IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2016
ATTAH BEMPAH - (Plaintiff)
DANIEL AGYAPONG - (Defendant)
DATE: 18TH MARCH, 2016
SUIT NO: IRL/451/2009
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Plaintiff in a writ issued on the 22/7/2009 sought the following reliefs:
a. Declaration of title to all that piece or parcel of land containing an area of 0.32 acres more or less lying being and situate at North Gbawe, Accra that is known and called Plots Nos 202 and 204 (Sector B) that is bounded on the north by Plot Nos 201 and 203 measuring on that side 140 feet more or less and on the east by plots 206 measuring on that side 100 feet more or less and on the south by a proposed road measuring on that side 110 feet more or less and on the south west and on the west by a proposed road measuring on that side 115 feet more or less which piece and parcel of land is delineated and marked with red on the site plan dated 31/07/96 attached to the indenture
b. A further declaration that the defendant’s action of erecting a building on the said land without the plaintiff’s permission or consent amounts to trespass on same.
c. Recovery of possession from the defendant of the portion of the said parcel of land trespassed on by the defendant.
d. Recovery from the defendant the sum of Gh¢3.600.00 plus interest from the date defendant received same from the said tenants till date of final payment being advance for rent paid by tenants to the defendant in respect of stores they occupy on the said land.
e. Damages against the defendant for trespass.
f. Perpetual injunction restraining the defendant, his agents, assigns workmen or any person claiming by, through or for the defendant from entering, building on, or interfering in any way with the plaintiff’s use, quiet enjoyment and possession of the piece or parcel of land the subject matter of this suit.
The thirteen paragraphed statement of claim that accompanied the writ can be summarized as follows: that by means of an indenture between the plaintiff and one Nii Adam Quartey, of the Gbawe Kwatei family he acquired two plots of land. Defendant who was once a friend of the plaintiff has without his consent erected a building on a portion of the land and has also collected an amount of Gh¢3.600 from the tenants of the plaintiff.
According to the Plaintiff as he is ordinarily resident outside Ghana he made the defendant his supervisor and caretaker only for him to visit Ghana in one of his visits in 2008 to find out that the defendant has erected another building beside that of his own on a portion of the land as his personal property. After confronting the defendant he agreed to vacate the building he had erected on condition and terms which defendant unilaterally set out in letters defendant wrote to the plaintiff. Defendant has persisted in his acts of trespass by bringing sand, gravel and stones onto the land notwithstanding his assurances to vacate the land and has continued in his acts of trespass.
Plaintiff according prays for the reliefs set out in his writ.
Defendant has resisted the claim of the plaintiff and instead set out a cross action in the nature of a counter claim for the following two reliefs:
a. A declaration that plaintiff is estopped by conduct from challenging defendant’s possession of the premises occupied by defendant and his family or
b. In the alternative an order that the property occupied by defendant and his family be valued at the expense of plaintiff and a further order that plaintiff pays to defendant the cost of valuation.
In his statement of defence the defendant has set out a different version of what transpired between them. He claims that he was in a business dealings with the Plaintiff when the latter travelled abroad by selling vehicles shipped by plaintiff to him and also supervised plaintiff’s transportation business as well as disbursing monies at the directions of the plaintiff. And that he mooted the idea of purchasing land for Plaintiff out of the proceeds of the sale of vehicles for the construction of a house. He approached the original owners of the land being Gbawe Kwatei family and acquired two plots of land on behalf of the plaintiff. In one of the visits of Plaintiff to Ghana when construction started he became pleased with the work done by defendant that in the presence of witnesses, Plaintiff asked the defendant to take one of the two plots of land as a gift in appreciation for the good work done and further requested him to get two separate land documents for the two plots of land.
Defendant accordingly executed two documents on the instructions of the plaintiff and proceeded to complete a four bedroom house for the plaintiff which Defendant and his family moved in to occupy. Plaintiff had no difficulty in sharing the house with them anytime plaintiff happened to visit Ghana. To defendant plaintiff was fully aware of the house he started constructing in 2000 and never challenged him on that.
