Agyeman and Another v Agyekum (A1/30/18) [2025] GHADC 197 (19 March 2025)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA, ON WEDNESDAY, THE 19TH DAY OF MARCH, 2025, BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO: A1/30/18 1. KOFI BOACHIE AGYEMAN PLAINTIFFS 2. JOYCE APPIAH SUING PER THEIR LAWFUL ATTORNEY SETH AMOAKO VRS GEORGE AGYEKUM DEFENDANT PARTIES: LAWFUL ATTORNEY OF PLAINTIFFS IS ABSENT BUT REPRESENTED BY ERIC ASIRIFI DEFENDANT IS PRESENT LEGAL REPRESENTATION: DAVID SEBASTIAN DAMOAH FOR DEFENDANT JUDGMENT The plaintiffs suing per their lawful attorney issued a writ of summons at the registry of this court on 13th July 2018 for the following reliefs; 1. Declaration and recovery of possession to title of land situate and lying at a place commonly known and called Aplaku identified as LOT 16 sharing boundaries with a hostel building on the left side, a building of an old woman on the right side, a building occupied by one Mr. Azumah at the back and street in front on Aplaku stool land. 2. An order for interim injunction restraining the defendant and all working through the defendant until the final determination of the suit. 3. Costs and any further orders as the Honourable Court may deem fit. The defendant upon service of the writ filed a statement of defence on 1st August 2018 and counterclaimed for the following reliefs; a. A declaration that the defendant is the legal owner of the land b. A declaration that the plaintiff are trespassers to the disputed land c. An order for recovery or in the alternative an order for plaintiffs to refund the sum of GHC45,000.00 that defendant paid in respect of the land with interests thereon from the date of payment to the date of final settlement. 1 | Page d. Perpetual injunction refraining the plaintiffs, their agents, assigns, privies, workmen, servants, customary successors and all those who claim through plaintiffs from interfering with defendant’s quiet enjoyment of the land e. Costs including attorney’s fees. On 14th August 2018, the plaintiff filed a reply to 1st defendant’s statement of defence and joined issues with the defendant. On 21st May 2020 when the case was called for trial, neither the lawful attorney of plaintiffs nor the plaintiffs were in court to prosecute their case and upon the prayer of counsel for the defendant, plaintiffs’ case was dismissed pursuant to Order 25 r 1(2) (b) of the District Court Rules 2009, (C.I. 59) which reads; Where an action is called for trial and a party fails to attend, the trial Magistrate may (b) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove his counterclaim if any. Defendant was allowed to prove his counterclaim. SUMMARY OF DEFENDANT’S CASE The Defendant’s case is that the land the subject matter of this dispute belongs to the Aplaku stool which stool is subservient to the Ngleshie Alata Stool of James Town in Accra. It is the further case of the defendant that sometime in the immediate past, the 1st plaintiff contacted one Kojo Brobbey to accompany one Eric Awotwe to see one Nii Kojo Ababio V the paramount chief of Ngleshie Alata for documents to be prepared for him to cover the disputed land. Defendant says that on the said day, Kojo Brobbery requested that he and one Jonas Appiah Kubi, the secretary to the Aplaku stool should accompany the delegation to see the paramount chief which request he acceded to. He pleaded that when they got to the chief’s palace, having heard their story, the chief charged Jonas Appiah Kubi to check with the acting chief of Aplaku and the surveyor to ascertain if the disputed land had already been allocated or granted to anybody. He added that the check revealed that the disputed land had not been granted to anybody including the plaintiffs. Subsequently, the chief requested the plaintiffs to furnish him with the receipt of payment for the land. In response to the request, defendant says Kojo Brobbey placed a call to the 1st plaintiff who stated that he had no such receipt and requested him to contact one Paa Nii for the said receipt. 