TAWIAH & ANOTHER VRS ADEVU & ANOTHER (A1/17/2022) [2024] GHACC 37 (30 January 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON TUESDAY THE 30TH DAY OF JANUARY, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. A1/17/2022 KWABENA TAWIAH & ANOR PLAINTIFFS VRS VINCENT ADEVU & ANOR DEFENDANTS PLAINTIFFS’ ATTORNEY PRESENT DEFENDANTS ABSENT LINDA DANKYI HOLDING THE BRIEF OF A.G. BOADU FOR PLAINTIFFS PRESENT PRINCE ERNEST ASARE BOTCHWAY HOLDING THE BRIEF OF PAUL OPOKU PRESENT JUDGMENT Plaintiffs, suing per their lawful Attorney Kwakwo Appiah, filed a writ of summons and statement of claim on 15th June 2022 to claim for a declaration against 1st defendant that; a. The defendant is a squatter on plaintiffs’ land b. Perpetual injunction restraining the defendant, his agents, servants and assigns from entering plaintiffs’ land c. Damages for trespass d. Recovery of possession 1st defendant, by a statement of defence filed on 28th September 2022, denies the assertions of plaintiffs without the filing of any counterclaim. 2nd defendant, who was subsequently joined to the suit, also contends that the plaintiffs are not entitled to any of their claims at all. 2nd defendant’s statement of defence was filed on 13th January, 2023, also without a counterclaim. Plaintiffs filed a reply on 5th October, 2022 and 16th January, 2023 to the statements of defence filed by the 1st and 2nd defendants respectively. 1 PLAINTIFFS’ CASE Plaintiffs’ case is that they are the assignees of the land in dispute and that by an indenture made on the 10th of March, 2004 between Malik Mohammed and plaintiffs, the land was assigned to them. By a lease dated 15th December, 1987 indexed as No. AR/2373/88 stamped as No. LVB 3998/88 and registered as No. 1414/1989 and made between Nii Quarshie Solomon, Head and Lawful representative of Onamrokor Adain Family of Accra (therein described as ‘The Lessor’) of the one part and the Assignor herein (Malik Mohammed) (therein described as ‘The Lessee’) of the other part, the property therein described was demised unto the said Assignor for the term of 99 years from the 15th day of December, 1987 at the yearly rent of ¢1000.00 subject to the performance and observance of the covenants and conditions contained. According to plaintiffs, the defendants have without their consent and authority entered the land and have occupied the land, despite the warning and protestations from the plaintiffs. Plaintiffs aver that they have processed their indenture at the Lands Commission and also obtained Land Certificate. The land in dispute is described by plaintiffs as land situate and lying and being at DOM-ACCRA and bounded on the North East by proposed road measuring 70 feet more or less on the South East by Assignor’s Land measuring 70 feet more or less on the South West by Assignor’s Land measuring 70 feet more or less on the North West By Assignor’s Land measuring 70 feet more or less and containing an approximate area of 0.11 acre more or less. In plaintiffs’ reply filed on 5th October, 2022, plaintiffs state that 2nd defendant has no authority to dispose of or grant a license of plaintiffs’ land to anybody and that 2nd defendant has no right to collect rent of the plaintiffs’ property since 2nd defendant has not been appointed by the plaintiffs to represent them in regard to dealing with their property. Further, 2nd defendant’s letters of administration is defective because the first son of Alhaji Issaka Iddrisu with another woman, whose name is Malik Iddrisu, is not included and that the applicants misled the court in obtaining the letters of administration. 2 Plaintiffs, in their further reply filed on 16th January 2023, in response to 2nd defendant’s statement of defence, maintain their position as assignees of the land, evidenced by the indenture dated 10th March, 2004 between Malik Mohammed and plaintiffs. Plaintiffs aver that the letters of administration of the 2nd defendant was obtained by fraud. The particulars of fraud are that 2nd defendant misled the court when it left out Malik Iddrisu of Alajo who is the first son and also the first child of the late Alhaji Issaka Iddrisu with his first wife. DEFENDANTS’ CASE Defendants on the other hand, deny the allegations of fact stated in plaintiffs’ statement of claim. 