Rocky v Kwao and Others (A11/05/23) [2025] GHADC 105 (16 May 2025)

CORAM: IN THE ASOFAN DISTRICT COURT HELD ON THE 16TH MAY, 2025 BEFORE HER WORSHIP NANCY TEIKO SEARYOH (MRS.) SITTING AS MAGISTRATE SUIT NO. A11/05/23 NICHOLAS ROCKY PLAINTIFF VRS. 1. LYDIA KWAO 2. MRS. ROSE FOSUA MENSAH 3. VICTOR KWAO DEFENDANTS ---------------------------------------------------------------------------------------------------- J U D G E M E N T ---------------------------------------------------------------------------------------------------- By an Amended Writ of Summons filed on the 14th September, 2023, Plaintiff prayed for the following reliefs; a) An order that the Plaintiff and second Defendant are the Administrators of the Estate of the late Leticia Ama Quao (Deceased). b) An order directed at Defendants to cease from interfering with the Estate of Leticia Ama Quao (Deceased) until the Estate is vested in the beneficiaries. c) An order directed at the Defendants to sell the Land to Nana Amoako and no one else. d) Any further order(s) as the Honourable Court may deem fit. FACTS OF THE CASE AS PRESENTED BY THE PLAINTIFF Page 1 of 16 The Plaintiff stated that he is a retired civil servant who worked at the Ga West Municipal Assembly and a resident of New Achimota near Accra. Whilst the first Defendant is a secretary and lives at Kwabenya, the second Defendant is a trader and lives at Dome near Atomic Junction. The third Defendant is a teacher and lives at Mile 7 near Achimota. The Defendants are siblings. Plaintiff stated that in or about 2013, the first, and second Defendants approached him to seek his assistance to ward off trespassers on the parcel of Land owned by their late mother and he agreed to their request. In the course of assisting them, the Defendants decided to sell the Land and so he found a buyer by name Nana Amoako for them. He stated that the said Nana Amoako conducted a search at the Lands Commission, the result of which confirmed that the Land was registered in the name of the late Leticia Ama Quao, the Defendants mother. To assist the Parties ward off the trespassers, it was agreed between the Parties and Nana Amoako for Nana Amoako to advance to them some amounts of money to cover the expenses to ward off trespassers. Following the discussions, Nana Amoako gave GH¢100,000.00 to the Parties to enable them ward off all trespassers particularly one Ohene referred to as old soldier. They again agreed that after warding off all the trespassers, he would negotiate the purchase price with the Defendants and pay for the Land. He again stated that the said Ohene @ Old Soldier had unlawfully sold the Land to Collins Agyemang and Peter Agyemang which investigation revealed had commenced the registration of the land at the Lands Commission, Accra. He said that part of the Hundred Thousand Cedis (GH¢100,000.00) was used for the process of warding off the trespassers thus paying security men to guard the Land, transportation as well as facilitating police patrol teams to the Land to arrest trespassers on the Land. He stated that he also used part of the money to stop the registration of the Land by the said Collins and Peter Agyemang Page 2 of 16 and that the said Nana Amoako was the one who led him to the Lands Commission to obtain a certified true copy of the indenture covering the Land and that after he and the third Defendant had reported the trespass to the Ofankor Police, the Mile 7 Police and finally the Property Fraud Unit at the Police Headquarters, they were advised at all these places to obtain Letters of Administration to give them capacity to pursue the matter. And so the two of them applied to the Amasaman District Court in suit No. A7/75/19 for the Letters of Administration. While they were waiting for the Letters of Administration to be issued after its grant he noticed that the Defendants were attempting to sell the Land to one Patrick Yeboah who started the construction of a fence wall around the Land. He reported the matter to the Ofankor Police and investigations led to the fact that the first and second Defendants had sold the Land at his blind side and that of the third Defendant as well. He stated finally that unless the Court intervenes the Defendants will not fulfill the agreement the Parties had with Nana Amoako. The Defendants in their Amended Statement of Defence filed denied each and every allegation of fact contained in the Plaintiff’s Statement of Claim. In their Amended Statement of Defence they stated that the said Nana Amoako is not known to them and therefore they had not received money from him. They