AGYEMANG VRS. ACKOM AND ANOTHER (A1/06/23) [2024] GHACC 347 (2 December 2024)

IN THE CIRCUIT COURT-JUABEN-ASHANTI BEFORE HH ROSEMARIE AFUA ASANTE (MRS) HELD ON MONDAY 2ND DECEMBER 2024 SUIT NO. A1/06/23 AKWASI AGYEMANG PLAINTIFF VRS KWAKU ACKOM (DECEASED) DEFENDANTS KWAME NKANSAH JUDGMENT The plaintiff filed a writ of summons and a statement of claim jointly and severally against the defendants for the following reliefs: 1. Declaration of ownership of title and recovery of possession of plot No.89/9- situate sand lying at Atia sharing boundary with the property of Nana Adu Boahen II and Yeboah. 2. Perpetual injunction restraining the defendants, their agents , assigns and or any person or persons claiming through the defendants from dealing with the said land. The plaintiff’s case 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 and it is upon this announcement that he presented his allocation note to the Odikro who issued 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 to trespass on the land in spite of several warnings . The Defendant’s Case 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 that the 2nd defendant is the customary successor of Nana Sarpong Kuma Ankuma and therefore the plaintiff is not entitled to his claim. Issue(s) to be determined At the application for direction stage the issues adopted for trial were as follows: 1. whether or not the defendant have trespassed onto the plaintiff’s land. Burden of proof The standard of proof in civil cases has been set out under section 10 of the Evidence Act 323 which is that , “For the purposes of this decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” Section 12(1) of the Act also states, “Except as otherwise provided by the law, the burden of persuasion requires proof of preponderance of probabilities.” The plaintiff therefore bears the burden to prove his case on the preponderance of probabilities. The plaintiff in his witness statement claims that the plot number in dispute which is plot 89/90 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 another allocation note as well as a site plan. The law on declaration of title is for the plaintiff to 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 plaintiff to explain why. During cross examination, the plaintiff was cross examined as follows:- “Q: Can you tell the court why none of the documentd bears your name? A: At the time I was going to acquire this plot from Nana Owusus Kobi my grantor, I called my niece Georgina Owusu Boateng and indicated to her I was going to use her name on the document that will be processed by my grantor which she agreed. Q: So you agree with me that on the fat of the document Georgina Owusu Boateng is on the document do you agree? A:Yes.” The law on pleadings is very essential to the evidence that a party profers in court. The plaintiff in his pleadings at paragraphs 4 and 5 states how he acquired the land as follows: 4. The plaintiff avers that on 17th September 2003 , he acquired a building plot numbered 89/90 from his grantor , Nana Ofosu Kwabi Odikoro of Atia 5.Plaintiff repeats paragraphs 4 supra and states that his grantor issued him with an allocation note bearing his (Plaintiff’s name) . 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. Surprisingly neither did the plaintiff call Georgina Owusu nor did the plaintiff have a power of attorney issued to him to speak on behalf of Georgina Owusu thereby questioning plaintiff’s capacity to speak on a document bearing the name on a property he claimed belonged to him. This raises the issue of capacity which the court can raise suo motu. the plaintiff claimed that he 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 1 GBR 278 established the principle that no matter the merits of the case of the suitor failure to prove his capacity should rock the very foundation of his action. It is therefore the position of the law that if a plaintiff lacks capacity and is found by a trial court, the merits of the case should not be considered as the proper parties to the suit are not before the court…” The law is that it is erroneous for the court to go into the merits for the case when the proper party is not before the court. I turn to paragraphs 10 and 11 which states as follows:- 10. During the era of nana Adu Boahen II sold out the disputed plot numbered 89/90 to Hilda Owusu Asiedu and the transaction was reduced into writing in the form of an indenture (Marked /exhibit DO) 11.That upon presentation of the indenture to Nana Adu Boahen II the new chief. He issued the new owner, Hilda Owusus Asiedu with a new site plan which bore the name Hilda Owusus Asiedu which bore the name Hilda Owusu Asiedu marked (Exhibit HOA” Applying the principles, it is obvious that the disputed land which the plaintiff claims belongs to him did not bear his name The plaintiff named one, Georgina Owusu Boateng in whose name the documents were was not called . Again the indenture which is Exhibit B also bore the name of Georgina Owusua and signed by Hilda Owusu Asiedu and Georgina Owusu. What’s more the plaintiff’s evidence apart from lacking capacity, was also a complete departure from his ohe issues of jwn pleadings. On the grounds of want of capacity which goes to the issue of jurisdiction, I hereby dismiss the plaintiff’s claim. In conformity with the principles laid on want of capacity, I will not delve into the defendant’s case. Cost of Gh3,000 .00 in favour of the defenants. ……………SGD…………………… HH Rosemarie Afua Asante (Mrs) Circuit Court JUABEN-ASHANTI