ISSAH & ANOTHER VRS MOHAMADU & ANOTHER (E1/9/2013) [2024] GHAHC 348 (7 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT WA ON FRIDAY 7TH JUNE 2024 BEFORE HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE SUIT NO. E1/9/2013 1. YAKUBU ISSAH 2. UMUHARU ISSAH (SUING FOR AND ON BEHALF OF THE PLAINTIFFS CHILDREN OF THE LATE ALHAJI ISSAH ASIAKU) VRS. 1. ISSAHAKU MOHAMADU 2. LANDS COMMISSION DEFENDANTS JUDGMENT INTRODUCTION By a Writ of Summons and Statement of Claim dated 26th February, 2013, the Plaintiffs herein instituted the instant action against the Defendants, praying this Court for the following reliefs: a. A declaration that the property situated and known as House Number Z1 Zongo Section, Wa was the property of Alhaji Issah Asiaku which devolved on the Plaintiffs on the death intestate of the said Alhaji Issah Asiaku b. An order that the purported registration of lease document No. UWR39/04/12 which took place between 21st March 1986 which was completed in April, 2012 by the Defendants is null and void and of 1 no effect as Alhaji Mohammed Asiaku had no title to the plot and the registration was fraudulent c. An order directed at the 2nd Defendant to cancel the said registration No. UWR39/04/12 and delete same from the records of the 2nd Defendant d. An order directed at the 2nd Defendant to register the lease documents of the 1st Plaintiff with the 2nd Defendant and an amendment of their records to reflect the name of 1st Plaintiff e. An order for possession of House Number Z1. Zongo Section, Wa. f. An order for perpetual injunction restraining the 1st Defendant whether by himself, his agents, servants, assigns, privies, and/or any person(s) however called from interfering with Plaintiff’s ownership of House No Z1 Zongo Section, Wa g. Any further order or orders 1st Defendant entered appearance on 21st May, 2013 and filed an Amended Statement of Defence and Counterclaim on 18th June, 2018. 2nd Defendant entered Appearance on 7th March, 2013 and filed a Statement of Defence on 27th March 2013. Plaintiffs filed a Reply and Defence to Counterclaim on 6th July, 2018. PLAINTIFFS’ CLAIM Plaintiffs sued for themselves and on behalf of the children of the late Alhaji Issah Asiaku. Plaintiffs say that their father died on 3rd April, 2012 possessed of House No. Z1 Zongo Section, Wa, the subject matter of dispute between the Plaintiff and the 1st Defendant. Plaintiffs say that long before they were born, one Alhaji Mama Obuasi gifted the 2 disputed land to the grandfather of the Plaintiffs and 1st Defendants. The said grandfather did not have the financial resources to develop the land and thus gifted same to the father of the Plaintiffs who developed it without any contribution from the family. Plaintiffs say that in appreciation of the kind gesture, their father handed the management of the property over to his father Alhaji Asiaku and authorized him to collect rent for his own use during his lifetime. The said grandfather then registered the property with the then Wa District Council for purposes of paying property rates. Plaintiffs say that their grandfather died in 1983 and on his death, their father authorized his senior brother, Alhaji Mahamadu to take over the management of the house and take rent for his own use. Plaintiffs aver that their father made it clear to Alhaji Mahamadu that if he, Alhaji Asiaku, predeceased him, Alhaji Mahamadu was to hand over the property, to the children of Alhaji Asiaku. Upon the death of Alhaji Mahamadu, who is the 1st Defendant’s father, the Plaintiffs’ father took over the control and management of the disputed house and exercised all rights of ownership over the disputed property to the knowledge of the 1st Defendant without any dispute from him. While Plaintiffs’ father was alive, 1st Defendant attempted to change ownership in the records of Wa District Council but was stopped by one Madam Saandie who worked at the council. When the said Madam Saandie retired, 1st Defendant allegedly effected a change in the records of the council to his father’s name with the assistance of Madam Saandie. Plaintiffs claim their father got the Assembly to replace 1st Defendant’s father’s name with the name of the 1st Plaintiff. As a result, 1st Plaintiff paid property rates for the disputed house. Upon complaints from their father, the Plaintiffs claim that their father decided to take steps to protect the disputed house for his children by executing a Statutory Declaration transferring the ownership and management of the property to the 1st Plaintiff. Plaintiffs