Agyemang v Ackom & Anor (A1/06/23) [2024] GHACC 391 (2 December 2024)

INTHECIRCUITCOURTJUABEN-ASHANTIBEFOREHHROSEMARIEAFUAASANTE (MRS)HELDONMONDAY2ND DECEMBER2024 AKWASIAGYEMANG PLAINTIFF VRS KWAKUACKOM(DECEASED) DEFENDANTS KWAMENKANSAH SuitNo.A1/06/23 JUDGMENT The plaintiff filed a writ of summons and a statement of claim jointly and severally against the defendantsforthefollowingreliefs: 1. Declarationofownershipof titleandrecoveryof possessionofplot No.89/9-situate sandlyingat AtiasharingboundarywiththepropertyofNanaAduBoahenIIandYeboah. 2. Perpetual injunction restraining the defendants, their agents , assigns and or any person or personsclaimingthroughthedefendantsfromdealingwiththesaidland. Theplaintiff’scase The plaintiff claims that on 17th September 2003, he acquired plot No.89/90 from his grantor , Nana Ofosu Kwabi who issued him with an allocation note bearing his name. After the grant, Nana Ofosu Kwabi was destooled and Nana Adu Boahen II enstooled as the new Odikro of Atia. Nana Adu Boahen II announced that all allottees of plots should present their documents anditisuponthisannouncementthathepresentedhisallocationnotetotheOdikrowhoissued the plaintiff with a new allocation note together with a site plan. The plaintiff discovered that the defendants have trespassed on his land by causing someone to clear the land and continue totrespassonthelandinspiteofseveralwarnings. TheDefendant’sCase The defendants entered appearance through their Counsel on 28th August 2018 and filed a defence. In the cause of the trial the 1st defendant passed on leaving only the 2nd defendant, however no substitution was made. It is their case that the subject matter in dispute belongs to Nana Sarpong Kuma Ankuma who is the Odikro of Atia and the subject land in dispute forms part of a palm plantation which was cultivated by a company called Outgrower belonging to the paramount chief of Juaben. Per paragraph 9 of his statement of claim, the area the plaintiff refers to is along the main road which the 2nd defendant carved out a portion to one Kofi Adu adding thatthe2nd defendant is the customary successor of NanaSarpong Kuma Ankuma and thereforetheplaintiffisnotentitledtohisclaim. Issue(s)tobedetermined Attheapplicationfordirectionstagetheissuesadoptedfortrialwereasfollows: 1. whetherornotthedefendanthavetrespassedontotheplaintiff’sland. Burdenofproof The standard of proof in civil cases has been set out under section 10 of the Evidence Act 323 whichis that,“Forthe purposesof thisdecree, the burdenofpersuasionmeansthe obligationofa party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” Section12(1)oftheActalsostates,“Exceptasotherwiseprovidedbythelaw,theburdenofpersuasion requires proof of preponderance of probabilities.” The plaintiff therefore bears the burden to prove hiscaseonthepreponderanceofprobabilities. Theplaintiff in his witness statementclaims thattheplot numberin dispute which is plot89/90 was acquired by him on 17th September 2003 and names his grantor as Nana Ofosu Kwasbi who issued him an allocation note . And upon his death Nana Boahen re issued him with anotherallocationnoteaswellas asiteplan.Thelawon declarationof titleis fortheplaintiffto show by concrete evidence how he came by the land. The plaintiff tendered Exhibit B which is an indenture and Exhibt C, a site plan. The plaintiff also tendered Exhibit A which is an allocation note. However none of the exhibits bore the name of the plaintiff who claims that Nana Boahen II had issued him with Exhibits A,B and C to him. Thus the onus is on the plaintifftoexplainwhy.Duringcrossexamination,theplaintiffwascrossexaminedasfollows:- “Q:Canyoutellthecourtwhynoneofthedocumentdbearsyourname? A: At the time I was going to acquire this plot from Nana Owusus Kobi my grantor, I called my niece GeorginaOwusu BoatengandindicatedtoherIwas goingtousehernameonthedocumentthatwillbe processedbymygrantorwhichsheagreed. Q:So youagreewithmethatonthefatofthedocumentGeorginaOwusuBoatengisonthedocumentdo youagree? A:Yes.” Thelawonpleadings isveryessentialtotheevidencethatapartyprofersincourt.Theplaintiff inhispleadingsatparagraphs4and5stateshowheacquiredtheland asfollows: 4. The plaintiff avers that on 17th September 2003 , he acquired a building plot numbered 89/90 from his grantor,NanaOfosuKwabiOdikoroofAtia 5.Plaintiff repeats paragraphs 4 supra and states that his grantor issued him with an allocation note bearinghis(Plaintiff’sname) . The plaintiff states that he himself acquire the plot by himself, yet during cross examination the documents were found not to be in his name, but in the name of Georgina Owusu. Surprisinglyneitherdidthe plaintiffcall GeorginaOwusu nordid theplaintiff have a powerof attorney issued to him to speak on behalf of Georgina Owusu thereby questioning plaintiff’s capacitytospeakonadocumentbearingthenameonapropertyheclaimedbelongedtohim. Thisraisestheissueofcapacitywhichthecourtcanraisesuomotu.theplaintiffclaimedthathe had authority to commence the action, yet he had no power of attorney from Georgina Owusu in whose name the documents were. There have been several cases on the issue of capacity which like jurisdiction goes to the root of the case. In the case of DUCH VRS YORKWAH 1992/1993 1GBR 278establishedtheprinciple that nomatterthemerits of thecaseof thesuitor failure to prove his capacity should rock the very foundation of his action. It is therefore the positionofthelawthatifaplaintifflackscapacityandisfoundbyatrialcourt,the meritsofthe case should not be considered as the proper parties to the suit are not before the court…” The lawisthatitiserroneousforthecourttogointothemeritsforthecasewhentheproperpartyis notbeforethecourt.Iturntoparagraphs10and11whichstatesasfollows:- 10. During the era of nana Adu Boahen II sold out the disputed plot numbered 89/90 to Hilda Owusu Asieduandthetransactionwasreducedintowritingintheformofanindenture(Marked/exhibitDO) 11.That upon presentation of the indenture to Nana Adu Boahen II the new chief. He issued the new owner, Hilda Owusu Asiedu with a new site plan which bore the name Hilda Owusus Asiedu which borethenameHildaOwusuAsiedumarked(ExhibitHOA” Applying the principles, it is obvious that the disputed land which the plaintiff claims belongs tohimdidnotbearhisnameTheplaintiffnamedone,GeorginaOwusuBoatenginwhosename thedocumentswerewasnotcalled.AgaintheindenturewhichisExhibitB alsoborethename of Georgina Owusua and signed by Hilda Owusu Asiedu and Georgina Owusu. What’s more theplaintiff’s evidenceapartfromlackingcapacity,was alsoa completedeparturefromhisohe issuesofjwnpleadings. On the grounds of want of capacity which goes to the issue of jurisdiction, I hereby dismiss the plaintiff’sclaim.Inconformitywiththeprincipleslaid onwantofcapacity,Iwillnotdelveinto thedefendant’scase. CostofGh3,000.00infavourofthedefenants. ……………SGD…………………… HHRosemarieAfuaAsante(Mrs) CircuitCourt JUABEN-ASHANTI