IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
COMFORT OFORIWAAH - (Plaintiff)
NANA FE BAMOAH - (Defendant)
DATE: 18TH JULY, 2016
SUIT NO: TBFS/02/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
NANA FREDUA AGYEMAN OSBON FOR PLAINTIFF
PRECIOUS AIDOO FOR MARIAM AGYEMAN GYASI JAWHARY FOR DEFENDANT
This land suit commenced on 01/03/2011 at the High Court (General jurisdiction), Kumasi but was transferred to this court under the hand of the Honourable Chief Justice sometime in the 2015 legal year. The initial writ of summons filed on 01/03/2011 was for an order for payment of the sum of GH¢100,000.00 being the total cost of the plaintiff's sandcrete building situate on plot No. 85 Asokwa and which was allegedly unlawfully demolished by the defendant herein. The Plaintiff also sought to recover interest on the said amount.
On 16/6/15, the plaintiff filed an amended writ of summons and statement of claim and added three reliefs, namely:
A declaration of title and recovery of possession of all that piece and parcel of building plot originally known as Plot 85 Block B Asokwa - Kumasi which was sold to the plaintiff by the defendant's predecessor in the year 1990 which defendant has trespassed on same and demolished portions of plaintiff's building on same.
An order of perpetual injunction restraining the defendants, their assigns, privies, agents and all manner of persons acting by them from trespassing, alienating, working and in any other manner interfering with the plaintiff's ownership, possession and enjoyment right of the property in dispute.
The defendant filed his statement of defence on 31/03/11 to which the plaintiff replied on 09/06/11. Pursuant to an order of the court dated 31/03/2014, the defendant filed an amended statement of defence on 01/04/14.
In view of the amendments filed, the issues which the court set down for trial at the application for directions stage will include other issues raised in the pleadings. Therefore, the issues which will be determined by this court are:
Whether or not the defendant's predecessor sold the disputed plot to the plaintiff?
Whether or not the Plaintiff was allocated the disputed building plot by the Asokwa Stool?
Whether or not the Asokwa Stool only gave a 10-year tenancy agreement to the plaintiff to occupy the disputed land?
Whether or not it was the KMA who demolished Plaintiff's sandcrete building erected on the disputed land?
Whether or not the instant matter was once determined at Manhyia Palace before a panel composed of representatives of Gyase-Kotimson/Nkonson division?
Whether or not the plaintiff is entitled to her claim?
The Plaintiff alleged that she is the bona fide owner of a piece and parcel of land and building thereon described as H/No Plot 85 Block B, Asokwa Kumasi, after acquiring the same from the defendant's predecessor, the Late Nana Akwasi Mensah in the year 1990. From the tine of the alleged acquisition, it is the plaintiff's case that she has been in undisturbed possession until the defendant's attempt to eject her and the subsequent demolition of a part of the building by the defendant.
It is also the plaintiff's case that the defendant had previously approached her to negotiate for the use of a vacant plot of land in front of her said house and to rent an alternative accommodation for the plaintiff as consideration but she did not accept that proposal. Thereafter, the defendant is alleged to have caused one Mr. Baah to demarcate a portion of the defendant's land with the intention of selling the same. The plaintiff also asserted that the defendant used policemen and armed soldiers to detain and intimidate her. On 07/06/2010, the plaintiff alleged the defendant forcibly entered her house and demolished her sandcrete building thereon valued at GH¢100,000.00, but has refused to pay for the damage caused to the said property.
THE DEFENDANT'S CASE
The defendant in his amended statement of defence denied the plaintiff's claim to the land, the alleged attempt at negotiating for the use of part of the land as well as the demolition. His case is that the disputed land forms part of a disused cemetery and his predecessor, Nana Akwasi Mensah, granted the plaintiff a licence to put up a temporary structure to operate a "chop bar" sometime in the year 1990 upon a condition that no permanent structures whatsoever were to be constructed thereon.