1st defendant avers that sometime in 2014 he approached Hajia Amina Cobblah, the wife of the late Alhaji Issaka Iddrisu for the grant of a license to use a portion of her late husband’s land to run a mechanic shop. 1st defendant says that Hajia Amina Cobblah granted him permission to use the land to run his mechanic shop, upon the payment of some rent which was agreed between the parties. Following this, he commenced the running of the mechanic shop on the land and paid rent to Hajia Amina Cobblah, which rent was adjusted from time to time. Thus, he is a licensee on the land, whose licensor also doubles as one of the Administrators of the Estate of her late husband. 1st defendant avers that the land is the property of the late Alhaji Issaka Iddrisu and not that of plaintiffs and for that matter, plaintiffs are not entitled to their claim. 2nd defendant avers that any purported grant of the land to plaintiffs is fraudulent as neither the true owner nor his Estate made any such grant to plaintiffs. According to 2nd defendant, the land was acquired by the late Alhaji Issaka Iddrisu in 1987 and indeed upon acquisition he directed his grantor, the Onamrokor Adain family to prepare documents evidencing the grant in the name of Malik Mohammed. 2nd defendant shall contend that the late Alhaji, an Estate developer in his life time, had the penchant of acquiring land using pseudonyms in documentation but made sure he possessed same to establish his true ownership. Thus, any person who appears as Malik Mohammed other than the Estate and or Administrator of the late Alhaji Issaka Iddrisu to purport to make any such grant of the subject land to the plaintiffs as the Assignor is an imposter and for that matter the said grant is void ab initio. Further, the subject land is part of land maintained by the late Alhaji Issaka Iddrisu after he had granted a portion of adjourning land to the plaintiffs, who are ordinarily resident in Germany. 3 2nd defendant also states that Alhaji in his lifetime maintained his possession of the land by permitting the 1st defendant and other licensees to operate their activities as mechanics on the land and they duly atoned tenancy to him without any protestation from the plaintiffs and or any persons or at all. That, after the death of Alhaji Issaka Iddrisu, his Estate had continued with the possession and recoverable rents from the licensees on the land and had same shared amongst the beneficiaries of the Estate. 2nd defendant says that sometime in 2019 and before the Islamic Clerics at the AHLUSSUNNA WAL-JAMA’A the Estate of Alhaji came up for determination in accordance with Islamic law and practice whereupon a family member claimed the estate owes her certain sums of money. On the basis of this claim, it was agreed that the subject land shall be disposed of to pay the indebtedness, which has been done. ISSUES FOR DETERMINATION The issues for determination as adopted by the Court on 17th February, 2023, based on the issues filed by plaintiffs and additional issues filed by defendants, are as follows: i. Whether or not plaintiffs are the assignees of the land in dispute? ii. Whether or not the defendant has without the consent and authority of the plaintiffs entered the land? iii. Whether or not the transaction between plaintiffs and their Assignor is evidenced in writing? iv. Whether or not the land the subject matter of this action was the property of the late Alhaji Issaka? v. Whether or not the said land was acquired by the late Alhaji Issaka in the name of Malik Mohammed? vi. Whether or not the late Alhaji Issaka granted a portion of the land to the plaintiffs? BURDEN OF PROOF Sections 10 (1) of the Evidence Act, 1975, (Act 323) provides the burden of persuasion as “…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 11 (1) further defines the burden of producing evidence as “…the obligation of 4 a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Further, per Section 14 of Act 323, “Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Thus, the basic principle in the law of evidence is that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim. This has been the guiding principle in deciding civil cases, a recent case to this effect being ARYEE V SHELL GHANA