claim that sometime in January, 2013 they approached the tenants of 3 the disputed house to collect the yearly rent but were informed by the tenants that the 1st Defendants had instructed them as landlord not to pay any rent to the Plaintiffs. Plaintiffs further aver that prior to the death of their father, 1st Plaintiff took steps to have the property registered with the 2nd Defendant. Plaintiffs claim they wrote to the 2nd Defendant to conduct a search to ascertain if the disputed property was registered. An employee of the 2nd Defendant orally informed the Plaintiffs that the property was not registered. The 1st Plaintiff thus took steps to obtain a lease from the rightful owners of the disputed land and stamped same with the 2nd Defendant. When the property was ready for registration, the 2nd Defendant indicated that the property could not be registered because same was registered in the name of Alhaji Mohammed Asiaku. According to the Plaintiffs, an employee of the 2nd Defendant indicated to them that the lease registered in the name of Alhaji Mohammed Asiaku was forged. Plaintiffs thus make an allegation of fraud against the Defendants. DEFENDANTS’ CASE In his Amended Statement of Defence, the 1st Defendant avers that his late father, Ahaji Mohammed Asiaku is the legitimate owner of the disputed property. 1st Defendant says that his father acquired the property from the Sokpeyiri family of Wa in 1986 with his personal resources. The 1st Defendant alleges that it was his father as legitimate owner of the disputed property who rented the stores to all tenants and assigned one Alhaji Asiaku to collect the rent for upkeep. At all material times, 1st Defendant says that his father managed the disputed property as his personal property and performed rights of ownership either by himself or his assigns until his father died in 1993. After the death of his father, 1st Defendant says that he took over the management and control of the property as the eldest surviving child of his late father. 1st Defendant says that the 1st Plaintiff and his father unilaterally changed the ownership of the property in the records 4 of Wa Municipal Assembly from the Defendant’s father’s name to the 1st Plaintiff’s name. 1st Defendant thus counterclaims for the following; a. A declaration of title to all THAT piece of land known as Plot No. 11 and containing an area of 0.11 acre situate at Zongo Kabanye Residential Block B in the town of Wa in the Wa District Council (now Wa Municipal Assembly) in the Upper West Region of the Republic of Ghana lying and adjourning the southern and western edges of unnamed road and bounded on North East by the said unnamed road measuring on that side 50ft on the South East by Plot No 12 measuring on that side 60ft and on the South-West by Plot No 10 measuring on that side 80ft. b. A further declaration that the 1st Defendant’s father regularly obtained the said land from E.M. Salifu c. Perpetual injunction restraining the Plaintiffs, their servants, agents, assigns, privies or representatives howsoever described from interfering in anyway with the 1st Defendant’s title to quiet enjoyment or possession of the said land and building thereon d. Cost of defending this action on full recovery basis It is the case of the 2nd Defendant that the Plaintiffs only wrote to the 2nd Defendant for processing and registration of the disputed property. Since the property was already leased, 2nd Defendant replied same to the Plaintiffs. 2nd Defenant contends that since plaintiffs observed due diligence by writing to 2nd Defendant, one would expect that the plaintiffs would work only with a formal response and not rely on informal discussions allegedly held with an employee of the 2nd Defendant. 2nd Defendant denies any allegation of fraud. 5 ISSUES SET DOWN FOR TRIAL The following issues were set down for trial: 1. Whether or not the Plaintiffs’ father built the house in dispute from his own resources or 1st Defendant acquired the house from the Sokpeyiri family 2. Whether or not the Plaintiffs’ father assigned the house in dispute to Alhaji Asiaku to collect the rent for his upkeep 3. Whether or not 1st Defendant’s father managed the house as his personal property 4. Whether or not the issue of ownership of the house was raised against the 1st Defendant’s father during his lifetime. 