In the year 1993, the defendant alleged that the head of the Asokwa Royal Family, Opanin Yaw Mensah and the plaintiff purported to execute a 10-year agreement in respect of the disputed land. It is his case that these facts came to his knowledge after his enstoolment and when he was given an inventory of the stool properties. Further, the defendant averred that the plaintiff continued the construction of a permanent structure on the land irrespective of numerous warnings given to her. That unrelenting behaviour caused him to lodge a complaint at Manhyia Palace and after a panel had deliberated on the issue, an award was allegedly made against the plaintiff.
Subsequent to the complaint at Manhyia, the defendant asserted that he lodged a complaint with the Kumasi Metropolitan Assembly (KMA), and it was KMA that demolished the plaintiff's unauthorized structure in the absence of title documents and building permit. He denied any liability to the plaintiff's claims.
THE BURDEN OF PROOF IN CIVIL SUITS GENERALLY.
As in all civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4),12 and 14 of the Evidence Act, 1975 NRCD 323 to lead cogent evidence such that on the totality of the evidence on record, the court will find that party's version of the rival accounts to be more probable than its non-existence. Indeed, this basic principle of proof in civil suits expounded by Kpegah JA (as he then was) in Zambrama V Segbedzie (1991) 2 GLR 221 has been subsequently applied in numerous cases. Among these are Yorkwa v Duah ( 1992/93) GBR 278; Adwubeng v Domfeh (1996/97) SCGLR 660; Takoradi Floor Mills v Samir Faris (2005/06) SCGLR 882; Yaa Kwesi v Arhin Davis(2007/08) SCGLR 580; Sarkodie v FKA Co. Ltd. (2009) SCGLR 65 holding 1; Fosua v Dufie(deceased) & Adu-Poku Mensah (2009) SCGLR 316; Continental Plastics Ltd v IMC Industries (2009) SCGLR 298 at pages 306 to 307; and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2).
By the nature of the pleadings in the case before me, whereas the burden of persuasion as well as the evidential burden relative to the supposed acquisition, sale, and/or grant of the disputed land by the Asokwa Stool to the plaintiff; the alleged demolition by the defendant and the value placed on the property rest on the plaintiff; proof of the so-called ten -year agreement in respect of the disputed land the supposed arbitration falls on the defendant.
CLOSING SUBMISSIONS BY COUNSEL FOR THE DEFENDANT
At the commencement of her closing address, counsel emphasized the principle that a defendant who has been sued need not prove anything. She cited and relied on two cases: Dan v Gborleshie (2015) 84 GMJ 98 and Adjetey Agbosu & Ors (2006) 2 MLRG 111.
After a careful evaluation of the pleadings and evidence on record, counsel for the defendant submitted that the plaintiff's exhibit A which is not L.I. 1444 compliant as per the evidence of DW6, and in the absence of cogent evidence that the same was given to her by the defendant's predecessor, the same ought to be disregarded by this court. She cited and relied on Nortey v AIJ& Ors (2014) 77 GMJ 31.
Still on exhibit A, counsel referred to the evidence of DW1 and DW2 who had said in court that the Area Planning Scheme of the Asokwa Industrial Area (exhibit 9) has not been revised and that the alleged plot 85 block B which the plaintiff lays claim to cannot be traced to any of the planning schemes tendered- i.e. Asokwa Industrial Area Planning Scheme (exhibit 9); Asokwa Industrial Area Amendment Scheme (exhibit 10); Amendment to Asokwa new Amakom document (exhibit 11); and the Old Amakom Planning Scheme document (exhibit 12). She then concluded from the foregoing that the land which the plaintiff lays claim to does not exist, and cannot be even be found in the records of the Lands Commission, Ashanti region as gleaned from the testimony of DW2.