averred that the Plaintiff did not disclose or spend any money on their mother’s property. It was their case that their mother acquired the said property lying and situate at Ofankor in her lifetime and let out the said Land to mechanics to work on same but they have vacated the Land as at now. They stated that the Plaintiff was only requested to find a buyer for the property which he never did. Page 3 of 16 They again averred that the first and second Defendants requested the Plaintiff to assist them procure Letters of Administration as he had a better knowledge of the law. They further stated that the Plaintiff prepared the said application by himself without involving them. The second Defendant averred that she was misled by the Plaintiff to endorse the application form which she obliged in trust that the Plaintiff had no intention to join himself to the said application and was of the view that she was the only applicant until he sued them in respect of their mother’s property. The Defendants stated that they had other siblings who were not listed on the application. They again said that the Plaintiff has no capacity to apply for the Letters of Administration and fraudulently portrayed himself as Head of Family. They stated that, the Plaintiff having the intention to steal their Land left for them by their late mother fraudulently added his name to the said application for Letters of Administration without their consent. They pleaded and particularized fraud as follows; a) That the Plaintiff not being a member of the Agbagli family to which the deceased belonged yet deposed to an affidavit to be the Head of Family of the deceased in suit No. A7/75/19. b) The Plaintiff impersonated the truthful Family Head of the Defendants. c) That the Plaintiff is intermeddling with the Estate of Leticia Ama Quao even though he has no interest in same. d) The Plaintiff misleading the Court to be the Family Head of the deceased being the mother of the Defendants. e) The Plaintiff not being a beneficiary of the Estate of Leticia Ama Quao nevertheless added his name to the application for Letters of Administration. f) The Plaintiff attempting to sell the Land which forms part of the Estate of Leticia Ama Quao without the consent of the Defendants. They also counterclaimed as follows; Page 4 of 16 i. A declaration that the Plaintiff is not a member of the Quao Agbagli family of Aflao in the Volta Region. ii. A declaration that the Plaintiff is not the Head of Family of Leticia Ama Quao deceased who is a member of the Quao Agbagli family of Aflao in the Volta Region of Ghana. iii. An order directed at the Plaintiff to desist from portraying himself as the Head of Family of Leticia Ama Quao. iv. An order striking out the name of the Plaintiff from the Letters of Administration granted in suit No A7/75/19 for fraud. v. An order nullifying the grant of the said Letters of Administration for the beneficiaries since Plaintiff not being a member of the deceased family perpetrated fraud in acquiring same. vi. An order directed at Plaintiff to produce both funeral brochure and the poster of Leticia Ama Quao. vii. Perpetual injunction directed at the Plaintiff, his agents, assigns, officers, heirs successors not to have anything to do with the Land in contention together with the entire Estate of Leticia Ama Quao. viii. Costs ix. Any other reliefs the Honourable Court deems fit. In his reply and defence to Counterclaim the Plaintiff joined issues with the Defendants on the Statement of Defence. He also denied each and every allegation of facts made by the Defendants and stated that he never misled the second Defendant to sign the Letters of Administration because she is educated and prayed the Court that the Defendants are not entitled to their counterclaim. Page 5 of 16 PROCEDURE FOR TRIAL The Court referred Parties to the Court Connected ADR to enable Parties attempt settlement. Parties returned to Court as settlement broke down. At the close of pleadings the Court ordered Parties to file their Witness Statements for trial to commence. Parties complied with the orders and went through full trial. The Plaintiff testified himself and called one witness whilst all the Defendants testified and called two witnesses in support of their case. Both Parties were represented by Legal Counsel. In addition to their Witness Statements and viva vocae evidence the Plaintiff tendered; ➢ Exhibit A series - Search document, Site Plan, Search results. ➢ Exhibit B – Indenture (land title documents) ➢ Exhibit C series – Application for Letters of Administration, Notice of next