LTD & FRAGA OIL LTD (2017- 2020) SCGLR 721. In this regard, per the claims of plaintiffs, they have a burden to discharge to adduce sufficient evidence on the issues raised to avoid a ruling against them. The standard of the burden is one of preponderance of probabilities, as provided in Sections 11(4) and 12 (1) of Act 323. (See BISI & OTHERS V TABIRI ALIAS ASARE [1987-1988] 1 GLR 360 at page 361. Irrespective of the above, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt (Section 13 (1) of NRCD 323). EVIDENCE ADDUCED EVIDENCE OF PLAINTIFFS Plaintiffs called two witnesses in the matter, Malik Iddrisu and Kwadwo Appiah At the close of Plaintiffs’ testimony, the following documents were tendered; i. Power of Attorney dated 23rd February 2022 - Exhibit ‘A’ ii. An Indenture of an Assignment made the 10th day of March 2004 between Malik Mohammed and Kwabena-Tawiah and Adwoa-Osaa- Exhibit ‘B’ iii. Land Certificate in the name of Kwabena-Tawian and Adwoa-Osaa- Exhibit ‘C’ EVIDENCE OF DEFENDANTS 1st and 2nd defendants testified by themselves. 1st defendant’s evidence is basically that he is a licensee of Hajia Amina Cobblah and therefore neither a squatter nor a trespasser. 2nd defendant testified as the lawful attorney of the administrators of the Estate of the late Alhaji Iddrisu Issaka. The essence of 2nd defendant’s evidence is that the only portion of the land that was granted to plaintiffs by his 5 father is where plaintiffs have constructed their property and not the entire land. At the close of 2nd defendants’ testimony, the following documents were tendered; i. A copy of the Letters of Administration granted by the Court- Exhibit ‘1’ ii. A copy of the Power of Attorney evidencing 2nd defendant’s authority- Exhibit ‘2’ iii. A copy of the indenture of plaintiffs which recites the fact of 2nd defendant’s father’s acquisition of the land in 1987-Exhibit ‘3’ iv. A search conducted at the Lands Commission in the year 2021 which reveals the plotted interest of the plaintiffs as allocated to them by Alhaji- Exhibit ‘4’ v. A copy of the complaint form lodged by Malik Iddrisu at AHLUSSUNNA WAL-JAMA’A on 28th July, 2021-Exhibit ‘5’ vi. A copy of the report of the AHLUSSUNNA WAL-JAMA’A findings- Exhibit ‘6’ vii. A report dated 11th April 2022 from the Property Fraud Unit of the Criminal Investigation Department, Headquarters- Exhibit ‘7’ Upon completion of hearing, Counsel for plaintiffs filed his written address on 21st November, 2023, which has been considered in this judgment. ASSESSMENT OF THE EVIDENCE AND THE LAW Prior to addressing the issues as adopted by the Court, it would be worthwhile to address the capacity of plaintiffs to institute this action, which came up during the cross-examination of plaintiffs’ second witness. The issue of capacity was not raised during the early stages of the proceedings. Neither was it raised as one of the issues for trial. This notwithstanding, the Court needs to address it since it came up succinctly during trial and has been addressed by Counsel for plaintiffs. “The law is trite that capacity is a fundamental and crucial matter that affects the very root of a suit and for that matter, it can be raised at any time even after judgment on appeal. The issue is so fundamental that when it is raised at an early stage of the proceedings a court mindful of doing justice ought to determine that issue before further proceedings are taken to determine the merits of the case. NII KPOBI TETTEY TSURU III, SFA LIMITED AND FODAS ESTATES LTD vs. AGRIC CATTLE, SANTEO MANTSE, KATAMANSO MANTSE, NII ODAIFIO WELENTSE AND LAKESIDE ESTATES LTD [2020] DLSC 8742. 6 Plaintiffs instituted this action as Kwabena Tawiah & Adwoa Tawiah, suing per their lawful Attorney Kwakwo Appiah of House No. GN 42 KOFI AMPIM ST GE-332- 2304. In the witness statement filed by plaintiffs’ second witness on 27th February 2023, the witness introduces himself as Kwadwo Appiah and as the Attorney of the plaintiffs, per Exhibit ‘A’. He is the same person who filed Exhibits ‘B’ and ‘C’ in Court. Per the Power of Attorney, that is Exhibit ‘A’, Kwabena Tawiah appoints and authorizes Kwakwo Appiah and Eliasu Issaka; “1. To stand in my stead to give evidence on my behalf in the case between me and KWAKWO APPIAH and ELIASU ISSAKA. 