This is not a Financial and Economic Crimes case. I exercise jurisdiction in this case pursuant to an Order of Transfer dated 23^rd February, 2015, transferring this part heard case to me.

In the final amended Statement of Claim, filed on the 18/11/2009, the plaintiff claims against the defendants the following reliefs:

A declaration that the Plaintiff is the owner of all that piece or parcel of land situate and lying at Adenta near Accra and bounded on the North by vendors land measuring 150 feet more or less on the south by vendor’s land measuring 150 feet more or less on the west by Accra to Aburi road measuring 100 feet more or less on the East by vendor’s land measuring 100 feet more or less and containing an approximate area of 0.35 of an acre.

Recovery of possession.

Perpetual injunction restraining the 1^st Defendant either by himself, agents, assigns, privies and anyone save the Plaintiff from asserting any interest, rights, title or ownership to the land.

General damages for trespass against the 1^st Defendant.

An order setting aside the Land Certificate of Provisional Land Certificate obtained on the grounds of fraud on the part of the 1^st and 2^nd defendants and on mistake by the 3^rd defendant.

Costs.

Any other reliefs that this Honourable Court may deem just and equitable.”

The 1^st defendant counterclaimed as follows:

Declaration of title of all that piece or parcel of land situate and lying being at Adenta near Accra and bounded on the north by vendors land measuring 150 feet more or less on the West by Accra to Aburi Road measuring 100 feet more or less and containing an approximate area of 0.35 of an acre.

Perpetual injunction against the Plaintiff, her assigns, privies and successors in title from entering onto the said land or doing anything or causing anything to be done thereon which is inconsistent with the ownership or possessory right of the Defendant.

General damages for trespass.

Recovery of possession.

Costs.”

The 2^nd defendant, also, counterclaimed as follows:

The declaration of title to all that piece of land situate and lying at Adenta measuring 150 feet more or less on the South measuring 150 feet more or less on the West measuring 100 feet or more or less on the East measuring 100 feet more or less containing an approximate area of 3.35 of an acre.

A declaration that the purported sale of the aforesaid land by the Agbawe Family of La to the Plaintiff and 1^st Defendant is null and void.

Perpetual injunction against both the Plaintiff and 1^st Defendant entering onto the said land or deny anything or causing anything to be done thereon which is inconsistent with ownership possessory right of the Head of the

Adenta Family (2^nd Defendant).

General damages for trespass.

Recovery of possession.

Costs.”

The plaintiff says she is a retired civil servant resident in Accra and the United Kingdom. The 1^st defendant says he is a building contractor. The 1^st defendant and the plaintiff are both claiming ownership of the same land on the Adenta - Aburi road granted to them by the 2^nd defendant family herein. Different members of the 2^nd defendant family granted the land in dispute to the plaintiff and the 1^st defendant at different periods in time. The 3^rd defendant entered an appearance and filed a Statement of Defence. In its Statement of Defence, the 3^rd defendant averred that the Provisional Land

Title Certificate was issued to the 1^st defendant in accordance with due process and the plaintiff is not entitled to the reliefs sought.

The issues for trial are as follows:

Whether or not the defendant can be said to be in lawful possession when the plaintiff had exercised acts of possession prior to the defendant forcefully erecting structures on the land.

Whether or not the defendant had notice of the interest of the plaintiff in the disputed land prior to putting up structures on the land.

Whether or not the defendant put up the structures after a report was made to and investigations were being conducted by the Property Fraud Unit of the police service.

Whether or not the defendant’s title is null and void, same having been obtained subsequent to that of the plaintiff.

Any other issues arising out of the pleadings.

Learned counsel for the plaintiff invited the court to add the following issues arising out of the pleadings and evidence:

Whether as between the plaintiff’s document of title and the claim of the 1^st defendant, which of them is more credible or genuine?

Whether the claim of the 1^st defendant in his statement of defence that he had acquired his land in 1979 as against his evidence (Exhibit 1) to the effect that he had acquired the said land in 1974, are reconcilable or fatal?

Whether the 1^st defendant’s title documents are tainted by fraud and/or mistake for which same shall be cancelled and the Land Register rectified by the 3^rd defendant in accordance with law?

