Karim Vrs Cudjoe [2022] GHACC 135 (25 November 2022)

IN THE CIRCUIT COURT HELD AT CAPE COAST ON FRIDAY THE 25TH DAY OF NOVEMBER, 2022 BEFORE HER HONOUR VERONIQUE PRABA TETTEH (MRS.), CIRCUIT JUDGE C1/05/2022 NUHU ABDUL KARIM VRS ABRAHAM CUDJOE JUDGMENT The case before me presents an interesting set of facts dealing with an alleged transaction where the main parties to the said transaction are dead and not present to speak for themselves. The plaintiff asserts that a particular transaction took place years ago between his father and the defendant’s predecessor whilst the defendant denies the existence of any such agreement or any existing evidence of that transaction. The evidence presented in this case by the parties must be considered with suspicion. I will commence this judgment by setting out a cautious reminder for the court regarding the unique circumstances of this case. In In re Garnett; Gandy v. Macaulay (1885) 31 ChD.1 at 9 Brett M. R. said: "The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any Judge who hears it ought to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine [of corroboration] becomes absurd." This warning is given authority in the Ghanaian case of Moses and Others v Anane 1989-90 2 GLR 694 where the court of appeal per Francois JA (as he then was) held that where claims are made against a deceased’s estate, the proof must be strict and utterly convincing as the protagonist is dead and cannot defend himself. See also the cases of Mondial Veneer (GH) Ltd v Amuah Gyebu IV (2011) 1 SCGLR 466, Kwame Bonsu & others v Kwame Kusi & anr. [2010]GMJ SC Ofori v Star Assurance Co. Ltd [2015] 83 GMJ 94 In this court, the plaintiff seeks the following reliefs: a. A declaration of title of land to the land described in paragraph 7 of the statement of claim b. An order for recovery of possession c. An order of perpetual injunction restraining the defendant, his family, members, agents, assigns, privies, servants and any persons claiming through him from trespassing, developing, alienating or in any way interfering with the plaintiffs peaceful occupation of the land claimed in relief (a) The plaintiff institutes this action for himself and on behalf of his siblings who are beneficiary children of the late Karimu Smailah. The issues set down for determination by this court clearly spells out the matters in dispute. These matters are a. Whether or not the plaintiff’s father re-acquired the land in dispute from the defendant’s family b. Whether or not the plaintiff’s father cultivated acacia, oranges and palm trees on the disputed land c. Whether or not the defendant can validly grant portions of the disputed land to any third parties without the consent of the plaintiff or his father d. Whether the plaintiff’s father is the bonafide owner of the disputed land e. Whether or not the plaintiff is entitled to his claims The standard burden of proof in civil matters is proof by a preponderance of the probabilities. This principle of law is trite, it not only has statutory backing having been provided for in sections 11(4) and 12 of the Evidence Decree, 1975 NRCD 323 but it has been affirmed by countless decisions of the Supreme Court of Ghana. See the cases of Adwubeng v Domfeh 1996-97 SCGLR 660 and Takoradi Flour Mills v Sami Faris 2005-06 SCGLR 682 In discharging the burden of proof the Supreme Court in the case Don Ackah v Pergah Transport & others [2010] SCGLR 728 held that ….the method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and thing (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. 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 than its non-existence. As regards the declaration of title or land litigation as was referred to by the honourable former chief justice in the case of Mondial Veneer v Amua Gyebu (supra), there are certain essential facts which must be established by the party asserting title. “In land Litigation, even where living witnesses, directly involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on who bore the burden of persuasion as the defendant company in the instant case, to prove the root of title, mode of acquisition and various acts of possession exercised in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim.” Now to the matters in dispute, it is important to state here that both parties are in agreement that by the judgment of the Supreme Court of Ghana, Ebubonko lands including the land in dispute were adjudged to belong to the defendant’s family by the Supreme Court in 1988. It is for this reason that the additional issues filed on this fact was not included as an issue to be determined. I do not also find to be an issue the plaintiff’s claim that his father acquired the land in dispute in 1983 from Ebusuapanyin Kobina Ackon. Whether or not the plaintiff’s father re-acquired the land in dispute from the defendant’s family The first and most important issue to be