2 | Page Defendant says that Kojo Brobbey placed several calls to the said Paa Nii to no avail and as a result, 1st plaintiff tasked Kojo Brobbery to proceed with the documentation. According to defendant, when it was reported to the paramount chief that plaintiffs did not have any receipt to cover the land, he decided to take possession of the land and ordered the plaintiffs not to step onto the land. He stated further that upon persistent plea with the chief, he decided to sell the land to the plaintiffs for the sum of GHC70,000.00 however parties eventually settled on the sum of GHC45,000.00 as the cost of the land. Thereafter, Kojo Brobbey called the 1st plaintiff to tell him about the decision of the paramount chief to sell the land to him at a cost of GHC45,000.00. Defendant stated that 1st plaintiff pleaded with Kojo Brobbey to pay the said sum for the procurement of the land documents however he informed the 1st plaintiff that he did not have the said amount. He pleaded further that 1st plaintiff then asked Kojo Brobbey to plead with him to provide the purchase price of GHC45,000.00 but he instead asked 1st plaintiff to call defendant directly on his phone. Defendant says that at the time, he had changed Fifteen Thousand United States dollars to be sent to 1st plaintiff to buy him a car. He agreed to pay the money on condition that the documentation is made in his name and after the money is refunded to him by the 1st plaintiff, he will in turn transfer the title deed into 1st plaintiff’s name which request was accepted by the 1st plaintiff. He accordingly made two instalment payments of GHC15,000.00 and GHC30,000.00. He tendered in evidence receipts of payments, land documents executed in his favour by Nii Nartey Aplaku Wulomo, the consent given by the paramount chief of Ngleshie Alata, a letter from the lands commission to the Town and Country Planning Officer of the Ga South Municipal Assembly, receipts of ground rent paid for the land and a search result conducted at the registry of the lands commission. Same were admitted in evidence and marked as Exhibits 1 and 1A, 2, 3, 4, 5 series and 6 respectively. He added that apart from the payment of the said sum of GHC45,000.00, he spent other monies such as processing fees at the Lands Commission as well as payment of ground rent. Defendant concluded that plaintiff’s Exhibit B was not executed by the grantors of the disputed land as the supposed signatures of the said grantors have been forged. He called Kojo Brobbey, Jonas Appiah Kubi the Aplaku Stool Secretary and Nii Tettey Mensah, the Head of Narteh Aplaku Family and acting Chief of Aplaku as DW1, DW2 and DW3 respectively. 3 | Page DW1 and DW2 corroborated the story of the defendant and indicated that they were present at the palace of Nii Kojo Ababio V together with one Eric Awotwe when 1st plaintiff agreed with defendant on speaker phone for defendant to pay the sum of GHC45,000.00 being the agreed purchase price of the land on his behalf to secure documentation to the land in dispute. According to them, it was agreed between the parties that the grantor of the disputed land, on receipt of payment of the sum of GHC45,000.00 for the land was to execute the land documents in the name of the defendant for same to be reverted back to 1st plaintiff when he refunds the said sum to defendant which agreement was accordingly complied with. DW3 also corroborated the story of the defendant to the effect that the signatures on plaintiff’s Exhibit B purported to be the signatures of Nii Tetteh Nartey the Wolomo and Acting Chief of Aplaku and himself are not their signatures. He however confirmed that defendant’s Exhibit 2 was signed by Nii Tetteh Nartey and witnessed by himself. ISSUES SET DOWN FOR DETERMINATION BY THE COURT The court set down the following issues for determination; 1. Whether or not the defendant and the 1st plaintiff entered into a binding oral agreement for the payment of the sum of GHC45,000.00 2. Whether or not 1st plaintiff is in breach of the said agreement 3. And if so whether or not defendant is entitled to his counterclaim BURDEN OF PROOF A party who asserts a positive fact is enjoined by law to adduce cogent and sufficient evidence in proof of his or her claim. Sections 10 and 11 of the Evidence Act, 1975 (NRCD 323) provides as follows; Section 10 – Burden of persuasion defined (1) For the purposes of this Act, 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. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact or (b) to establish the existence or non-existence of a fact by the preponderance of the probabilities or by proof beyond reasonable doubt. Section 11- Burden of producing evidence defined 4 | Page (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances, the burden of producing evidence requires a party to introduce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of a fact was more probable than its non-existence. In Adwubeng v Dumfeh [1996-97] SCGLR 660 at holding 3 of the headnotes, it was held as follows; “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323) (which came into force on 1 October 1979) have clearly provided that the standard of proof in all civil action was proof by preponderance of probabilities-no exceptions were made.” The burden of proof may shift from a party to the other during the trial depending on the