THEOPHILUS ADJETEY vs PHILIP KWAME AGBAYOMEH & TEMA DEVELOPMENT CORPORATION
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (LAND DIVISION)
    TEMA - A.D 2019
THEOPHILUS ADJETEY - (Plaintiff)
PHILIP KWAME AGBAYOMEH - (Defendant)
TEMA DEVELOPMENT CORPORATION - (Defendant)

DATE:  17TH JANUARY, 2019
SUIT NO:  E1 /07/2011
JUDGES:  ALEXANDER OSEI TUTU J. SITTING AS A JUSTICE OF THE HIGH COURT
LAWYERS:  ANKOMA MENSAH FOR THE PLAINTIFF
AFFUM AGYEPONG FOR THE FIRST DEFENDANT
OPOKU WARE BOATENG FOR THE SECOND DEFENDANT
JUDGMENT

The facts of this case are that the Second Defendant is charged with the planning, management and development of land within the Tema Acquisition Area. In 1994, per a written agreement between the second Defendant and the Nungua Traditional Council (hereinafter called the NTC), the former released a parcel of land in Communities 16 & 17 to the latter for purposes of allocation to its indigenes. The latter thereafter became responsible for the allocation of the land released to them. The second Defendant in the said agreement assumed the responsibility of regularizing allocations made by the NTC. By so doing, it prepares formal leases for those who have been allocated lands by the NTC.

 

In May 2011, the Plaintiff was allocated Plot No. RP/16/C/68, Community 16 at Tema by the NTC. He applied to TDC for regularization, which was accepted and processed. However, TDC later received a letter from the NTC cancelling the Plaintiff’s allocation. The letter further informed the second Defendant of NTC’s re-allocation of the land to the first Defendant.

 

Following the displeasure of the Plaintiff over the treatment meted out to him, he commenced this legal suit on 11th August 2011. The reliefs he endorsed on his writ of summons were:

A Declaration that the offer, the subject matter land by TDC (Second Defendant) which was accepted by the Plaintiff was valid and proper.

An order that the Plaintiff is the equitable lessee having been granted a valid lease of the land.

Damages for breach of contract.

 

Both Defendants entered appearance and proceeded to file their respective defences. The Plaintiff filed a reply to the defence and after the close of pleadings, the following issues were adopted by the Court for trial:

Whether or not the Plaintiff validly acquired the subject-matter land from the Nungua Traditional Council and the grant was regularized by the second Defendant (TDC).

Whether or not the Nungua Traditional Council later revoked their grant to the Plaintiff?

Whether or not the allegation of fraud by Nungua Traditional Council as well as the second Defendant on the Plaintiff can be substantiated?

Whether or not the alleged revocation was properly communicated by the Nungua Traditional Council to the Plaintiff?

Whether the Plaintiff had at the time invested on the land?

Whether or not the Nungua Traditional Council can validly revoke the Plaintiff’s grant long after the Plaintiff has satisfied the conditions and gone ahead into possession of the land?

 

The Court adopted all the issues above on 3rd May 2012 as the issues for determination in the matter. During the pendency of the suit, the first Defendant unfortunately passed and was substituted by his son, Edward Agboyome on 22nd March 2013. On 22nd October 2015, the parties were directed to file their witness statements. All the three parties testified on the basis of witness statements without calling witnesses.

 

THE CASE OF THE PLAINTIFF

One Henry Bannerman purported to testify in his capacity as the Plaintiff’s lawful attorney. He tendered a Power of Attorney executed for him by the Plaintiff as Exhibit ‘A’. The Plaintiff is currently domiciled in the United States of America. The case of the Plaintiff was that he acquired his land in 2001 from the Nungua Traditional Council. He provided consideration of 4,000,000.00 for the land. The allocation was done by the Surveyor of the NTC and a site plan was prepared for him. The allocation paper and the site plan were tendered in evidence as Exhibits ‘B’ & ‘C’ respectively. The Plaintiff applied to the second Defendant to regularize his title documents and the second Defendant duly accepted the application in 2001.