The plaintiff’s attorney Kwabena Acheampong said the plaintiff is his aunt. He tendered a Power of Attorney as exhibit A. Under cross –examination by counsel for the 2nd defendant, the plaintiff’s attorney said the plaintiff is domiciled in London and came to Ghana in January 2011. He denied that there is nobody in existence called Abena Apemasu and maintained that she is his boss he is working with and she owns the place he is living. He contended that the plaintiff was in London in 2008 when she gave the Power of Attorney. He stated that the attesting witness of the Power of Attorney also lives in London. He admitted that on the face of it exhibit A it does not disclose that Abena Apemasu is resident in the U.K. Under cross – examination by counsel for the 3rd defendant the plaintiff’s attorney admitted that the signature of Abena Apemasu on exhibit B the Indenture and that on exhibit A the Power of Attorney is not the same. He said Abena signed exhibit A but in exhibit B she just wrote her name but did not sign. He added that he was not sure whose signature is on exhibit B.

The 1^st defendant challenged the plaintiffs’ capacity. Learned counsel for the 1^st defendant in his written address submitted that where a party appoints an agent to litigate on behalf or in the name of the party, the appointment by a Power of Attorney must follow strict rules since the issue of capacity to sue and be sued goes to the root of a matter. He stated that where one is not clothed with capacity the court will not grant an audience to the person. He said since capacity goes to the root of a case it can be raised anytime even if on an appeal. He added that a Power of Attorney not witnessed is incurably defective and invalid and cannot cloth anyone with capacity to prosecute a case. He submitted that while Kwabena Acheampong alleged that the plaintiff was resident in London, exhibit A stated otherwise. He stated that during cross-examination, it was revealed that the signature of the plaintiff on exhibit A, the Power of Attorney was different from that on exhibit B, the Indenture. He concluded that in view of the controversies surrounding the procurement of the Power of attorney it is obvious that the said Kwabena Acheampong could not have been appointed by the plaintiff to represent her in this matter and for that reason he had no capacity to testify in this dispute for and on behalf of the plaintiff.

Learned counsel for the 1^st defendant relied on the following authorities in support of his submission that the defective Power of Attorney procured by Kwabena Acheampong does not cloth him with capacity to represent and testify for and on behalf of the plaintiff; Dzanku v. Afalenu [1968] GLR 792 at 793, Yorkua v. Duah [1992-3] GBR 278, Repbulic v. High Court (Fast Track Division) Accra, Ex Parte Slan Goldfields Ltd. [2009] SCGLR 204, Macfoy v. United Africa Company Ltd. (1962) AC 150, the Nigerian case of Oketade v. Adewumi (2010) 2-3 SC (Pt. 1) 140 and Moro v. Husseini [2013]59 GMJ 1.

Section 1 of the Powers of Attorney Act, 1998 (Act 549), provides that the power should be signed by the donor and attested by one witness if the donor himself signs, but by two witnesses if signed on behalf of the donor. Section 1 (2).

In Justice S. A. Brobbey’s book, Practice and Procedure in the Trial Courts and Tribunals of Ghana (2^nd Edition) at page 309 on Powers of attorney, it was stated that “the practice in Ghana courts is that where the power is from a foreign country but to be used in Ghana, it should be notorised by a notary public. The same rule applies if the power given in Ghana is to be used in a foreign country. Such a document will not be valid if it is sworn before a commissioner for oath”.

The authorities are clear that an action instituted by a defective Power of Attorney will be fatal and therefore the bearer shall be devoid of capacity to represent his/her principal. Want of capacity is a point of law which if raised goes to the root of the action. Where the Power of Attorney relied on to institute the action is defective, then automatically that foundation on which the action is based has collapsed for want of capacity and therefore no action can be based upon it.

In Sir Justice Dennis D. Adjei’s book, Land Law, Practice and Conveyancing in Ghana, he states on capacity to maintain suit at page 37 as follows, “Capacity goes to the root of every action and a person who has an iron cast case would not be heard on the merits of her case where she is unable to satisfy the court that she has capacity to maintain the suit. Where the issue of lack of capacity is raised, the court is prohibited from determining the case on its merits without first considering the issue of capacity.”