issue asserted or denied. Section 14 of NRCD 323 provides; 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. With regard to the counterclaim of the defendant, it is trite that the defendant bears the same burden as a plaintiff in proving his counterclaim which is on the preponderance of probabilities as stated by the authorities cited supra. In Tetteh Ayaa Iddrisu v. Winfred Otuafro & Anor [2010] SCGLR 818, the Supreme court held as follows; “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of probabilities and will not win on that issue only because the original claim failed.” Ansah JSC in Joseph Akonu-Baffoe and 2 others v Lawrence Buaku and Another, Civil Appeal No. J4/6/2012 emphasized the position of the law on counterclaim as follows; “In essence, a defendant’s counterclaim is to be treated in the same way as the plaintiff’s case. The roles are reversed and the defendant as plaintiff in the counterclaim assumes the burden to prove his case.” EVALUATION OF THE EVIDENCE 5 | Page ISSUE ONE To resolve issue one, it is important to establish the relationship between the parties which culminated in the issue of whether or not a binding agreement was reached between them. From the evidence, I find that the plaintiffs who are friends of Kojo Brobbey (DW1) requested him to procure documentation to the land the subject matter of this dispute on their behalf. To facilitate the process, he contacted Jonas Appiah Kubi (DW2) the stool secretary of the Aplaku Stool. This fact was brought to the fore during cross examination of the stool secretary as follows; Q: How do you know the plaintiffs since you are the secretary to the Aplaku stool? A: I got to know them through Mr. Brobbey that is DW1. I do not know Mr. Boachie in person. I only know the wife in person. One day, Mr. Brobbey invited me to his house and over there I met one Eric Awotwe and a middle age lady was introduced to me as the wife of Kofi Boachie. At the time she had returned from the U.S.A and the purpose for my visit was that they wanted me to aid them to have acquisition documents covering their property at the time. Again, I find from the evidence that the fact that DW1, DW2, the defendant and Eric Awotwe the caretaker of the plaintiffs went to see the paramount chief of Ngleshie Alata on the instructions of the plaintiffs for documentation to the land the subject matter of this dispute was not in dispute as can be gleaned from the following exchanges; Q: In your witness statement, you have mentioned the name Eric Awotwe. Who is he? A: Mr. Kojo Brobbey, DW1 informed me that Eric Awotwe is the caretaker of Kofi Boachie in respect of the disputed land Q: Jonas why is it that when you were going to Nii Kojo Ababio V’s house, you went with Eric Awotwe? A: Because Mr. Kojo Brobbey invited him to accompany us to see Nii Kojo Ababio V Q: As the stool secretary of Aplaku, are you saying that you did not know why Eric Awotwe followed you to see Nii Kojo Ababio V? A: That is unknown to me because Mr. Kojo Brobbey told me they want genuine documents covering the disputed land and, in his view, I am the one who can aid them to obtain same. The reason for the said meeting was not farfetched. The evidence gathered from DW2 whilst he was being cross examined revealed that the stool had granted the land the subject matter of this dispute to one Paa Nii, an in law and elder of the stool who had 6 | Page purportedly sold the said land to the plaintiffs having failed to fulfil “indoor responsibilities” to get the names of the plaintiffs onto the records of the stool. This material evidence was not denied by the plaintiffs and therefore stood unchallenged. DW2 further explained how the request for the payment of the sum of GHC45,000.00 came about as follows; Q: Jonas, when you went to the palace, how much were you asked to pay for the land documents? A: We were to pay GHC70,000.00 and we pleaded and it came to GHC45,000.00 when we got there, we showed the chief the site plan of the land which bears the name of the plaintiff and his wife. He asked us how many plots there were and we said it was one plot. He stated that the plot was more than one. He also asked us to show proof of ownership that the land has been purchased which enabled us to come out of his inner hall outside to call the 1st plaintiff that the chief had requested for proof of sale of the land. He asked Mr. Kojo Brobbey to call Paa Nii and nothing came out of it. It was then that he asked defendant witness 1 and the defendant to plead with the chief and the plaintiff told defendant witness 1 to bear the cost but DW1 told him that his mother had passed on and he was to travel to his hometown for the funeral and that the one