KOFI ANANE STEPHEN vs MOHAMMED OPOKU GYAMFI
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (LAND DIVISION)
    TEMA - A.D 2018
KOFI ANANE STEPHEN - (Plaintiff)
MOHAMMED OPOKU GYAMFI - (Defendant)

DATE:  6 TH DECEMBER, 2018
SUIT NO:  E1/6/17
JUDGES:  ALEXANDER OSEI TUTU J. SITTING AS A JUSTICE OF THE HIGH COURT
LAWYERS:  FELIX ABOAGYE FOR THE PLAINTIFF ABSENT
JUSTICE ABDULAI FOR THE DEFENDANT ABSENT
JUDGMENT

 

When a father and his son stand toe to toe in a legal contest, there must be something wrong somewhere. Such is the situation before me which I am unfortunately tasked to referee. The parties are litigating over a land which the Defendant alleges his father, the Plaintiff herein, gifted to him to develop for which he has since put up an uncompleted storey building. The Plaintiff denied ever making any such gift to the Defendant. It is this misunderstanding which has called me to duty this morning to pour oil on troubled waters.

 

The Plaintiff commenced the action in this court on 12th October 2016. The reliefs contained in the endorsement on his writ of summons are:

a. A declaration of title to the plot No. RP/22/A/19.

b. Damages for trespass.

c. Perpetual injunction restraining the Defendant, his workmen, privies and successors in title from interfering with the Plaintiff’s quiet enjoyment of his plot of land.

d. Costs including the professional fees of the Plaintiff’s lawyer.

On 21st October 2016, the Defendant caused Silas Osabutey of Soho Law Consult to enter an appearance and a defence on his behalf. The Plaintiff replied to it and an application for directions were taken on 26th January 2017. The following issues which were filed by the Plaintiff’s counsel were adopted:

a. Whether or not the Plaintiff has gifted his plot of land/uncompleted building, the subject matter of this suit to the defendant?

b. Whether or not the plot of land the Plaintiff acquired was for himself exclusively?

c. Whether or not all the title documents relating to the plot of land are in the name of the Plaintiff?

d. Whether or not the Plaintiff is entitled to his claims?

e. Any other issue (s) arising from the pleadings?

 

The Court, at the direction stage, directed the parties to file their witness statements for case management to be conducted. During the trial, the Plaintiff testified without calling any witness. The Defendant also gave evidence and called his mother, Theresa Frimpong, as his sole witness. It must be noted that on 12th April 2017, the Defendant’s original counsel withdrew his legal representation, thereby necessitating for the engagement of his current solicitor. It is often said that a new king comes with his new laws. Therefore, the new solicitor soon shifted gears and caused the defence of the

 

Defendant to be amended on 22nd June 2017. He included a counterclaim to the defence.

 

The Defendant asked for the following reliefs in his counterclaim:

a. An order directed at the Plaintiff to refund the amount of GH8,000.00 received for the purchase of the land and interest on the said sum at the prevailing bank rate from the year 2004 till the date of final payment.

b. An order directed at the Plaintiff to refund the current value of the property in dispute and pay same to the Defendant forthwith, together with interest at the prevailing bank rate till date of final payment.

c. In the alternative to reliefs (a) and (b), an order for declaration of title to the property in dispute

d. An order of perpetual injunction restraining the Plaintiff, his successor, assigns, agents, privies, workmen and any person of whatever description taking instructions from him, entering, constructing, obstructing and/ or doing anything affecting the disputed property.

e. General damages

f. Cost reflecting the cost of the suit.

 

The case of the Plaintiff

The Plaintiff is a retired educationist/teacher living at H/No. RP/22/1/A/ Community 22, Tema. The Defendant is his biological son. Around 2003/2004, he acquired the serviced plot from the Tema Development Corporation (TDC). He has since constructed an uncompleted storey building on the land. About five (5) months prior to the commencement of the present action, the defendant forcibly entered the land and began to lay claim to the property. This, he did by introducing prospective tenants to the uncompleted building. He again held himself out as the owner and the landlord of the property.

The Defendant further caused the arrest of the Plaintiff and alleged that he had gifted the property to him. This said gift was untrue, because the Plaintiff has other children and the Defendant had not done anything extraordinary to deserve a gift of his father’s only landed property. When the Plaintiff was eventually bailed, the Defendant did not pursue the matter.

 

The case of the Defendant

The Defendant sojourned to United Kingdom (U.K.) in year 2000 to seek greener pastures. Whilst working there, he met a friend by name Daniel Nana Ofosuhene who told him about some plots of land on sale at Community 14, Tema. According to the said friend, a plot of land was being sold for 40,000.000.00. Because the Defendant did not want to ‘buy a cat in a sack’, he called the Plaintiff to inform him about the land and tasked him to ascertain its genuineness or otherwise. The Plaintiff after finding out, informed the Defendant that the land was genuine and unencumbered. The Defendant sent down a total amount of 80,000.000.00 in two tranches via Western Union in the year 2004 for the purchase of two plots. The Plaintiff received all the documents relative to the land being the indenture, the site plan, the consent from the Nungua Traditional Council and the application to TDC. They were all tendered in evidence as exhibits. The following year, the Defendant returned to Ghana and visited the two plots of land, only to discover that the land had been developed by someone else. The Plaintiff could offer no tangible explanation. The Defendant realized that he had been double crossed. Both the land and the Defendant’s money were eventually lost. Sometime later, the Plaintiff took the Defendant to the disputed land and told him that he purchased the land from TDC, but he was gifting part of it to him (the Defendant) to put up a dwelling house for himself and his family, while the other portion of the land was left for the Plaintiff. The Cameroonians say, when the blanket is short, you sleep with bended legs.

