YEBOAH VRS. SULE (A11/05/2024) [2024] GHADC 566 (5 November 2024)

IN THE DISTRICT COURT HELD AT PRESTEA ON TUESDAY THE 5TH DAY OF NOVEMBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA, ESQ SITTING AS THE DISTRICT MAGISTRATE SUIT NO.: A11/05/2024 TIMOTHY ATTA YEBOAH (SUING FOR AND ON BEHALF OF OYOKO FAMILY AT EHYIRESO) OF EHYIRESO - PLAINTIFF VRS. MR. SULE @ PETER SULE OF EHYIRESO - DEFENDANT JUDGEMENT The Plaintiff sues for and on behalf of the Oyoko family by commencing this action for the following reliefs: 1. An order of the Honourable Court compelling Defendant to hand over to the Plaintiff the two (2) acres cocoa farm lying and situated at Ehyireso sharing common boundaries with Madam Nyaa and Akua Attobrah. 2. An order of the Honourable Court to set aside the purported sale of the cocoa farm between one Obo Yaw (Deceased) and the Defendant. 3. Perpetual injunction restraining the Defendant his assigns, privies, cohorts from having anything to do with the said farm after the final determination of the suit. 4. Punitive cost. 1 | P age A brief fact of the matter is that both parties reside in Ehyireso and that the land in dispute is a family land upon which one Numafo cultivated cocoa. After his demise the customary successor, Yaw Obour (deceased) took over and cultivated cocoa and ceded two acres to his wife Ama Mena. After the death of Yaw Obour, Plaintiff was appointed the Customary Successor and demanded to be given the family land from the children of the late Yaw Obour but one of the children Obo Yaw (also deceased) had disposed the two acres cocoa farm to the Defendant in this present suit for a consideration of GH₵6,000.00 without the consent and concurrence of the principle members of the family. All efforts to get the matter resolved with the Defendant has proved futile, hence the present action. Plaintiff in his witness statements filed on the 30/1/2024 stated that he succeeded Yaw Obour (Deceased), his senior brother as the customary successor. That Yaw Obour (Deceased) ceded portions of the cocoa farm to his wife with the concurrence of the elders of the family. It is the case of Plaintiff that after the death of Yaw Obour his wife Ama Mena approached him and stated that she is aware that the cocoa farm given her is a family property and prayed that she be allowed to cultivate same and reverted after her death which was agreed to. After the demise of Ama Mena Plaintiff summoned the children of his brother, Yaw Obour and it was undertaken that the children benefit from the proceeds of the farm. It was later revealed to him after three (3) years that Obo Yaw (Deceased) had sold the farm to the Defendant in this present suit. That Defendant was not cooperative when it was demanded from him a copy of the agreement of the sale, so also did Obo Yaw. Its further the case that he invited the Defendant after the death of Obo Yaw and in the presence of Sofo Suam and the four children of the late Yaw Obour to let it be known that the land was not the personal property of the late Yaw Obour. That he attempted to refund the GH₵6,000.00 after six years that Defendant had cultivated the disputed farm in the presence of Sofo Suam, Arko, Defendant and his father but Defendant requested to be paid GH₵10,000.00 which was subsequently rejected by the Defendant but rather wanted to be paid GH₵15,000.00. It is Plaintiff’s 2 | P age case that he chanced upon a copy of the agreement which is marked as Exhibit ‘A’ deposing to the fact that the land was sold for GH₵4,000.00. A careful scrutiny reveals that it is headed “Full payment receipt for the sale and transfer of one and half poles parcel of cocoa farm at Ehyireso near Bogoso”. It is further revealed that the cocoa farm was sold by Obo Yaw to Kesule Peter, the Defendant herein which shares boundary with Madam Akua, Attobrah, Mr. Amoako, Madam Nyaah and Mr. Tikwaah for a consideration of GH₵4,000.00. It was reveals in the document that the cocoa farm becomes the bona fide property of Peter and no member in or outside Obo Yaw’s family can lay claim. This was dated 7/12/2017 and witnessed for Obo Yaw as vendor by Kwame Boafo and Opae and for the vendee as Kesule Peter (Defendant) by Sofo Suame and Jeremiah. When cross examined by Defendant, Plaintiff stated that the cocoa was allegedly sold to Defendant 7 years ago but denied being present neither did he have knowledge of the sale. Plaintiff asserted that he informed Defendant that Obo Yaw stole the land and sold it to him