DOMPERE VRS ACHEMPONG AND 9 OTHERS (A1/11/2023) [2024] GHACC 248 (7 May 2024)

IN THE CIRCUIT COURT HELD AT KUMAWU-ASHANTI ON TUESDAY THE 7TH DAY OF MAY, 2024 BEFORE HIS HONOUR JONATHAN ODARTEY, CIRCUIT COURT JUDGE. SUIT NO. A1/11/2023 PAULINA DOMPERE V. OHENEBA OTUO ACHEMPONG PHILIP KODUA SANAAHENE OKYEAME KODUA KOFI AMANFO KWADWO AGYEMAN BADOO AKWESI ADJEI KWAME OWUSU JOSEPH ABENA OWUSUAA CHRISTIANA OSEI DONKOR JUDGMENT The Plaintiff through her attorney commenced this action before this court on 1st March, 2023 seeking the following reliefs on the endorsement on her writ of summons: 1. Declaration that the plaintiff is the rightful owner of the property described in paragraph five which is 4 acres of land that shares common boundaries with KUMAWU STOOL LANDS AND THE MAIN ROAD leading to BODOMASE TOWNSHIP of Kumawu in the Ashanti Region. 2. Declaration that the plaintiff is entitled described as 4 acres of land Page 1 of 9 3. Recovery of plaintiff’s respective property 4. Declaration that any purported sale of the disputed land by the first four defendants to the other 5 defendants be declared null and void and of no legal effect 5. Perpetual injunction restraining the defendants their assigns, agents, workmen, privies, labourers, servants and any person or persons working under the injuncted from working on the disputed land 6. Special damages for trespass on the plaintiff’s land 7. Cost The Defendants in response to these claims filed in their statement of defence on 14th day of March, 2023 denied the plaintiff’s claims saying that during the 4th Defendant’s tenure as the chairman of the allocation committee never allocated the disputed land to the plaintiff, Issues for trial The following issues were therefor set down for trial by this court 1. Whether or not the plaintiff acquired the said land from the late Nana Asumadu Sakyi II the then Omanhene of Kumawu? 2. Whether or not the plaintiff has documents to the land and well signed by then chief Nana Asumadu Sakyi II and witnessed by some of the plots allocation committee members i.e. The 3rd Defendant? 3. Whether or not the plaintiff has documents to the land and other necessary documents? 4. Whether or not the current chief of Kumawu knew that the land in contention has been given to plaintiff by the later Nana Asumadu Sakyi II? 5. Whether or not the land in contention is 4 acres described on the site plan 6. And any other relevant issues raised by the pleadings? Page 2 of 9 The Court adopted all the issues above on 14th January 2024 as the issues for determination in the matter. After the applications for directions, the parties were directed to file their witness statements. The Plaintiff and the Defendants testified on the basis of their respective witness statements. The Case of the Plaintiff On the endorsed writ of summons and statement of claim, the plaintiff through her attorney claimed that on the month of January, 2003, the plaintiff purchased 4 acres of land from the late Omanhene of Kumawu Barima Asumadu Sakyi II and was asked that the land be used for a hospital. An instrument by way of indenture was prepared for the plaintiff and signed by her grantors after all the necessary consideration has been fulfilled by the plaintiff. Plaintiff subsequently travelled to the United States to look for investors to assist her put up the hospital on the disputed land. Upon her return to Kumawu the first four defendants have demarcated the disputed land and sold them to the 5th,6th,7th,8th,9th and 10th Defendants who have started developing the said disputed land. In an attempt by the plaintiff to settle the matter, the current plot allocation committee chairman who at that time of the sale of the disputed land was not the committee chairman has been able to convince the current Omanhene of Kumawu to sign allocation papers for the six defendants. The plot allocation committee chairman has made it clear to the plaintiff that the current Omanhene of Kumawu is new and did not sell the disputed land to the plaintiff which made the investors who came with the plaintiff returned to the United States. Plaintiff therefore informs the court that she has the original documents by way of indenture and site plan prepared and signed by her grantor the then Omanhene of Kumawu the late Barima Asumadu Sakyi II in respect of the disputed land purchased in 2003. Page 3 of 9 The Case of the Defendant The Defendant in their statement of defence informed the court that the disputed land was not granted to the plaintiff by the then Kumawu Omanhene Nana Asumadyu Sakyi II as claimed by the plaintiff. Their argument was that the late chief couldn’t have granted the disputed land to the plaintiff without an allocation paper and that the indenture did not emanated from the Kumawu stool. Further to this, the defendants through their submission