 

The offer was not only a gift, but as a compensation for the money he lost. The Defendant thanked the Plaintiff for this gesture. His mother, DW1 also did same when she was informed about it. Nonetheless, the Plaintiff accepted no drinks in view of the fact that the Defendant was his first son and could also not secure the land he had toiled to buy through him. According to the Defendant, these facts are known to two chiefs from their hometown, Mampong Nsuta called Nana Kwame Poku and Nana Yaw Mensah. The Bishop of the Plaintiff’s Bethel Methodist Church at Community 8, Bishop Ofori Wright is also aware of the gift. It is unfortunate that matters that took place between a father and son in closet had to be aired in public before elders. The Nigerians say, a goat owned by two people sleeps outside. After the gift, the Defendant proceeded to TDC and applied for a building permit to begin construction. He applied in the Plaintiff’s name. The receipts for the money he paid were admitted in evidence. The Defendant was so optimistic about constructing the building on the land that he threw all caution to the wind. According to an African proverb, when the moon is shining the cripple becomes hungry for a walk. He has since put up a one storey building on the land comprising of five bedrooms. The Defendant testified that the Plaintiff has not expended a pesewa on the construction, but when he discovered that he was about to complete the building, he started harassing him and denied ever gifting the land to him. He came to realize that, water that had been begged for, does not quench thirst, as the Ugandans say.

 

When the harassment from the Plaintiff heightened, the Defendant petitioned the Commission on Human Rights and Administrative Justice (CHRAJ) at Community 2 in 2011. The Plaintiff admitted before the Commission and the Bishop of his Church that the house is owned by the Defendant, although he owns the land. It has been suggested to them that one should buy out the other. Initially, the Plaintiff agreed to pay for the Defendant’s property on the land, but he defaulted. The Defendant expressed surprise that the Plaintiff is now claiming ownership of the house which is on the land. He is therefore asking for the reliefs contained in his counterclaim.

 

Whether or not the plot of land the Plaintiff acquired was for himself exclusively?

And

Whether or not all the title documents relating to the plot of land are in the name of the Plaintiff?

I will take the two issues together. From the pleadings and the evidence, there is no controversy over who owns the disputed land. I do not think that the Defendant in any way is claiming ownership or considers another person to be a joint or full owner of the land. It appears that the Plaintiff did not appreciate the averments made by the Defendant in his Defence, hence raised the above issues at the application for directions stage. The impression was created that the Defendant is challenging the Plaintiff’s ownership of the land. Studying the pleadings and the evidence of the Defendant, there seems to be overwhelming evidence on record to show that the Defendant does not challenge the Plaintiff’s ownership of the land; except to say that the Plaintiff owns the land, but he gifted the portion in contention to him. If the Defendant has any qualms about the Plaintiff’s ownership of the land, it would have been silly on his part, with all due respect to have insisted on a gift of the land allegedly made to him by the Plaintiff in this Court. The nemo dat quod non habet principle tends to recognize only alienations and gifts made by the true owner or persons with title. See the cases of Benyak Co. Ltd v. Paytell Ltd & Ors. [2013-2014] 2 SCGLR 976 at page 989, per Anin Yeboah JSC; Tetteh v. Hayford (substituted by Larbi & Decker) [2012] 1 SCGLR 417 at page 430, per Dotse JSC and Numo Adjei Kwanko II v.

Lebanon Society, Civil App. No. J4/8/2015, dated 29th Nov. 2016, S.C. (Unreported), per Ansah JSC.

 

For ease of reference, I will reproduce the relevant portions of the amended statement of defence and counterclaim filed on 11th July 2017 for their full effect:

“(10) Defendant avers that after several ups and downs without any headway, both he and the Plaintiff realized that the land was lost to the Defendant, but the Plaintiff then advised the Defendant to let go of the land and that Plaintiff would sort him out.

(11) Defendant says further that after some time, the Plaintiff called the Defendant and sent him unto the land in dispute now, and told him that he bought the land in dispute which measured about two plots from the TDC around the same time that the Defendant sent money for him to purchase the land which had been sold to some unknown persons and that Plaintiff was gifting half of the land in dispute to the Defendant to put up a dwelling house so that Defendant and his family can inhabit same. (My Emphasis).