To defendant he gave out two stores upon completion as rent to tenants and upon plaintiff’s direction disbursed the Gh¢3.600. And it was therefore untrue that he had embezzled monies due to the plaintiff. Plaintiff ordered him to cause a valuation to be done on the house he had put for the purposes of a refund of his monies to him which he did and his property valued at Gh¢19.100. He did that and made plaintiff aware but plaintiff has refused to refund the monies to him. To him he was compelled by health reasons to complete the house and has incurred further expenses.
The following were settled as issues for determination by the trial Judge:
i. whether or not the disputed plot of land belong to the Plaintiff or to the defendant.
ii. whether or not plaintiff made a gift of one of the plots of lands described in the statement of claim and the subject matter of this dispute to the defendant.
iii. whether or not the plaintiff gave his consent and permission for the defendant to erect a building on plaintiff’s plot aforesaid.
iv. whether or not plaintiff is entitled to recover from the defendant the sum of Ghc3.600.00 being rent defendant received for and on behalf of the plaintiff.
v. whether or not the plaintiff is stopped from challenging defendant’s occupation and possession of plaintiff’s premises.
vi. whether or not plaintiff is entitled to the reliefs endorsed on their writ of summons and statement of claim.
vii.whether or not the defendant is entitled to his counterclaim
ANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW
As there is a claim and a counter claim both parties have obligations to prove their claims and counter claims on the balance of probabilities. The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is very instructive that:
“The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…”
In respect of the defendant’s counter claim it is to be viewed with the same scale of measurement as if he was the plaintiff. As far back as the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that:
“a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”.
Dotse JSC came to the same conclusion on counter claim actions in the case of JASS CO. LTD v
APPAU  SCGLR 269 at 271 that:
‘whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’
Before commencing the evaluation of the evidence, I must place on record the real and substantial difficulty that afflicts me even though as a trial Judge I have not had the benefit of listening to any of the evidence of the parties in court. Not presiding as an appellate Judge, nonetheless, my evaluation is limited to only the evidence on record same as the task that confronts any appellate court. And that does not in any way derogate or detracts or steal the glow out of the findings to be made upon analysis of the evidence.
I now begin the analysis and evaluation with the evidence of the Plaintiff. The Plaintiff testified through his lawful attorney Kwaku Akosah and Pw1 Osei Bempah, an uncle of the Plaintiff. The attorney testified and tendered the power of attorney that vest in him the capacity to be in court as Ex “A”, the indenture of the two plots in dispute as Ex “B”. The Ex “B” shows a transfer of two plots of land from Gbawe Kwatei family to the Plaintiff with the defendant acting as the authorized representative. This piece of evidence finds corroboration in the evidence of the Defendant when he stated in his evidence on the 11th of May, 2011 that the Plaintiff made him purchase the land for Plaintiff in 1994 and that they were two plots from the Gbawe Kwatei family. It is therefore clear from the evidence that there is no dispute at all regarding the initial purchase of two plots of land on behalf of the Plaintiff by the defendant from the Gbawe Kwatei family. The court guided by the trite principle of law that where a party makes an averment and that averment is admitted or is not denied then no issue is joined on that matter for determination. See Brobbey J. (as he then was) in HAMMOND v AMUAH  1 GLR 89.
What then comes up for determination as gleaned from the substance of the first three issues is to the effect as to whether at any point in time the Plaintiff made a transfer of one of the two plots of land to the Defendant either through a gift or otherwise as the defendant seems to assert and the Plaintiff denies. Being a trite rule of evidence that one cannot prove a negative, the defendant claiming that the Plaintiff divested himself of the ownership of the one plot being the res litiga, the burden is cast on the defendant to prove to the court how he became the owner of the land.
