Okraku and Another Vrs Asare and Another [2022] GHAHC 5 (23 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE LAND DIVISION HELD IN ACCRA ON WEDNESDAY, THE 23RD DAY OF NOVEMBER, 2022 BEFORE HIS LORDSHIP ALEX OWUSU- OFORI (J) 1. ROSE OKRAKU - PLAINTIFF SUIT NO.: FAL/720/2013 2. MARTHA RIBEIRO VRS 1. EBENEZER ASARE - DEFENDANTS 2. LANDS COMMISSION PARTIES: PLAINTIFFS ABSENT 1ST DEFENDANT ABSENT 2ND DEFENDANT ABSENT ============================================================= J U D G M E N T 1.0 One major (Rtd.) Samuel Boafo Okraku, hereinafter to be referred to as “the Deceased” died on 3rd October 2005. The Plaintiffs who are the widow and a daughter respectively of the Page 1 of 22 deceased sued the Defendants in their acquired capacities as Administratrixes of the Estate of the deceased. Their case was that the deceased acquired and died possessed of a 0.15 acre land at McCarthy Hill. 2.0 Apparently, the 1st Defendant also claimed to have purchased the disputed land hence Plaintiffs’ suit against the Defendants wherein they sought by way of reliefs that by virtue of being the Administratrixes of the Estate of the deceased the court should declare that they are entitled to administer the Estate of the deceased and for that matter they are also entitled to administer the 0.15 acre land, the description of which was well particularized on the endorsement of the Writ and the Statement of Claim. 3.0 As a corollary to the above relief, Plaintiffs also sought declaration that the deceased was the lawful owner of the said 0.15acre land situate and being at McCarthy Hill in Accra. 4.0 Plaintiffs in addition sought an order of perpetual injunction to restrain 1st Defendant from entering the said land as well as damages for trespass against the 1st Defendant. PLAINTIFFS’ CASE 5.0 Plaintiffs are the widow and daughter respectively of the deceased and the lawful administrators of the deceased’s estate. Page 2 of 22 6.0 Plaintiffs’ case is that the deceased was the lawful owner of 0.15acres of land situate at McCarthy Hill on the Accra- Winneba Road (Land), which he acquired by a deed of conveyance dated 8th March 1968, made between one Joseph George Sackey and the deceased (1968 conveyance) Plaintiffs add that in January 1989, the deceased conveyed part of the land, that is 0.35 acres, to a certain Mohammed Byrouthy, but continued to be the lawful owner of the remaining 0.15acres, the property. 7.0 According to Plaintiffs, on 7th February 2007, they were granted Letters of Administration to administer the deceased’s estate. They subsequently conducted a search on the property at 2nd Defendant and the search results dated 10th December 2007 confirmed the 1968 conveyance. Plaintiffs add that in February 2013, they requested 2nd Defendant to conduct another search on the property. However, the search results dated 15th March 2013 did not include information on the 1968 conveyance. Thus, by a letter dated 22nd March 2013, they notified 2nd Defendant of the omission of the 1968 conveyance from their records and requested rectification of 2nd Defendant’s records. 8.0 According to Plaintiff, in March 2013, 1st Defendant and his agents unlawfully entered the property without Plaintiffs’ authority. Plaintiffs’ caretaker, Peter who had been on the Page 3 of 22 property since 1982 informed 1st Defendant and his agents that the property belonged to Plaintiffs and was not for sale. Plaintiffs add that 1st Defendant and his agents blatantly disregarded the notice given by their caretaker and in April 2013, unlawfully and forcefully evicted Plaintiffs’ caretaker. 9.0 It is Plaintiffs case that the acts of 1st Defendant and his agents constitute trespass and an unlawful interference with Plaintiffs’ duties as administrators of the deceased’s estate. Plaintiffs thus sued Defendants for the reliefs endorsed on their writ of summons and statement of claim. 1ST DEFENDANT’S CASE 10.0 1st Defendant’s case is that he has been the owner in possession of the property since 2011 when it was granted to him by the Gbawe Kwatei family (family) and had developed it without interference until Plaintiff’s commenced the action against him. 11.0 1st Defendant claims that when he submitted his title deed to the Land Title Registry for registration, it was disclosed that one Mabel Ameyo Maijin had applied to register the property and so the family wrote to confirm the grant to him. 1st Defendant claims that as a result of Plaintiffs’ conduct, he went back to his grantors, the family, who assured him of their title and Page 4 of 22 furnished him with copies of the various judgments that declared the family as owners of the property. He adds that the property never belonged to the deceased and the deceased had no claim of right to the property. 