ASAMOAH VRS. OSEI (E11/AHC/03/25) [2025] GHAHC 32 (22 January 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE AMASAMAN, ACCRA, HELD ON WEDNESDAY THE 22ND DAY OF JANUARY, 2025 BEFORE HER LADYSHIP JUSTICE PRISCILLA DAPAAH MIREKU (MRS.) SUIT NO. E11/AHC/03/25 SAMUEL ASAMOAH … PLAINTIFF/RESPONDENT VRS CHARLES OSEI YAW … DEFENDANT/APPELLANT JUDGMENT The Plaintiff/Respondent instituted an action against the Defendant/Appellant at the District Court Amasaman. According to the Respondent, the Appellant sold one (1) of his four (4) plots of land to him at a consideration of Eight Thousand Ghana Cedis (GH¢8,000.00) and also paid One Thousand Ghana Cedis (GH¢1,000.00) for documentation. Suit No. E11/AHC/03/25: Samuel Asamoah vs Charles Osei Yaw Page 1 of 8 That when he made attempt to develop the land, he was resisted by Kas Estate Ghana Limited and an official search conducted by him revealed that, the said land is affected by declaration dated 5th October, 1981 by Obodai Torgbor & Others. The Respondent further averred that, despite persistent demand and request for the refund of the Nine Thousand Ghana Cedis (GH¢9,000.00), the Appellant failed to do same. So he instituted an action against the Appellant and prays for the following; 1) Recovery of the sum of Nine Thousand Ghana Cedis (GH¢9,000.00) at the prevailing bank rate from 21st day of August, 2014 till date of final payment. 2) Damages for breach of contract. 3) Cost and payment of filing and legal fees. The Appellant per his Defence averred that, he sold one (1) of his plots of land to the Respondent at a consideration of Seven Thousand, Five Hundred Ghana Cedis (GH¢7,500.00) and not Eight Thousand Ghana Cedis (GH¢8,000.00). That he was not present when the Respondent paid One Thousand Ghana Cedis (GH¢1,000.00) to his landlord. That Kas Estate Ghana Limited has not won any case over him in any Court of law. That he will not deny the ownership of the parcel of land since Obodai Torgbor are the same as his landlord Nii Sai Adjah Mampong of Nii Sai Kwaku Family Doblo-Gonno Amasaman. The Appellant denies owing the Respondent any amount and further averred that, he gave the Respondent and his wife vacant possession after payment of the Seven Thousand Five Hundred Ghana Cedis (GH¢7,500.00). That the said wife of the Respondent is now the one developing the land. The Appellant counterclaimed for the payment of general damages of Suit No. E11/AHC/03/25: Samuel Asamoah vs Charles Osei Yaw Page 2 of 8 Twenty-Four Thousand Ghana Cedis (GH¢24,000.00) and cost to be awarded to the Defendant. At the end of trial, the trial judge entered judgment in favour of the Respondent and it is for that reason the Appellant is appealing against the decision to the District Court. The grounds of appeal according to the Appellant are; a) The judgment of Her Worship Sophia Essel (Mrs.) cannot be supported by the Plaintiff’s claim. b) Further ground(s) of appeal will be filed on receipt of the Record of proceedings. The Appellant is praying for the judgment of the trial Magistrate be set aside as it was procured by fraud and entered for the Defendant/Appellant. This Honourable Court ordered Parties to file their written submissions, but it was only the Appellant’s Counsel who filed a written submission to this Court. It is trite that, appeal is by way of rehearing which means that, this Honourable Court is to examine the entire proceedings and the decision of the trial Court whose decision is subject of the appeal to make a determination whether the decision can be supported by law or facts or both (see the case of Nortey (No. 2) v. African Institute of Journalism and Communication & Ors (No. 2) [2013-2014] 1 SCGLR 703). The Respondent testified on his own behalf and did not call any witness. The Respondent testified that, he bought the subject matter from the Appellant and made payment of Seven Suit No. E11/AHC/03/25: Samuel Asamoah vs Charles Osei Yaw Page 3 of 8 Thousand Five Hundred Ghana Cedis (GH¢7,500.00) to the Appellant who gave him an indenture. That the Respondent also made him pay Five Hundred Ghana Cedis (GH¢500.00) to a surveyor in order to survey the portion of the land he sold to him. That after some months, the Appellant told him that the documents he gave him after he made payment were no more authentic and asked a woman by name Celina who lives at Doblo-Gonno to lead him to a certain chief called Oko in order to get the original documents of the land. That the said chief demanded Ten Thousand Ghana Cedis (GH¢1,000.00) and he paid same but never got any document on the land. The Plaintiff further testified that his ex-wife who was with him at that time began putting up a structure on the land and in the process of developing the land, Kas Estate Ghana Limited came to place a notice on the land claiming ownership and asked them to stop the work. That not long after that, the marriage between his wife and himself broke down and they divorced. That his ex-wife went to Kas Estate Ghana Limited to buy the same portion of land from them because they are the rightful owners. That upon hearing that, he was fully convinced that the Appellant fraudulently sold the said portion of land to him and that he is not the owner of the land. That he asked the Appellant to refund his money to him but he has refused to pay and says, he has no money for him. That he took the matter to the police headquarters and he was advised to file a suit against the Appellant. The record of proceedings shows that when the Respondent was sworn in to testify, it was only the Plaintiff’s witness statement that was adopted as his evidence-in-chief. The said witness statement did not mention tendering any exhibit at Court. The Appellant also testified on his own behalf and called one Nicholas Kweku Oko Sai to come testify on his behalf. Suit