(12) Defendant’s case is that he thanked the Plaintiff for the land, his mother also thanked the Plaintiff …. “

 

From paragraphs 10 to 13 of the Defendant’s witness statement, he reiterated the same point that the land belongs to the Plaintiff who claimed to have purchased it from TDC around the same time he sent him money to buy his, which is now permanently lost, but the Plaintiff gifted the disputed portion to him.

When the Defendant was subjected to cross examination on the 25th April of 2018 at page 13 of the proceedings, he maintained the same position.

“Q: I am suggesting to you that the building permit with its accompanying receipts show clearly that the land is the property of the plaintiff.

A: My Lord, yes, the land is in the name of my father and the land does not belong to me. It belongs to my father who is the Plaintiff in this case but he gave me the right to build my house on the land”.

 

The Defendant never stated anywhere, both in his pleadings and evidence that the documents covering the land have been changed from his father’s name into his name. He unequivocally stated that after his father had gifted the portion of his land to him, he applied for a building permit in the father’s name to be able to construct the storey building. At paragraph 13 of his amended Statement of Defence and Counterclaim, he averred as follows:

Defendant says that after he was validly gifted the land which was at the time vacant, bare and without a single stone or block on, he applied for a building permit from the TDC in 2005 and paid for it but the receipts are in the name of the Plaintiff because Plaintiff did not deem it necessary to do a transfer of the gifted part of land into Defendant’s name”.

 

The Defendant led evidence on the above point at paragraph 12 of his witness statement and tendered receipts which are in his father’s name as exhibit 4 in support of his assertion. When counsel for the Plaintiff confronted the Defendant that the receipts clearly show that the property belongs to his client, the Defendant did not deny the question. In view of the clear admissions by the Defendant in both his pleadings and evidence, I find that the land in dispute was acquired by the Plaintiff exclusively and it is in his name that the documents are.

 

Whether or not the Plaintiff has gifted his plot of land/uncompleted building, the subject matter of this suit to the defendant?

The Defendant is alleging that his father gifted the portion of his land to him when he saw his frustrations after losing the two plots of land that he purchased for him. The Plaintiff denied the assertion. The burden fell on the Defendant to prove that the plot was indeed gifted to him. In the case of Faibi v. State Hotels Corporations (1968) GLR 471, it was held: “The onus in law lays upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led.”

Benin JSC also in John Tagoe v. Accra Brewery Ltd. [2016] 93 G.M.J. 103 at page 123 decided: “It is trite law that he who alleges, be he plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when he has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be.”

 

Also, in Barker –Wood v. Nana Fitz [2007] SCGLR 879, the Supreme Court held The common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim.” See also Ankomah v. City Investment Co. Ltd. (2008) 19 MLRG 83; (2013) 43 MLRG 36, per Dotse JSC and Marian Obeng Mintah v. Francis Ampenyin [2016] 95 G.M.J. 1.

Generally, no agreement is enforceable as a contract, unless it is supported by a consideration or it is sealed by a deed. Crackneil in his book, Obligations: Contract Law (4th Edition) at page 40 states: “It is a general principle of the English Law of Contract that an informal gratuitous promise is not enforceable as a contract, either the promise must be formalized by being made under seal, or it must be supported by consideration.”

Christine Dowuona-Hammond in her discussion of the principle in her book, The Law of Contract in Ghana espoused the law at page 82 thus: “The doctrine of consideration therefore has to do with the reason for the enforceability of promises as contracts. The promisee must be able to show that he has provided consideration for the promise which he seeks to enforce, thus giving the courts a reason to lend its authority to the enforcement of the agreement. Thus at common law, it is one of the fundamental principles that an agreement is not enforceable, unless it is made by deed or supported by consideration.”

 

In Butt v. Chapel Hill Properties Ltd. (2003-04) 1 SCGLR 636, the apex Court held: “A gift promise even if accepted is not a binding contract, unless perfected by an irrevocable act such as execution of a deed of gift under seal”. In Marfo & Ors. v. Adusei [1964] G.L.R 365 at page 368, the Supreme Court further held that an agreement not supported by a consideration nor evidenced by a deed was unenforceable. In this case, the Defendant did not indicate what he provided as a consideration. William Christopher Handy in one of his humorous works philosophically scribbled: “Life is like a trumpet – If you do not put anything into it, you don’t get anything out of it.” The gift was also not executed under seal in this case. The absence of a consideration from the Defendant and execution of the gift transaction under seal render the purported gift to one fate – impossibility of enforcement at common law. It is worthy to note however that a gift at customary law differs from one at common law. The essentials of a valid gift under customary law are settled. Whereas no deed under seal is required because customary law knew no writing, acceptance of the gift by the donee and the publicity of the gift in the presence of witnesses are essential. Where it involves landed property the acceptance would have to be made by the presentation to the donor of some token of acknowledgement and gratitude. Djabanor J. in the case of Ackun and Anor. v. Yanney (1962) 1 GLR 464 at holding 1 of the head notes held: The essential requirements of a valid gift in accordance with customary law are publicity, acceptance and placing the donee in possession. The acceptance is normally evidenced by the presentation of a drink. But in addition to this drink the donee must make a valuable presentation to the donor.”