determined is whether or not the land in dispute belonged to the plaintiff’s father at the time of his death from the resale of the land to him by the Akua Boafo of the Anona Royal Stool family of Ebubonko. It is evident that neither parties to that agreement is alive. The court must determine this issue based on the evidence led by the parties. Particularly the plaintiff whose duty it is to lead evidence on the facts he claims in order to secure a verdict in his favour. See the cases of Adwubeng v Domfeh (supra) and Efisah v Ansah 2005-2006 SCGLR 943 Bearing the burden of proof on this issue, the plaintiff relied on oral and several documentary evidence in proof of his case. According to the plaintiff, his father initially purchased the land from Ebusuapanyin in 1983 and this sale is evidenced by Exhibit A. He also claims that his father farmed and worked on the land until his death in 2016 and that he and his siblings continued from there and also worked on the land until the defendant entered the land and caused destruction to the farm to demarcate it into plots. While his father’s possession and occupation of the land appears to have been free from strife, the matters culminating in this action arose during the life time of his father. In paragraph 7 of the plaintiff’s evidence, he states as follows “I say that it subsequently came to the notice of my father that there was a dispute between the grantor family of my father and the defendant’s Anona family concerning the large tract of land at Ebubonko including the disputed land to which judgment had been given declaring the defendant’s family as owners of all Ebubonko lands. As such my father becoming aware took precaution and approached the then head of defendant’s family by name Mallam Mumuni Ekow Kofi and negotiated for the re-sale of the disputed land to him despite already being in possession of same. My father reacquired the disputed land from the defendant’s predecessor Mallam Mumuni Ekow Efi for valuable consideration. I am aware of payment of monies to Mallam Mumuni Ekow Efi by my father to reacquire the land but do not know the exact purchase price.” After the said repurchase the plaintiff’s father registered Exhibit A with the knowledge and express approval of Mallam Mumuni. Indeed Exhibit G tendered by plaintiff which is a search from the Lands Commission shows that the site or land is covered by a deed of conveyance between Ebusuapanyin Kobina Ackon and Karimu Smailah. The plaintiff called a witness whose evidence was that he had worked on his own farm which shared boundary with plaintiff’s late father farm for 20 years. He confirmed that there had been planted on the land acacia, oranges and palm trees and that about two years ago a bull dozer came to the land and destroyed the farm. He also testified that he once drove plaintiff’s father to see the late Mallam Mumuni and an amount of money was paid by him to Mallam Mumuni. The defendant is the current head of family of the Akua Boafo Anona Stool Royal Family of Ebubonko and testified for himself. He testified that his family had won the legal battle in 1988 over a large tract of land which included the land in dispute. Defendant denies the resale to the plaintiff’s father because he claims there are no records of such sale and that the family would have those records if indeed the land had been sold to plaintiff’s father since the family has records of all land transactions executed by Mallam Mumuni and other family heads on behalf of the family. His predecessor, head of family, Mallam Mumuni died in 2016. The defendant tendered several documentary evidence as proof of the manner in which land was sold by his predecessor and how it contrasts with the manner plaintiff claims the land was resold to his father. It is important to note that in his defence the defendant does not deny that plaintiff’s father may have acquired the land in 1983 from Ebusuapanyin Kobina Ackon but since the said vendor did not have title to the land, it transferred no title to the plaintiff’s father. He stated at paragraph 10 of his witness statement as follows: “It is therefore strange for the plaintiff who purports to have repurchased the said land from my predecessor (Mallam Mumuni) unable to produce to the family an indenture or official receipt of monies paid upon several demands to do so.” On the issue of the re-demarcation of the land, the defendant has produced evidence to show that the family caused several announcements to be made to the general public for them to come forward before the land was re-entered and demarcated. I have no reason to doubt that the announcements were made as this fact is not disputed by plaintiff and also especially because the defendant has produced receipts of payment issued by Okokoroko radio station Exhibit 4, Cape Coast Polytechnic Exhibit 4C and by a letter directed at Eagle FM for radio announcement Exhibit 