No. E11/AHC/03/25: Samuel Asamoah vs Charles Osei Yaw Page 4 of 8 The Respondent alleges that the Appellant fraudulently sold the subject matter to him. Fraud is a serious offence and this allegation is not to be taken lightly. The Plaintiff in his statement of claim, however, does not allege fraud and particularize it. Even if the Court was to accept his claim of fraud on the Appellant, the onus of proof in respect of fraud in civil cases are proved beyond reasonable doubt. Section 13(1) of the Evidence Act, 1975 (NRCD 323) provides that; “In any civil or criminal action, the burden of persuasion as to the commission by a Party of a crime which is in issue requires proof beyond a reasonable doubt.” A perusal of the judgment of the District Court shows that, the trial judge relied heavily on a police report which she refers to as Exhibit ‘A’. The record of proceedings however does not support the fact that the said police report was tendered in evidence during the course of the trial. Thus, the Court erred in relying on same as same was not put before the Court as an exhibit. The Respondent does not deny the Appellant’s claim that he had four (4) plots of land which he had constructed a dwarf wall around it when the Defendant sold one (1) out of the four (4) plots to him. The Respondent also does not deny the fact that, he was given possession of the said land which he started construction on same with his wife now ex-wife. The Respondent alleges that, Kas Estate Ghana Limited were able to prove to the police that they were the owners of the land that is why he gave up possession of the land to them. The Plaintiff did not tender any documentary proof to prove that Kas Estate Ghana Limited had legal title to the subject matter and not the Respondent. He also did not call upon Kas Estate Ghana Limited to testify on his behalf. Suit No. E11/AHC/03/25: Samuel Asamoah vs Charles Osei Yaw Page 5 of 8 Just mounting a witness box to repeat your averments in your pleadings is not enough especially when your assertions have been denied by the opponent. In the case of Majoladge v. Larbi [1959] GLR 190 it was held that; When a Party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment cannot be sufficiently proved by just mounting the witness box and reciting the averment on oath without adducing some corroborative evidence. The Defendant’s evidence to the Court shows that, he was in possession of the subject matter together with the land in dispute before he sold same to the Respondent. Possession is a good defence to all until the one with legal title shows up. In this case, the Defendant did not only show that he had equitable right but also legal right and tendered the indentures he acquired from his grantors. The evidence on record shows that the Defendant gave vacant possession to the Respondent and his wife, and his wife is still in possession of the subject matter in dispute. The Respondent alleges that his ex-wife is in possession because she bought same from Kas Estate Ghana Limited but he did not lead a single evidence to prove same. The Appellant claim that the ex-wife has taken the land from the Respondent that is why he wants his money back sounds more probable than the Respondent claim that the land belongs to another and the ex-wife has bought same from that 3rd Party. The trial Court judgment indeed cannot be supported by the Plaintiff’s claim and evidence. The judgment of the trial Court dated 31st July, 2023 is hereby set aside. The Defendant had a counterclaim and alleges that the Respondent was harassing him with police and macho men. That the Respondent had insulting behaviour towards the Appellant Suit No. E11/AHC/03/25: Samuel Asamoah vs Charles Osei Yaw Page 6 of 8 and thus the Appellant prays for general damages of Twenty-Four Thousand Ghana Cedis (GH¢24,000.00) and cost to be awarded against the Respondent. General damages also refer to harm which arises directly and inevitably from a breach of contract or tort. General damages are awarded where there has been a breach of a right which gives rise to an action without the need for proof of damage. The Respondent’s alleged report at the police station cannot be constituted as a harassment if there is no proof of the Respondent abusing his right to report an alleged crime to the police. There is no evidence before the Court that he personally instigated the police in harassing the Appellant. The Appellant alleges that, the Respondent on two (2) different occasions reported him to the police and same has been denied by the Respondent. Thus, the onus was on the Appellant to prove his claim. The Respondent’s own evidence states that, the police after interrogating him and his grantor asked him to go and will get in touch with him if they need him. This is the police doing their everyday duty and it will be unjust to punish the Respondent for it, especially when the Appellant under cross-examination testified that he was not arrested by the police but was only invited to answer questions. Thus, the counterclaim for general damages against the Appellant is hereby dismissed. Costs of Five Thousand Ghana Cedis (GH¢5,000.00) is however awarded against the Respondent for the Appellant as he succeeded in his appeal. (SGD) PRISCILLA DAPAAH MIREKU J. (MRS.) JUSTICE OF THE HIGH COURT Suit No. E11/AHC/03/25: Samuel Asamoah vs Charles Osei Yaw Page 7 of 8 PARTIES Plaintiff/Respondent - Absent Defendant/Appellant - Present COUNSEL 1. FRED KYEREMANTENG HOLDING BRIEF OF FREDERICK ASAMOAH FOR THE DEFENDANT/ APPELLANT - PRESENT CASE REFERRED TO: 1. Nortey (No. 2) v. African Institute of Journalism and Communication & Ors (No. 2) [2013-2014] 1 SCGLR 703 2. Majoladge v. Larbi [1959] GLR 190 ACTS 1. Section 13(1) of the Evidence Act, 1975 (NRCD 323) Suit No. E11/AHC/03/25: Samuel Asamoah vs Charles Osei Yaw Page 8 of 8