of kin etc. Whilst the Defendants also tendered; ➢ Exhibit 1 – Payment slip for search ➢ Exhibit 1(a) – Search results ➢ Exhibit 1(b) – Site Plan ➢ Exhibit 2 – Payment slip for search with search fees paid stamp ➢ Exhibit 2(a) – Search results ➢ Exhibit 3 – Application for letters of administration. ➢ Exhibit 4 – Receipt of land with site plan ➢ Exhibit 5 – Indenture ➢ Exhibit 6 – Photograph of land ➢ Exhibit 7 – proceedings of Amasaman District Court dated 7/08/2019. Page 6 of 16 At the close of hearing, from the pleadings of the Parties, their respective Witness Statement and cross-examination of the Parties, the issue that arose for determination by this Court are; 1. Whether or not the said Letters of Administration was acquired fraudulently. 2. Whether or not there was an agreement between Parties and the said Nana Amoako for him to advance some money to ward off trespassers. This being a civil suit, the standard of proof required by a party who makes assertions, which are denied is one on a balance of probabilities. This therefore requires a party making assertions to adduce such evidence in proof of the assertions, such that the court is convinced that the existence of the facts he or she asserts are more probable than their non-existence. See section 11(1) and (4) of the Evidence Act (NRCD 323). See also Bisi v. Tabiri alias Asare [1987 – 1988] 1 GLR 360. In explaining the principles relating to the duty to produce evidence, the learned Jurist Maxwell Opoku Agyemang states at page 105 of his book, Law of Evidence in Ghana stated thus “The general rule is that all facts in issue or relevant to the issue in a given case must be proved, in other word he who avers must prove. This may be done through testimonial evidence, hearsay statements, documentary evidence, or production of real evidence. If in a moment of forgetfulness, the claimant or prosecutor fails to prove an essential fact, his opponent may well succeed on a submission that there is no case to answer although the evidence was really available”. I shall now proceed to examine the evidence adduced in support of the Plaintiff’s case and will relate same in the contest of the standard of proof I have already set out in this Judgement. Page 7 of 16 On the first issue of whether or not the said Letters of Administration was acquired by fraud. It is the case of the Defendants that the said Letters of Administration granted in suit No. A7/75/19 was acquired by fraud. It is trite learning that the Court frowns on Judgements obtained by fraud and are therefore quick to set it aside once the fraud is proven. In Dzotepe v. Hahormene II [1987 – 88] 2 GLR 681 Taylor and Abban JSC stated as follows: “Judgement obtained by fraud should never be permitted in Ghana to operate as an estoppel once the fraud was exposed in a court of competent jurisdiction because a fraudulent judgement was a nullity. A judgement of court, if obtained by fraud, if allowed to be operative, which that fraud was discovered would be tantamount to judicial encouragement for merchants of corrupt dealings to continue to peddle their corrupt machinations” See also Osei Ansong & Passion v. Ghana Airports Company Ltd [2013 – 2014] SCGLR 25 It is trite law that fraud vitiates all dealings; thus in the case of Nana Asumadu II (dcd) and Nana Quam IV (dcd) v. Agya Ameyaw [2019] DLSC 6295, Apau JSC stated as follows; “In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a criminal wrong. Fraud be it civil or criminal has one connotation. It connotes the intentional misrepresentation or concealment of an important fact which the victim is meant to rely and infact does rely to harm the victim. It is clothed in civil gabs”. In the case of Osei Ansong and Pasion International School v. Ghana Airports Company Ltd [2013-2014] SCGLR 25 the court stated Page 8 of 16 “There is no denying that a judgement or order obtained by fraud is in the eyes of the court no judgement, as it is not founded on the intrinsic merits of the case but is borne out of an attempt to overreach the courts by deceit and falsehood”. If a party alleges fraud, at least there should be prima facie evidence on the face of the records to connect same. There is no time bound to issue a writ to set aside an order which is void or was fraudulently obtained. See Republic v. High Court (Fast Track Division) Accra Ex-parte Speedline Stevedoring Company Ltd (Dolphyne Interested party) [2007-2008] 1 SCGLR 102. Also the Plaintiff’s pleadings must contain specific particulars of the fraud including the nature of the false representations, thus vague allegations of