Ofori And 2 Others Vrs Mensah (E1/20/2022) [2024] GHAHC 293 (23 July 2024)

INTHESUPERIOR COURT OF JUDICATURE INTHEHIGH COURT OFJUSTICE HO–VOLTAREGION CORAM: CHARITYA. ASEM (MRS.) J. SUITNO. E1/20/2022 DATE:23RD JULY, 2024 1)ALBERT SETOROFORI 2)ADELAIDEADJEI-BOYE 3)ROSELYNKAFUIOFORI PLAINTIFFS SUINGASBENEFICIARIESOF THE ESTATE OFJOHNKWAME OFORI (DCD.) ALL OFH-NO. PAVA-K454A, PEKI-AVETILE VRS. REV. GODSWILLT. K. MENSAH DEFENDANT OFS. D. A. CHURCH, HO Parties 1stPlaintiff –Present. Others-Absent. Defendant – Absent. JUDGMENT The plaintiffs in the instant suit are siblings. Their deceased father was Mr. John Kwame Ofori who died sometime in February, 1996. The deceased was survived by a wife, one Ellen Grace Ofori and six children who are, Johnson Ofori now deceased, 1 Albert Setor Ofori 1st plaintiff, Adelaide Adjei-Boye 2nd plaintiff, Roselyn Kafui Ofori 3rdplaintiff, Catherine Oforiand ElizabethOfori. The plaintiffs’ story has it that, their late father acquired a piece of parcel of land at Ho-Bankoe in his lifetime. According plaintiffs through hard work together with his wife they built the disputed four-bedroom house indispute. Itissaid that hardworkis betterthantalentwhen talentdoesnot workhard. Plaintiffs aver that after the death of their father their mother was granted Letters of Administration to administer the estate of John Kwame Ofori, as the sole administratrix. Subsequently, she distributed the property in accordance with law and custom. That by a Vesting Assent dated the 4/01/2020 the disputed property made up of four (4) bedroom house was vested by the administrator absolutely in favour of the plaintiffs. That the Vesting Assent was subsequently registered at the Deed Registry oftheLands Commission Ho, asNo. RV687/2020. Plaintiffs story continued that, their brother John Ofori (deceased) sometime in the year 2000 had an appointment to teach at the Ho Technical University. Of natural cause, the deceased moved to live in the disputed house. That after sometime, the deceased moved out of the property and informed the family that his employers, had provided him withdutypost accommodation. According to plaintiffs, their mother enquired of the occupiers of the house. Their brother informed their mother, that the occupant was his tenant but paid no rent. That when Johnson was confronted he admitted that, the tenant’s term will end in December, 2020. That when the tenant and his caretaker remained in occupation of the property beyond the time, the individuals were written to, to vacate. They refused to comply. Plaintiffs thereafter plaintiffs lodged a complaint at the Rent Control Office Ho where to their amazement, the defendant claimed to have 2 purchased the house from their brother now deceased Johnson Ofori. He could howevernotproduce any evidence. According to the plaintiffs they held a meeting with the defendant and made it clear to him that the property did not belong to their brother Johnson Ofori, who was alive at the time neither did he have the consent of the family to sell same. Furthermore, defendant could not produce any tenancy agreement nor purchase agreement or receipt to substantiate his averments. Every effort for defendant to yield up vacant possession of the house to plaintiffs have failed hence the instant action. The plaintiffs’claim fromthedefendant thefollowing: i. Declaration of title to all that piece of land together with four (4) bedroom situate, lying and being atBankoe, Hoand bounded as follows: - On the North by the property of Anku Kwami measuring 54 feet more orless, - On the North-East by the property of Deku Goka measuring 92 feet moreorless, - On the South-East by a proposed road measuring 84 feet more or less; and - OntheSouth-West by aproposed road measuring 92feet more orless. ii. Recoveryofpossession. iii. Generaldamagesfortrespass. iv. Perpetual injunction restraining the defendant and his servants, heirs, privies, assigns and whoever or howsoever described claiming title through him from layingany claim tothe said property. v. Costincluding legalfees. vi. Any other order or orders as the Honorable Court may deem fit and appropriate. 