5. Whether or not Alhaji Mahamudu Asiaku’s children wrote a letter terminating their deal with the late Alhaji Issah Asiaku and Alhaji Issah Asiaku pleaded with them to collect rent in respect of his disputed property for his upkeep and survival 6. Whether or not 1st Defendant attempted to change the records in the Wa Municipal Assembly and did change the records to that of his father’s name as owner of the disputed house 7. Whether or not Mohammed Saani assured Plaintiffs that the plot on which the disputed property is built was not registered and actively assisted Plaintiffs towards registration of the said plot 8. Whether or not the Defendants fraudulently registered Plot N Z1 Zongo Section, Wa 9. Whether or not Plaintiffs are entitled to their claim 10. Whether or not 1st Defendant is entitled to his counterclaim 11. Whether or not the land on which is erected the house in dispute is the subject matter of a valid lease executed between E.M Salifu of the Sokpeyiri family and the 1st Defendant’s father (Alhaji Mohammed Asiaku). 6 12. Whether or not the land on which is erected the house in dispute is the subject matter of a valid gift originating from Alhaji Mahama Obuasi to Plaintiffs and 1st Defendant’s grandfather, Alhaji Asiaku who in turn gifted it to Plaintiff’s father. 13. Whether or not it is the Plaintiffs’ father who built the house in dispute with his own resources or it is the 1st Defendant’s father who built same with his own resources 14. Any other issue raised by the pleadings BURDEN OF PROOF What is the burden of proof that the Plaintiffs in this case have to establish? On the burden of proof in civil cases, the Supreme Court in Poku v. Poku [2007-2008] 2 SCGLR 996 at 1022 per Georgina Woode CJ stated the statutory duty on a party in a civil suit to discharge the burden of proof when it held as follows: “It raises the legal question of who bears the burden of persuasion in such civil matters, …….. Who has the onus of proof and what degree or standard of proof? Generally speaking, this depends largely on ……. The facts averred and therefore the facts in issue……Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard of degree of proof must also necessarily be proof on the preponderance of the probabilities within the meaning of Section 12(2) of the Evidence Act, 1975 (NRCD 323)”. In the case of GIHOC Refrigeration and Household Ltd v Hanna Assi [2007-2008] 1 SCGLR1, Akuffo JSC explained that the standard of proof in all civil matters is …based on a determination of whether or not the party with the burden of producing evidence on the issues has, on all the evidence satisfied the judge of the probable existence of the fact in issue. 7 The principle as stated in the Poku v. Poku case (supra) is based on Sections 10, 11, 12 ,14 and 17 of the Evidence Act, 1975 (NRCD 323). It is trite law that the 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. In the case of Takoradi Flour Mills v. Samir Faris [2005 -2006] SCGLR 882, it was held that when the plaintiff has been able to discharge the burden of proof on him, and has by his evidence established facts from which an inference can reasonably be drawn in his favour, then the onus would shift on the defendant. From the foregoing, it is apparent that the legal burden/burden of persuasion at all material times lies with the Plaintiff to prove its case; however, the burden to produce evidence may shift where necessary to the Defendant. See the case Sumaila Bielbel (No. 3) v Adamu Dramani & Attorney -General [2012]SCGLR 370 at 371 which states ‘the distinction between the two burdens of proof, namely, the “burden of persuasion” as defined in section 10(1) and the “burden of producing evidence” as defined in Section 11(1) of the same Act, is important because the incidence of the burden of producing evidence can lead to a defendant acquiring the right to bring leading evidence in a trial, even though the burden of persuasion remains on the plaintiff. Ordinarily, the burden of persuasion lies on the same party as bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move on to a defendant.’ It is trite that where the Plaintiff produces evidence to prove any fact in issue, the burden of producing shifts to the Defendant to produce such relevant evidence to disprove the Plaintiff’s case. Holding 5 of the Takoradi Flour Mills case (supra) states that; “……. this 8 being a civil suit the rules of evidence require ……..that in assessing the balance of probabilities, all the evidence, be it that of plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict……..” In respect of the counterclaim, the same standard of proof discussed above would be used in evaluating and assessing the Defendants’ case. See JASS CO LTD AND ANOR V. APPAU AND ANOR. [2009] SCGLR 265. EVIDENCE ADDUCED BY PARTIES In proving their case, the 1st Plaintiff testified on 24th June, 2015 and was cross examined by Counsel for both defendants. 