It is a fact that exhibit A the Power of Attorney that the plaintiff’s attorney is relying on is defective and not in accordance with the requirements of the law. As explained above, the implication of this is that there is no action. I therefore strike out the plaintiff’s action for lack of capacity. For the avoidance of any doubt it must be stressed that because the action is struck out for lack of capacity, the reliefs sought by the plaintiff or the merits of the plaintiff’s case will not be dealt with in this judgment.

Both the 1^st and 2^nd defendants counterclaimed for declaration of title and other reliefs. A counter claim is a separate claim in which the defendant becomes the plaintiff or the party with the burden of proof with respect to the reliefs sought.

The 1^st defendant said he is a building contractor. The 1^st defendant testified that the land in dispute is his and he tendered exhibit 1 an Indenture and other exhibits including a Provisional Land Title

Certificate. He said he constructed a fence wall and a gate on the land. According to the 1^st defendant when he was constructing the fence wall the plaintiff’s attorney herein confronted him and claimed that the land belonged to him so they took the matter to the Adenta Police Station.

Under cross-examination by counsel for the plaintiff the 1^st  defendant said exhibit 1 is dated

6^th September 1974 and he was one year old then. He maintained that when he purchased the land exhibit 1 was the document given to him. He said he signed exhibit 1 when it was brought to him but he cannot remember who witnessed his signature as it was a long time ago. He added that he was old when exhibit 1 was given to him. He denied that exhibit 1 was prepared around 2007 and back dated to 1974. He stated that he reported the plaintiff’s attorney to the Adenta police. He admitted that in the course of registration of his land title, the Land Title Registry wrote to him that there were conflicting claims, exhibit 4, as a result of which he was given a Provisional Land Title Certificate exhibit 5. He stated that he has not been given the final certificate.

DW1, Nii Adjei Kpobi Asaawa said he is the head of the Agbawe Akutso family of La. He explained that Agbawe Akutso is one of the seven quarters of La. He said the Agbawe family has land at Adenta, Frafraha, Oyarifa and Ashalley Botwe. He stated that he does not know the plaintiff herein but knows the 1^st defendant because he contacted him with respect to the land in dispute. According to DW1 he went with the 1^st defendant to the Land Title when the 1^st defendant wanted to process his land documents. He said when they went there the land had not been given to any person apart from 1^st defendant. DW1 concluded that to him the land in dispute belongs to the 1^st defendant. Under cross-examination by counsel for the plaintiff, DW1 said he knows nothing about exhibit 1.

CW1, Mahmed Sam-Dadzie, is a land surveyor at the Survey and Mapping Division of the Lands Commission. He testified that they prepared a composite plan tendered as exhibit CW1. He said the land in dispute is on the Adenta –Aburi road.

Learned counsel for the 1^st defendant in his written address submitted that the burden of proof in an action for declaration of land is properly discharged where it is proved that the plaintiff a) properly and legally acquired the particular piece of land with b) defined identity and of which c) has been in possession or has had the right of possession. He cited the cases of Anane v. Donkor (1965) GLR 188 and Amankwah v. Nsiah Part 2 [1994-95] GBR 785 in support of his submissions. He asserted that notwithstanding some slight slips in his testimony, the 1^st defendant by and large was able to identify the exact boundaries of the land per his site plan as well as the Provisional Land Certificate issued to him by the Land Title Registry. He added that the 1^st defendant showed that he was indeed in effective possession of the disputed land, having built a wall around it and quoted Section 48(1) and of the Evidence Act 1975, (NRCD 323) in support of his claims. He asserted that the 1^st defendant would have completed building on the land but for the court action.

Learned counsel stated that the 1^st defendant having expended money on the land, the Land Development (Protection of Purchasers) Act 2 of 1960, which was made for protection of purchases should be applied to him. He stressed that the plaintiff having failed to prove a prima facie case against the 1^st defendant, whatever weaknesses there may have been in the case of the 1^st defendant would not inure to the benefit of the plaintiff, therefore on the preponderance of the evidence before the court, the case of the 1^st defendant is more preferable than that of the plaintiff and he cited and cases of Effisah vAnsah [2005-2006] SCGLR 943 and Sarkodie v. FKA Company Limited (2009) 7 GMG 198 in support of his submissions.