 

Similarly, in the case of In Re Suhyen Stool (2005-06) SCGLR 424, the requirements of a gift at customary law were outlined as:

i. There must be a clear intention on the part of the donor to make a gift.

ii. Publicity must be given to the making of the gift.

iii. The donee must accept the gift by himself giving thanks offering or conventional aseda or enjoying the gift or by doing act which fulfilled the objective which the giving of aseda was meant to fulfill, namely the expression of gratitude and the symbolic acceptance of the gift”

 

Aseda or thanksgiving is a pivotal element of a valid customary gift. The list of recent judicial decisions on the principle is endless and it includes: Comfort Darko v. Julian Darko [2016] 97 GMJ 153 at pages 166-167, C.A; Serwaa v. Mensah [2009] 9 GMJ 130, C.A.; Nana Akua Ampomah II v. Adu Yeboah & Another (2014) 69 GMJ 137 at page 150, Torgbui Dzokui II of Zuta v. Atise Adzamli Others, Civil Appeal No. J4/36/2015, dated 9th December, 2015, SC (unreported); Tetteh v. Ameni-Quarshie (2011) 33 GMJ 46, CA; Wiredu & Obenewaa v. Agyei & Others (2007) 11 MLRG 14.

 

In this case, there is no such acceptance. At paragraph 11 of the Defendant’s witness statement, he claimed that when the land was gifted to him, “he thanked his father … but the Plaintiff refused to accept any drinks of thanks because he says that I am his first son …”

 

According to Sarbah, the intention of giving out the property as a gift must be clear. For that reason he wrote: “To constitute a valid gift, an intention of giving or passing the property in the thing given to the donee by the donor who has the power so to do is necessary. The giving and acceptance must be proved and evidenced by such delivery or conveyance as the nature of the gifts admits”. In this case, since the Plaintiff did not accept the aseda, the essentials of a customary gift were not met and it would therefore be very difficult to come to any conclusion that he actually made a gift to the Defendant.

 

Another challenge confronting the Defendant is his inability to prove that there was a witness to the gift. Although, he made that assertion, it was just bare. According to the Defendant, when the gift was made he thanked his father and his mother also thanked him. The said mother of the Defendant happened to be his only witness. When she mounted the box to give evidence, she was not too sure whether the offer to the Plaintiff was a gift or a compensation. I realized that her evidence was full of hearsay. She appeared not to be personally involved in the alleged gift.

 

At paragraph 4 of her witness statement, she stated under oath that it was the Defendant who told her that he was building on a land belonging to the Plaintiff which he had given to him, mainly because of what had happened between them. She answered to a question under cross examination at page 20 thus:

“Q: Was the plot of land allegedly given to the Defendant by way of compensation or a gift?

A: My Lord, for that one I cannot tell but he told me it was his father who had allowed him to build on his land”.

 

One thing I observed was that the evidence of PW1 was not convincing at all. It is evident from the record that when the Plaintiff took the Defendant to the land and allegedly gifted it to him, there was nobody there. A gift under customary law cannot be made by only the parties. There must always be a third party present. The standard set by the law is quite high, even the date and time where necessary, are expected to be proved. In Giwah & Ors. v. Ladi [2013-2014] 2 SCGLR 1139 at 1148, Benin JSC stated the current position of the law on gift thus: “The most important element of a customary gift of landed property that runs through these authorities and several others, is that the gift must be offered and accepted and must be witnessed by somebody else other than the donor or the donee. Thus when the fact that a gift has been made is challenged, it will not be sufficient to state barely that a gift was made; one has to go on to show the occasion, if any, on which the gift was made; the date, the time, if possible, the venue and most importantly, in whose presence it was made. These factors as to making a customary gift are by no means exhaustive…”.

 

Ayebi J.A. in the case of Jacqueline Asabre & Anor. v. Johnson Aboagye Asim [2017] 109 G.M.J. 206 at 236 explained that there should be a witness to the gift. He held as follows: “… the most important element of a customary gift that runs through decided cases is that the ‘gift must be offered and accepted and must be witnessed by somebody else other than the donor and the donee. The need for a third party as a witness is important because when the gift is challenged, it will not be sufficient to state barely that the gift was made; the claimant has to go on to show the occasion, if any, on which the gift was made, the date, the time, if possible, the venue and most importantly, in whose presence it was made”. The Defendant further added that the facts of the property having been gifted to him are known to three other persons namely; Nana Kwame Poku and Nana Yaw Mensah, both from Mampong-Nsuta as well as Bishop Ofori Wright. It appears from the evidence adduced that these so called witnesses came into the picture quite recently. PW1 mentioned the date to be around September 2016. Meanwhile, the Defendant claimed he was gifted the land around 2005, which is about 11 years prior to the involvement of the three in the matter. It is undisputed that when they met around year 2016, the building had been constructed to its current stage and the misunderstanding between the parties had then commenced. They cannot definitely be witnesses to the gift in this case. Granted the three were even aware of the alleged gift from the beginning of the transaction, the failure of the Defendant to call at least one of them as a witness to corroborate his evidence would have affected his case.