The Plaintiff proceeded to pay the consideration of Four Million Five Hundred Thousand Cedis (Old Currency) 4,500,000.00 to the second Defendant. Two years later, i.e. in 2003, the second Defendant wrote to him claiming that it had received a letter from the NTC withdrawing or cancelling his allocation on the basis of fraud. By that same letter, the NTC had re-allocated the plot to the first Defendant. The Plaintiff claimed that he was not communicated to by the Council prior to the withdrawal or cancellation of his allocation and therefore described the withdrawal or cancellation of his allocation by the NTC as unlawful.

 

THE CASE OF THE FIRST DEFENDANT

The first Defendant’s son who substituted him after his demise told the Court that the NTC allocated the subject matter land to his father as per a letter dated 10th October 2002. Apparently, the Council had realized that the prior allocation made to the Plaintiff in respect of Plot No. RP/16/C/68, Community 16 was tainted with fraud, hence the withdrawal of the allocation and the re-granting of same to the first Defendant. TDC thus cancelled the said allocation to the Plaintiff and re allocated same to the first Defendant, who then paid all fees and was given possession of the land.

According to the first Defendant, the subject matter land is now regularized in his name and he tendered proof of the payment of the requisite fees on the land as Exhibits ‘EA3’ Series. It is the case of the first Defendant that since NTC has the authority to allocate land at the area, the allocation it made to Philip Agboyome is lawful, after it had found the allocation made to the Plaintiff fraudulent.

 

THE CASE OF THE SECOND DEFENDANT

It is the position of the second Defendant that after releasing Communities 16 & 17 lands to the Nungua Traditional Council, it entrusted the right of allocation of the lands to them. The role of the second Defendant has since been that of the regularization of the allocations made to persons granted the land. It conceded that the Plaintiff first applied to them after his allocation, but later received a letter from the NTC withdrawing or cancelling same on grounds of fraud and re-allocating same to the first Defendant. Upon notification of the contents of the letter to the Plaintiff, it proceeded to act accordingly. It is the case of the second Defendant that since the NTC has the prerogative of deciding who to allocate the lands at the area to, it cannot be said that TDC acted unlawfully.

 

Analysis of the Evidence

If indeed the NTC first granted the plot in contention to the Plaintiff which was regularized by the second Defendant, I cannot fathom how the NTC could proceed to grant the same land to the first Defendant. The purported withdrawal or cancellation of the Plaintiff’s allocation would have been ineffective. This is because once the NTC granted the plot to the Plaintiff, its mandate to allocate the land to another person became ousted. The nemo dat quoud non habet principle would have rendered any such allocation invalid. The Somalians advise, “you do not set out on a journey using someone else’s donkey”.

Anin Yeboah in the case of Benyak Co. Ltd. v. Paytell Ltd. & Ors. [2013-2014] 2 SCGLR 976 at page 977 held thus:

“In law, the first plaintiff witness had no title to pass to the plaintiff as he had already made a valid grant to the third defendant ….. A subsisting valid grant made by the first plaintiff witness created an encumbrance on the land even if it was initially a customary grant, for a conveyance of land made in accordance with customary law was effective as from the date it was made”.

 

Georgina Wood JSC (As she then was) also held in the case of Sarkodie v. FKA Co. Ltd. [2009] SCGLR 65 at holding 2 as follows: “An effective customary conveyance of land would divest the grantor of any further right, title or interest in the land; the same could therefore not be conveyed or granted to a subsequent grantee.”. See also the cases of Dovie & Dovie v. Adabunu [2005-2006] SCGLR 905 at holding 2; Roland Kofi Dwamena v. Richard Nortey Otoo & The Regional Lands Officer [2017] 113 G.M.J. 46 at page 64 and Hammond v. Odoi [1982-83] 2 GLR 1215 at page 1304, S.C.