12.0 According to 1st Defendant, he lodged a complaint at the Ghana Police Service at Gbawe against Plaintiffs regarding their alleged interference with his possession of the property. 1st Defendant states that following his complaint, the Police found one Yaw Okraku Yirenkyi as the person interfering with his development on the property. He adds that the police advised him to institute proceedings against Plaintiffs, but Plaintiffs rather commenced and action against him. 2ND DEFENDANT’S CASE 13.0 2nd Defendant’s case was that its records confirm the 1968 conveyance and that it never deleted the 1968 conveyance from its records. 14.0 According to 2nd Defendant, the search results dated 15th March 2013 was incomplete as it inadvertently omitted a portion of the information and that its records indicate that a portion (1A) of the deceased’s land was conveyed to Mr. Byrouthy and the remaining portion which is the property in dispute. Still remain in the name of the deceased. Page 5 of 22 ISSUES 15.0 At the end of the pleadings, about seven issues were agreed upon and set down for determination. i. Whether or not Plaintiffs are the lawful administrators of Major (Rtd.) Samuel Boafo Okraku (the deceased); ii. Whether or not the deceased was the lawful owner of the land in dispute and that forms part of the deceased’s Estate; iii. Whether or not the deceased conveyed part of his property at McCarthy Hill to one Mohammed Rashad Byrouthy and retained the land in dispute. iv. Whether or not the 1st Defendant and his agents had notice that the land in dispute belonged to the deceased and that same was not for sale; v. Whether or not the 1st Defendant and his agents unlawfully entered the land in dispute and commenced building on same; vi. Whether or not the 1st Defendant and his agents’ acts of trespass on the land in dispute interferes with the Plaintiffs’ duties as Administrators of the deceased’s Estate; and vii. Whether or not the Plaintiffs are entitled to their reliefs. Page 6 of 22 16.0 Before this Court will proceed to evaluate and determine the issue(s) which are germane in resolving the matter placed before it, I hold the view that it will be prudent before doing so to state briefly the applicable law and among the parties who carries the evidential burden in establishing who owns the disputed land. THE APPLICABLE LAW/BURDEN OF PROOF 17.0 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: “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 Page 7 of 22 were unlawful and unreasonable and on the evidence he failed to do so” 18.0 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.” 19.0 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: “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”. 20.0 In the decided case of ZABRAMA V SEGBEDZI (1991) 2 GLR at Pg. 246 it was held as follows: Page 8 of 22 “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” 21.0 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…” Page 9 of 22 22.0 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. 23.0 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 Page 10 of 22 24.0 The most pertinent and germane of these issues, the determination of which could essentially determine who is entitled to be declared the owner of the disputed land centered on whether or not the deceased was the lawful owner of the land in dispute. Of course, if it is determined that the deceased is the lawful owner of the disputed land then it will be a matter that follows automatically that the land forms part of the Estate of the deceased. 25.0 The case presented by Plaintiffs was straight forward. According to Plaintiffs, the land was granted to one Joseph George Sackey by Nii Adja Kwao II and Joseph George Sackey in turn granted the land to the deceased. Not only did the Plaintiffs testify about the root of title as expected of them, having sought declaration of title to the land in the deceased, they also tendered Exhibit “N”, a document evidencing the conveyance of the land from Joseph George Sackey to the deceased. Exhibit “N” contains recitals. By the first recital, it is clear that Joseph George Sackey did not obtain his grant from the Gbawe Kwatei family but rather from the James Town Stool per Nii Adja Kwao II. Certainly, Nii Adja Kwao II was not a member of Gbawe Kwartei family. Page 11 of 22 26.0 The fundamental question then that the Plaintiffs should have answered is how did Nii Adja Kwao II became the owner of the subject land? There