The plaintiff issued out a writ against the defendant for ;

1)    Declaration of title to a parcel of land situate at Ho Heve Voradep Village and bounded on all sides by Afesi family land covering an approximate area of 1.50 acres.

2)    Perpetual Injunction against the defendant.

3)    Recovery of Possession; and 

4)    Damages for trespass.

Plaintiff claims as the head of Afesi family of Ho Heve on his behalf and on behalf of the Afesi family. The family are owners of a larger parcel of land situate at Ho Kodzobi road and bounded on one side by the property of SSNIT, on another side by property of Agbleke family, on another side by the Ho-Polytechnic and on the next side by the Agbleke and Buape family properties and on last side by the Sokode land covering an approximate area of 198.40 acres.

The Afesi title is confirmed by registration of the land in Document No.316/88, Ho Heve and has been in uninterrupted possession of the parcel of land since it was founded. In 2007, the plaintiffs discovered that the defendant had mounted boundary pillars on a portion of the land near the Voradep Village covering about seven building plots. Despite warnings to the defendant to desist from his acts of trespass the defendant has not heeded the warning but has proceeded to build walls and constructed a foundation on parts within the seven plots. Plaintiff denies making any grants of any land to the defendant and claims as per his endorsement on the writ. In his statement of defence, the defendant denies each averment by the plaintiff and claims that Seth Kwame Afesi now deceased, father of the plaintiff in his lifetime sold seven building plots of the land to the defendant to the knowledge of the plaintiff and other members of the Abosontoe clan/family and the Afesi family including particularly one Maxwell Ohene Agama who used to follow Seth Afesi and to collect monies in respect of land Afesi sold. Defendant says he has been in uninterrupted occupation, possession and control of the land sold to him since 1993.

The defendant also says that plaintiff's father Seth Kwame Afesi in his lifetime led he the defendant to erect the boundary pillars of seven feet tall around the land sold to him. The defendant says that after the demise of Seth Kwame Afesi in 2003, the plaintiff led others in 2004 to remove the boundary pillars which he reported to Maxwell Ohene Agama who condemned the act. Plaintiffs proceeded in 2006 to sell portions of the disputed land to others for which he caused their arrest. In a settlement by plaintiff's lawyer Mr. A.K. Gikunoo now deceased, he defendant was made to pay certain sums of money for a formal indenture to convey the land to him but plaintiff's father did not give the defendant an indenture before his demise. The plaintiffs therefore are falsely claiming the disputed land. The court in ruling for interlocutory injunction refused the application to restrain the defendant on grounds that cost of building materials were rising and that an injunction was not convenient.

At the close of pleadings the following issues were found as set down for hearing –

      I.        Whether the plaintiff is the head of the Afesi family.

    II.        Whether there had been any valid sale of any plot or parcel of land to the defendant by Seth Kwame Afesi.

   III.        Whether the plaintiff is entitled to the reliefs.

  IV.        Any other issues disclosed by the pleadings.

PLAINTIF'S CASE:

It is plaintiff's evidence that he belongs to Afesi or Bosomtoe family and that he is the head of the family bringing the action on behalf of the family. The land in dispute is owned by the Afesi family inherited by his grandfather from his great grandfather who purchased it from the people of Sokode. The size of the land is about 198.4 acres and is bounded by the

1. Agbleke family property;

2. On the western side with a family from Sokode called Gbetukui or Dzormku family;

3. On the third side with Buampe family land; and

4. On the next side with Fiamegu or Dede family land and the SSNIT land.

As part of their acts of possession the family has palm plantation and tap palm wine there from, part acquired from them by the government for the Ho Polytechnic, for SSNIT and the Ministry of Agriculture. After the death of plaintiff's father the defendant commenced the construction of foundation on the land. The defendant was mentioned as the one who was behind the development. Defendant claimed that portion of land belonged to him and that he purchased it from plaintiff's father. Plaintiff said he was not aware of his claim as his father did not inform him about any sale to defendant. Defendant failed to produce any document or indenture as evidence of purchase.