fraud are not sufficient. See Republic v. High Court, Accra Ex-parte Aryeetey [2003-2005] GRL 537. Misrepresentation is defined in Osborn Concise Law Dictionary Eighth Edition “A representation that is untrue, a statement or conduct which conveys a false or wrong impression. A false or fraudulent misrepresentation is one made with knowledge of its falsehood and intended to deceive……” The Black Law Dictionary Seventh Edition page 67, fraud is defined as “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”. In Section 13 (1) of the Evidence Act 1975 (NRCD 323) states as follows “In a civil or a criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. In this case, the Defendants stated several grounds of fraud in their particulars but… (1) That the Plaintiff not being a member of the Agbagli family to which the deceased belonged yet deposed to an affidavit to be the Head of Family. Page 9 of 16 It is the Defendants case that Plaintiff is not their family member but was only contacted to assist them find a buyer which he failed to do. During cross-examination of the Plaintiff by the Counsel for the Defendants, this is what ensued at page 18 of the records of proceedings: Q: Do you know the name of the Defendant’s family head. A: No my Lady. Q: But you agree with me that the Defendants have their own family head. A: I am not aware. Q: I suggest to you that the Defendants family head is called David Kwasi Ankapong Gray. A: I do not know him. Q: So you agree with me that you are neither a member of the Defendants family nor their head. A: No my Lady. They further went on at page 22 of the records Q: You agree with me that you endorsed an affidavit as an applicant and another affidavit as the Head of Family of the deceased person in support of the Letters of Administration is that so. A: Yes my Lady. Page 10 of 16 Q: On Exhibit ‘C’ you added your name as one of the applicants for the grant of Letters of Administration in respect of the Estate of Leticia Ama Quao. A: Yes, the Defendants allowed me to do everything on their behalf. Q: I put it to you that since you are neither a family member nor the Head of Family of the Defendants that is why you do not know that Leticia Ama Quao gave birth to five children all alive. A: The Defendants did not introduce the others to me but the three of them asked me to take care of the Land and sell it on their behalf. At page 12 of same records this is what ensued. Q: Give the name of your hometown to the Court. A: I come from Wli in the Volta Region. Q: Have you heard the name Leticia Ama Quao. A: Yes my Lady. Q: How did you get to know the said name? A: I got to know her through Rose and Lydia. Q: Did you know Leticia Ama Quao personally? Page 11 of 16 A: No my Lady. To further prove that the Plaintiff was not their Family Head, the Defendants brought the current head of their mother’s family to Court to testify on their behalf. Mr. David Kwasi Ankapong Gray testified that he is the current Head of Family of the Agbagli Family of Aflao in the Volta Region of Ghana and that the late Leticia Ama Quao gave birth to the Defendants, one Denise Kusi and Andrews Quao who are all alive. He further testified that he did not know the Plaintiff in the suit but only met him for the first when he accompanied the Defendants to Court. He again stated that at the time of applying for the said Letters of Administration the then Head of their Family was called Christian Agbagli (deceased) and that it was based on the misrepresentation of the Plaintiff as the Family Head that convinced the Court to grant the said Letters of Administration. He lastly stated that the Plaintiff has no interest in the Estate of Leticia Ama Quao (deceased). The Court through Exhibits ‘C6’ and ‘C7’ has observed the roles played by the first and second Defendants in perpetrating fraud on the District Court, Amasaman gleaning through the Exhibit ‘C’ series, the Court observed that it was the first and second Defendants who presented and confirmed the Plaintiff to the Court as their Family Head and also beneficiary of their mother’s Estates. And therefore, they assisted the Plaintiff to perpetrate fraud on the Amasaman District Court. All these go to prove that the Plaintiff is not the Head of Family of the deceased Leticia Ama Quao and neither is he a member of the Agbagli family to which she belonged to but yet deposed to an affidavit per the Exhibit ‘C’ series to be the Head of Family of the deceased. By so doing, the Plaintiff misrepresented to the Court that he is the true Family Page 12 of 16 Head of the Defendants and that he misled