when he got wind of the sale. Plaintiff claimed during cross examination that he is the customary successor after the death of Numafo and Yaw Obour (Obo Yaw’s father) and as such hold it in trust for the family. It came to the fore that Plaintiff informed Defendant to stop the cultivation until the matter is resolved and it’s instructive to quote “Q. You remember when I bought the cocoa farm in 2017 and cleared an uncultivated portion of the land you confronted me and informed that it is the cocoa farm that I bought but not the uncultivated land? A. It is true I confronted you on the land but I told you that you stop cultivating the uncultivated land until we settle the issue concerning the entire cocoa farm”. 3 | P age The response from the Plaintiff was not further controverted as to the claim of the Plaintiff and it lay credence to the fact that as at 2017 when the Defendant exhibited acts of possession Plaintiff took steps to caution him about the issue of ownership. PW1, one Adwoa Badu, the daughter of Yaw Obour testifying for Plaintiff stated that due to a fire that ravaged the cocoa farm her father gave portions of the land to her mother Ama Mena to cultivate to sustain herself, though not perpetually. That Plaintiff is the customary successor after her father’s death but he allowed her mother Ama Mena to cultivate the land until her demise. It is the assertion of PW1 that after their mother’s demise she together with Akua Kyekye, Kofi Ntim and Obo Yaw went and pleaded with Plaintiff to allow them to continue the cultivation of cocoa and when the family needed it back it is reverted to them to which Plaintiff agreed. According to PW1 after some time she was informed that her brother Obo Yaw has sold the cocoa farm in dispute to the Defendant and upon enquiry Obo Yaw (now Deceased) affirmed same and she communicated this to Plaintiff. It is the assertion of PW1 that Obo Yaw sold the cocoa farm that he doesn’t own but it’s owned by the Plaintiff and the family. When cross examined by Defendant, PW1 who is a sister to Obo Yaw (now Deceased) and Kofi Ntim indicated that she was not aware, as at then, of the sale of the cocoa farm, the property in dispute to Defendant. When PW2 filed his witness statement on 8/2/2024 he asserted that Plaintiff is his uncle who called him some time ago together with Defendant, his father and Sofo Suam. That it was made known at the meeting that the cocoa farm does not belong to Obo Yaw who sold it to the Defendant, as such has no right to dispose same. It is the case of PW2, Plaintiff offered to refund the GH₵6,000.00 to Defendant but the Defendant rather proposed to take GH₵10,000.00 as he claimed he took a loan from the bank as such interest would be charged. Further to his claim, PW2 stated that the following day in the company of PW2 and Sofo Suam and also one Opae proceeded to the Defendant’s place to pay the GH₵10,000.00 4 | P age demanded by Defendant but he refused and further claimed GH₵15,000.00. However when PW2 was called to be cross examined, Defendant declined the invitation and as such waived his right to cross examine PW2. Defendant filed his witness statement on the 30/1/2024 and stated that he knew the Plaintiff as an uncle of Obo Yaw (now Deceased), the person who sold the disputed cocoa farm to him. That he is a tenant farmer to Sofo Suam (DW1) and further share boundaries with Kofi Nti. It is the case of the Defendant that, Kofi Nti discussed with him to get someone to purchase or lease a cocoa farm measuring about one and half (1½) acres as they needed money to bury his brother, Obo Yaw’s wife. That he expressed interest and finally met with Kofi Nti and Obo Yaw and finalised the sale. That Sofo Suam (DW1) and Jeremiah Lambon (DW2) witnessed for Defendant as vendee and Kofi Ntim and Kwame Boafo and Opeah for Obo Yaw as vendor. It is the assertion of Defendant that mortgage was proposed for GH₵4,600.00 but it was however agreed to be sold at GH₵6,000.00 as consideration. To this, Defendant claimed he paid GH₵4,600.00 and later paid GH₵1,400.00 after the funeral of Obo Yaw’s wife. The GH₵1,400.00 was paid to Obo Yaw after the funeral and the document pertaining to the transfer was executed and it’s attached to his witness statement and marked as Exhibit ‘1’. The exhibit indicates a document of transfer of one and half poles of cocoa farm executed on the 7/12/2017 as indicated and described supra. Defendant admitted in his witness statement that in 2017 the year of the sale, Plaintiff approached him for a copy of the transfer deed but he directed him to Obo Yaw and Kofi Ntim. Its Defendant claim that it was after 6 years that Plaintiff approached him to refund the GH₵6,000.00 and reclaim the land but he rather proposed GH₵10,000.00 as the value of the currency has depreciated. It is the claim of Defendant that he informed Plaintiff that he had further expended GH₵5,000.00 on farm inputs and as such would settle for GH₵15,000.00 but rather received a Court summons. 