The evidence of PW1 who said he was an assistant surveyor and a cousin of the plaintiff was that plaintiff said to him their father has land at Wortoe behind the SSNIT Flats and that SSNIT had acquired the larger part of the land but that compensation was paid only for a smaller portion. He added that plaintiffs said they were trying to retrieve back the bigger land from SSNIT and in negotiations SSNIT agreed to release the land to the family. He said in 2006 when the District Assembly accepted to implement the development scheme plaintiffs started demarcations and placing pillars. They in the process discovered that defendant was farming a portion of land and that the defendant had purchased only one plot from the "old man" plaintiff's father Seth Afesi.

THE CASE OF THE DEFENDANT:

It is defendant's case that he knew plaintiff's father Seth Kwame Afesi now deceased. It is his evidence that he was farming at a location in 2003 when plaintiff's father came to tell him that he had a more fertile land which he went to show him. Defendant said he told him he was aware there was litigation on that land but plaintiff's father showed him documents on the land to prove why the land was his. Plaintiff's father asked him to take a bottle of drink to his brother Agama Kwaku and if he accepted it defendant should return and he will sell the land to him. Defendant returned to say the said Agama Kwaku said the land was for the family and they authorized plaintiff's father to sell that land. He said so in 1993 he sold the land for ¢300.000. He asked me to pay $50,000 for the preparation of the documents on the land. So again in 1993 during the Yam Festival period he approached me again and said he wanted to sell one plot to me.

He sold same to me again at $300,000 so after that he collected $50,000 again for the preparation of documents on the land he sold to me. In 1995 he again sold a plot to me at €600,500. He again collected ¢50,000 for processing of the documents. According to the defendant when he went unto the land he was challenged by one Christian Atta that the land not belong to Seth Kwame Afesi but when he obtained documents from Seth Afesi which he showed to Atta, Atta has since not disturbed his possession.

Defendant also stated that in 1996 Seth Afesi again sold a building plot to him for $800,000. He then insisted on the erection of pillars on the land but Seth Afesi told him that he was expecting his son Maxwell Agama from Kpedze for them to go to the surveyor to demarcate the land. Agama came and with Seth Kwame Afesi the three went to the surveyor Mr. Ganusah who agreed and surveyed the land and erected seven feet pillars on the boundaries. By 1998 defendant said he had bought five building plots from Seth Kwame Afesi and these boundary pillars were erected from 1996 to 1998.

Defendant said in 1999 Seth Kwame Afesi sold two plots to him at C1 million each. For one of the two plots the money was collected by Seth Afesi's son known as soldier. In 2001 defendant went to ask Seth Afesi why he had not demarcated the land for him. Seth Afesi said he had not sent "Soldier" to collect any money for any land. In the presence of Maxwell Agama and himself, "Soldier" confirmed he collected the money for the land. Seth Afesi who said he had not asked “Soldier" to sell any land to him then asked defendant to pay $2.5 million instead of the c1 million Soldier collected for it if defendant was still interested in purchasing the land. Defendant said he instantly paid the balance and demanded a receipt but Seth Afesi said they had not come with a receipt and asked for paper on which Seth Afesi requested Maxwell Agama to write a receipt covering all the lands defendant had purchased from him and asked defendant to show the receipt to Ganusah and to ask him to come to survey the lands. He showed the receipt to Ganusah who insisted he wanted to see the vendor Mr. Afesi who with Agama went to Ganusah who accepted and surveyed the land and demarcated seven plots for him.

Defendant said his acts of possession were farming and he erected 7 feet tall pillars and started foundation. Defendant noticed that his pillars were pulled down and reported to Mr. Agama who told him he suspected the plaintiff herein. This matter led to defendant's invitation by plaintiff's lawyer Mr. Aggrey Gikunoo who promised to discuss the issue with Seth Afesi's children. The lawyer inspected the documents from Ganusah and said Ben Afesi told him plaintiff confirmed defendant was entitled to four plots and that the letter or receipt to Ganusah on the plots was authored by Maxwell Agama. The letter also said defendant was entitled to seven plots. Lawyer Gikunoo then asked for and received ¢3 million and issued a receipt to prepare the documentation on the land. It is defendant's case that he purchased seven plots of land from Seth Kwame Afesi for which he did not receive an indenture but has done acts and has documents to prove his purchases and title to the lands.