3 Upon service the defendant causes an appearance and statement of defence to be lodgedonhis behalf, and counter-claimed. From the defence, and the characteristic nature of almost all defendants, the plaintiffs’ claims were vehemently denied; plaintiffs were not only put to strict proof thereofbut astrongcounter-claim put upby the defendant. According to defendant, the property was initially rented out to him through his Church, Seventh Day Adventist Church for a duration of 3 years ending April 2017. He claimed he paid rent of $130 Dollars cedi equivalent of GH¢14,000.00 per month at the time, which was deductible from his salary. That the deceased Johnson Ofori received the moneyamounting to $4,680 DollarsequivalentofGH¢14,400.00asrent. Defendant averred that less than six (6) months into his tenancy Johnson Ofori now deceased intimated that he was selling the property. That the deceased came with a Chinese man to inspect the place. The deceased promised to refund part of the rent to enable him get another place. According to defendant, he showed interest. He then took a loan from a friend and some family members to make the initial purchased price. That he became the owner of the disputed property after the payment of GH¢80,000.00 in full being the agreed purchase price to the late Johnson Ofori in 2015. However, the deceased could not give him any documents or purchased receipt. That sometime in the year2020, he reported theconduct ofthedeceased tothe police. He claimed that the deceased admitted to have sold the house to him in his caution statement when he was arrested. He fused that the plaintiffs have slept over whatever interest they might have in the property and are therefore estopped from claiming anyinterestin the propertyin dispute. 4 He counter-claimed asfollows: a) Declaration of title and ownership to the property in dispute situate and layingand being atHo Bankoe and bounded as follows: On the North side by the property of Anku Kwami measuring 54 feet more orless; On the North-East by the property of Deku Goka measuring 92 feet more or less; On the South-East by aproposed road measuring 84feetmore orless and On the South-West by aproposed roadmeasuring 92feet moreor less. b) PerpetualInjunction. OR INTHEALTERNATIVE; Plaintiffs should refund to the Defendant the purchase price of GH¢80,000.00 with interest at the prevailing bank rate, from July, 2015, to the date of final payment. At close of pleadings, the plaintiffs filed directions and raised the following issues fordetermination when thecourt conducted directiononthe 11/02/2022. The defence did not presentany additional issues for determination. Issues i) Whether or not the late Johnson Ofori had any valid title to the now disputed propertyto enable himdispose ofsame tothedefendant. ii) Whetherornot thedefendant is atenant in the property in dispute. iii) Any other relevant issues arising out of the pleadings but not specifically statedherein. 5 The court further directed the parties to file witness and all relevant documents in support of their case. Case Management Conference was conducted on the 27/06/2023. The court received witness statements together with the following Exhibits from first plaintiff forand onbehalf ofthe othersplaintiffs filed onthe 16/11/2022. Attached totheplaintiffs’ witness statement are: Exhibit A – Letters of Administration issued to Mrs. Ellen Grace Akua Ofori to administerthe Estateofthe late JohnKwame Ofori’sEstate. Exhibit B – Vesting Assent made by Ellen Grace Akua Ofori, dated 01/01/2020, and Registeredas No. RV687/2020. On the side of the defendant; he filed a witness statement dated the 24/02/2023. Attached theretoare: Exhibit 1A –Police Statement made by the deceased John Oforionthe18/09/2020. Exhibit 1B–Further stateofJohnson OforitothePolice dated 22/09/2020 Exhibit 2 – Receipt dated 7/05/2021 issued from Ho Municipal Assembly as payment ofpropertyrateto the defendant. Witness statement in support of defendant case was received from one Selorm Amedzo dated the 16/03/2023 with no exhibits. There is nothing much to take from this witness. His story is simply that, the defendant told him he bought the house from Johnson and paid some money into the deceased bank account. He was assigned caretaker duties by the defendant. About two months after that the plaintiffs confronted his presence in the house. The witness confirmed the fact that Johnson could not give defendant any document and was reported to the police. The abovestorieswere told tohim bythe defendant. 