1st Plaintiff tendered the following documents which were admitted into evidence and marked: EXHIBIT A- Statutory Declaration dated 25th January, 2012 EXHIBITS B and B1- Receipts for payment of property rates to the Wa Municipal Assembly for the disputed house EXHIBITS C series (C-C5) Receipts for payment of property rates to the Wa municipal Assembly by the 1st Plaintiff. EXHIBIT D- Lease between Salifu Tivena and 1st Plaintiff dated 1st February, 2012 Plaintiffs also called Alhaji Issah Seidu Bonas who testified a PW1 and was cross examined by Counsel for both Defendants. PW1 tendered the following Exhibit without objection; EXHIBIT E- Letter dated 2nd January, 2013 9 The following Witnesses testified in Support of the 1st Defendants’ case; Alhaji Rashid Mahamood, Abdulai Saaka, Alhaji Suleman Zakaria, Paxwel Atanga. The following documents were admitted through DW1 and DW4 EXHIBIT 1-Stamp duty receipt dated 16/6/1983 EXHIBIT 2- Rent tax receipt dated 25/08/1986 EXIHIBIT 3- Receipt from Administrator of Stool Lands dated 16/6/19 EXHIBIT 4-Receipt from Administrator of Stool lands dated 16/6/1986 EXHIBIT 5- Letter to stop payment of rent to 1st plaintiff EXHIBIT 6-Letter from Atuguba and Associates dated 9th July, 2013 EXHIBIT 7- Letter from Wa Municipal Assembly to Atuguba and Associates EXHIBIT 8- Statutory Declaration dated 28th February, 2012 The following documents were tendered by DW1and rejected by the Court. Lease between EM Salifu and 1st Defendant’s father- Exhibit R1 (Rejected because site plan is not signed) Income Tax Clearance Certificate- Exhibit R2 All 1st defendant’s witnesses were cross-examined by Counsel for the Plaintiff. The 2nd Defendant did not call any witness. DETERMINATION OF THE ISSUE OF CAPACITY OF PLAINTIFFS AND 1ST DEFENDANT In the course of trial, the 1st Defendant challenged the capacity of the Plaintiffs to institute the instant action. In a ruling dated 10th February, 2016, this court, differently constituted, held that it was premature to make a determination on capacity at that point until evidence had been taken. The Court will consider the issue of capacity having regard to the evidence before it. 10 This Court takes note of the fact that, both the Plaintiffs and the 1st Defendant have sued and been sued as beneficiaries of the estate of their deceased fathers. Neither party has exhibited letters of administration/ probate or vesting assent executed in their favour. Does this affect their capacity to sue or be sued? The Supreme Court case of ADISA BOYA V. ZENABU MOHAMMED (SUBSTITUTED BY ADAMA MOHAMMED) AND ANOTHER (2018) CIVIL APPEAL N0 J4/44/2017 DATED 14TH FEBURARY 2018 is very instructive. There, the Apex Court noted as follows; ‘There remains the question raised in the appeal herein by the plaintiff concerning the capacity of the defendants to have mounted a counterclaim in the action. It was contended that in the absence of proof that following the demise of their father to whom the prior grant was made, they had obtained letters of administration from the court and subsequently had the disputed property vested in them they were without capacity…Proceeding further, we are of the view that by virtue of the rules on intestacy contained in section 4(1) (a) of the Intestate Succession Law, PNDC Law 111, following the death of the father of the defendants and their mother- the original 1st defendant, the property devolved upon the children and as such they had an immediate legal interest in the property that they are competent to defend and or sue in respect of and in any such case either the children acting together or any of them acting on behalf of the others may seek and or have an order of declaration of title made in their favour.’ See also the case of IN RE APPAU (DECD); APPAU V. OCANSEY [1993-94] 1 GLR 146 where the Court of Appeal held that, It is not the law that a beneficiary can only act in respect of an estate after the grant of vesting assent. Anyone with an interest in an estate such as a beneficiary can take action even where there is no formal grant of letters of administration under which vesting assent may be considered, provided the action taken is aimed at protecting the estate from being wasted: see Kwan v. Nyieni [1959] GLR 67, CA. Under the Intestate Succession Law, 11 1985 (PNDCL 111) the appellant as the widow of the deceased intestate will no doubt benefit from the estate and may therefore properly