In support of defendant's case, Ganusah who said he was a survey assistant Seth Afesi approached him that he had sold two plots of land to defendant Adoga and requested him to demarcate the two plots for Adoga which he did and prepared a site plan. He said Mr. Seth Afesi returned to him to demarcate another three plots which he sold to defendant. Mr. Afesi requested him to prepare one indenture for two of the plots and one for the three plots. Upon the receipt of a letter Exhibit 5 from Seth Afesi which he satisfied himself was written by Ohene Agama on behalf of Seth Afesi, Mr. Ganusah proceeded to demarcate two extra plots for Adoga making 7 (seven) plots and prepared an indenture on the extra two plots. Mr. Adoga according to Ganusah took the various indentures to Seth Afesi who asked Adoga to return the indentures to Ganusah to prepare a composite indenture for the seven plots. He added Adoga did not return with the signed site plans before he heard of the demise of Seth Afesi.

DW2 Rev. Maxwell Agama who claimed to be the nephew of Kwame Seth Afesi confirmed that on the instructions of Seth Afesi he wrote Exhibit 5 which was addressed to and given to Ganusah. He denied however writing part of the letter (Exhibit 5) which referred to seven (7) plots. DW3 Detective Corporal Antwi stated that he investigated a complaint in 2007 by Theodore Adoga, the defendant about a case of trespass against Ban Afese and Pastor Agama on a land at SSNIT Flats in Ho. Defendant went with him to identify the land as where plaintiff's father sold seven building plots to him. The defendant he said, also showed police the document (Exhibit 5) as evidence on the seven plots sold to him. Plaintiffs on their part denied knowledge of their father's alienation of the land to defendant. Before the police could take further action in the matter, the defendant informed the police that the plaintiff has taken the instant civil action and that the plaintiff had agreed during investigations to give the defendant four and three plots at separate places which the defendant refused.

From the evidence before this court the following findings of fact are made:

That the defendant dealt with Seth Afesi now deceased in all his transactions in respect of the subject matter.

That the defendant Mr. Adoga did not obtain a duly executed indenture for his alleged purchases of the subject matter.

That the defendant has exhibited documents he relies on as evidence of his purchase.

That at the time of the alleged sale of the disputed land to defendant by Seth Afesi, the land was subject of acquisition by the SSNIT proposed to be released back to the Afesi/Bosontoe family - plaintiff's family.

In a civil case, the burden of proof required is provided for in the Evidence Act 1975 (NRCD 323 Sections 11(4) and 12.

"SECTION 11(4) in other circumstances the burden of introducing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence"

The standard of proof requires is "Proof by the preponderance of the probabilities" unless otherwise provided by law.

SECTION 12 (2) provides that "Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence".

In evaluating the evidence in this case, this court will be guided by the long established principles in respect of claims against the estate of a deceased person. In In Re GARNETT; GANDY VRS MACAULY (1885) 31 GH D1 the principle that corroboration must be provided in support of claims or charges made against dead persons is expressed as follows:

"The law is that when an attempt is made to charge a dead person in a matter which if he were alive he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted and the mind of any judge who hears it ought to be, first of all in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent and the tribunal which has to act on their evidence believes them, the suggested doctrine (of corroboration) becomes absurd”

In KUSI & KUSI VRS BONSU (1010) SCGLR 60 at 73, 82, 84 WOOD C.J stated -

“These claims belong to the class of evidence that must at first be received with the greatest caution and scrutinized carefully before being given the requisite weight".

The principle here is that a court can proceed on uncorroborated evidence if satisfied about its truthfulness. However, issues touching the estate of a deceased person, the courts must be slow in construing evidence against the dead person. See In RE KRAH (DECD) YANKYERAAH & ORS VRS OSEI TUTU (1989-90) 1 GLR 638 and BISI VRS TABIRI alias ASARE (1989-88) 1 GLR SC 360 at 409.

ISSUES SET DOWN FOR DETERMINATION

A. This court differently constituted set down for determination

WHETHER THE PLAINTIFF IS THE HEAD OF THE AFESI FAMILY.

In his evidence before this court on the 26th October, 2010 plaintiff told the court that he belongs to the Afesi or Bosontoe family and that on the demise of his father who was the head of family, the family met and appointed him the head of family. He added that as the head he represents the family at gatherings and signs documents on behalf of the family and represents the family in court cases. The defendants besides denying in paragraph 1 of their defence have not challenged the plaintiff to his claim as head of the Afesi family of Heve.