In his written address, learned counsel for the plaintiff stated that the 1^st defendant’s claims are not bona fide and are fraudulent as the 1^st defendant’s documents show that they are of a much more recent origin than 1974 by which time the 1^st defendant had either not been born or was an infantnwithout the requisite capacity to enter into such transactions. It was submitted that the 1^st defendant’s purported grantors were not in existence or clothed with capacity to act in 1974. It was contended that the 1974 conveyance was in fact, a 2007 document deliberately and fraudulently back – dated to appear old and earlier in time than that of the plaintiff to overcome the challenge 1^st defendant and his purported grantors (2^nd defendant family) had to deal with in terms of priority of grant and the nemo dat rule. It was asserted that the consideration stated in the 1^st defendant’s exhibit 1 as the yearly rents paid or payable by him was five thousand cedis (¢5,000.00) and the amount was questioned as compared with the plaintiff’s ¢200.00 in 1978. It was contended that per exhibit 1 the 1^st defendant’s land measured 80 feet X 100 ft, covering an approximate area of 0.18 acre but in his Statement of Defence and counterclaim filed on 10^th October, 2008 he counterclaimed for land measuring 150ft X 100ft of approximate size of 0.35 of an acre. It was further submitted that the fraudulent documents of the 1^st defendant, either acting alone or in concert with the 2^nd defendant, induced the 3^rd defendant to rely on same by mistake or some passive acquiescence, to issue the Provisional Certificate or registration of same. It was asserted that the 1^st defendant’s conduct is fraudulent and cannot pass any valid title to him as same is void ab initio having been tainted with notice and fraud.

Learned counsel for the plaintiff submitted in his written address that the evidence led and confirmednby exhibit 7 the Search is to the effect that as of June 2008 the 1^st defendant had not entered into any effective undisturbed possession of the land and was being confronted by the plaintiff’s agents on the land and at the police station. He also stressed that the 1^st defendant was consistently inconsistent and proved to be an unreliable witness. He stated and stressed the contradictions in the 1^st defendant’s evidence and his pleadings and submitted that it is trite law that there are fatal consequences for a party whose evidence departs substantially from his pleadings and cited the cases of Hammond v. Odoi [1982-3] GLR 1215, Dam v. Addo & Bros [1962] 2 GLR 200 and Yungdon Ind. V. Roro Services [2006] MLRG 7 to support his case. Counsel asserted that per exhibit C (search dated 31/12/2004) the plaintiff had confirmed her prior registration without any rival claims. He stated that this raises the question of priority of grant from a common grantor or related grantors and cited the case of Mark Ofei Antwi v. John Kwaku Mortey [2015] J90 G.M.J. 85 in support of his submissions.

From the evidence led and exhibits tendered, the following are undisputed facts:

The Indenture, exhibit 1, tendered by the 1^st defendant is dated 1974 and the 1^st defendant said he was about one year old in 1974.

It was when the 1^st defendant started developing the land in 2008 that the plaintiff’s attorney confronted him and challenged his ownership of the land. The plaintiff instituted this court action in 2008.

The 1^st defendant’s evidence was not consistent with his pleadings.

The Indenture, exhibit 1, tendered by the 1^st defendant cannot be relied on as it is dated 1974 when the 1^st defendant said he was about one year old. This raises the issue of whether the 1^st defendant had capacity to sign the said document if his evidence is true. A one year old child or any minor does not have the legal capacity to enter into a contract or sign a legal document. When asked by the plaintiff’s counsel why exhibit is dated 6^th September, 1974 but in paragraph 9 of his Statement of Defence and counterclaim the 1^st defendant stated that he acquired the land in dispute in December, 1979, the 1^st defendant replied “I didn’t know that this case would come to court so I don’t have the dates on mind”. The law and authorities are clear that where a party leads inconsistent evidence with the said party’s’ pleadings, the party’s evidence as a whole cannot be relied on. The 1^st defendant said he is a building contractor. He is therefore expected to be knowledgeable about issues concerning his land and its acquisition. This is more so because the plaintiff’s attorney has been challenging his title to the said land since 2008 and they have been in court since 2008. The 1^st defendant who is represented by counsel had a very long time to prepare for the case in court, but the record of proceedings show that he was very evasive in his answers especially under cross-examination. This makes his evidence unreliable and he cannot be considered a credible witness. The evidence and exhibits tendered makes it beyond doubt that the 1^st defendant had notice that the plaintiff was also claiming ownership to the land in dispute since 2008 so he cannot allege that he is a purchaser for value without notice. The fact that the 1^st defendant was given a Provisional Land Title Certificate is in indication that there are issues to be resolved before he can be given a final certificate.