5 | P age During cross examination Defendant corroborated the story that it was Obo Yaw and Kofi Ntim who sold the disputed cocoa farm to him but later realised that it was 1½ poles as not 2 poles. It was revealed that Obo Yaw (Deceased) represented to Defendant that he is the owner of the disputed cocoa farm. Defendant further admitted that Plaintiff approached him for a copy of the document of the said conveyance of the cocoa farm when he Plaintiff got wind of it. Defendant further admitted that though Obo Yaw wanted to pledge the disputed farm to him for a consideration of GH₵4,600.00 he did not agree, as such it was subsequently sold to him for GH₵6,000.0. Defendant stated that he gave Obo Yaw GH₵4,000.00 and later paid the balance of GH₵2,000.00 but when Plaintiff drew his attention to the fact that in his witness statement he indicated an initial payment of GH₵4,600.00, he said it was a slip of tongue. That the balance of GH₵1,400.00 was given to Sofo Suam, Jeremiah and Opae to be given to Obo Yaw but denied giving it personally to Obo Yaw. Defendant further indicated in Court that the transfer of ownership document was given him after he paid the initial GH₵4,600.00 but since he is an illiterate he did not know the amount stated in the document. Defendant insisted he paid GH₵6,000.00 for the cocoa farm and the witnesses when the transfer document was executed were Sofo Suam, Opae and Jeremiah. Defendant insisted that his witnesses were three (3) when two were suggested to him. When further suggested as to whether he knew Kwame Boafo, Defendant indicated otherwise. But when it was suggested to Defendant that because Kwame Boafo did not know about the transaction between Defendant and Obo Yaw, he did not sign it, Defendant indicated that Kwame Boafo was angry because he fell a tree which damaged the cocoa farm. It’s instructive to quote “Q. I want to put it to you that because Kwame Boafo did not know anything about the transaction between you and Obo Yaw he did not sign the document. 6 | P age A. Kwame Boafo refused to sign because he was angry with me because he fell trees to damage my cocoa farm and I questioned him”. The above interaction proved that the Defendant actually knew Kwame Boafo but in an earlier interaction he indicated in Court that he did not know him. This impugn on the credibility of the Defendant. Defendant admits that in 2023, Plaintiff made an attempt to refund an amount of GH₵6,000.00 for the cocoa but he proposed GH₵10,000.00 in addition to harvesting the cocoa for the season. Defendant further admits that Plaintiff followed up with the GH₵10,000.00 the following day but Defendant refused same since Plaintiff refused to allow him harvest the cocoa for the season. DW2, Jeremiah Lambon filed his witness statement on 30/1/2024 stated he is a nephew of the Plaintiff. That six years ago, Defendant told him Obo Yaw needed money to perform the funeral of his wife and wanted to lease his cocoa farm, the property in dispute so DW2 should serve as a witness. That GH₵4,600.00 was proposed by Obo Yaw (Deceased) for the lease but later settled on GH₵6,000.00 as the purchase price for the farm of which an initial GH₵4,600.00 was advanced. After the funeral, according to DW2, the balance of GH₵1,400.00 was paid. That an agreement document was executed and Defendant assumed ownership of the cocoa farm. During cross examination, DW2 stated that he was present when the cocoa farm was sold to Defendant and that he knew where the farm is located. It is the case of DW2 that it was Obo Yaw and Kofi Ntim that offered the cocoa farm for sale to Defendant. That he knew the purchase price as GH₵6,000.00 of which GH₵4,600.00 was initially paid but did not know how the balance was paid. DW2 further indicated that the witnesses for the transaction were Sofo Suam, Opae and Kwame Boafo. That he and Sofo Suam witnessed for Defendant. That Defendant invited Kwame Boafo and Sofo Suam who 7 | P age were Defendant’s Landlord as witnesses. That