Continuing, counsel commented on the plaintiff's exhibits B, C, D and E. In particular, she argued that by exhibit D, the plaintiff knew as far back as the year 2008 and at all times material that the disputed land is an open space without a number and her attempt in this court to assign a plot number to it is misleading. Further, counsel submitted that per exhibits C and E, the plaintiff's application for a building permit was not recommended for approval by the development control unit of the KMA and indeed, the permit was never approved. Hence, the plaintiff had no right to construct any sandcrete structure on the land for residential or other purpose as same is contrary to section 49(1) of the Local Government Act 1993, Act 462.
Counsel then turned her attention to the defendant's exhibits 3, 4 and 5 and argued that the defendant's predecessor never made a grant of the land occupied by the plaintiff for development into a dwelling house or any permanent structure. She stressed that the plaintiff was just given a licence to put up a temporary structure on the land carved out for her by the Abusuapanin Yaw Mensah on the instruction of the Odikro of Asokwa, Nana Kwasi Mensah (deceased), to sell petty items as DW4 has testified to. It was also her submission that the area where the disputed land is situate is a Vested Land; and by the import of the evidence of DW2 on the procedure for acquiring a Vested land, the Odikro of Asokwa being the caretaker chief of the disputed land could not have granted any interest in the land to the plaintiff because he has no capacity to do so.
As regards the demolition of the structure erected on the land by the plaintiff, counsel argued that by the evidence of DW5, among others, it was the KMA that caused the demolition, after the plaintiff had been duly warned and the defendant had no hand in the said demolition. Counsel also rejected the impression created by the plaintiff that she has been in undisturbed possession of the disputed land because the KMA had cautioned her to remove her structure which had been roofed at the time; a complaint was made to the Asantehemaa Afia Kobi Serwaa Ampem on an Awukudae in the year 2010 in respect of the plaintiff's unauthorized development on the land; and even after the KMA had demolished the structure, the plaintiff still embarked on the construction of the permanent structure.
Concluding, counsel submitted that the plaintiff is merely asking the court to clothe her actions with legality by seeking judicial endorsement of the same.
I must put on record that contrary to the firm order made by the court for the filing of written submissions simultaneously by both counsel, as at the time of writing this judgment, which ought to have been delivered on 06/07/2016 but could not be delivered due to the Islamic holiday, counsel for the plaintiff had not filed his address. I therefore proceeded to write this judgment without having the benefit of his inputs. It is hoped that counsel will respect time lines set by the court in future if he wants his views to be considered by the court.
ISSUES OF SALE AND /OR ACQUISITION OF THE DISPUTED LAND.
These arise from the first and second issues namely: (i) whether or not the defendant's predecessor sold the disputed plot to the plaintiff; (ii) whether or not the Plaintiff was allocated the disputed building plot by the Asokwa Stool
As I have already stated, the evidential and the burden of persuasion will rest on the plaintiff. The need for a person having the burden of persuasion in land matters was underscored by the Supreme Court in Mondial Veneer (Gh) Ltd v Amuah Gyebu XV (2011) SCGLR 466. In holding (4) at page 468, the Supreme Court held that:
"In land litigation, even where living witnesses involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on who bore the burden of persuasion... to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It was only where the party had succeeded in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim"
It flows from the above statement that there is no such burden on the defendant until the plaintiff has been able to satisfactorily displace the onerous burden placed on him. As counsel for the defendant rightly submitted relying on Dan v Gborbleshie and In re Ashalley Botwe lands; Adjetey Agbosu & Ors, referred to supra, a litigant who is a defendant in a civil suit need not prove anything and it is the duty of the plaintiff who took the defendant to court to prove what he claims he is entitled to from the defendant.