is no formal conveyance by way of a document evidencing the land from James Town Stool to Nii Adja Kwao II. Since there was vehement challenge to Nii Adja Kwao II’s interest in the land and by extension James Town Stool’s interest in the land, Plaintiffs was thereby burdened to lead cogent evidence in establishing the interest of Nii Adja Kwao II in the land. 27.0 It is my view that having regard to the evidence as a whole on record, Plaintiffs failed to discharge the burden of proof that the land indeed belonged to Nii Adja Kwao II. 28.0 It has been mentioned that the grant of the land from Joseph George Sackey to the deceased is evidenced by Exhibit ‘N’. That being the case, Exhibit ‘N’ can be regarded as a written document and by virtue of Section 25(1) of the Evidence Act, 1975 (NRCD 323) the facts recited in Exhibit ‘N’ are conclusively presumed to be true as between Joseph George Sackey and his successors and the deceased and/ or his successors in title. 29.0 This simply means that the fact that Nii Adja Kwao II gifted the land to Joseph George Sackey as recited in Exhibit ‘N’ is conclusively presumed true only as between Joseph George Page 12 of 22 Sackey and/ or his successors in title and the deceased and/ or his successors in title. 30.0 That conclusive presumption restrains or estops either Joseph George Sackey and/or any of his successors or all those claiming through him or the deceased and/or his successors in title or all those claiming through him to deny the facts stated in the recital. This does not mean in any way that the conclusive truthfulness of the recital binds on parties other than those mentioned in the document, in this case Exhibit ‘N’ and their respective successors in title. In effect the recital that connotes that Nii Adja Kwao II and for that matter James Town Stool owned the disputed land and that it was gifted to Joseph George Sackey by Nii Adja Kwao II cannot hold as conclusively true as against Gbawe Kwartei family and for that matter 1st Defendant who are neither parties to Exhibit ‘N’ nor are regarded as successor, in title of those mentioned in Exhibit ‘N’. 31.0 It therefore bears emphasis that the peculiar facts of the case of Prof. Stephen Adei & Another v Grace Robertson & Anor. (Unreported Civil Appeal No. J4/2/2015, dated 10th March 2016, SC) cited by the learned lawyer for Plaintiff in her address are distinguishable from the facts of the instant case. In the Prof. Stephen Adei’s case, the Court of Appeal’s decision was reversed by the Supreme Court because the Court of Appeal Page 13 of 22 had perhaps expected the Plaintiffs to have called their grantor when it said Plaintiffs could not lead positive and credible evidence to prove their title when the grant of the land to Plaintiffs was evidenced in writing which was duly executed and registered and tendered in evidence. 32.0 In this case, Exhibit ‘N’ speaks eloquently for itself, it is that the land was granted to the deceased by Joseph George Sackey. Nobody expects Plaintiffs to have called Joseph George Sackey to speak to the grant. This Court has no qualms about the grant of the land to the deceased by Joseph George Sackey. What Plaintiffs glossed over to their detriment centers on the proof that Nii Adja Kwao II and for that matter James Town Stool was the owner of the land before it purported grant to Joseph George Sackey. From the pleadings and the evidence the determinant of the contest as to the original owner of the disputed land as to whether it was James Town Stool and for that matter Nii Adja Kwao II or Gbawe Kwartei family of Weija stands unavoidable. It is in this contest or issue that Plaintiffs paid scant regard and did not do well in discharging the burden of establishing in the mind of the Court that the land belonging to Nii Adja Kwao II was more probable than not. 33.0 This Court stands unfazed to state that Plaintiffs failed to call a witness from James Town Stool to adduce evidence as to the Page 14 of 22 claim of the land in dispute in James Town Stool in the face of the challenging claim that the land rather belongs to Gbawe Kwartei family of Weija. 34.0 In contrast, 1st Defendant called DW1, a principal elder of Gbawe Kwartei family who testified that he initially held the title “Nii Shippi Nettey” at the time he filed his witness statement but at the time he was testifying he was holding the title “Nii Okoefio IV”. DW1 stated that he knew 1st Defendant who approached the Gbawe Kwartei family through one Roger Sackey in 2010 to lease the property. 