Agyeman v Aban and Another (A11/101/22) [2025] GHADC 170 (10 April 2025)

IN THE DISTRICT COURT (1), MADINA, CORAM HER WORSHIP ROSEMARY ABENA GYIMAH HELD ON THURSDAY THE 10TH DAY OF APRIL 2025. SUIT NO: A11/101/22 CHARLES OSEI AGYEMAN …. PLAINTIFF House No. Madina VRS. 1. DIANA KORKOR ABAN …. DEFENDANTS 2. ABOAGYEWAA ABAN OKU All of Osu Alata …………………..……………………………………………………………………………… JUDGMENT ………………...……………………………………………………………………………… As the saying goes, dead men do not talk. Little wonder, the authorities have urged us to be circumspect in evaluating evidence against the dead. In Moses v Anane [1989-90] 2 GLR 694, the Court of Appeal stated as follows; “..a claim against a deceased’s estate must be scrutinised with utmost suspicion. Proof must be strict and utterly convincing as one of the protagonists was dead and could not assert his claim” The Plaintiff in this matter claims the Defendants’ deceased father sold the property subject matter of this dispute to him sometime before his death. The Defendants have resisted this claim and have maintained that at all material times, the Plaintiff was a 1 tenant in their father’s house and their deceased father was in possession of the property; subject matter of dispute, before his death and after his death they have maintained possession of the property. The Case of the Plaintiff By a writ of summons and statement of claim filed on 7 September 2022 the Plaintiff claimed that in March 2005, the Defendants’ deceased father (hereinafter simply called “Mr. Abbam Tettey”) approached him that he was selling his land measuring 0.13 of an acre and lying at Madina (“property in dispute”) for an amount of Eighty Million Cedis (old Cedis) now Eight Thousand Ghana Cedis (GHs8,000.00). The Plaintiff further claimed that after paying the said Eighty Million Cedis (old Cedis) to Mr. Abbam Tetteh, he executed an indenture covering the property in dispute and advised him to go to the Lands Commission for the registration of the land. The Plaintiff averred that whilst he was in the process of registering the land he also started developing the land by putting structures on the land and no one including Mr. Abbam Tetteh challenged him. The Plaintiff further averred that he was waiting to obtain his Land Title Certificate from the Lands Commission when the Defendants reported him to the Madina police that he was a caretaker of the Mr. Abbam Tetteh land and had taken advantage of his demise to develop the land. The Plaintiff claimed the police asked him to stop the development of the land and seek redress in Court, however the Defendants have taken over the structures he built and are busily changing the face of the structures he had put up on the land. The Case of the Defendants 2 The Defendants put up a spirited defence to the Plaintiff’s claim. The Defendants averred that Mr Abbam Tetteh purchased the property; subject matter of dispute, from Nii Anyetei Kwakwranya II and put up single rooms on the land for rent. The Defendants further averred that the Plaintiff was Mr. Abbam Tetteh’s tenant and since their father; Mr. Abbam Tetteh lived at Osu and the property was in Madina, Mr. Abbam Tetteh designated the Plaintiff as a caretaker of the said property. The Defendants stated that the Plaintiff usually collects rent from the other tenants in the property and renders accounts to Mr. Abbam Tetteh at Osu. The Defendants denied the claim by Plaintiff that he put up structures on the property subject matter of dispute and stated further that the Plaintiff could not have put any structures on the land subject matter of dispute during the lifetime of Mr. Abbam Tetteh. In the state of pleadings, the Plaintiff is asking this Court for; (a) A declaration of title to a piece or parcel of land lying and situate at Madina in the Greater Accra Region of Ghana described as covering an approximate area of 0.13 Acres more or less and bounded on the North by the Lessor’s land, measuring 78 feet, more or less, on the South by the Lessor’s land measuring 75 feet more or less, on the East by the Lessor’s land, measuring 75 feet more or less, the said piece or parcel of land is more particularly delineated on the attached site plan edged pink. (b) Recovery of possession thereof (c) An order of injunction to restrain the Defendants, their agents, allies, servants, privies and any person (s) claiming through them from any dealing with the land till the final determination of the matter herein. (d) General damages for trespass and delay in the Plaintiffs’ use of the land. (e) Cost (f) Any other orders as the Honourable Court may deem fit to make. There was no counterclaim on the part of the Defendants. 3 I shall therefore move to evaluate the evidence adduced in support of the pleadings. The evidential burden and the burden of persuasion are settled law and therefore there will be no need in extensive regurgitation of the principles except to say that each party has a burden to adduce sufficient and cogent evidence to establish his or her pleadings and to prevent a ruling on against him or her. The Plaintiff filed a witness statement of 19 December 2022. At paragraph 4 of the witness statement, the Plaintiff deposed that on 16 March 2005 he acquired the property, subject matter of dispute from Mr. Abam Tettey for a consideration of Eighty Million Cedis (old cedis). The Plaintiff attached Exhibit A to prove the acquisition. Exhibit A is a statutory declaration by the Plaintiff, Charles Osei Agyeman not Mr. Abam Tettey. More importantly, Exhibit A is not a transfer deed neither is it a receipt for payment for the property subject matter of dispute. Exhibit A is a statutory declaration by the Plaintiff that he has given Eighty Million Cedis (old cedis) (c80,000,000.00) to Mr. Abam Tettey and he has in his custody a land document as collateral. Paragraph 5 of the statutory declaration says that; “That I and Abam Tettey have a memorandum of understanding (Attached to the indenture) to forfeit the said land in case of failure to pay back the loan over the period agreed for repayment” It is instructive to note that Mr Abam Tettey did not sign this statutory declaration. What is really the effect of Exhibit A? Quite apart from the fact that Exhibit A is self- serving as it was not executed by Mr. Abam Tettey, Exhibit