I have considered the totality of the evidence adduced and based on the reasons stated above the                             1^st defendant has failed to establish his counterclaim. 1^st defendant’s counterclaim is therefore dismissed.

With respect to the 2^nd defendant’s counterclaim, in its Statement of Defence and counterclaim, the

2^nd defendant contended that the head of the Kplen We Family of Adenta Stool (2^nd defendant) the supposed joint heads of family, Nii Adjei Dabloe and S. K. Quaye could not have alienated the land, the subject matter of this case to both the plaintiff and the 1^st defendant because Nii Adjei Dabloe, who was the then Chief of Adenta died in 1967 and S. K. Quaye is in fact the Wulomo to the Bosomatis Shrine Of Adenta and therefore not entitled to grant lands to Adenta. The 2^nd defendant further contended that Nii Asafotse Tetteh Nukpe and his principal members of the Agbawe Family of La do own land in Adenta and that Adenta lands are under the control and management of the Kplen We Family of Adenta and that assertion is borne out by a judgment of the Circuit Court in the case of Okraku Mantey vrs. Sowah Okataban & ors (Suit No. CCL 8/93). It added that any transfer of title in any Adenta land by the Agbawe Family of La to either the plaintiff or the 1^st defendant was done without the knowledge and consent of the land owners of Adenta the Kplen We Family of Adenta and should therefore be declared null and void.

Counsel for the 2^nd defendant only cross-examined the plaintiff’s attorney and the 2^nd defendant did not lead evidence in support of its claims.

From the facts of this case and the undisputed evidence adduced both the plaintiff and 1^st defendant herein acquired the land in dispute from the 2^nd defendant family through different members of it acting at different periods in time.

Learned counsel for the plaintiff submitted in his written address that the arguments in the 2^nd defendant’s Statement of Defence should be treated as bare allegations without proof as it failed to come to court to substantiate same on oath.

Exhibit 4 dated 22^nd February, 2008, from the Land Title Registry and addressed to the 1^st defendant states that there are too many conflicts as to who the head of families are and who owns what as to boundaries within the Kplen We Agbawe Families of La in Frafraha, Adenta and Oyarifa so the Registry will issue a Provisional Certificate pending the resolution of the above issues.

A result of the conflicts stated in exhibit 4 is seen in this matter where the same 2^nd defendant family granted the land in dispute to both the plaintiff and the 1^st defendant herein.

DW1, said he is the head of the Agbawe Akutso family of La and stated that the land in dispute belongs to the 1^st defendant. The 2^nd defendant family herein (of which DW1 belongs) claims the land in dispute does not belong to either the plaintiff or the 1^st defendant but to it hence claimed a declaration of title to it. How can a family with conflicting evidence as to ownership of its land have its claim to the said land sustained?

The 2^nd defendant did not lead evidence to establish its claim. I do not think that it is in the interest of justice that a grantor family which has through its members given the same land to the plaintiff and 1^st defendant herein be entitled to title on the same land.

I have considered the totality of the evidence adduced and based on the reasons stated above the 2^nd defendant has failed to establish its counterclaim. The 2^nd defendant’s counterclaim is also dismissed.

I have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 with respect to costs. I have also considered the facts and unique circumstances of this case. This is a rare kind of case in which there is no winner and the ownership of the land in dispute is still undetermined partly due to the lack of capacity of the plaintiff as explained in the judgment. As there is no winner in this case, there is no legal or other basis to warrant the award of costs. There is therefore no order as to costs which respect to all the claims herein.