be described as a beneficiary. It is clear from these two cases cited above that a beneficiary, even in the absence of a vesting assent, can institute an action or defend same to protect the property from being wasted. On the strength of the above authorities, the Court finds that both the Plaintiffs and the 1st Defendant are clothed with the requisite capacity to institute and defend the instant action. DETERMINATION OF ISSUES The Court will now proceed to determine the issues set down for trial. Issues 1,11, 12 and 13 will be considered together since they deal with similar matters; 1. Whether or not the Plaintiffs’ father built the house in dispute from his own resources or 1st Defendant acquired the house from the Sokpeyiri family 11. Whether or not the land on which is erected the house in dispute is the subject matter of a valid lease executed between E.M Salifu of the Sokpeyiri family and the 1st Defendant’s father (Alhaji Mohammed Asiaku). 12. Whether or not the land on which is erected the house in dispute is the subject matter of a valid gift originating from Alhaji Mahama Obuasi to Plaintiffs and 1st Defendant’s grandfather, Alhaji Asiaku who in turn gifted it to Plaintiff’s father. 12 13. Whether or not it is the Plaintiffs’ father who built the house in dispute with his own resources or it is the 1st Defendant’s father who built same with his own resources In the case of MONDIAL VENEER GHANA V. AMUAH XV [2011] 1SCGLR 475 the Supreme Court explains the duty on parties seeking a declaration of title as follows “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in Court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in this instant case, to prove the title or his root of title, mode of the acquisition and various acts of possession exercised over the subject matter. It is only when a party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim”. In the instant case, both parties seek a declaration of title to the disputed land. The Plaintiffs claim title primarily by reason of Exhibit A and Exhibit D. Exhibit A is a statutory declaration executed by Alhaji Issah Asiaku declaring himself as the absolute owner of the disputed property and delegating his powers in the property to the property to the 1st Plaintiff herein. In the case of In Re Ashalley Botwe Lands, Adjetey Agbosu and Ors v. Kotey and Ors (2003 – 2004) SCGLR 420 the Supreme Court determined the legal effect of statutory declarations as follows “...Generally Statutory declarations per se, are self- serving documents and so of no probative value, where the facts contained in them are challenged or disputed. Specifically, therefore in the defendants’ case, it only contained the facts which may be used to prove their title but it did not per se, whether registered or unregistered, confer any title or for that matter cause any title or proprietary right in them...” From the above, it is trite that 13 Exhibit A per se cannot confer title of the disputed land on the 1st Plaintiff or his late father. The Court therefore holds that Exhibit A does not confer title on the 1st Plaintiff or on his father. Exhibit D on the other hand is a deed of lease executed in favour of the 1st Plaintiff. The Court takes note of the fact that although the Plaintiffs have sued for themselves and on behalf of the children of Alhaji Issah Asiaku, both Exhibit A and Exhibit D are in the name of the 1st Plaintiff only. Exhibit D is dated 1st February, 2012. Exhibit D was executed after the 1st Plaintiff’s father executed the Statutory Declaration in Exhibit A. In Exhibit D, the 1st Plaintiff is granted a lease of 99years commencing from the 1st of February, 2012. There are no recitals in Exhibit D which indicate that the Plaintiff’s father was the absolute owner of the disputed property prior to 1st February, 2012, neither was the term Exhibit D (which was executed when the Plaintiffs’ father was alive) granted in favour of 1st Plaintiffs’ father. Thus 1st Plaintiff title, if at all, commenced from 1st February, 2012. The 1st Defendant on the other hand claims that his father obtained title by a deed of lease dated 21st March, 1986. The said lease was rejected as evidence because the site plan attached was not signed. However, the Plaintiff’s Exhibit E confirms the existence of the said lease which has been duly registered with the Lands Commission. The 1st Defendant’s father’s title commenced from 21st March, 1986. The deed which granted said title is registered with the 2nd Defendant as No UWR. 39/04/12. Sections 24(1) and 25(1) of the erstwhile Lands Registry Act 1962 (Act 122) under which the disputed land was registered provides as follows; Section 24 (1) Subject to subsection (2), an instrument, other than a will or a judge’s certificate, first executed after the commencement of this Act, shall not have effect until it is registered. 