2. To do any other act necessary for the execution of the power so granted.” Per Exhibit ‘A’ then, the donee of the Power of Attorney is Kwakwo Appiah and not Kwadwo Appiah. Further, the Power of Attorney was given by Kwabena Tawiah to Kwakwo Appiah and Eliasu Issaka to give evidence on his behalf in the case between him and Kwakwo Appiah and Eliasu Issaka, which is obviously not this case. It may be helpful to refer to the cross-examination of plaintiffs’ second witness in this regard, as follows; “Q: What do you say your name is again? A: Kwadwo Appiah my Lord Q: And you claimed to have been empowered by Kwadwo and Adwoa Tawiah to give this evidence? A: Yes my Lord Q: And you claim your source of authority is Exhibit ‘A’. Not so? A: Yes my Lord Q: Can you read? A: No my Lord Q: The power was given to Kwakwo Appiah. Are you Kwakwo Appiah? A: No my Lord Q: Per Exhibit ‘A’, which you said is your power, Kwabena Tawiah is saying that he is empowering Kwakwo Appiah to give evidence in a case he has in Court himself against Kwakwo Appiah and Eliasu Issaka. A: My Lord the only answer I can give is that it would be a typographical error. The name is Kwadwo Appiah. Q: I am suggesting to you that by this document, Kwabena Tawiah has not empowered anybody to give evidence in a case he has 7 against Vincent Adevu and Zrufao Iddrisu A: My Lord, I don’t know about that.” It will also be relevant at this point to remind ourselves of what a power of attorney is; “A power of attorney is an instrument granted by a donor to the donee to represent him or act as his agent…An ordinary power of attorney confers power on the donee to act as an agent of the donor and the extent of the power is determined by the instrument. …The special power of attorney confers power on the donee to do a specific thing”1 Juxtaposing the donee of the power and the specific purpose for which it was given, it is apparent that no power has been given to Kwadwo Appiah to testify in this case. The ‘typographical error’ that the second witness seems to suggest to the Court in respect of both the donee and purpose of the power is not tenable. Accepting the Power of Attorney in this case would mean accepting same for a donee and purpose not authorised by the instrument. I have taken time to read the case of A.G. BOADU & 7 OTHERS V THE REGISTRAR & OTHERS in suit no. H1/004/2021, a judgment of the Court of Appeal dated 28th January, 2021 which was graciously attached by Counsel for plaintiffs to his address. Unfortunately, this case has not helped the Court to address the situation at hand. Thus, although Exhibit ‘A’ was admitted by the Court without any objection, it is hereby rejected as inadmissible, based on section 8 of the Evidence Act, 1975 (NRCD 323). There is the need to further discuss the fact that plaintiffs instituted this action as Kwabena Tawiah & Adwoa Tawiah, suing per their lawful Attorney Kwakwo Appiah of House No. GN 42 KOFI AMPIM ST GE-332-2304. Having noted earlier that Exhibit ‘A’, only empowers Kwakwo Appiah to give evidence in a case he has in Court himself against Kwakwo Appiah and Eliasu Issaka, what then happens to the instant suit? 1 Dennis Dominic Adjei, Land Law, Practice and Conveyancing in Ghana, Third Edition, (Buck Press, 2021 at pages 556 to 557) 8 The question of capacity in initiating proceedings is very fundamental and can have disastrous effect on a case. As further stated by Dotse JSC in FOSUA AND ADU POKU V ADU POKU MENSAH [2009] SCGLR 310, ‘want of capacity is a point of law, which if raised goes to the root of the action’. “Thus, having earlier rejected Exhibit ‘A’, it is hereby expunged on the basis of not conveying any authority to the said Attorney to institute this action. Exhibit A being the document on which plaintiffs’ attorney obviously relied on to institute this action, it follows automatically that the foundation on which the action is based has collapsed for want of capacity and therefore no action can be based upon it.”(See HUSEINI V MORU [2013-2014] 1 SCGLR 363) In effect, plaintiffs’ case is struck out for want of capacity. There is, therefore, no need to discuss the issues adopted by the Court. I award cost of GH¢3000.00 in favour of defendants. Her Honour Mawusi Bedjrah Circuit Judge 9