How did the defendant discharge his burden? Defendant states in his evidence in chief on record that he became the owner of the res litiga in this manner:
“In 1996 when he [plaintiff] came to Ghana, one evening we were together when one Sampson Adjei came to us in the house and we sat down and plaintiff said that in appreciation of all that I had done for him I should take the other plot”.
The following material information were elicited from the defendant in his further evidence before the court:
Q. So what happened from there?
A. We thanked him ...
Q. So what happened to the land he gave to you.
A. I started developing it.
Q. Which year was it.
Q. Was any documentation prepared in respect of the land given to you
The evidence of transfer of the land was tendered by the defendant as Ex ‘2’. The court will need to take a critical examination of Ex ‘2’ as to whether it meets the standard of a document that purports to transfer ownership of land.
Ex ‘2’ seems or appears to have two parties to the transaction. The first party is the plaintiff and the second party is the defendant. Curiously enough the defendant admits that he signed the document as defendant and at the same time signed the document on behalf of the plaintiff. As to how this can be, this is what the defendant states in answers to questions:
Q. Look at Ex ‘2’, it is the document between Attah Bempah and Daniel Dwomoh Adjapong, who executed this document for Attah Bempah
A: Daniel Dwomoh Adjapong, myself
Q. Who signed for Daniel Dwomoh Adjapong?
Q. Can you tell the court why you are not Attah Bempah but you executed it for him
A. The authority he gave to me to sign Ex ‘B’ is the same authority I used to sign Ex ‘2’
So can a party to a transaction sign in his own name and change its morphology and sign on behalf of the other party to the transaction, that is the transferor?
Section 1 of the Conveyancing Act, NRCD 96 states as follows:
‘A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of section 3.
(2) A transfer of an interest in land made in a manner other than as provided in this Part shall confer no interest on the transferee’.
Defendant has stated emphatically that he signed for on behalf of the Plaintiff based on an oral instructions. This is against the clear terms of the requirement for a document affecting land to be signed by the transferor or a person authorized by the transferor in writing to sign on his behalf. The authorization of the transferor for the document to be signed on his behalf should be in writing and not an oral one. The admission by the defendant that no such authorized writing exist makes Ex ‘B’ void and of no effect.
Section 2 of Conveyancing Act again states that:
“No contract for the transfer of an interest in land shall be enforceable unless—
(a) it is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of such person; or
(b) it is relieved against the need for such a writing by the provisions of section 3”.
Can it be said as indeed the defendant claims that the transfer of the interest in the res litiga was a gift such that depending on the nature of the gift, say if it was a customary gift, it would be excused from the necessity for writing.
For section 3 of the law list among others an oral grant under customary law as one of the transfers of an interest in land which is permitted without writing. In proving an oral gift of the land to the defendant, the latter procured Sampson Adjei, DW1 to testify on his behalf. As part of the substance of the testimony of DW1 he claims that Plaintiff called him in the presence of Agartha, the wife of defendant and told them that he was gifting one of the two plots to defendant in appreciation for his good works. And he continued that:
“Mr. Agyapong tried bringing a schnapp to thank Mr. Attah Bempah but he said no, the schnapp is not needed because of the numerous assistance he has offered him”
Plaintiff’s attorney has denied this claim of the defendant and so also is the uncle of the Plaintiff, Pw1 who has denied the claim of any customary gift to the defendant. For when Pw1 came under cross examination this is what transpired
Q. I am putting it to you that in appreciation of the good work the Plaintiff gave to the Defendant a plot out of what he had
A. I do not believe it. If he had given him anything of that sort he would have told me considering how close I am with him”.
What then is the law on customary gift regarding land?