the document to the cocoa farm was executed when the GH₵4,600.00 was paid and no document was executed in regard to the GH₵1,400.00. DW2 was cross examined first since on the adjourned date DW1 was indisposed as such by my discretion, DW2 was first cross examined as such. DW1 stated in his witness statement filed on the 30/1/2024 that after the death of Obo Yaw’s wife, he and Kofi Ntim consulted Defendant, who intend purchased the cocoa farm for GH₵6,000.00 and that he was part of the whole process for the negotiation for the sale. DW1 corroborated the story of the Defendant and DW2 and stated that the remaining balance of GH₵1,400.00 was paid through him. DW1 further corroborated the story of Plaintiff that a few months after the transaction for the sale, Plaintiff requested to be given a copy of the document for the transfer of the cocoa farm. That it was not until 2023 that the Defendant informed him that Plaintiff claimed the cocoa farm belongs to the family and he is the customary successor. DW1 corroborated the meetings that took place between Plaintiff and Defendant as to the amount to be refunded for the return of the cocoa farm to the Plaintiff. When cross examined, DW1 admitted that he thought the farm belonged to Obo Yaw but it was later that Plaintiff claimed to be the owner. Though DW1 insisted that the cocoa farm in dispute was gifted to one Ama Mena, he did not prove same. That he, DW1, Sofo Suam, Opae, Committee Chairman, Jeremiah and Kwame were witnesses to the Defendant. That the witnesses for Obo Yaw were Kwame Opae and himself and for Defendant, Jeremiah and himself, DW1. DW1 admitted that Plaintiff succeeded Obo Yaw’s father hence the customary successor. In all instances, DW1 corroborated the story as being told by the Defendant and DW2. The issues for determination is whether the divested cocoa farm constitute family property, if so whether the Plaintiff can lay claim to same as the Customary Successor. 8 | P age It is trite learning dating back to Kwame V Nyini till date that although technically speaking it’s the right of the head of family that can institute action when family property is under threat of being lost, under certain circumstances any member of the family can take action when family property is under such threat. It is however the fact that the person must either be a member of the family or authorised by the family. See Sappor & 2 Ors. (Substituted by Attah Sappor) v Sappor (Substituted by E. T. Akwetey Sappor) & 4 Ors. [2021] unreported SC CA No. J4/46/2020 Prof. Mensah-Bonsu (Mrs.) JSC. In this regard the customary successor being the Plaintiff in this matter has the right to institute this action when family property is under threat of being lost. The position of the Plaintiff as the Customary Successor was however not contended by any of the parties. It is trite that failure to deny an averment positive averment in an affidavit will be fatal to the opposing party, if not denied. See Abankro & Anor V Ansah (J2/2/2009) (2016) unreported SC Baffoe-Bonnie JSC. Since the Defendant did not controvert the position of the Plaintiff as the Customary Successor; the Plaintiff therefore stands as the Customary Successor and therefore has the capacity to institute this action on behalf of himself and the Oyoko family of Ehyireso. It is hereby prudent to determine what constitute family land to do justice to the present action. Section 281 of the Land Act 2020 (Act 1036) defines family land as the allodial title to which is held by a family for the benefit of the members of the family in accordance with Customary Law. This is managed by the head of family and their principal family members. It should be noted that there are no ownerless land in Ghana since it is a principle of Customary Law that every inch of land in this country is owned by a stool, skin, clan, family, individual or the state upon acquisition. See Ameoda v Perdier and Ameoda v Forzi (1967) GLR 479. 