4D. Exhibit A already mentioned is the deed of conveyance executed in 1983 between Kobina Ackon and plaintiff’s father. Exhibit B is a letter from the lands commission asking for confirmation of the registration of Exhibit A. In this letter, there is no recipient mentioned and it is dated 3rd June 2015. Paragraph 2 of the letter states I shall be grateful if you could confirm whether Ebusuapanyin Kobina Ackon who conveyed a parcel of Land at Ebubonko to Mr Smailah and Akua Boafo belong to the same Anona Family of Ebubonku and whether the grant made to Mr Karim is valid. Exhibit C is the next document tendered and is a letter purporting to be the response to Exhibit B. It is a letter from the law offices of Baduwa Legal Consult addressed to the head PVLMD of the Lands Commission Cape Coast and dated 17th August 2015. The last paragraph of the letter states as follows: “Our further instructions are that our client have had an agreement in respect of the conveyance between Kobina Ackon and Kammu Smailah and have resold the land in question to him. We are by this letter bringing to your notice and pray that in view of the resale of the land to Kammu Smailah, the land should be registered in the name of Kammu Smailah as between our client’s family and Kammu Smailah.” In Exhibit C, the late Alhaji Mumuni clearly states that the land has been resold to the plaintiff’s father and that the Lands Commission should register the land in his name as though the family was the one that sold it to him even though the indenture with which he was registering bore the name of Kobina Ackon. There is the inference of the giving validity to the 1983 document. Acting on this letter the officials of the lands commission duly registered Exhibit A. This repurchase and registration is confirmed by the brief stamped statement on page 6 of Exhibit A which states that “The within written instrument was registered under serial number 2288/2015 at 4pm on the 16th of December 2015” The defendant’s attack against Exhibit C is that the person who signed the letter was not a lawyer at the time he signed it and therefore no weight should be attached to the letter. Before addressing that ground which I thing is amply responded to by counsel for the plaintiff in his address, it must be stated that another leg of the defendants case is that Exhibit C cannot transfer title to the plaintiff’s father or be seen as documentary evidence of the resale to the plaintiff’s father. And that in the absence of documentary proof of the transfer of title to the plaintiff’s father the plaintiff’s reliefs should be dismissed. On the issue the signee of Exhibit C, I find is simply a matter of determining who the author of the letter is. This is because it is the author who claims to have acted on the instructions of defendant’s family. It is clearly stated in Exhibit C that the signee was signing for Baduwa Legal Consult. The author of Exhibit C is clearly seen in the introductory paragraph of the letter. It states as follows: “We act as lawyers for and on behalf of the Akuafo Boafo Anona Stool family of Ebubonko, Cape Coast per its head of family Mallam Mumuni Ekow Efi, hereinafter referred to as our client on whose instructions we have to write this letter” From this extract, the author is revealed to be the lawyers of the family. The letter is written on the letter head of the said Baduwa Legal Consult and beneath it, the names of three lawyers are provided. For the plaintiff, he argues that the letter not being a legal document, Francis Boa Essilfie whose name is stated as signing the letter was perfectly capable of signing same whether as a lawyer or an administrator. In the case of Empire Builders Ltd vrs Topkins Enterprise Ltd 2020 GHASC 68 delivered on 16th December 2020, one of the ground of the appeal alleged fraud which concerned the processing of documents at the Land Title Registry of the Lands Commission by two persons who it was claimed were not lawyers at the time they processed the registration of land documents. The Court stated the following “what we deduce from the drift of the evidence drawn tour attention by plaintiff’s counsel however is at best a pointer to a suspicion on the part of the lawyers who handled the plaintiff’s conveyance document. There is no evidence on record to prove that the conveyance itself was fraudulently procured.” They continued that from the record of appeal we find no evidence against the 1st defendant that its officers knowingly knew any representations made by the lawyers who processed the 1st defendant’s conveyance could be false nor that the 1st defendant’s officers were reckless in assuming the truth of those representations.” I refer to the above case even though no allegations of fraud have been made against the plaintiff in the instant case. This is because the Supreme Court in that case found that the document was regular notwithstanding of the