Justice Dennis Adjei, in his work – Land Law and Conveyancng in Ghana notes at page 53 that any personal gift of a land must be done in public and not in secrecy and that the immediate family of the donor are preferably to be present in the making of such gift of land. This position is supported by the case of AKUNSAH v BOTCHWAY & RIVER FARMS LTD  SCGLR 288 that:
“In the case of a personal gift the owner’s decision is not subject to approval or consent from anyone. The only condition is that it should not be done in secret. It should be witnessed by others, preferably by members of the immediate family of the donor who are not entitled to question his decision provided they have no interest in the property which he intends to give away”. It does not end there. The beneficiary of the gift expresses his acceptance and gratitude for the payment of “aseda” in any form depending on the circumstances of each case”
Also in the case of YOGUO v AGYEKUM & ANOR  GLR 482-520; the court gave the essential elements of a valid customary gift of land to include the following: ceremony of transfer of ownership, publication to the living and the dead that ownership in a property had as from the date moved from the donor to the donee, pouring of libation and finally “aseda” to indicate acceptance of the gift.
Though in modern times some of the strict requirements have been watered down yet one cannot discount the provision of “aseda” which is an essential element of a valid gift as both parties are Ashantis having grown up together at Asante Mampong. I do not find that there was any valid gift of the res litiga to the defendant under customary law. There being no such gift under customary law and having earlier found that there was no valid transfer of the property to the defendant in a manner that meets the minimum requirements under the Conveyancing Act, the net effect is that the property is the property of the Plaintiff and was never transferred to the Defendant.
Having then been in possession of the land of Plaintiff since 2000, should the court make the Plaintiff pay the defendant the cost that the defendant has incurred so far in erecting the structure which he now occupy?. Ordinarily, a trespasser who has been on another’s land without permission is even supposed to pay damages for trespassing. However, the defendant in his Ex ‘1” tendered in court which Plaintiff did not deny being the author of that letter; Plaintiff unequivocally accepted to refund any monies spent on the land after the value of the land has been ascertained. The valuation done based on the agreement between the parties was tendered as Ex ‘3’ where the cost of the building put up by the defendant was estimated to be Gh¢19.614.70.
The courts are not in the business of drawing up agreements for parties and a party may decide to compromise his rights under the law and it is not the duty of the court to assert a right that a party himself has decided to waive. Notwithstanding the trespassory acts of the defendant, Plaintiff decided to pay defendant whatever monies expended. Plaintiff did not deny being the author of Ex ‘1’ and it was based on that letter that a valuation of the building was undertaken.
Section 26 of the Evidence Act, NRCD 323 provides:
“Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest”.
This has been termed as the irrebuttable presumption of estoppel by conduct. By the very statement through the letter of Plaintiff he had caused the defendant to believe and act upon it that he was going to refund his monies to him. The catch is that for the doctrine to operate it must relate to existing facts, the conduct must be clear and unambiguous and third the other party should have acted upon it to his detriment. I find that the plaintiff having agreed to refund the value of the monies spent by defendant on the land which was found to be Gh¢19.100.00 at the time, plaintiff must refund the monies as its value as at today. It would not be helpful to order for another valuation on the property as subsequent to the time defendant was told to halt further development, he ignored it and continue to develop the property on the flimsy ground of ill health. And it will not be just to make plaintiff pay for expenditure on the building beyond which he had clearly accepted to pay.
This then bring the court to the issue as Plaintiff’s claim to an amount of Gh¢3.600 which he claims are monies defendant collected from tenants and had not accounted for it. In the evidence of the defendant he admitted receiving Gh¢3.600 and this is how he accounted for them:
Q: What happened to that money
A. He directed me to use GH¢1.800 to procure electricity meters and also use part for telephone installation
Q. What happened to the remainder
A. He asked me to give the remaining amount of Gh¢1.800 to one Alhaji who is a contractor engaged to do some work on the premises
Q. What happened to the other Gh¢1.800 to Alhaji, did you give it to him A Yes
Q. Did you give all the Gh¢1.800 to him
A. I gave him Gh¢1.000
Q. What happened to the remainder
A. It got missing”
Again here with the admission of defendant that the total monies of Gh¢3.600 came into his hands as rent from tenants of plaintiff and claim to have disbursed the monies on the instructions of plaintiff, the burden was on defendant to have backed his claims in court with the necessary receipts from the electricity company and also the payment made to Alhaji. There is also no evidence that he lost an amount of Gh¢800.00 beyond the mere assertion made in court. This is also a departure from his pleadings that he disbursed all the monies as per the instructions of plaintiff. From the evidence on record I find as a fact that defendant received an amount of Gh¢3.600 on behalf of plaintiff and failed to account for same and defendant is liable to refund the monies to the plaintiff.