So, what has the plaintiff herein done to displace the evidential burden as well as the burden of persuasion placed on her by the Evidence Act, NRCD 323? She sought to do this through oral and documentary evidence as she is entitled to do. This is in line with the statement of the Supreme Court in the case of Ackah v Pergah Transport Ltd (2010) SCGLR 728 that:
"Methods of producing evidence include the testimonies of the party and material witnesses, admissible hearsay, documentary and other things (often described as real evidence), without which a party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court"
Her oral evidence, which was corroborated by her husband, PW1, was that sometime in the year 1990, she requested for plot number 85 Block B, Asokwa from the then Odikro, Nana Kwasi Mensah, who granted the same to her. In support of this oral testimony, she tendered documents said to have been given to her by the chief in connection with the grant as well a s other documents she has obtained relative to her presence on the land. The documents she referred to are exhibits A to E. She denied executing a 10-year agreement in connection with the disputed land and said the 10-year agreement which the defendant referred to pertained to another parcel of land allotted to her by Opanin Yaw Mensah for a different purpose. She also told the court that the defendant never invited her to his palace in connection with the land, rather, it was the defendant who came to her house initially with a certain White Man with a proposal to be allowed to sell the disputed land and give a portion of the proceeds to the plaintiff which she rejected. Similarly, she denied that any arbitration has taken place in respect of her ownership and/or presence on the disputed land.
Under cross-examination, the plaintiff admitted that by exhibit B, she was given permission to sell petty items on the disputed land and she still carries on that business on the land. When confronted with exhibit A, she conceded the document has not been signed by any surveyor and that the chief who gave it to her had indicated he could not give her an allocation paper (emphasis added). Irrespective of these admissions, she maintained that she acquired the disputed land from the Asokwa Stool.
Even though the plaintiff denied any knowledge of exhibit 1 by which her lawyer applied to the KMA for change of use on 13/04/2011, she admitted the contents of exhibit 2 written by her lawyer wherein the disputed land was described as a "disused cemetery" which she purchased on 30/12/1990.
Still under cross-examination, PW1 who described himself as the plaintiff's husband was emphatic that the disputed land was not given to the plaintiff to put up a temporary structure for petty trading but the Odikro allocated the same to her for a consideration of Twenty Cedis (now GHs 2) and Schnapps.
The above evidence was challenged by the defendant. His version is that upon his enstoolment as chief of Asokwa in the year 2005, he was given an inventory of his stool properties. Whilst perusing the inventory, he discovered an agreement executed between his Stool and the Plaintiff by which Opanin Yaw Mensah as Care Taker Chief gave the disputed land to the plaintiff to occupy for a period of 10 years, i.e. from 1993 to 2003. He then invited the plaintiff who came to his palace with PW1 and pleaded to be allowed to remain on the land. The agreement which the defendant referred to are exhibits 4 and 5. According to him, the issue of the plaintiff's unlawful development on the land was taken up at the Asantehemaa's court where she was warned to desist from her acts but instead, she continued to build. His evidence on how the plaintiff got onto the disputed land and attempts at stopping her from putting up a permanent structure on the same were corroborated by DW4 and DW5 who were witnesses to the demarcation by Opanin Yaw Mensah and the construction complained of.
In as much as I agree with counsel for the defendant that a defendant is not obliged to prove anything, it is in that person's own interest to introduce some form of credible evidence relative to the issues which a court has to consider. The reason being that at the end of the day, the court is enjoined to weigh the evidence on record by the preponderance of the probabilities, and determine the party whose case is more favourable of the rival stories. Proof on a balance of probabilities equally applies to claims on land as decided in Serwah v Kessie (1960) GLR 227. Brobbey JSC did not hesitate to ventilate his views on this point in the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors ( 2003-2004) SCGLR 420 where he made the following observation as regards the burden of proof:
... 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 evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the 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. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant ..."
Again, Ansah JSC in Takoradi Floor Mills v Samir Faris (2005/2006) SCGLR 882 at 884(holding 5) in dealing with proof in civil suits was quick to point out that:
“ It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975 ( NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”
Therefore, the defendant in the case at hand took the right course by adducing evidence on the issues under consideration even though he was not obliged to do so. Now, I will evaluate the evidence adduced by the parties before me. First, I will comment on exhibit B which is titled "Letter of Consent" dated 21/09/1998. It was written by Nana Kwasi Mensah II, Odikro of Asokwa and directed at " Whom it may concern". It states:
RE: COMFORT OFORIWAA
That on the 30th December, 1990, I gave piece and parcel of vacant plot to the said Comfort Oforiwaah of Asokwa, Kumasi to sell things on the vacant plot at Old Asokwa/Kumasi for which she is selling things thereon.