6 The law is settled that aplaintiff, and as in this dispute a counter-claimant who seeks an order of declaration of title to land, recovery of possession, automatically puts his title tothe land in issue and thatcalls for establishment of rootof title and ownership of the land. This both parties are under burden of prove to establish a clear, positive and satisfactoryevidence. Conca Eng. Co vMoses (1984-86) 2GLR319 In the case of Kpakpo Brown V. Bosumtwi & Co. (2001 – 2002 SCGLR page 876; in the above case both parties claimed title to the land in dispute. The supreme Court speaking through Ampiah JSC said that, since both parties were claiming title to land they had the equal task of identifying the land they each claim with clarity this they discharge by showing clear boundaries of the land and what overt acts of ownershipthat haveexercised ontheland overthe years. I need to put on record that, before the trial of this case begun with the evidence of the1stplaintiff, two important aspect ofadjudicatoryprocesseswas conducted. Firstly, given the nature of the pleadings filed; the court with the consent of both partiesreferred the matter fromCourt Connected ADR for Mediation. Unfortunately, therewas deadlockand theparties returned tocourt. Secondly, the Court to appointed a Surveyor to survey the land to satisfy itself, that the parties are referring to one and the same property and whether or not improvements were made to the existing structure. From the Surveyor’s report to the Court I am satisfied that the property in dispute is same being claimed by the parties hereinand thereis no issue ofpropertyimprovement. It is afour(4) bedroom fenced property per exhibit CE2. It is therefore not true when the defendant said on oaththe he purchased athree (3) bedroomhouse. The plaintiffs open their case on the 11/06/2024 through the 1st plaintiff, their only witness; who testified for himself and on behalf of the other plaintiffs. He reduced 7 his evidence in chief into a witness statement filed on the 16/11/2022, attached are Exhibits A & B respectively and closed their case. He was subjected to some level of crossexaminations whichI may consider ifnecessary. Fromplethora ofjudicial decisions witnesses areweighed but not counted. AdomV. Nfom (1991) 2GLR 221CA, the lawonproof ofapartycase was discussed and the courtheld that; “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averments or assertion is true. And he does not discharge this burden unless she leads admissible and credible evidence from which thefacts she assetscan properlyand safely be interned.” In William Ashitey Armah v. Hydrafoam Estate Ghana Ltd, Civil Appeal J4/33/2013dated 28/05/2013;the courtdecided that; “The law does not require that the court cannot rely the evidence of a single witness in proof of the point in issue. The credibility of the witness and his knowledge of the subjectmatterare thedeterminant factors.” MajolagbeV. Larbi& Ors. (1959)GLR 190SC. In support of his claim to the property in dispute, the witness relied on Exhibit A and Basstated earlier. Mrs. Ellen Grace Akua Ofori is the sole Administratix of the estate of the late Komla Ofori, her late husband. It is an un-challenged evidence that in the cause of her duty as an administratrix she Vested the disputed property in three of her children who arethe plaintiffs before this court. I have examined Exhibit A and B and thoroughly much as it relates to the disputed subject matter property before this court. It is wholly reliable and I accept the fact 8 that the property under contention was acquired in the life time of the late John Kwame Ofori and the administratrix. The document has received the due registration in the name of the plaintiffs. These exhibits were not objected to by the defendant. Now, according to defendant, he initially rented the disputed property fromJohnson Ofori deceased. The defendant did not state when his tenancy began but said it was to expire in April, 2017. So, presumably the defendant went into the property in April 2014 as a tenant. He claimed the deceased made him aware that the property is his personal property. According to defendant when the deceased approach him to sell theproperty he investigated the title of thedeceased, by asking some individuals inthe neighborhood; who assured him ofJohnsonOfori’s title. He also conducted casual and oral investigation from the Lands Commission Ho, and was told the house belongs to the deceased. This he did by site plan he generated by himself. It is his case that he paid GH¢80,000.00 to the deceased in two equalinstallments. At paragraph 19 of defendant’s witness statement he averred that, after he purchased the property from the late Johnson Ofori, he refused or failed to give him purchase receipt as wellasthe land documents. At Paragraph 20, he said he reported the matter to Ghana police Service, Ho in September, 2020 where the late was arrested. According him, Johnson admitted in his caution statementthat he soldthe property in dispute to him. Now, section 80 of the Evidence Act, NRCD 323 provides that, one of the means by which a court determines credibility is through the substance of the testimony of the witness. 