This brings the court to the final issue worth determining in this suit and that is whether the Plaintiff is stopped from challenging defendant’s occupation and possession of the plaintiff’s premises. The defendant claim that he started building on the res litiga in the year 2000 and that plaintiff had been visiting Ghana every two years and never raised any issue until 2006 when he asked him to stop further developments on the land. The court is not clear as to the specific estoppel that defendant is claiming. Granted that defendant started construction in 2000 and it was in 2006 that he was told to stop would that be enough to invoke a claim of estoppels?.
First if it is matter of a claim bordering on Statute of Limitations that the right of Plaintiff has been extinguished; Limitations Act, NRCD 54, specifically section 10 which states as follows:
“10(1) a person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it accrued to a person through whom the first mentioned claims to that person
(2) a right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run”
For the plea of limitations to be entertained it must expressly be pleaded or a party must plead facts such as would evince intention to rely on the plea of limitations. See the case of DOLPHYNE (NO 3) v SPEEDLINE STEVEDORING CO. LTD [1996-97] SCGLR 514. Looking at paragraphs 27 and 28 of the statement of defence this first hurdle requirement of pleading is satisfied. However, defendant started a building in the year 2000 and being told to stop in the year 2006 will not meet the requirement of the minimum number of years set out in the law. And any purported claim under the Limitations Act fails.
What of the claim of the defendant falling under section 26 of the Evidence Act, NRCD 323 quoted supra which is to the effect of being estoppel by conduct. What statement or conduct, acts, omissions either intentionally or otherwise caused the defendant to believe that the property he now occupies, had been given to him by the plaintiff. From the evidence it seems that anytime the Plaintiff was on a visit in Ghana he used to put up in the house and did not complain as he shared the property with the defendant. But would that be enough to amount to estoppels by conduct?
Occupying a property because the owner is not in Ghana in itself when the owner comes and fails to comment will not give rise to a conclusion that the owner has by conduct encouraged the person in occupation to believe that he now assumes ownership of the property. As the one that was overseeing the construction of the house, having moved to occupy part of the property does not raise an estoppel by conduct. And as noted for the claim of that estoppel to operate the conduct complained of must be unequivocal and unambiguous, the other party must have relied on it to his detriment. I do not think that the conduct of Plaintiff here before 2006 did in any way raise the irrebuttable presumption of estoppel by conduct and I so find and hold.
The court summarizes its judgment in conclusion as follows: Plaintiff succeeds in his action for declaration of title to the res litiga, recovery of possession of the land as well as recovery of an amount of Gh¢3.600 together with interest from the time the monies got into possession of defendant till date of final payment at the commercial bank rate. And an order of perpetual injunction to restrain the defendant and his agents and privies from claiming or interfering with plaintiff’s enjoyment of the property.
As stated the plaintiff must pay the today’s value of an amount of Gh¢19.100 to be assessed by the Registrar together with the parties. This amount could be off set against any monies Plaintiff is entitled.
Finally the plaintiff asked for general damages. In the Supreme Court case of DELMAS AGENCY GHANA LTD. V FOOD DISTRIBUTORS INTERNATIONAL LTD [2007 – 2008] SCGLR 748 on the award of general damages the court held that:
‘General damages is such as the law will presume to be the natural and probable consequence of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded’
On the whole I will award an amount of Gh¢15.000general damages.
In terms of cost, this matter has been in court since 2009 and the cost of litigation with many adjournments must have taken its financial toll on the plaintiff. On the whole I will award cost of Gh¢15.000.00 in favour of Plaintiff.