 

In the case of Bruce v. Quarnor (1959) GLR 292, it was decided at holding 4 that: “Once land has been granted, it cannot be taken away from the grantee and another piece given him in substitution, without his consent. A subsequent purported grantee’s entry on the land would be a trespass…”

Notwithstanding the principles above, the circumstances of this suit tend to disarm the Plaintiff of any arsenal he may have against the Defendants and unfetter them from all shackles. I realized that the Plaintiff did not conduct his case diligently at all and the more I tried to save it, the more impossible he made it. When a child is destined to die, not even prayers from a priest can save it.

 

Who filed the witness statement on behalf of the Plaintiff; the Plaintiff himself or his attorney?

The Plaintiff and his attorney were in a rush to ‘finish off’ the Defendant so they did not take their time in conducting the case. According to an Igbo proverb, “When a coward sees someone he can beat, he becomes hungry for a fight”. But the Plaintiff should have examined his strength first. Henry Bannerman claimed to have filed the witness statement as the attorney for the Plaintiff. When one looks at the signature portion, it is written:

‘Signed by ………………. Theophilus Adjetey’.

 

The Ivorians say, “Two flavours confuse the palate”. When I examined the signature carefully, I realized that it conforms more to the attorney’s signature on record than that of Theophilus Adjetey, the Plaintiff herein. I decided to adopt a liberal approach by ignoring the Plaintiff’s name and attributing the witness statement to the attorney. Tried as I did, I could only succeed to the contrary.

The witness statement in question was signed on 22nd December 2015 and filed in this Court on 27th December 2015. It was accompanied by a power of attorney which is relied upon as the basis of the authority enabling Henry Bannerman to prosecute the Plaintiff’s case for him. At the Case Management stage, the said Power of attorney was found to be defective for lack of a competent witness to its execution. It was pointed out to the Plaintiff’s counsel. According to a Chinese proverb, “Men in the game are blind to what men looking on see clearly”. The counsel for the Plaintiff sought leave to have another power of attorney prepared by his client. A new one was subsequently prepared by the Plaintiff on March 8th 2017.

 

Unfortunately, the new one also had its issues rendering the advice given futile. Josh Billings once said, “Most people when they come to you for advice, they come to have their own opinion strengthened, not corrected”. It is common knowledge that powers of attorney generally takes effect from the day they are executed unless otherwise stated. In the case of Gordon v. Essien [1992] 1 GLR 2232, Abakah J held at holding 3 thus; “… a power of attorney took effect not from the date of its registration but from the date indicated within the instrument”.

Indeed, the Plaintiff undertook to ratify any acts of the attorney from the date it was given, which is March 8th 2017. Upon receipt of this new power of attorney, Henry Bannerman should have filed a new witness statement.

Alternatively, the Plaintiff could have adopted all prior acts of the attorney in connection with the case including the witness statement filed earlier. There is nothing in the new Power of Attorney dated 8th March 2017 adopting the previous witness statement filed in December 2015. According to a Navajo proverb, “You cannot wake up a person who is pretending to be asleep”.

 

The more serious issue with the power of attorney is that the Plaintiff did not deal with the issue of absence of a competent witness to his signature in the new Power of Attorney prepared. With no scorn intended, permit me to quote the Chinese proverb which says: “Insanity is doing the same thing in the same way and expecting a different outcome”. Although, there is a signature on the Plaintiff’s Power of Attorney purporting to be that of his witness, it does not appear to be valid. The person who signed it is unknown. An unknown author has said, “If you want excellence, pay attention to details”. The law appears to demand both the identity of the witness and his signature and not just one of the two.

The Powers of Attorney Act, 1998 (Act 549) provides:

1. Execution of power of attorney

An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorized by the donor in the presence of the donor.

Where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument …” (The emphasis is mine).