14 Section 25(1) The registration of an instrument constitutes actual notice of the instrument, and of the fact of registration to all persons and for all purposes, as from the date of registration, unless otherwise provided in an enactment. The Supreme Court decision in MAHAMA VRS ISSAH & ANOTHER [2001-2002] 1 GLR 694 stated the law that a party who had registered its interest under the Land Registry Act, 1962 (Act 122) had established a better interest under Section 24(1) of Act 122. In view of the above, the Court finds that the deed registered in the name of the 1st Defendant’s father provides a better interest in the instant case. The Court has sighted the case of ANTHONY WIAFE V. DORA BORKAI BORTEY AND VICTORIA AMOO (2016) JELR 68795 (SC) cited by Counsel for the Plaintiffs and the argument that registration does not give validity to a contract for the sale of land. However, in that same case, the Supreme Court indicated the essence of registration laws in determining priority of interests. In the instant case, the fact that the 1st Defendant’s lease document was rejected as evidence in the matter does not in itself make the lease void. The Court relies on the details in Exhibit E and find that the 1st Defendant’s interest through the lease dated 21st March 1986 has priority over the 1st Plaintiff’s lease dated 1st February, 2012. It is trite learning that whatever is attached to the soil becomes part of it. Thus, if a building is erected on land and objects are permanently attached to the building, then, the soil, the building and the objects affixed to it are all in law “land”. They will become the property of the owner of the land, unless otherwise granted or conveyed. (Principle of quic quid plantatur solo solo cedit applied). The 1st Defendant’s father as owner of the land, owned the disputed property thereon. 15 The Court will at this point address the oral evidence adduced by all the witnesses called in the matter in support of their respective roots of title to the disputed property. Both parties rely on information received from their respective fathers who are both deceased. In the case of MONDIAL VENEER GHANA V. AMUAH XV supra, the Supreme Court held thus; “Our jurisprudence has examined the approach courts must adopt when evaluating charges and assertions made against dead persons. We have firmly established the principle that real danger lies in accepting without questioning or close scrutiny, claims against a dead person. The caution that such claims must be weighed carefully is based on plain good sense and has consistently been applied in a number of cases …“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…”” The Court is also mindful of the fact that generally, documentary evidence prevails over oral evidence (See the case of Agyei Osae v. Adjeifio [2007 – 2008] SCGLR 499). It is for this reason that in determining title in the instant matter, this court relied solely on documentary evidence. Consequently, the Court finds that the Plaintiffs have failed to prove that the disputed property was acquired by their late father. Further the Court finds that from Exhibit E the 1st Defendant’s father acquired the disputed property from the Sokpeyiri family in 1986 and thus has priority over 1st Plaintiff’s title which was acquired in February, 2012. 2.Whether or not the Plaintiffs’ father assigned the house in dispute to Alhaji Asiaku to collect the rent for his upkeep 16 Having found that the Plaintiffs’ father did not have title to the disputed property, the Court hereby holds that he could not have given the said property to Alhaji Asiaku to collect the rent for his upkeep. (The maxim nemo dat quod non habet applied). 3.Whether or not 1st Defendant’s father managed the house as his personal property Having found that the 1st Defendant’s father had title to the disputed property, the Court declares that he managed the disputed property as his personal property. Further to the above, the Court has taken note of the evidence of DW2 and DW3, who are tenants in the disputed property. They both acknowledged the 1st Defendant’s father as their landlord from whom they rented space in the disputed property. Again, the Court has sighted Exhibit 7, the records of the Wa Municipal Assembly which confirmed that the disputed property was in the name of the father of the 1st Defendant until a change was made by the Plaintiffs’ late father in February, 2012. In view of the foregoing, the Court resolves this issue in favor of the 1st Defendant. 