 

Our ancestors say, if the cockroach wants to rule over the hen, then it must hire the fox as a body guard. The witnesses would have provided support to the Defendant in the big contest with his father. I am not unaware of the law that corroboration is generally not a legal requirement to prove a fact and that the evidence of a single witness can be relied upon in proof of a case. See the cases of Faris v. Bakalian (2008) 18 MLRG 204 at page 212, per Ansah JSC; Zabrama v. Segbedzi (1991) 2 GLR 245 and Ghana Ports and Harbours Authority & Anor. v. Nova Complex Ltd (2007-08) SCGLR 806. But it must be noted that, where the evidence of a person would help resolve the matter one way or the other, it is important that he appears in Court to testify. In the case of J. K. Kpogo v. Fiadzorgbe [2015] 89 G.M.J. 52 S.C. it was held that the failure of a party to call his material witness could have catastrophic effect on his case. In the face of the stiff denial of the gift by the Plaintiff, the failure of the Defendant to call any of the three witnesses, coupled with the absence of an aseda or acceptance and a witness to the gift combine to weaken the Defendant’s assertion that the land was gifted to him. Before I dispose of this issue, I will like to address a point made by Counsel for the Defendant. The learned counsel referred to section 26 of the Evidence Act, 1975 (NRCD 323) dealing with estoppel by own statement and conduct. He submitted that because the Plaintiff’s conduct suggested that he had gifted the land to the Defendant, he is thereby estopped and cannot resile from his own conduct. I have a different view on this submission. The principle is that estoppel has to be pleaded and proved at the trial. See Kwao v. Baaleifio [2009] 25 MLRG 173. His Lordship Ayebi JA explained the policy reasoning behind the rule thus: “The rationale of the rule that estoppel should be specifically pleaded as a defense is to avoid springing surprise on the opponent during the trial.

 

Although in exceptional cases, an estoppel that has not been pleaded may still be cured by evidence of record (See Sasu v. Amuah-Sekyi [2003-2004] SCGLR 742; Siisi v. Boateng & Wilson [2013-2014] 2

SCGLR 1227 and Nana Owusu Bediako Atwere (substituted by John Kwame Owusu) v. Osei Owusu alias Yaw Owusu Achiaw [2011] 36 G.M.J. 157 at page 179-180), in this case, I do not see any such evidence and so, it cannot be relied upon for the first time in counsel’s address. Secondly, because we are confronted with a gift made by a father to a son; granted the gift had been perfected, nothing prevented the father from revoking it. I am not unaware of the law that a gift inter vivos once completed is irrevocable.

 

In Mamavi v. West African Building Ltd. (1965) GLR 216, Apaloo JSC held at holding 7 as follows: Since the gift was not in any way incomplete, it follows that the gift was irrevocable and the plaintiff could not countermand his instructions …”. See the cases of Boafo v. Gyetua (1962) 1 GLR 4 at holding 1, per Djabanor J. and Boakye v. Broni and Domfe [1958] 3 WALR 475. Nonetheless, under customary law, a gift from a parent to a child is revocable during the life time of the parent. In the case of Jacqueline Asabre & Anor. v. Johnson Aboagye Asim [supra], the Court of Appeal, per Ayebi JA. held: “As a general rule, a gift which is perfect or valid, or in other words accepted by the donee is irrevocable….The exception to the general rule is that a gift by a parent to a child is revocable in the lifetime of the parent or by his will or dying declaration…”. Similarly, in the case of Awisi v. Nyarko [1966] GLR 3, it was held at holding 3 as follows: “Under customary law a gift once complete is irrevocable except in cases of gifts between parent and child”. See the cases of Sese v. Sese [1984-86] 2 GLR 166, C.A. and Kwantreng v. Amassah [1962] 1 G.L.R. 241, S.C.

 

It follows that the Plaintiff cannot be estopped from revoking a gift made to his own son, had the gift been perfected at all. Consequently, I find that the Plaintiff made no gift of the land to the Defendant as the latter is alleging.

Any other issue (s) arising from the pleadings?

After the Court had adopted the issues raised by the Plaintiff’s counsel, the Defendant later obtained leave to amend his pleading and added a counterclaim to his defence. The counterclaim introduced new reliefs and issues hence, Counsel for the Plaintiff in his written address attempted to raise and deal with them. Counsel considered the issues of whether the Plaintiff is entitled to the refund of the various amount claimed by the Defendant on his counterclaim. I believe that to be able to deal with that issue holistically, there is the need to find out whether the building on the land was constructed by the Plaintiff or the Defendant and if so, whether the Defendant acquired any right and proprietary interest in the property enforceable against the Plaintiff by virtue of the construction of the building.

 

Who constructed the building on the land?

The Plaintiff in his pleading created the impression that he personally constructed the building. He stated at paragraph 5 of his Statement of Claim as follows:

“(5) The Plaintiff avers that it is indeed his bona fide property and has been developing the plot of land into a single-storey building of which the first floor has been developed and completed.

He led evidence on that fact at paragraph 6 of his witness statement as follows:

“(6) I have been developing my plot of land into a single storey building with only the first floor so far completed”.