9 With the above statements therefore it is not true and cannot be believed when defendant stated in paragraphs 14 and 15 of his witness statement that he was given receipts upon payment of (GH¢80,000.00) which became a subject of a robbery attack whichtookplace inhis house onfour (4) occasions in Accra. So to answer issues (a) raised at direction – Whether or not the late Johnson Ofori had any valid title to the now disputed property to enable him dispose of same to thedefendant. The clear answer will be in thenegative. The defendant herein described himself asa Preacher, and Public Speaker. Strikingly, he does not appear to be illiterate. When he come under vigorous cross-examination from counsel for plaintiffs he appears more than ordinary as he appreciated the courtsbusiness and language. However, his testimony gives contrary mind and view of an innocent purchaser because of contradictions in his evidence, which I conceived as deliberate extortion ofevidence. First of all, I do not believe the defendant when he said that the Church paid for the house rent and made deductions from his salary. The simple reason is he produced no evidence. I do not believe the Rev. defendant when he said he paid GH¢14,000.00 as rent for 3 years, and though he was given a receipt, he lost it to armed robbery attack on 4 occasions. I also do not believe the defendant when he said the deceased gave him a temporal receipt when he made part payment of the purchase price of the house to the deceased. The simple reason is he did not produce any evidence to support his assertions to discharge the evidential burden placed on him by law. Please see Sections 10 and 12 of the Evidence Act, 1975 NRCD 323. What about the fact that DW1 said Jonson was paid through bank transfers? In my candid opinion, these are facts the proof of which not to have escape the Preacher, as the procurementofthese material factsshould be easy. 10 The law is that when a witness refers to a document but fails to tender it in evidence the inference is that such a document never existed or if it did, it contained not the averments it was supposed to contain. Please see the case of Bousiako Co. Ltd. V. Cocoa Marketing Board (1982 – 83) 2 GLR 824 of 829. Section 80 of the Evidence ActNRCD 3231975(supra) I have painstakingly evaluated the case of both parties and I find as a fact that the property under contention belonged to the late John Kwame Ofori which has been vested in the plaintiffs lawfully by the administratrix, and reject the assertions of the defendant. I find as a fact that, the late Johnson Ofori had no valid title to the property to enable himtransfer anylegalinterest tothedefendant. In the case of Kusi & Kusi V. Bonsu (2010) SCGLR page 60 holding 9 thereof, this what the honorablecourt said; “Any person desirous of acquiring property ought to properly investigate the root of title of his vendor. In the instant case there was no evidence of such prudent search conducted by the defendants. In their own pleadings they has asserted that theyonly inspected the title deeds of the assignor coupled with the permit for construction and were satisfied. The record did not show that they even sought professional advice before entering into the transaction. In view of the majority of the court, the steps they claimed they took were not adequate steps of a prudentpurchaserof that particularproperty.” DEFENDANTS INVESTIGATION OF JOHNSON OFORI’S TITLE. According to the defendant, before he purchased the house, he asked a few old ladies in the area who confirmed the deceased title to him. His next stepwas to conduct a search at the lands commission which he described as a casual search. With all due respect deference to the defendant, the business of land transaction is for serious minds and not to be approached as gamble. The cost involved could be colossal. To re- 11 emphasized my findings that the defendant acted flippantly, these are some of his response to questions when defendant come under crossed examined on the 12/06/2024 by learnedcounsel for plaintiffs. Q.There is water and electricity before you came in. A. Yes Q.Did you getto