yes I was a member of the panel Q. And you are saying you don’t know those who bought land from Mensah? A. In the sharing process we realized Mensah had sold lands to others so we made a compensation to the younger brother Blibo. I know two of the people who bought land from Mensah, the plaintiff and Hindu Sosu. Q. When the sharing was done how many shares did Mensah Hlormetsi have? A. I cannot recall because the sharing was done in 2012? Q. Are you aware that the land at the road side on the Accra to Aflao road Mensah sold three and half plots to Hindu Sosu and the three plots left at the same sitewas given to the brother? A. I cannot recall the sizes of land and plots. The only thing I can say is that Blibo was compensated. Q. Are you aware that the land at Avelebi was divided into two equal parts between Mensah and Blibo? A. Yes because the Avelebi land was the third site and Blibo had already been compensated on the second site on the Aflao road. Q. Are you aware the land at Ziortornu was also divided into two equal parts? 15 | P a g e A. A part of Ziotornu land was given to the kins of Adzowor who was their sister and the remaining shared into two parts for Mensah and Blibo. Q. Are you aware that because the one Mensah sold to Hindu was three and half the half plot which is currently in dispute was added to Blibo’s lands? A. It is not true. I took part in the sharing. You were only told Paragraph 3 of Exhibit D2 indicates that the plaintiff’s grantor and the deceased 1st plaintiff were both given 3 plots each at the area where the land in dispute is situated. It is the case of the plaintiff and her witnesses PW1 and PW2 who witnessed the sharing that, the disputed land was not part of the distribution because the panel noticed the plaintiff had already acquired same so the deceased defendant was compensated in the sharing. The defendants however claim that the land in dispute was shared and it formed part of the allocation to the deceased 1st defendant. The first witness for the defendants did not indicate that he was present at the sharing and the evidence does not indicate that he was present. The second witness who was present stated contrary to what his other panel members PW1 and PW2 said that the vendor of the plaintiff did not make the panel aware that he had sold any land to the plaintiff prior to the sharing. 16 | P a g e Considering the contradictions in the evidence given by the members of the panel, further evidence is required to substantiate the claim that the area in dispute was shared and formed part of the three plots allocated to the deceased 1st defendant. However, one thing that is certain is that even if the issues covering the sale to the plaintiff was not resolved by the Torgbui Agorkpa panel, there is no evidence that the family took the required step to set aside the sale. Effect of contradictions in the boundaries of the land? In her writ, the plaintiff stated the boundaries of the land in dispute as follows; i) ii) On the north by the property of Agbota Lumorvi On the south by the property of Ametefi iii) On the east by the property of Kwaku Senaya iv) On the west by the property of Tornyenyor In Exhibit D3, which is the conveyance agreement issued to the 2nd defendant by the deceased 1st defendant, the land in dispute is described as bounded below; a) On the north by Goryenyor Senaya Laguda measuring 100ft more or less b) On the south by Atsu Senaya measuring 137ft more or less c) On the east by Norviesor Senaya Amegayie measuring 40ft more or less d) On the west by Ametepee Senaya measuring 45ft more or less. In paragraph 11 of her witness statement, the plaintiff stated that not long after paying for the land, she caused a foundation to be dug for her and she built up to the foot level. 17 | P a g e This assertion was corroborated by PW1 and PW2 under cross examination by the defendants. In his cross examination of PW2 on 15th March, 2021, the deceased 1st defendant admitted to the existence of the foundation on the land but stated that it only enters a small portion of his land. Q. Are you saying you saw a foundation on the disputed land? A. That is so Q. That foundation only enters my land small? A. Your Worship it is not true. The substituted 1st defendant also admitted to the existence of the foundation under cross examination by the plaintiff on 25th July, 2022. Q. When your sister came there did she not see any foundation there? A. Yes those who did the distribution saw the foundation there. I also saw it. Mensah Hlormetsi stated that when he stayed with the plaintiff he was sick so the plaintiff bought corn and other items for him and as a result of that came to claim that land but he refused. Although the boundaries described in the various conveyance instruments appeared different, the assertions and admissions of the parties indicate that their claims were in respect of the same land. 18 | P a g e A locus which was conducted to identify the land considering the conflicting boundaries given by the parties and as contained in the supporting documents was tendered in evidence. In the report which was adopted by the court the existence of the foundation was confirmed and it was also discovered that the 2nd defendant had also erected fence wall over the land. The above admissions and discovery confirms that the plaintiff had commenced work on the land. If the defendant had issues with her alleged acquisition of the land, the option available to the family was to have taken action against her for trespass or to have the sale set aside. The evidence before this court does not suggest that the family of the 1st defendant or the 1st defendant by himself took an action against the plaintiff for trespass if it is their case that she did not actually acquire the land or to have the sale set aside because the acquisition was irregular. Issue 3: Whether or not the 2nd defendant validly acquired the land from the 1st defendant? Exhibit D3 attached by the defendants is a document titled land purchase certificate the content of which conveys land from the deceased 1st defendant to the 2nd defendant on 30th August, 2014. The boundary descriptions on Exhibit D3 and the boundaries contained in the plaintiff’s writ were different. But as indicated above, the assertions and admissions by the parties and the locus report confirm that it is the same land. 19 | P a g e The implication by Exhibit D3 is that, the deceased 1st defendant without having set aside the sale which he alleges was irregular went ahead to sell the land to 2nd defendant. By the failure to set aside the acquisition the deceased 1st defendant could not have alienated the same land to another party. From the evidence, the plaintiff has had her foundation on the land since 1999 and nothing shows the defendants took any steps to challenge her position, it was only in 2012 that the 1st defendant took a matter to Torgbui Agorkpa for the lands of their deceased father to be shared between the plaintiff’s vendor and himself. CONCLUSION In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, the Supreme Court in dealing with the burden of proof in respect of declaration of title stated through Georgina Wood C. J as follows; “In land litigation….the law requires the person asserting title and on whom the burden of persuasion falls to prove the root of title, mode of acquisition and various acts of possession, exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim”. On the balance of probabilities, the plaintiffs claim of an acquisition is established in the absence of evidence to declare the conveyance as invalid. Consequently, the prayer for the plaintiff is granted in respect of reliefs 1, 2,3 and 4 and the acquisition by the 2nd defendant is declared void. Cost of two thousand cedis (GH₵2,000.00) is awarded against the 1st defendant. 20 | P a g e (sgd.) NELSON DELASI AWUKU MAGISTRATE 21 | P a g e