4.Whether or not the issue of ownership of the house was raised against the 1st Defendant’s father during his lifetime. 5.Whether or not Alhaji Mahamudu Asiaku’s children wrote a letter terminating their deal with the late Alhaji Issah Asiaku and Alhaji Issah Asiaku pleaded with them to collect rent in respect of his disputed property for his upkeep and survival Having regard to the claims of both parties in the matter, the Court is of the firm believe that the determination of the above issues will be of no consequence to the claim of both parties. Both issues shall thus be disregarded. 17 6.Whether or not 1st Defendant attempted to change the records in the Wa Municipal Assembly and did change the records to that of his father’s name as owner of the disputed house From Exhibit 7 which emanates from the Wa Municipal Assembly, the Court finds that the 1st Defendant made no change as alleged. The property was registered in the records of the Assembly in the name of the 1st Defendant’s father until the Plaintiff’s father submitted the statutory declaration in Exhibit A. The Court finds no evidence that the 1st Defendant attempted to change the records in the Wa Municipal Assembly and did change the records to that of his father’s name as owner of the disputed house. 7.Whether or not Mohammed Saani assured Plaintiffs that the plot on which the disputed property is built was not registered and actively assisted Plaintiffs towards registration of the said plot Plaintiffs alleged in their Statement of Claim that Mohammed Saani assured them that the plot on which the disputed property is built was not registered. However, from his evidence in chief, PW1 testified thus; ‘Mr. Saani asked us to pay GHS10 to conduct a search. Finally, he gave us two weeks. He told us he could not get the file to make the search…I went again after this time. He told us he could not find the file again.’ From the testimony of PW1, there is no indication that the said Saani assured the Plaintiffs that the land on which the disputed property was built was not registered. There is adequate evidence that the said Saani assisted in the attempted registration. However same does not prove an assurance made by Saani that the property was not registered. 18 8.Whether or not the Defendants fraudulently registered Plot N Z1 Zongo Section, Wa From the Statement of Claim, Plaintiffs particularized fraud against the defendants and as follows; • 1st Defendant forged the thumbprint of EM Salifu on the lease document No. UWR 39/04/12 when indeed EM Salifu signed all his documents • 1st Defendant forged the thumbprints of two unknown persons on the lease document No. UWR 39/04/12 and failing to indicate their names on the lease document. • 1st Defendant proceeding to register lease document No. UWR 39/04/12 in his father’s name when he knew the said plot did not belong to his father • 2nd Defendant with full knowledge that the thumbprints on the lease document No. UWR 39/04/12 were forged and proceeding to register same in the name of 1st Defendant’s father instead of rejecting same. Quite surprisingly, Counsel for Plaintiffs objected to the tendering of the lease document which was the core basis of the allegation of fraud, and same was rejected. In the absence of that lease as evidence, the court cannot subject same to scrutiny. Consequently, the Court finds that the Plaintiffs failed to prove the fraud alleged against the Defendants. CONCLUSION On the totality of the evidence adduced, the Court is convinced on the balance of the probability that the 1st Defendant’s father acquired the land on which the disputed 19 building is situated from the Sokpayiri family in 1986. The Court is further convinced that during his lifetime, he managed the said property as his personal property till he died. In view of the above, the Court finds and holds that Plaintiffs claim fails and the 1st Defendant’s counterclaim succeeds. COST In awarding cost, the Court has taken into account the fact that this case has travelled eleven years Cost of forty thousand Ghana Cedis against (GHC 40000) against Plaintiffs in favour of 1st Defendant. HIS LORDSHIP JUSTICE A. YUSIF ASIBEY JUSTICE OF THE HIGH COURT COUNSEL Clement Eledi Esq. for Plaintiffs Kamil Mohammed Esq. for 1st Defendant Paul Nero Bantanye for 2nd Defendant 20