The Defendant intensely denied the Plaintiff’s assertion. He told the Court that he single-handedly constructed the building on the land and that the Plaintiff has not spent even a pesewa in the construction. He led evidence to show how he began the construction by applying for a building permit. The Defendant’s emphatic statement that he put up the building was too strong for the Plaintiff to refute.

 

At page 13 of the reply to the Statement of Defence filed on 19th December 2016, the Plaintiff conceded that it was the Defendant who applied for the building permit. He re-affirmed the point at page 3 of the proceedings when he was under cross examination, which went as follows:

Q: Did you apply for the documents before you started work?

A: My Lord, the Defendant obtained the documents for me”.

Also at page 9 of the proceedings, the Plaintiff’s own answer betrayed him. He tacitly admitted that it was the Defendant who constructed the building.

“Q: You also admit that the Defendant after procuring the building did not build on the entire land.

A: My Lord, that is so but what happened was that he put up the main building leaving a small space for garden purposes or out-house or boys quarters”. (My emphasis).

 

Plaintiff therefore explained that the Defendant assisted him in the construction with the view to getting his father a dwelling place so that he would get a place to lodge if he goes on retirement. At paragraph 13 of his reply, he averred:

“ The Plaintiff by way of a reply to paragraph 14 of the statement of defence, denies same save that the defendant voluntarily decided to help the Plaintiff complete his house as the Plaintiff was about to proceed on retirement”.

The Defendant on the other hand told the Court that when he realized that the money he sent to his father to buy him the two plots had been lost forever, he became very furious and his father allowed him to construct a building on the land so that he could live in it with his family.

 

I find the Defendant’s evidence more credible as compared to that of the Plaintiff. Ordinarily, a person whose money had been ‘wasted’ would be uncompromising at that period. It sounds unreasonable that when the Defendant had no place of his own to live, he eagerly applied for a building permit to construct a storey building for his father so that when he retires one day he could live in. The timing here is crucial. The Defendant at the time would naturally feel that it was through his fathers’ failure to do due diligence that was why the two plots were lost forever. The Plaintiff’s retirement was not very imminent when the construction began around 2005. He finally retired in 2017. This was almost 11 to 12 years interval. Although in 2010, he attained the compulsory retirement age and had a contract extension. At page 3 of the proceedings, the Plaintiff did not even have the money to develop the land. He made the point under cross examination as follows:

Q: When did you start work on the land?

A: My Lord, I cannot record the exact date but it will be around 2004. At that time the Defendant was in London. He called to ascertain from me where I will stay after my retirement. I was then in a duty post accommodation. Because he expressed concern, I told him I had a land and on my retirement I plan using my end of service benefit to develop the land so that I can live in it. (The emphasis is mine)

Q: At the time you claimed to have started work on the land, where was the Defendant?

A: My Lord, he was in Ghana”.

 

It is my further view that if the Plaintiff was not agreeable to the construction of the building which the Defendant began around 2005, he would have objected to it timeously and not to wait for many years for the building to reach an advanced stage. If he was against the construction, why would he have allowed the Defendant to be in possession of the building permits all these years? Whereas the defendant’s position has consistently been that he solely constructed the building, the Plaintiff on his part relented not in shifting the goal post. He started by saying in his statement of claim that he constructed the building. He then changed his story at paragraph 14 of his reply to: “… the Defendant voluntarily decided to help the Plaintiff complete his house as the Plaintiff was about to go on retirement”. Eventually, he alleged at paragraph 20 of his reply that the Defendant forcibly attempted to develop his plot of land without his consent. He who uses a bad incense must be careful not to burn his sleeves.

 

The Plaintiff further claims that the Defendant is not his only son for him to have merited the gift of the land. Does it also not call for the question, whether the Defendant would also have constructed the building for the Plaintiff to live in when he retires as the Defendant is alleging when he knew pretty well that he was not the only child of the Plaintiff to benefit from his property? It is a pity that a father could invite his own son for fishing and tell him while at sea to find his own canoe back. According to the Chinese, as deadly as a tigress may be, it will not eat her own cubs. The evidence on record seems to support the case of the Defendant. Therefore, there is no hesitation in my mind that the building on the land was constructed by the Defendant with the express consent of the Plaintiff.

 

If the Defendant constructed the building, does he acquire any rights and proprietary interest in the building enforceable against the Plaintiff?

It has earlier been found in this judgment that there was no gift made to the Defendant. There was also no deed executed in the Defendant’s favour. Statutorily, the transfer of an interest in land exceeding three years is unenforceable, unless it is in writing and signed by the transferor or his duly authorized agent.