contested the validity of the power of attorney saying that the donor was out of the jurisdiction when the Power of Attorney was executed. The Defendants also raised another issue of basic inconsistencies with regards to the number of acres claimed by the plaintiff. In one version through the witnesses its five acres and on the endorsed writ it is five acres. Analysis of issues The court then took the issues set down for trial one after the other and applied the fact to the law in determining the dispute. To start with, the issue of the contestation of the power of attorney by the defendant the court had this to say. In as much as issues of power of attorney in the determination of capacity is germane in matters before our courts, they must be addressed ab initio for the court to come to a determination. From the records counsel for the defendants in his submission made remarks between the last time the Donor was in the jurisdiction visa vi when the power of attorney was executed copiously quoting section 1 of the power of Attorney Act, Act 549. From the evidence on record the power of attorney was signed by the Donor on 14th March, 2023 and in the evidence given by PW1 it was to the effect that the last time the plaintiff was in the jurisdiction was about three years ago. This information by PW1 is inconsistent with the information on the power of attorney as regards the date the power of attorney was executed. It was incumbent then on counsel for the defendants to challenge the Page 4 of 9 authenticity or otherwise of the signature of the Doner, which he failed to do so. The burden of prove was on the one who alleges. It is trite that by law a claimant’s duty to establish and prove his claim, remains inviolate, whether or not the case is defended by the defendant and the claimant is expected to succeed on the strength of his own case and not the weakness of the defence. The court will now dwell on the issues for determination of the dispute one after the other. Whether or not the plaintiff acquired the said land from the late Nana Asumadu Sakyi II the then Omanhene of Kumawu The burden of proving a fact by a preponderance of the probabilities is the standard burden imposed in civil actions. Proof beyond a reasonable doubt is the degree of proof generally required of the prosecution in criminal actions. The matter is put beyond controversy when one compares the wording of subsections (3) and (4) of section 11. Section 11(3) of NRCD 323 provides that: "In a criminal action" the burden of producing evidence by the accused is discharged when he produces "sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt." In contrast, section 11(4) provides that "In other circumstances (which must patently be construed as in civil actions) the burden of producing evidence requires the production of sufficient evidence "so that on all the evidence a reasonable jury could conclude that the existence of the fact was more probable than its non-existence." It is the case of the Plaintiff that the late Nana Asumadu Sakyi II executed an indenture covering the land for her on 1st day of January 2003. The Plaintiff tendered the said indenture in proof of her title. In the Defendants’ Statement of Defence, they claimed the Page 5 of 9 land in dispute forms part of the Kumawu stool land however it has not been granted to the Plaintiff as she claims. The Defendants on record never fundamentally denied the interest and title of the Plaintiff’s grantor in the land and unequivocally averred at paragraph 9 that “… the late chief will not sign a document like this without the knowledge of then the allocation committee that is to wit, nemo dat quod non habet”. The above pleadings undoubtedly did not challenge the validity of the title of the Plaintiff’s grantor, the late Nana Asumadu Sakyi II to alienate the land to the Plaintiff but rather wanted to make the court believe that there was no allocation paper and as such the said indenture as tendered by the plaintiff is not coming from the late chief. Therefore, the issue is about whether the late chief executed an indenture for the Plaintiff or not. In the wisdom of this court, It is about whether the late chief had title to lawfully alienate same. Since the title of the Plaintiff’s grantor was not challenged, the Plaintiff had no duty to prove that his grantor had title to the land the subject matter of this suit before he could grant same. The signature of the late chief as conspicuously seen on the instrument has also not been challenged by the defendants. The late chief who was the allodial owner of the land therefore ought to have maintain the records of lands properly given out to grantees by the stool to be able to leap above this hurdle. The Supreme Court in the case of Salomey Shorme Tetteh & Nii Amon Tafo v. Mary Korkor Hayford Substituted By