non-lawyer status of the said two persons and concluded that once the person seeking to rely on it had had nothing to do with the alleged fraud, the document’s regularity could not be impeached. Similarly in the absence of any such allegations I find that Exhibit C cannot be impeached simply because the defendant claims the assignee was not a lawyer. Interestingly no proof of his not being a lawyer at the time was brought forth. Counsel for the defendant in his address, alleges that the late Alhaji Mumuni was not given a copy of the letter, Exhibit B, to which Exhibit C was in response to. It can be inferred from this statement that Baduwa Legal Consult did not have the instructions of Mallam Mumuni when they wrote Exhibit C. I find that this argument is not borne out by the facts and evidence led in this case. Counsel it seems attempts to lead new evidence that was not forthcoming during the trial. This is neither the practice and I find it highly irregular that counsel would make such claims at this stage of the trial knowing very well there is no evidence to support this position. Once the plaintiff had led evidence in respect of Exhibit B, C and D same, it was up to the defendant to lead evidence to dispute its credibility during the trial and not through the addresses as counsel seeks to do. In any case his evidence cannot form part of the evidence in determining this judgment. See Agyekum v Alawiye [1987-88] 1GLR I am satisfied that the letter was not authored by Francis Boa Essilfie but the lawyers of the Alhaji Mumuni and that not being the author, his standing at the bar at the time was inconsequential to the duties he carried out. I find that the author of Exhibit C is Baduwa Legal Consult, lawyers for and on behalf of the Akuafo Boafo Anona Stool Family of Ebubonko, Cape Coast at the time the letter was written. In fact, entry of appearance in this case was first done by the said Francis Boa Essilfie from the same Baduwa Legal Consult and the defendant when questioned under cross examination admitted that the law firm represented their family. Even though he goes on to deny knowing or dealing with the said lawyer at the time, I find this denial to be an afterthought. It means then that the law firm at the time of writing the letter in 2015 was acting for the family upon the instruction of the late Alhaji Mumuni. It can be inferred then that they acted upon the instructions of the head of family in requesting the Lands Commission to register the indenture agreement between plaintiff’s father and the Ebusuapanyin Ackon. The next issue is whether or not the defendant can validly grant portions of the disputed land to any third parties without the consent of the plaintiff or his father. In my opinion this issue has to do with the significance if any or the effect of Exhibit A C and G on the rights of plaintiff’s father and by extension plaintiff as a beneficiary of his father. Again it must be stated that plaintiff claims interest in the land through Exhibit A duly registered after the acknowledgment of same by Mallam Mumuni. This is because his interest was acquired on a repurchase and not a first purchase or original purchase of land as can be seen by the exhibits defendant tendered. It explains why there is no issuance of a new indenture by the late head of family as he simply chose to acknowledge and give authority to Exhibit A. Granted that due to the nature of the repurchase, the defendant who succeeded Alhaji Karim was not put on notice of the resale to the plaintiff’s father after his death. In the face of Exhibit C and the subsequent registration of the land in plaintiff’s father’s name, the defendant cannot continue to deny this fact. The express acknowledgment and endorsement by the late Ebusuapanyin Alhaji Mumuni in my opinion estops the defendant from denying the plaintiff’s fathers re- purchase of the land. Section 26 of Evidence Act NRCD 323 1975 provides that Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest.” I am satisfied that the defendant’s predecessor resold the land to the plaintiff’s father and confirmed same in Exhibit C. by confirming the sale and granting the permission to register Exhibit A, Mallam Mumuni confirmed his support of the terms contained in Exhibit A which is sale of the land forever to the plaintiff’s father. Paragraph two of Exhibit A reads as follows “The vendor hath agreed with the purchaser for the sale to him of the part or portion of the said land or hereditament herein mentioned forever in consideration of ₵16,000 (Sixteen Thousand Cedis) inclusive of Earnest Money of Trama paid by the PURCHASER to the VENDOR” This means the land described in Exhibit A was granted to the plaintiff’s father forever and thus any entry on the land without the permission of the plaintiff’s father or his beneficiaries amounted to a trespass. Thus the defendant had no right to enter or cause any persons