 

I do not think the signature of a person whose identity is unknown can meet the legal requirement above. The defect in the instrument renders the Power of Attorney defective and the same cannot be the basis to confer legal authority on the attorney to prosecute the case of the Plaintiff. According to a Congolese Proverb, “No matter how hard you throw a dead fish in the water, it still won't swim”.

 

When the attorney’s capacity became questionable, I must confess that I further tried to adopt a more liberal approach by construing the Plaintiff’s name on the witness statement to mean it is his own evidence. But that attempt also faced its challenges, since the Plaintiff did not appear to take an oath and submit himself to the rituals of cross examination. Pleadings do not automatically crystalize into evidence unless a witness has mounted the box to take an oaths. An African proverb says, “An axe does not cut a tree by itself”. The Supreme Court per Adinyira JSC decided at holding 1 of the case of Adjetey Adjei & Ors. v. Nmai Boi & Ors. [2013-2014] 2 SCGLR 1474 as follows: “… It is trite law that pleadings would not constitute evidence. To hold otherwise would negate the requirements of proof as provided in the Evidence Act, 1975 (NRCD 323).”

Similarly, evidence adduced must be subjected to cross examination. In the case of Quarcoo v. Welbeck [2008-2009] 2 GLR 498, Quaye J.A. held at page 519 that evidence not tested by cross examination is improper and lends itself to being set aside. See also the cases of Kells & Anor. v. Adjei & Ors. [2001-2002] 1 GLR 617, S.C; [2001-2002] SCGLR 339 at holding 4 and Mansah v. Nimo [1961] GLR 511.

 

Besides Henry Bannerman, no other person testified for the Plaintiff during the trial. This means that the Plaintiff did not have any evidence standing in his name that could be considered by the Court. This is a case where the evidence of a witness could have salvaged the Plaintiff’s action. The Japanese say, “A single arrow is easily broken, but not ten in a bundle”. The effect of the defective power of attorney in this case may be likened to that of Asante-Appiah v. Amponsah alias Mansah [2009] SCGLR 90, where the apex Court held at page 95 thus: “The Plaintiff himself never testified in the action. In view of the conclusion that the power of attorney was invalid and the one who relied on it had no capacity and therefore his evidence was inadmissible, the plaintiff was left in a situation as if no-one represented him. The case of the Plaintiff was thus reduced to mere pleadings filed on his behalf”.

 

It needs reiterating the point that a Plaintiff must always make out some case before the Court can evaluate the evidence and if there are weaknesses in the Defendants’ case, rely on it. Adade JSC brilliantly explained the rule in the case of Nartey v. Mechanical Lloyds Assembly Plant Ltd. (1987) 2 GLR 314 at page 344 thus: “A person who comes to Court, no matter what the claim is must be able to make a case for the court to consider otherwise he fails. But that is not to say that having succeeded in establishing some case he cannot take advantage of conflicts, admissions and other weaknesses in the defendant’s case”. See also the cases of Roland Kofi Dwamena v. Richard Nortey Otoo & The Regional Lands Officer [2017] 113 G.M.J. 46 at page 57 and Esseney Socrates Kwadjo v. Speedline Stevedoring Co. Ltd. [2016] 92 GMJ 66 at page 90.

 

I realized that the Plaintiff was not diligent in the conduct of his case and it reflected in the documents he tendered as the basis of his acquisition to the land. Even when the Court prompted him to regularize his Power of Attorney, he still returned with a defective one. A Cherokee proverb goes, “Pay attention to the whispers, so you won't have to listen to the screams”. It appears that if the Court accepted the evidence of the Plaintiff on record, he would still have had a herculean task surmounting the numerous issues pertaining to his documents. Our elders say, “When your luck deserts you, even cold food burn”. I will just point out some few of them here before disposing of this matter.

 

With regards to Exhibit ‘B’, being the allocation by the Nungua Traditional Council to the Plaintiff, the copy tendered was not too legible for the Court to scrutinize it. Since fraud was alleged as the basis of the cancellation of the allocation to the Plaintiff, I believe the Plaintiff should have produced a clearer copy to the Court and not to give the Court the chance to believe the negative impression created about him.