The Court of Appeal in DUFIE VRS FOSUA (DECD) & ADU POKU MENSAH (2009) held that -

"The person who is appointed successor to a deceased in the family is by virtue of this said office, the head of the immediate or branch family originating with the particular deceased person......."

Any person who the family permits to deal with family property for and on behalf of the family or to exercise the functions of a head of family, is deemed to be the head of the family until the contrary is proved. - MILLS VRS ADDY (1958) 3 WALR 357. See also ATTAH VRS AMISSAH & ORS. (1970) CC 73.

Thus it is clear that a successful challenge to a claim that one is head of family must come from within the family. I hold therefore that BEN KWAME AFESI in absence of challenge to this is the head of Afesi/Bosontoe family of Ho Heve.

B. WHETHER THERE HAD BEEN ANY VALID SALE OF ANY PLOT OR PARCEL OF LAND TO THE DEFENDANT BY SETH KWAME AFESI

The defendant's contention is that he has paid various sums of money at different periods from 1993 till the death of Seth Afesi for seven plots of land. Defendant referred to occasions and incidents which he relies on as proof of his purchase of the seven plots of land from Seth Afesi now deceased. The defendant has also tendered in evidence exhibits to corroborate his claim of purchase. On his part, the plaintiff denies the sale of any lands to the defendant by his father in absence of a valid conveyance indenture or receipt for the sale. It is also plaintiff's case that at the time of the alleged sales, by his father to defendant the SSNIT had acquired the lands and had not released or re-visited the land to the Afesi family. The law on transfer of interest in land is set out in SECTION 1 of the Conveyancing Decree 1973 NRCD 175 –

It states -

"(1) A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorized in writing, unless relieved against the need for such a writing by the provisions of Section 3.

(2) A transfer of an interest in land made in a manner other than as provided in this part shall confer no interest on the transferee."

Section 3 states: Sects land 2 shall not apply to any transfer or contract for the transfer of an interest in land which takes effect -

b) by oral grant under customary law.

SECTION 7 of the Act states:

(1) An oral grant made under customary law shall be of no effect until it is recorded under Section 4."

And Section 4 provides -

"An oral grant of an interest in land under customary law shall be recorded in the form contained in the first schedule, or as near thereto as circumstances permit in corporating the essential features of the transaction sought to be effected, signed by the person making the transfer or his agent lawfully authorized for that purpose, and certified by a registrar having jurisdiction within any part of the area to which the transaction relates”.

Absence of writing in certain circumstances is not necessarily fatal to a claim of specific performance for Section 3(2) provides that an oral contract may be enforced if it is for valuable consideration and there is sufficient act of part performance to support a claim for specific performance or there is sufficient memorandum in writing of the oral contract for the sale of land.

For a memorandum to constitute evidence of an oral contract it must contain

      i.        Names and description of the parties.

     ii.        Subject matter of contract.

    iii.        Consideration.

   iv.        Any special terms agreed on between parties.

    v.        Signature of person against whom it would be enforced or his agent.

See DJAN V. OWOO (1976) 2 GLR 401, TAHIRU VRS MIREKU (1989-90) 2 GLR 615, ASARE VRS ANTWI (1975) GLR 16.

The defendant in proof of his case tendered in evidence Exhibit 1 a statutory declaration by Seth Afesi plaintiff's father of his title to the Wortoe land to convince defendant to buy same. Defendant says that based on this declaration shown him by plaintiff's father he purchased various plots of land from him. Exhibit 1 only establishes the ownership of Wortoe land including its description but is not evidence of any contract of sale to the defendant. Exhibit 3 which was tendered by the defendant is a plan of land described as SSNIT FLAT DOWN which does not name the purpose for which it was made. I see it as a self-serving document and cannot be described as a conveyance. I equally see Exhibit 4 a letter from lawyer A.K. Gikunoo not describing the conveyance, the parties and the land it refers to as no proof of defendant's claim.

Exhibit 5 is of this effect -

"Dear Mr. Ganusah,

I the undersigned Rev. Maxwell Ohene Agama, have on behalf of Seth Kwame Afesi, the vendor acknowledged payment for five (5) plots of land by Mr. Adogah Theodore Danuo and hereby agreed you insert the same measurement in the previous indenture making seven (7) plots.