A simply says that the Plaintiff says he has given Mr. Abam Tettey a loan and Mr. Abam Tettey had deposited his land documents with him as collateral. What were the terms of the loan? When was Mr. Abam Tettey supposed to pay back and how much was he supposed to pay back? Exhibit A does not say. 4 From Exhibit A, is this Court able to tell whether Mr. Abam Tettey took a loan of Eighty Million Cedis (old Cedis) now Eight Thousand Ghana Cedis (GHs8,000.00) from the Plaintiff? The answer is no. More importantly, nowhere in the Plaintiff’s pleadings did he allege that Mr. Abam Tettey took a loan from him and when Mr. Abam Tettey failed to pay, he took over Mr. Abam Tettey’s property which he had used as collateral. The Plaintiff was very clear that he acquired the property from Mr. Abam Tettey for Eighty Million Cedis (old Cedis) now Eight Thousand Ghana Cedis (GHs8,000.00). Exhibit A does not establish that and therefore does not support the Plaintiff’s case. Before I proceed, let me state for our learning that a credit or loan agreement that provides for a security interest or collateral is regulated under the Borrowers and Lenders Act, 2020 (Act 1052). The practice of giving out loans and the mere taking of the borrower’s land document as collateral has no legal effect as the mere taking of the borrower’s property documents and keeping same does not translate into a collateral. For a collateral or a security interest in property to be binding, the credit agreement that creates a security interest in property shall be executed in writing, and the credit agreement shall consist of one or more tangible documents or electronic records which, taken together, establish the intent of the parties. Also, despite Section 22 of Act 1052, a security interest created by a credit agreement, is effective between the parties to the agreement without registration under Act 1052, but the right of the lender to enforce the security interest is subject to the rights of any other lender or person entitled to priority under Act 1052. Again, the description of an immovable property which serves as collateral under a credit or loan agreement shall be specific and include the location, the size, and the geographical coordinates of the immovable property. See Sections 5, 6 and 8(4) of Borrowers and Lenders Act, 2020 (Act 1052) I proceed with the evaluation of the Plaintiff’s evidence. 5 The Plaintiff tendered Exhibit B which is an indenture between Mr Abam Tettey and the Plaintiff. Exhibit B on the cover page is dated 16 March 2005. There are two (2) site plans attached to Exhibit B, one dated 25 September 2020 and the other dated 11 March 2011. Even though the oath of proof is dated 2009, when it went before the Registrar of the High Court to stamp it, he corrected the date to 14 June 2010. It is also common knowledge that the site plan attached to an indenture is usually procured before the indenture is prepared as it is the site plan that will give the dimensions of the land that is described in the indenture. However, the site plans attached to Exhibit B outdate the indenture. When Exhibit B was subjected to cross-examination on 4 June 2024 and 8 August 2024, the Plaintiff could not proffer any proper explanation to the lapses in his document except to say he is an illiterate and asked the commissioner of oath to prepare the proper documents for him. Perhaps he will have a cause of action against the commissioner of oath for preparing the wrong documents for him if that were the case. The Plaintiff under cross examination for the first time says the loan was for three (3) months, a loan he did not mention in his pleadings, how did Mr. Abam Tettey transfer his interest in the property subject matter of dispute to him the very day, Exhibit A, the statutory declaration, was executed when Mr. Abam Tettey had not defaulted on the purported loan?. I find that both Exhibit A and Exhibit B are tainted with fraud and this Court will not accept them against a dead man. The Plaintiff did not produce any documentary evidence or call any other witness to give evidence to corroborate his claim that he constructed a number of rooms on the property, subject matter of dispute and rented them out. He could have called some of the workers who constructed the building, he could have called some of the tenants and/or even neighbours to corroborate his story however he chose to repeat his averment on oath. In Kofi Sarpong v Franklin Adubobi Jantuah [2016] DSLC 2877, the Supreme Court stated as follows; 6 “it is the position of the Law, My Lords, that where a legal duty is put on a party to introduce sufficient pieces of evidence at trial to ensure a finding of fact in that party’s favour the party cannot achieve this, by merely mounting the witness box either by himself or through and/or with his witnesses to merely repeat to the Honourable Court, the party’s averments as claimed or pleaded” One Okomfo Botwe Dowona testified on behalf of the Defendants. She tendered Mr. Abam Tettey’s lease to the property. She also tendered pictures of the buildings on the property, subject matter in dispute. It is not in doubt and the Plaintiff does not deny that the Defendants are in possession of the property, subject matter of dispute. The settled principle of law is that possession is nine-tenth of the law and possession is good against the whole world except a person with a better title. In Papa Gyimah Genfi v Dr. J. K. Acquaye [2014] DLCA 2958, the Court of Appeal stated the principle as follows; “It is this presumption which supports the age old principle that possession is nine tenth of the law and that the one in possession of land is presumed to be the owner of the land and can be displaced only by someone with a better title.” Has the Plaintiff in this Court established that he has a better title to the land from the analysis of the evidence produced in this case?, certainly not. Based on the pleadings, the evidence adduced in this Court and on the laws enunciated supra, on the preponderance of probabilities, the Plaintiff has not made out a proper case for a grant of his reliefs. I therefore dismiss Plaintiff’s claim in its entirety and I award cost of Twenty Five Thousand Ghana Cedis (GHs 25,000.00) against the Plaintiff. SGD 7 H/W ROSEMARY ABENA GYIMAH 8