findoutin whose name the bills were A. Yes. The water bill and electricity were inthe nameof Johnson Ofori the late Q.You attached property rates as Exhibit2 A. Yes. Q.And the day of paymentis 2021 A. Yes. Q.Did you asked of the previous property rate and whopaid them A. It was inthe nameof Mr. Johnson Ofori. Q.Was he the one who gave you the site plan A. No. it was in his presence when I called a surveyor to prepare a casual site plan and pick the points with which we did acasual search. Q. I am putting it to you that if you had conducted an official and a proper search you would knowthe property did notbelong to Johnson Ofori. A. Idisagree. Indeed, when it comes to the sale of land, unless the buyer acted diligently and with the services of an expert, he or she receives no pity from the court should the unexpected eventsbegin to reartheir uglyheads relativeto the purchase. Section123ofAct 1036also provide asfollows; “A person who acquires land or an interest in land shall be deemed to have had notice of every entry in the land registry which that person would have discovered had that person conducted a search of the land registry or inspected the land registry.” 12 Eventhoughthe lawis thatregistrationor merepossessionofaland certificate raises arebuttable but not aconclusive or irrebutable presumption of the fact of ownership, in the instant case the defendant conducted no search at all which could have warned himofthe claims ofthe deceased. Much as I agree that, the deceased Johnson Ofori, must have received some form of financial gain from the defendant, no evidence of substance was introduced by the defendant for evaluation. May I remind the defendant thathis allegations are against a dead person, and such evidence usually comes under extra telescopic lens of the law. And judges have been cautioned to look with suspicion when claims are made against a deceased. Please see the case of Kwame Bonsu & Prs V. Kweme Kusi & Gifty Kusi Ampofowaa (2010) GMJ SCper Baffoe Bonnie JSC. Apart from Exhibits 1A and 1B, an alleged confession statement obtained from the deceased, the circumstances under which it was obtained or made to the police shortly before his death unascertainable, there is also no written agreement to support defendantscase ofsale ofland. Proof in law is credible evidence of facts in issue given by a witness or the quality of theevidence tosubstantiate anallegation. The law is settled that land sale transaction above three years cannot be verbal. In the case of Kofi Sapong (Decd) Subst. Nana Kwasi Kodua Vs.Frankline Adubobi Jantuah Civil Appeal No. J4/15/15 dated 17/02/2016 unreported where it was held that; “The law should be applied strictly here as plaintiff only route of ownership is the purported sublease from Mad. Afua Adai which is non-existent. And the law does not recognize verbal 13 agreements beyond three years, and per BennieJSC emphasized; the law as stated in section 1, 2, and 3(1) (f) of the Conveyancing Decree, 1973 NRCD 175 requires any such lease to be evidencein writing else,itis ineffective toconvey any title.” Please see also Oforiv. Star Assurance Ltd (2015) 85GMJ 94@100 OforiAgyekum V.Agatha Civil AppealNo. J4/59/2014SC. The stories defendant was led to spur out remain mere rhetoric, which I consider a complete afterthought and fabrications as they have no evidential backing. The payment of ground rent by defendant in his name without valid title to the property isdisingenuous. This is a civil trial in which defendant claims through the dead, and it is expected that the parties maintain honesty, integrity in their claims since the deceased is unable to defend the claims. The courts usually, may rely on documentary and or testimonies from other corroborative sources to evaluate such claim. It is said that, suchdisingenuous claims are less likely tosatisfy the evidence if there areconflicting evidence fromthe claimant andhis witnesses. I cannot conclude this discussion without reference to two judicial authorities for great learning which are found in the cases of Donkor v. Alhassan (1987-88) 2 GLR 253 @ 256, Kama Health Services Ltd vs. Unilever Ghana Ltd (2013) 65 GMJ 1 @ 27; on the principle of what constitute a valid transfer of title in land where the court held that; “Transfer of title is not merely handing over any document to the purchaser, but the documents that enable the purchasers to secure the legal title. The plaintiff had none and therefore he hadnobasis topresumeownership……..” As the issues