35.0 According to him, at the time of the purchase, the property was bare and 1st Defendant expressed interest and fulfilled his monetary obligations to the Gbawe Kwartei family. He insisted that the property forms part of a large tract of land owned by the Gbawe Kwartei family and that the family had not granted any portion of its land to Plaintiff or the deceased. He tendered in evidence a copy of a Daily Graphic Publication dated 2nd October 2012 stating that the Gbawe Kwartei family owns large tract of lands known as Gbawe Kwartei family lands and requesting residents in McCarthy Hill to regularize their documents as Exhibit ‘7’. He further tendered in evidence a High Court Judgment dated 1st February 1963, Supreme Court judgment dated 29th May 2002 and another High Court Page 15 of 22 judgment dated 11th July 2006 as Exhibits 8, 9, and 10 respectively. 36.0 These pieces of evidence could not be discredited by Plaintiffs so as to make them lose their probative value. They preponderate towards the probability that the disputed land originally belongs to the Gbawe Kwartei family. At least on the record, there is no contrasting evidence on record that shows that the disputed land is more probably the property of Nii Adja Kwao II or the James Town Stool. Be that as it may I think it should, Nii Adja Kwao II’s grant of the land to Joseph George Sackey is damnably caught by the nemo dat principle. 37.0 That is to say there being no established interest in Nii Adja Kwao II as far as the disputed land was concerned, Nii Adja Kwao II could not give any interest in the land to Joseph George Sackey. 38.0 The fact that it is evidence on the preponderance of the probabilities that the disputed land originally belonged to Gbawe Kwartei family of Weija could not be lost on PW1 who in spite of herself and the case Plaintiffs had pleaded, testified that it was the Gbawe Kwatei family which gifted the land to Joseph George Sackey. From the stance Madam Rose Okraku took in cross-examination, it seems to the court that both parties do recognize Gbawe Kwartei family as the allodial owner of the Page 16 of 22 land in dispute. To bring this point home I may refer to the cross-examination on 24th January 2019; “Q. Do you know the family or stool that owns the land? A. Yes. The search I conducted in 2007 revealed that the land belonged to Kwartei Family of Gbawe. A ruling went in their favour in 1963”. 39.0 Plaintiffs’ witness (PW1) also had this to say in cross- examination on 11th June 2019; “Q. And that area of land is owned by the Gbawe Kwartei family? A. That might have been the case until 1964 when the Gbawe Kwartei family gifted it to one J. G. Sackey…” 40.0 This position that Plaintiffs took appears contrary to Plaintiff’s own trump card, Exhibit ‘N’ which is the documentary conveyance between Joseph George Sackey and deceased, the late Samuel Boafo Okraku. By the very first recital thereof it becomes clear that Joseph George Sackey did not obtain his grant from Gbawe Kwartei family. Rather he obtained his grant from the James Town Stool through Nii Adja Kwao II. 41.0 In spite of this glaring documentary evidence that the court is enjoined to prefer as the more probable, it is quiet paradoxical with all due respect, to observe that counsel for Plaintiffs pushed Page 17 of 22 the rather wrong view of the fact when in cross-examining 1st Defendant when she made this suggestive statement: “I am further suggesting to you that the Gbawe Kwartei family had already gifted the land as far back as 1964 and therefore they did not own the land in dispute to sell it to you” 42.0 Since any attempt of Plaintiffs to posit that Joseph George Sackey obtained his grant of the land from Gbawe Kwartei family runs contrary to the recital in Exhibit ‘N’, Plaintiffs’ own document, the court does not prefer that position of Plaintiffs but rather settles on the overwhelming evidence that Gbawe Kwartei family is the allodial, original owners of the land and that it was that family that granted the land to 1st Defendant. 43.0 Indeed, the fact remains that the Gbawe Kwartei family had in 1963 plotted its interest that had been pronounced in its favour in the suit intitule K. A. Owoo-Papafio vrs Amadu Wangara (Suit No. 107/1961) High Court, dated 1st February 1963. The Gbawe Kwartei family’s title to the land was also confirmed by the Supreme Court in the suit intitule Augustus Kpakpo Brown vrs S. Bosomtwi & Co. Limited and Adam Kwartei Quartey (Civil Appeal No. 1/2001) dated 29th March 2002. These judgments were tendered into evidence as Exhibits ‘5’ and ‘6’. Page 18 of 22 44.0 It is interesting to observe that the James Town Stool per Nii Kojo Ababio V by an application for mandamus under Order 55 of C. I 47 sought to set aside the plotting of the land, the subject matter of Exhibit ‘5’ but failed. Reference is made to the unreported decision on the mandamus application by Ofori- Atta J. in the Suit intitule The Republic vrs Lands Commission and 2 Ors; Ex parte; Nii Kojo Ababio V (Suit No. SPLM 4/2010 dated 11th March 2011) 45.0 I therefore hold that the title of Gbawe Kwartei family in the disputed land appears unimpeachable and having granted the land to the 1st Defendant, he (1st Defendant) has thereby also obtained a perfect title. 