9 | P age It should further be noted that to alienate land is a question of law. A prospective land owner must know his vendor and further ascertain if the said vendor is the proper entity to alienate the land. See Land Law, Practice and Conveyance in Ghana, Dennis D. Adjei, 3rd Edition – Page 29. Family land is the preserve of the family members including the dead, the living and the unborn as such a valuable property to that family. The law therefore is that the head of family may alienate family land with the consent of the principal members of the family. Where family land is disposed as such a member of the family may act timeously by setting aside the alienation of family land by a person without the capacity to do so. It is the most senior male member in the family where there is no family head who is considered as the head of family and can alienate family land with the consent and concurrence of the family. See Fosu v Kramo (1965) GLR 629. It is trite that alienation by a customary successor alone without the consent and concurrence of the principal members of the immediate family is voidable. The general principle of law is that in an action to protect a family property such as land, it must be instituted on behalf of or as representing the family by the head of family or Customary Successor. It is his duty to protect family properties which are being used to their disadvantage or to the detriment of the family. In other to avoid collision in the dissipation of family property, the law now is that the rule in Kwaw v Nyieni (1959) GLR is not hard and fast rule and where the fact comes within the necessity rule, no duty should be imposed on the ordinary family member who sues on behalf of his family to prove that there was a head of family who has refused to sue. See Agbosu & Ors. v Kotey & Ors. (2003-2005) 1 GLR 085. There are different modes of disposition of land including sale as it pertains in this present matter. The person making the disposition shall have the power to do so. The nemo dat quod non habat rule i.e a person can only give what he has is paramount in land disposition. In Aboa v Keelson it was stated that a person can only convey what he 10 | P age owes. The vendor must therefore have title to a land before he can sell it. Any sale by a vendor who lacks capacity to sell a land or the sale of land by a vendor who does not own the land is void. I now proceed to analyse the facts in the eyes of the law. It is uncontroverted that the Plaintiff is the Customary Successor and has the due capacity to institute action before this Court on behalf of the Oyoko family. It is further the fact that one Obo Yaw (Deceased) and Kofi Ntim who are members of the family and nephews of the Customary Successor the Plaintiff herein disposed without the consent and concurrence of the principal members of the family the disputed property to the Defendant for a consideration of GH₵6,000.00. It is a fact as deduced from the evidence that both Obo Yaw and Kofi Ntim of which Obo Yaw was the vendor did not have title to the land and for that matter did not owe the land and as such cannot dispose the disputed cocoa farm. This is based on the rule in Aboa v Keelson that a person can only convey what he owes. It is further noted that the purchase of land by the Defendant is a question of law. The Defendant is being a prospective land owner must know the vendor (Obo Yaw) and further ascertain if Obo Yaw was the proper person to alienate the land. And as deduced from the facts of the case, Obo Yaw was just a mere member of the family and lack the capacity to dispose the disputed cocoa farm. Be as it may, the disposal was without the consent and concurrence of the principal members of the family and as such the alienation of the disputed cocoa farm is void. In this regard, it is my respective view that the sale of the cocoa farm by Obo Yaw (Deceased) to the Defendant in 2017 is void ab nitio and I hereby grant all the reliefs sought for by the Plaintiff. 11 | P age 1. The Defendant is hereby ordered to hand over to the Plaintiff the two acres cocoa farm lying and situated at Ehyireso, sharing common boundaries with Madam Nyaa and Akua Attobrah. 2. The purported sale of the cocoa farm aforementioned between Defendant and one Obo Yaw (Deceased) is set aside. 3. The Defendant by himself, his assigns, cohorts, privies etc. are further injuncted perpetually from having anything to do with the said farm. 4. Cost of GH₵5,000.00 is further awarded to the Plaintiff against the Defendant. The Court has taken into cognisance the fact that the Defendant has improved the cocoa farm and further harvested crops from the farm and benefited from it as deduced from the evidence. As such the Plaintiff is to refund to the Defendant the amount of GH₵6,000.00 being the consideration paid for the farm since the sale was void from the beginning. This is to put the parties in the position as if the sale has never taken place. H/W. IDDI ADAMA, ESQ. (DISTRICT MAGISTRATE) 12 | P age