Further, when the Plaintiff was granted the allocation by the NTC, he claimed to have applied to TDC for the regularization of his title documents. He tendered Exhibit ‘C’ as proof of it. Exhibit ‘C’ appears to bear the signature of his attorney signed on 18-09-2001. There is nothing on record to show that the said attorney herein had any authority from the Plaintiff to sign documents on his behalf. See the case of Safo v. Sackey [2011] 3 GMJ 31, CA.

 

During the trial, the Attorney did not disclose to the Court that he played any role on behalf of the Plaintiff in the regularization of the Plaintiff’s title, thus arousing the suspicion of the Court in the circumstances. In fact, what our elders say, ‘the day a monkey is destined to die, all trees become slippery’ holds some truth.

The more suspicious exhibit filed on behalf of the Plaintiff is Exhibit ‘E1’ being the payment of fees charged by the second Defendant for the regularization of the Plaintiff’s plot. It is dated 6th February 2001. The Plaintiff claimed to have obtained his allocation from the NTC on 20th March 2001 as gleaned from Exhibit ‘A’. In Exhibit ‘B1’, he made the payment to the NTC on 19th May 2001. He proceeded to apply to TDC on 18th September 2001 as per Exhibit ‘C’. In Exhibit ‘D’, TDC allegedly approved his application on 26th July 2002 and followed up with a bill dated 30th August 2002 (See Exhibit ‘E’). According to paragraph 7 of the witness statement filed for the Plaintiff, it was when

 

TDC replied accepting their application before he went to make the payment in Exhibit ‘E1’. I do not understand why Exhibit ‘E1’ is dated 6th February 2001. If it is anything to go by, then it means that the Plaintiff made this payment to TDC even before obtaining the allocation from the NTC and that would be contrary to his case. The Germans say, “Truth ill-timed is as bad as a lie”.

I think the Plaintiff should have explained the circumstances of this doubtful payment to the second Defendant in respect of his plot. Exhibit F’, which is the property rate bill has its own issues. It does not bear any name and neither does it bear the plot number in contention. Exhibit ‘F' appears to have no connection with the suit. In the case of Mariam Obeng Mintah v. Francis Ampeyin [2016] 95 GMJ 1 at page 15, it was held that documents tendered in a case must relate to it. Another issue confronting the exhibit has to do with the date it was issued. It has a 2015 date. This means that it was procured during the pendency of the present suit. There is therefore no dispute about the fact that it is a self-serving document and does not have any probative value.

 

Exhibit ‘F1’ is an alleged payment of property rate by the Plaintiff. However, it bears the name of one Mary Adjetey, whose role in the matter and identity are unknown to the Court. Besides, it is a 2015 document, and the same can be said of it that it is a self-serving document. “A cow that has no tail should not try to chase away flies”, according to a Guinea proverb. These discrepancies in the Plaintiff’s case raise questions on his case. In the case of Obeng v. Bempomaa (1992- 93) GBR 1027, it was held: "... inconsistencies, though individually colourless may cumulatively discredit the claim of the proponent of the evidence”. The British say, “A small leak will sink a great ship”.

 

Having found that the Plaintiff’s evidence on record is unacceptable, there is no point going on and on with the evaluation of his case, so I proceed no further. A Greek proverb says, “It is useless to knock on the door of a blind man”. It is sad that lack of diligence on the part of the Plaintiff has caused him this suit. I find the Bulgarians proverb: “Watch your step when you walk: you may find nothing but you will not stumble” very insightful.

 

The Defendants did not file any counterclaim for fear that they might not have what it takes as evidence to wrestle victory from the Plaintiff. Therefore, there is no need to examine their evidence at this stage that the Plaintiff has nothing by way of evidence against them. According to the American humourist, Jack Handy, “It takes a big man to cry, but it takes a bigger man to laugh at that man”. Consequently, the claim of the Plaintiff fails.