In Nana Amua Gyedua XV v. Mondial Veneer (Gh.) Ltd [2009] 5 G.M.J. 218 at page 224, a High Court in Accra presided over by Gyan J. (as he then was) decided: “The Conveyancing Decree (NRCD demands that unless excepted under the law, a contract for the transfer of an interest in land cannot be enforced unless it is evidenced in writing and signed by the person against whom the contract is to be proved or his authorized agent.”. See also the case of Kofi Sarpong (Dec’d) (Substituted by) Nana Kwasi Koduah v. Franklin Adubobi Jantuah; Civil Appeal No. J4/15/2015, dated 17th February, 2016 (Unreported), per Benin JSC & Asante Appiah v. Amponsah alias Mansah [2009] SCGLR 90. Under section 10 of the Conveyancing Act, 1973 (NRCD 175), a gift is also considered a transfer of an interest in land, so it requires writing. In this case, the alleged gift was not documented. But before the Plaintiff starts his jubilations because of the provisions of the law to the effect that an undocumented land agreement is unenforceable, he needs to wait for a moment. Our elders say, you should not insult the alligator until you have crossed the river. The requirement of writing under the Conveyancing Act before a transaction can be enforced is not without exceptions and one of them is a licence as stated at Section 3 (1) (g) of the said Act. This means that where the land is granted as a licence, it can be enforced even in the absence of a formal documentation of the transaction. On what a licence is, Barbara Ackah Yensu J.A. in the case of Deliman Oil Co. Ltd. v. HFC Bank Co. Ltd. [2016] 92 GMJ 1, held at page 11 as follows: “A licence is, according to Section 139 of the Land Title Registration Law, 1986 (PNDCL 152) ‘a permission given by a proprietor of land or of an interest in land which allows a licensee to do certain acts in relation to the land which would otherwise be a trespass.’ In its simplest form, it is revocable at the will of the licensor…

Baffoe-Bonnie JSC in the case of The Republic v. Bank of Ghana & 5 Others, Ex parte Benjamin Duffour, Civil Appeal No. J4/34/2018, dated 6th June 2018, S.C. (Unreported) explained the point better when he noted that a licence passes no interest in land. The learned Judge expressed himself thus: “A licence can be defined as a permission given by a person with an interest in land to another person to use the land or part of it which without such permission would have amounted to trespass. A licence does not pass an interest in land nor does it transfer property in the land. It can be distinguished from easement, leases and tenancies which transfer proprietary rights”.

 

From the above authorities, a license is a mere permission to be on one’s land which confers no title to him and it is revocable at the will of the licensor. The interest of the Defendant in the building he constructed on the land of the Plaintiff in this case can be said to be a license. If so, then it can be enforced as an exception to the requirement of writing under the Conveyancing Act. But would it be prudent for the licensee to enforce such an agreement when the law gives the licensor the authority to revoke the license at any time? Let me venture to say here that a licensee who has expended money on land upon the permission of the licensor gets the full protection of the law against the licensor and the licensor would not be able to recover possession of the land until he has duly compensated the licensee. It is said by our ancestors that a bird that chooses to perch on a rope should be ready to dance with the rope. The English courts for more than a century and half applied the principle without fail. Lord Kingsdown in the case of Ramsden v. Dyson [1866] L.R. 1 H.L. 129 held: “If a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation”. In Hussey v. Palmer [1972] 1 W.L.R. 1286, the Plaintiff who was a 70 year old woman was invited by her daughter and son-in-law to live with them. She accepted the offer, but found the room allocated to her too small. The plaintiff spent £607 to do an extension of her room.

 

Later, there was a misunderstanding between the plaintiff and her hosts, so she vacated the house and claimed the cost of the extension works. The Court of Appeal held that the Plaintiff was entitled to a refund of her money. Also, in Unity Joint Stock Mutual Banking Association v. King [1858] 25 Beav. 72, a father had land on which he built a granary. His two sons built two other granaries on it at a cost of £1,200.00. Romilly M.R. held that the two sons had a lien or charge on the property as against the father, although the father never promised to pay the sons or give them a charge on it. That case was approved by the Privy Council in the case of Chalmers v. Pardoe [1963] 1 WLR 677, 681-682, where it was said to be based on the ‘general equitable principle that … it would be against conscience’ for the owner to take the land without repaying the sums expended on the buildings. The above principle which is well grounded under the English law is not alien to us in Ghana. Our courts have also applied it consistently in a plethora of cases. Ollenu J. (As he then was) in the case of Dankwa v. Kwaku (1961) GLR 619 set the ball rolling when he decided at holding 3 as follows: “Where a licensor requires a licensee to quit land which he has been permitted to develop, the licensor must pay to the licensee the value of the development otherwise a claim for recovery will not be entertained” Also, at holding 2 of Ahenkra v. Yamark [1992] 1 GLR 486, it was held: “Where either expressly or by necessary implication a landlord requested or permitted another to expend sums of money under an expectation created or encouraged by the landlord that he would be permitted to remain on such land, that raised an equity in that person’s favour which might entitle him to stay or remain on the land. The equity arose from the expenditure on the land”. Similarly, in the case of Kano v. Atakpla (1959) GLR 387, it was held at holding 1 thus: “Under customary law a grantor or licensor of land who has permitted his grantee or licensee to occupy and build on his land, or to incur expenditure to improve it, is not entitled to eject the grantee or licensee at will. He can only do so on terms to be agreed upon between them, e.g. Payment of compensation, provision of alternative accommodation”.