46.0 It is quite evidence on record that it was somewhere in 1968 that the deceased to whom Plaintiffs as Administratrixes claim to be entitled to administer his Estate, including the disputed land purportedly acquired the land from Joseph George Sackey. It must be remarked that if the deceased had conducted a diligent search in 1968, it would have revealed to him or he would have discovered that the judgment of 1963 that Gbawe Kwartei family had obtained over the disputed land had duly been plotted. It bears emphasis that the deceased was duty bound to investigate thoroughly and diligently the validity or otherwise of the grant to him by Joseph George Sackey. Not having done Page 19 of 22 that he is in law deemed to have had notice of the existing interest of Gbawe Kwartei family that had been plotted long in 1963, five years before his purported grant. See the case of BASARE V SAKYI (1987-88) 1 GLR 313 SC. In OSUMANU V OSUMANU (1995-96) 1GLR 672 AT 680, Court of Appeal (per Benin JA (as he then was) held: “Any intending purchaser of property is put on his inquire to make such investigations as to title as would enable him to rely on the plea of bona fide purchaser for value without notice. If he failed to make such inquiries, he acted at his own peril if subsequent events disclosed that there was a valid challenge to the title he acquired” 47.0 Was the land bare at the time Gbawe Kwartei family disposed of it in favour of 1st Defendant? 48.0 My answer to this question is in the affirmative. On the preponderance of evidence on this issue, I am inclined to accept the evidence of 1st Defendant and DW1 that the land 1st Defendant acquired was bare; free from any development. 49.0 Plaintiffs contended that it was not bare as there was a wooden structure that had been put or constructed on the land and that their caretaker, one Peter was occupying the said wooden structure at the time 1st Defendant entered the land. This contention was vehemently denied by the Defendants with this Page 20 of 22 vehement denial, Plaintiffs should have led cogent evidence that could probably tilt the balance of preponderance of belief on the issue in their favour. The picture showing a wooden structure was not enough, especially so where one cannot vouch as to whether the alleged photograph was taken on the land or elsewhere. Plaintiffs best bet if they really wanted the court to believe the fact of the existence of a wooden structure on the land at the time 1st Defendant entered the land was to have called the caretaker Peter whom Plaintiffs alleged was placed in the wooden structure for him to be tested in cross- examination and if he had passed that test, the scale of belief will certainly have tilted in favour of Plaintiffs. Peter, the caretaker, was never called and no reason was proffered as to why he was not called. 50.0 On the other hand, the 1st Defendant and DW1 were emphatic that the land was bare and there was no presence of a caretaker. 1st Defendant made it abundantly clear that he has been in possession ever since the grant of the land was made to him and he has developed the land in good faith. 51.0 He also told the court that his registration of title was unchallenged and the name of the deceased never surfaced when he was registering the title in the land. Rather, per Exhibit ‘2’ it was one Mrs. Mable Ameye Majinn whose name surfaced Page 21 of 22 which gave rise to a case of multiple applications for registration. However, the controversy was resolved in his favour when Gbawe Kwatei family wrote Exhibit ‘3’ to confirm his grant and title and to disaffirm the purported grant and interest of the said Mrs. Majinn. 52.0 From the foregoing, it is the considered judgment of this court that Plaintiffs’ action ought to fail and same is hereby dismissed in its entirety with cost of GH¢40,000.00 against the Plaintiff in favour of the Defendants. (SGD) ALEX OWUSU-OFORI (J) COUNSEL: SHIRLEY OTU WITH KESEWAA DUFIE DONYINA FOR GOLDA DENYO FOR THE PLAINTIFFS PRESENT FELIX QUARTEY FOR THE 1ST DEFENDANT PRESENT Page 22 of 22