who has the money to help him is defendant. Then they entered into a contract that is plaintiff and the defendant to get the document prepared in the name of the plaintiff. It was then that the defendant stated that he will only assist him if he puts the document in his name and if he pays, he will then transfer it back to him. When we went back to the chief, defendant witness 1 said there is no proof of sale. That was when defendant paid it in 2 instalments and a new site plan was then prepared in the name of defendant and presented to the defendant. What the Aplaku stool is waiting for is for plaintiff to pay back the sums of money owed to defendant for the transfer of the document to be effected. This is what the plaintiffs are dodging from. Q: Do you want the court to believe that we are refusing to pay the sum of GHC45,000.00 to the defendant? I am putting it to you that the said communication that you claim transpired at the palace on phone is untrue. This is because there is no documentary evidence in support of these communications and there was no representation of the plaintiff present when the said communication transpired. A: It is true because at the time of going to the palace, I met the wife of the plaintiff in the house of Mr. Kojo Brobbey and she was in support of what we were going to do at the palace and the plaintiff Mr. Kofi Boachie was called on phone and it was speaker out when they were entering that agreement. 7 | Page From the information gathered from the exchanges cited supra, plaintiffs denied the purported agreement between 1st plaintiff and the defendant on the basis of lack of documentary evidence of the said agreement and absence of the care taker of plaintiffs at the said meeting. In my considered view, even though defendant has not shown any documentary proof of the agreement between him and 1st defendant, I have no reason to disbelieve the story of the defendant and his witnesses. This is because from the evidence, defendant and DW1 are all friends of the 1st plaintiff who had voluntarily gone to the palace of the paramount chief to pursue the interest of the plaintiffs which was to obtain documentation to plaintiffs’ land. If 1st plaintiff needed any witness to the oral agreement between him and the defendant, which better witness was available than his friend Kojo Brobbey (DW1) who was present at the said meeting on the instructions of 1st plaintiff? Again, if the intention of defendant was to take the disputed land from the plaintiffs, there was ample opportunity for him to do so especially when he had been told by the chief and the stool secretary that the names of the plaintiffs were not in the books of the Aplaku stool as owners of the disputed land. It is to be noted that the defendant and DW1 were not cross examined on their assertions as neither the plaintiffs nor their attorney was present in court when their witness statements were adopted as their evidence in chief and as a result, their testimonies stood unchallenged. In Takoradi Flour Mills v Samir [2002-2006] SCGLR 882 it was held as follows; “In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross examination and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led and must be accepted by the court.” Applying the law cited supra to the facts of this case, it is deemed that the facts deposed to in the witness statements of the defendant and DW1 have been admitted by the plaintiffs. From the totality of the evidence, I find that the 1st plaintiff entered into a binding oral agreement with the defendant to pay the sum of GHC45,000.00 on his behalf in the presence of DW1 and DW2 with the condition that the land documents be put in his name and same reverted back to the names of plaintiffs on refund of the said amount. I find from the evidence that 1st plaintiff has breached the said agreement as there is no evidence before this court to show that the said sum has been paid by him. 8 | Page Accordingly, I am satisfied that defendant has proved his counterclaim on the preponderance of the probabilities. Judgment is accordingly entered in favour of the defendant against the plaintiffs as follows; a. Plaintiffs are ordered to refund the sum of GHC45,000.00 to the defendant b. Plaintiffs are ordered to pay interests on the sum of GHC45,000.00 at the prevailing commercial bank rate from 24th August 2014 to the date of full and final settlement. c. That defendant is ordered to release the disputed land back to the plaintiffs on the payment of the said sum with interests. d. Costs of GHC10,000.00 is awarded in favour of defendant against the plaintiffs. ……………(SGD) …………………. H/W RUBY NTIRI OPOKU (MRS) DISTRICT MAGISTRATE 9 | Page 10 | Page