Thanks.

Signed: Rev. Maxwell Ohene Agamah".

The author of Exhibit 5 is the nephew of Seth Kwame Afesi. He did not deny its authorship and the fact that he was authorized by Seth Kwame Afesi to acknowledge the transaction and was to be and directed to Mr. Ganusah. Mr. Ganusah equally admitted on oath the receipt of the instructions in Exhibit 5 confirmed by Mr. Seth Kwame Afesi. He said Mr. Seth Afesi “said he authorized Mr. Agama to write the letter as he himself was unwell. Then Mr. Agama said, “now there is a portion here making 7 plots when I observe the handwriting here, it is not my handwriting. The phase making 7 plots is not in my handwriting". No evidence was produced by the witness or the plaintiffs (even though witness is a defence witness) to prove that those words were not those of Rev. Agama. I have no reason to agree that the words are not in the writing of the witness.

Exhibit 5 in my opinion satisfies the requirements of SECTION 3(2) of the CONVEYANCE DECREE to constitute evidence of an oral contract - See TAHIRU VRS MIREKU (supra) and DJAN VRS OWOO (supra).

It is therefore my holding that Seth Kwame Afesi purported to sell seven plots of land to defendant Adoga Danuo and sold land to Danuo Adoga.

C. WHETHER THE PLAINTIFF IS ENTITLED TO THE RELIEFS.

The plaintiff, besides denial that his father Seth Kwame Afesi had sold the subject matter to defendant is also saying that during the period of the purported sale to defendant the title and interest was vested in SSNIT and therefore Seth Afesi had no title to pass to the defendant. Defendant said when Seth Afesi showed him the land in 1993 to sell; he told Seth Afesi “I heard there is dispute over the land he showed me, how come the land belongs to him". He added Seth Afesi told him the land belongs to him and this he said was confirmed to him by Agama Kwaku and if he defendant was satisfied he should come back and he will sell the land to him.

Seth sold the land to him in 1993 and he continued to purchase lands from plaintiff's father till the date he demanded and received a receipt for all the 7 plots on 2nd December, 2001. (See Exhibit 5).

In cross-examination of defendant this ensued –

Q. You also know Seth Afesi's land at SSNIT was acquired compulsorily and he no longer had any land there.

A. He made me aware that SSNIT promised to return that land,that is why he sent me to the family.

Q. I put it to you that in the lifetime of Afesi all that land was compulsorily acquired by SSNIT and he no longer had land there.

A. He had.

Q. Not until 2007 that SSNIT voluntarily released part of that land so Afesi had no land there in 2001 to sell to you.

A. I never bought the land in 2001, I bought it in 2003.

Q. So Exhibit IDI (Exhibit 5) was issued to you in 2003.

A. It was in 2001.

Q. Also I am putting it to you that in 2007 that SSNIT released the land to his family Seth Afesi died.

A. In his lifetime he was working towards release of the land but I cannot tell when they released the land to him.

The effect of the above is that since the acquisition for SSNIT by the government was on 25th day of July 1989 and released back to the Afesi family in 2007 Afesi had no land to sell during the acquisition within that period. At best Afesi only had a future interest. Defendant's purchases were between 1993 and 2001 and therefore a clear case of “NEMO DAT QUOD NON HABET". On the effect of this principle the Supreme Court said –

"The principle of Nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title he owes at the material time of conveyance".

See SEIDU MOHAMED VRS SAANBAYE KANGBEREE 2012 2 GLR 1182. See Professor Kludze in ADORMSON VRS TETTEH and DOVIE & DOVIE VRS ADABANU (2005-2006) SCGLR 915.

It is therefore my finding that the Afesi family had no right or interest in the land to confer on the defendant in this case at the time. See also Dotse JSC in TETTEH VRS HAYFORD (2012) 1 SCGLR 417.

BY COURT: This is a pathetic decision by the court but the defendant has lost this case purely based on the law of conveyancing. He was aware the land in issue was an acquisition by SSNIT when he said he knew of litigation on the land he cannot claim he is an innocent purchaser for value. I also see he was indolent to have purported to have purchased plots of land between 1993 and 2001 a period of about 9 (nine) years without obtaining documents on the land. May he accept the sympathies of the court.