the Court to grant the said application for Letters of Administration, Exhibit ‘C8’ based on the false affidavit he swore to and presented to Court. Consequently, the Court hereby holds that the said Letters of Administration was acquired fraudulently. In relation to the second issue as to whether or not there was an agreement between Parties and the said Nana Amoako for him to advance some money to ward off trespassers. This is what ensued during cross-examination of Plaintiff. Q: I put it to you that there is no written or oral agreement between Nana Amoako for the sale of their mother’s land. A: No, there is no agreement It is the case of the Plaintiff the Defendants had an agreement with Nana Amoako to advance an amount of GH¢100,000.00 to ward off the trespassers on the Land and that after clearing the Land they would later sit down together to negotiate the price of the Land. With this, the Plaintiff just gave oral evidence but failed to prove to the Court that there was indeed such agreement between the Parties and Nana Amoako, the one who wanted to buy the Land. In fact the Defendants denied knowing the said Nana Amoako let alone having any dealings or business with him nor receiving money from him. There was also no evidence to show that the Parties in this suit indeed received an amount of Hundred Thousand Ghana Cedis (GH¢100,000.00) from Nana Amoako per the said Amoako. Thus as held in the case of Klah vrs. Phoenix Insurance Company Ltd (2012] SCGLR 1139 “Where a party makes an averment capable of proof in some positive was and his averment is denied he does not prove it by merely going into the witness box and Page 13 of 16 repeating that averment on Oath. He proves it by producing evidence from which the Court can satisfy itself that what he avers is true”. It was also the Plaintiff’s claim that he used the money he received from the said Nana Amoako to clear the Land, or ward of the trespassers but a photograph of the Land tendered by the Defendants as Exhibit ‘6’ which the Plaintiff did not object to shows that there are still encroachers (containers) on the Land. Again the Plaintiff failed to call any of the people he mentioned in his Witness Statement and pleadings as witnesses. Thus the said Nana Amoako himself, any of the said Police Officers at the Ofankor Police Station, the Asafo group or the Police Patrol team to support this testimony and prove his claim. Upon evaluating the total evidence adduced by the Parties, the Court found as a matter of facts as follows; 1. That the Plaintiff is not a member of the Quao Agbagli family of Aflao and neither is he the Head of Family of the said family to which the deceased belonged and yet deposed to an affidavit to be the Head of Family. 2. That the Plaintiff together with the first and second Defendants, Lydia Kwao and Mrs. Rose Fosua Mensah perpetuated fraud on the Court when they with the Plaintiff applied for Letters of Administration from the Court and presented the Plaintiff as the Head of Family of their mother’s family knowing very well that it was false. 3. That there was no agreement between Defendants to the suit and the said Nana Amoako, for him to advance money to ward off trespassers. Accordingly, the Court holds as follows; Page 14 of 16 That the Plaintiff’s claim has failed in its entirety and hereby grants the Counterclaim of the Defendants as follows: a) That the Court hereby declares that the Plaintiff is not a member of the Quao Agbagli family of Aflao in the Volta Region. b) The Court hereby declares that the Plaintiff Nicholas Rocky is not the Head of Family of Agbagli family of Aflao. c) That the Plaintiff Nicholas Rocky is hereby restrained from portraying himself as the Head of Family of Leticia Ama Quao. d) The Court hereby nullifies or sets aside the Letters of Administration granted on the 26th August, 2019 in suit No. A/75/19 to Nicholas Rocky and Rose Fosua Mensah as Family Head and daughter of the deceased. e) The Court hereby perpetually restrains the Plaintiff, his agents, assigns, officers, heirs, successors from having anything to do with entire Estate of Leticia Ama Quao. f) In awarding cost, the Court has considered the role played by both sides to perpetrate fraud on the Amasaman District Court and have come to the conclusion that the Parties are to bear their own costs. (SGD) H/W NANCY TEIKO SEARYOH (MRS) (MAGISTRATE) Page 15 of 16 PLAINTIFF PRESENT 1ST DEFENDANT ABSENT REPRESENTED BY 3RD DEFENDANT 2ND AND 3RD DEFENDANTS PRESENT FRANK K. NIKOI ESQ FOR THE PLAINTIFF PRESENT ERNEST AHENKORAH ESQ FOR THE DEFENDANTS PRESENT Page 16 of 16