 

Finally, the Supreme Court per Amua Sekyi JSC in the case of Toure v. Baako (1993-94) 1 GLR 342 held at page 347 as follows: “… a person who was permitted to build on land belonging to another, retained ownership of the building so long as it stood”. See the case of B.P. (West Africa) Ltd. v. Boateng [1963] 1 GLR 232, per Akainyah J. and page 6 of Dennis Adjei’s book, Land Law, Practice and Conveyancing in Ghana (2nd ed.)

Counsel for the Plaintiff in his written address referred to the case of Yoguo and Agyekum [1966] GLR 482 at page 520, where it was held that under customary law, when a child or ward worked with his father or guardian, he did not become owner with the father or guardian of the income of their joint labour, whatever came out of their effort belonged exclusively to the father or the guardian. In all humility to counsel, the principle is inapplicable to this case. That principle, in my view, applies to a child who ate from the plate of the father and depended entirely on the father for his livelihood. I do not think it’s applicable to the Defendant who was a mature person with his own family and virtually constructed the building. Additionally, the fifty years ago customary principle above does not accord with the realities now. The principle applied at a time where children were born to add to the labour force of the family. After the death of a man, his children did not inherit his landed properties. They could only live in their deceased father’s house subject to good behavior. The Intestate Succession Law, 1985 (PNDCL 111) issued a death blow to that practice. I am not sure that counsel for the Plaintiff denies the fact that it was the Plaintiff who suggested to the Defendant to construct the building. He submitted in his written address thus: “My Lord, the Defendant himself states that it was only suggested to him by the Plaintiff for him to build on part of the land, my Lord, by no means could this be translated to mean that the said land had been gifted to the Defendant …”

 

The case of Ussher v. Darko [1977] 1 GLR 476 urged on the Court by counsel for the Plaintiff is also inapplicable to the present case. That case established the principle that where a property is purchased in the name of a mistress, there would be no advancement. The facts of this case are in all four with the facts in the case of Inwards v. Baker [1965] 2 Q.B. 29. In that case, a son built a bungalow on his father’s land in the expectation that he would be allowed to stay there as his home, though there was no promise by his father to that effect. The court found that the son had an equitable interest in the building. It held at page 36 thus: “… If the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity … even though there is no binding contract to grant any particular interest to the licensee, nevertheless, the court can look at the circumstances and see whether there is an equity arising out of the expenditure of money. All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money with the expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it will be inequitable so to do”.

In drawing the curtains down on this issue, it is evident from the myriads of authorities cited above that the Defendant in this case cannot be made to leave the building he has constructed on the Plaintiff’s land without any compensation from the Plaintiff.

 

Is the Defendant entitled to the recovery of the 80,000.000.00 he sent to the Plaintiff to purchase the two plots for him?

Generally, it is a fundamental principle of the law of contract that an agreement between a parent and his child within the domestic setting is not intended to create legal relations as was decided in the English case of Jones v. Padavattan [1969] 2 All ER 616. Where there is no intention to create legal relations, the presumption may however be rebutted by clear evidence establishing the fact that one of the parties acted to his detriment. See the case of Parker v. Clarke [1960] 1 All E.R. 93; [1960] 1 W.L.R. 286.

In this case, the Defendant met his friend before he asked his father to go and ascertain the genuineness or otherwise of the sale of the land. His father acted upon it. He did no less. The money sent by the Defendant was actually used to pay for the two plots. The payment was made to the person directed by the Defendant. After making payment, he was given title documents. The Plaintiff is not a lawyer or a land dealer. He could not have expected his father to know technical issues regarding land purchase. He did not provide any money for his father to engage a professional lawyer or land expert to do investigation of his grantor’s title. In the absence of proven evidence of overt negligence, the Plaintiff cannot be held liable for the 80,000,000.00 used to purchase the two plots.

 

Whether or not the Plaintiff is entitled to his claims?

The Plaintiff is in this Court is mainly seeking recovery of possession from the Defendant, a declaration of title and damages for trespass. It is the Defendant who constructed the building and he did so with the consent of the Plaintiff. In circumstances like that, the Plaintiff would have to compensate the Defendant for the building he constructed on the land, before he would be entitled to recovery of possession.

The relief (a) of the Plaintiff’s claims is granted, while the remaining reliefs are refused. The Defendant’s counterclaim is refused, except the relief contained in counterclaim (b).

 

Consequently, I decree and declare as follows:

That the Plaintiff is the owner of Plot No. RP/22/A/19 on which the building in contention is erected.

That the Defendant is the owner of the building on the said plot of land.

That the Plaintiff is entitled to recover possession of the building on his land from the Defendant, subject to the payment of the value of the building on the land within six months.

That a quantity surveyor be appointed within one month from the date of this Judgment at the expense of both parties to value the building herein.

That in default of order (c) of this Judgment, the building shall fully vest in the Defendant.

 

There shall be no order as to costs.

 

(SGD)

ALEXANDER OSEI TUTU J.

(JUSTICE OF THE HIGH COURT)