acting on his authority to enter the land and cause the damage to the farm. The defendant’s family had no interest in the disputed land and thus could not validly grant portions of same to any third parties as plaintiff claims the defendant has done. The plaintiffs are therefore entitled to recovery of the land in dispute. Whether or not the plaintiff’s father cultivated acacia, oranges and palm trees on the disputed land The next issue is whether the plaintiff’s father had planted acacia, oranges and palm fruit on the land in dispute. The plaintiff testified that since acquisition of the land his father planted these crops and farmed on the land until his death. As further proof the plaintiff tendered several pictures, Exhibit E series as proof of the destruction caused by the defendant. The sole witness of plaintiff also testified that he knew the plaintiff’s father and that he had planted these crops on the land. I have no reason to disbelief this evidence and find that the late father of plaintiff did plant acacia, palm trees and oranges on the land. I am satisfied that the defendant’s father cultivated a farm on the land. In the pictures can be seen uprooted plants. In some of the pictures too can be seen pillars which had been removed. Before signing off, I will consider some of the legal arguments raised by the defendants counsel in his address. It is necessary to add that “addresses are intended to enable counsel to sum up and comment on what a party regards material in the evidence he has led. What counsel may think material may not necessarily appeal to the trial judge in that way” See Twifo Oil Plantation Project Limited v. Ayisi and Others [1982-83] GLR 881-896 Counsel for the defendant makes the case that in as much as the original grantor of the land in dispute to plaintiff’s father did not own the land in dispute, Exhibit A and Exhibit G are null and of no effect as Exhibit B could not transfer any interest to the plaintiff’s father. This is in view of Exhibit 1 the 1988 judgment of the Supreme Court which adjudged the defendant’s family as owners of the land. I believe a response to this position is Exhibit C filed by the plaintiff in which defendant’s predecessor acknowledges Exhibit A and instructs the registration of same as though coming from him. Counsel also refers to the inability of the plaintiff to give specific details of the repurchase by his father, particularly details having to do with the date, time, and amount of money that the land was resold for. These points once again become incontrovertible with the acknowledgment in Exhibit C of the resale. The evidence of the payment of monies to the late Alhaji Mumuni testified to by the plaintiff and his witness is also further credible evidence that can be relied on. There is no doubt that receipts in respect of the said payments were not produced. Neither also was there a new indenture issued in the name of the Akua Boafo Anona Royal Stool family as has been rightly pointed out by counsel for plaintiff. I believe this question is answered by the last paragraphs of Exhibit C where it is stated We are by this letter bringing to your notice and pray that in view of the resale of the land to Kammu Smailah, the land should be registered in the name of Kammu Smailah as between our client’s family and Kammu Smailah. As mentioned earlier, neither parties to the said transaction are alive to speak for themselves and the court must tread cautiously even suspiciously in dealing with the matters claimed against them. With that caution in mind, Exhibit C which is not a self-serving document but acts as an independent document which influenced the registration of Exhibit A. it is sufficient corroborative proof of the agreement between the deceased parties. Conclusion: Finally, Exhibit A would not have been registered at the lands commission had Exhibit C contained different sentiments from Mallam Mumuni. This is because the defendant’s family interest had already been registered in the records of the Land’s commission. For the fact that the registration was completed in December 2015 during the life time of Mallam Mumuni, I am satisfied that plaintiff has established on the balance of probabilities that his father re-acquired the land from the late Alhaji Mumuni and is therefore entitled to his reliefs. He is entitled to recovery of possession of the land described in paragraph 7 of the statement of claim and the perpetual injunction is granted in the terms sought by plaintiff indicated in the writ of summons. The court is particularly grateful to both counsels who have extended themselves in their management of this case by ensuring that efficient and speedy justice was achieved in this case. Not only were they punctual, but their mutual respect for each other, the court and the rules of court are admirable and I commend them. (sgd) H/H VERONIQUE PRABA TETTEH (MRS) (CIRCUIT JUDGE)