stand, it is plain that the late Johnson Ofori had no legal title or interest in the disputed property to pass any to the defendant herein to pass same to the defendant herein. The Nemo dat quod non habet is a fundamental legal principle in 14 property law, which means simply that, no one can give what they do not have. It is only an owner of land that can give title to another. In this trial, there is no evidence that the plaintiffs have by any way conducted themselves in any manner to suggest that the deceased had their consent to deal with the property in the manner suggested by the defendant, to bind them in the counter claim. And may I add that, even if the deceased, had joint interest with his siblings, as counsel for defendant sought to portray, he could not have dealt with the property alone without their given consent. The above principle of nemo dat quod no habet, is important and requires the thorough verification of the seller’s title and authority before the buyer parting withmoney. In the circumstances therefore, the plaintiffs have made a clear case by the preponderance of probabilities as required in a civil action, and are entitled to their reliefs before the court. I am more than satisfied that the property under contentions legallybelongsto theplaintiffs before me. And I decree same intheir favour. I find no difficulties at all dismissing all the counter-claims of the defendant. They are without merit no one purchases landed property through casual search. From my assessment of defendant on oath, he appeared too serious to have acted this flippantly in acquisition of a four-bedroom house for the amount stated. Perhaps he found it cheap and got carried away. From the record, the defendant has been occupying the plaintiffs’ property for the past ten years under the guise of purchase. He has denied the rightful owners the enjoyment of their lawfully acquired property. From his own showing he went into occupation in 2015. There is cogent evidence that two months after DW1 came into the house, plaintiffs began to chase after their property. Defendants claim that the plaintiffs have slept on their right is unfounded and bogus. I consider that whatever amount the defendant paid to the deceased known only to himself, the 10 years stay inthe propertyis compensatoryenough. 15 The court thusDecree infavour ofthe plaintiffs as follows; 1. A declaration that the plaintiffs are the legal owners of the four-bedroom property located at Ho-Bankoe per vesting assent with registration No. RV687/2020 2. Iorderrecoveryofpossessionfromdefendant and allpersonfound therein. 3. Defendant has Sixty days (60) within which to yield up vacant possession and uponhisfailure he is tobe evicted. 4. In respect of plaintiffs’ relief (iii), the court will hasten slowly since I found as a fact that their deceased brother must have benefited financially from the defendant though without their consent, and defendant’s inability to prove same satisfactorily. Inview thereof, those reliefs aredenied. 5. The defendant is perpetually restrained, his servant, assigns, and whosoever claiming through him from dealing with the subject matter house in any manner forever. 6. The entire counter-claim ofthe defendant is dismissed. 7. The plaintiffs are however entitled to cost in the circumstances of this case. Cost is assessed in favour of the plaintiffs at GH¢10,000.00 to defray their basic legalexpenses. Judgment for theplaintiffs. (SGD.) H/LCHARITY A.ASEM(MRS) J. (JUSTICEOF THE HIGH COURT) LEGALREPRESENTATION JOANAKORFA OSEIFOR NELSONM.KPORHAFORTHE PLAINTIFFS– PRESENT. MARKADZANUFORTHE DEFENDANT –ABSENT. 16 REFERENCES CONCAENG. CO VMOSES (1984-86) 2GLR319 KPAKPOBROWN V. BOSUMTWI & CO. (2001 –2002SCGLRPAGE876 ADOMV.NFOM(1991) 2GLR 221CA WILLIAM ASHITEY ARMAH V. HYDRAFOAM ESTATE GHANA LTD, CIVIL APPEAL J4/33/2013 DATED 28/05/2013 MAJOLAGBE V.LARBI &ORS.(1959) GLR190SC BOUSIAKO CO. LTD. V. COCOA MARKETING BOARD (1982 – 83) 2 GLR 824 OF 829.SECTION80OF THE EVIDENCEACTNRCD3231975(SUPRA) KUSI& KUSIV. BONSU(2010) SCGLRPAGE 60HOLDING9 SECTION123OF ACT1036 KWAME BONSU & PRS V. KWEME KUSI & GIFTY KUSI AMPOFOWAA (2010) GMJ SCPER BAFFOEBONNIE JSC. KOFI SAPONG (DECD) SUBST. NANA KWASI KODUA VS. FRANKLINE ADUBOBI JANTUAH CIVIL APPEAL NO.J4/15/15DATED 17/02/2016UNREPORT OFORIV. STARASSURANCE LTD(2015) 85GMJ 94@100 OFORIAGYEKUMV.AGATHACIVIL APPEAL NO.J4/59/2014 SC. DONKOR V. ALHASSAN (1987-88) 2 GLR 253 @ 256, KAMA HEALTH SERVICES LTDVS. UNILEVERGHANALTD (2013)65GMJ 1@27 17 *sea 18