Stella Larbi & Comfort Decker (infra) decided: “There is an obligation on a grantor, lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest so conveyed to any grantee or lessee …”. The second and the third issues were addressed together by the court and they were to the effect that: Page 6 of 9 a. Whether or not the plaintiff has documents to the land and well signed by then chief Nana Asumadu Sakyi II and witnessed by some of the plots allocation committee members ie. The 3rd Defendant. b. Whether or not the plaintiff has documents to the land and other necessary documents? It is the law that a grantor of land can only give out land which he owns. In the case of The Registered Trustees of the Catholic Church, Achimota Accra v. Buildaf & 2 Others [2015] DLSC 3234, per Benin JSC decided: “That is the law that only the owner of land can give away title to a third person.” See also the cases of Edith v. Keelson [2012] 37 MLRG 127 at holding (2) per Dotse JSC; Benyak Co. Ltd v. Paytell Ltd & Ors. [2013-2014] 2 SCGLR 976 at page 989 & Numo Adjei Kwanko II v. Lebanon Society & 2 Ors. [2016] DLSC 2786, per Ansah JSC. It is simple logic that if a person can only give what he has, it follows that if the Plaintiff’s grantor’s title has been found unreliable, there is no way the Plaintiff can rely on it. Our elders believe that “If you put your ladder against the wrong wall, you end up falling”. Per the evidence on record there is an instrument executed by the then grantor of the stool which has not been denied by the defendants. There’s is enough evidence on record that the plaintiff has an instrument ably executed by the late chief of Kumawu which the signature has not been challenged by the Defendants and that the Plaintiff’s title will have no foundation to rest on. An Asian-Indian proverb goes, “You cannot build a house without digging a pit. In view of the above principle, the Court finds that the Plaintiff acquired good title from the Kumawu stool. The Supreme Court speaking per Adinyira JSC in the recent case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 held: “It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and iii) various acts Page 7 of 9 of possession exercised over the land …, this could be done with an instrument such as this indenture and produced by the Plaintiff. Awuku v. Tetteh [2011] 1 SCGLR 366”. The evidence led by the Plaintiff to establish her claim was reliable in this circumstance. Again the court will hurriedly address the inconsistencies in the number of acres as submitted by the defendants. There were some inconsistencies in the plaintiff’s case as claimed by the defendants with regards to the number of acres during the trial. A court may overlook minor, insignificant and trivial inconsistencies. This is because the citation on the instrument as executed by the late chief of Kumawu was five acres and that is what will be relied on this is because the signatures of the grantors have not been challenged by the Defendants. A Filipino proverb says, “Not all that is black is charcoal”. In the case of Muriel Vaughn – Williams (Per her lawful attorney, Mrs. Alice Acquaye) v. B. K. Oppong (Substituted by Mrs Cecilia Oppong) (2015) 84 GMJ 171, Adinyira JSC at page 183 held: “As a court we must not dwell upon insignificant or non-critical inconsistencies to deny justice to a party who has substantially discharged her burden of persuasion” In Adisa Boya v. Zenabu Mohammed (Substituted by Adama Mohammed) and Mujeeb, supra, Gbadegbe JSC also decided: “We do not think that mere insignificant inconsistencies in the presentation of a truthful case would operate to deprive it of the quality of proof that would result in a court preferring a case planked on fraud”. See the cases of Effisah v. Ansah (2005-06) SC GLR 943 at holding (6); Sarkodie v. FKA Co. Ltd. [2009] SCGLR 65 at page 71 and Fosua v. Dufie [2008-2009] 2 GLR 1 at 25. The last but not the least of the issues was the claim for damages as a result of trespass and cost. The court will put the two issues together. From the above fact and the law the 5th 6th, 7th,8th ,9th and the 10th Defendants have indeed trespassed on the disputed land as a result of the decisions of the first four defendants. Conclusion Page 8 of 9 From the forgone analysis the decision of the court is as follows 1. That the said number of acres of land as described on the indenture dated 1st January 2003 is declared as the property of the plaintiff as per the agreement on the indenture between the then chief of the Kumawu stool and the plaintiff. 2. The defendants and their assigns are perpetually restrained from dealing with the land in question. 3. No damages awarded for the trespass, however cost of four thousand is awarded against the 1st, 2nd, 3rd and the 4th Defendants. SGD H/H JONATHAN ODARTEY CIRCUIT COURT JUDGE Page 9 of 9