That the said Comfort Oforiwaa intends to add the selling of gas in addition to her items being sold by her.
I do hereby endorse of selling and filling of gas i.e. permission is granted to her.
I shall therefore be grateful, any assistance that she may need from you.
(sgd.) Nana Kwasi Mensah
(Odikro of Asokwa Old Town).
Second, I will touch on exhibit A which plaintiff relies on as depicting the land given to her by the Asokwa Odikro. In fact, the identity of the land claimed by the plaintiff cannot be inferred from exhibit A. By her own exhibit B, the Odikro gave her a parcel of vacant land for the purposes of carrying out her business which she has unilaterally described as Plot Number 85 Block B, Asokwa.
Strangely, that plot number is not even depicted on her own exhibit A, and thereby making the identity of her land more doubtful.
Third, her exhibits C, D and E are mere building permit application & declaration forms and a permit form and it is on record that any developer in need of a permit can purchase those forms from the KMA. The mere purchase of these forms is not a guarantee for the issuance of a valid building permit. On the face of these documents, there is no doubt that it was only the plaintiff and "her licensed surveyor" who completed their portions. The portions where the Metropolitan Chief Executive, the Metropolitan Director of Health and the Metropolitan Engineer had to append their signatures are left blank, a clear indication that these designated persons did not sign. Similarly, on the face of exhibit E, the development control officer of the KMA did not sign, meaning that he did not recommend the application for approval.
It must also be emphasized that the plaintiffs alleged grantor, Odikro Nana Kwasi Mensah is dead. The guiding principles in evaluating evidence against dead persons came up in Mondial Veneer (GH) Ltd v Amuah Gyebu XV, referred to above. In delivering the judgment of the court, Georgina Wood C.J. observed that accepting assertions made against a dead person without close scrutiny could result in real danger. At page 475 of the report, Her Ladyship approved of the principle as enunciated by Brett MR, in the case of Garnett, In re; Gandy Macauly (1885) 31 Ch D 1 at 9 that:
"The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive, he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be, first of all in a state of suspicion...".See also Fosua & Adu Poku v Dufie (decd)Adu Poku Mensah (2009) SCGLR 310, SC; In re Krah (decd); Yankyeraah v Osei-Tutu (1989-90) 1 GLR 638 SC; and Bisi v Tabiri (1987-88) 1 GLR 360 SC where the Court hammered on this well established principle.
Guided by the above stated principle, i will subject the plaintiff's evidence that Odikro Nana Kwasi Mensah sold a portion of the disused cemetery to her to a microscopic scrutiny, especially in the face of exhibits A and B which portray the contrary. Before then, I will consider the evidence of the defence witnesses so as to get a holistic picture.
I will start with the evidence of his technical witnesses, i.e. DW 1 and DW6. DW6 testified about the requirements of different types of Maps and Plans which are used for documentation purposes such as registration of land and any land transaction and he said LI 1444 is the governing legislation. Specifically, he identified the features of cadastral plans which according to him have been in use since the year 2008. He distinguished cadastral plans from ordinary site plans which were in use prior to 2008 but are currently not acceptable in land documentations. The witness was emphatic that prior to the year 2008, site plans were prepared on a paper with blue background, but since 2008, cadastral plans have been prepared on paper with a yellow background like what exhibit A has been sketched on, an indication that exhibit A is a recent document. In addition to all the features he listed, DW6 made it clear that every plan meant for land documentation must be L1 1444 compliant, but in his view, exhibit A is not. The requirement which he describes as missing from exhibit A is the endorsement by a licensed surveyor and the regional surveyor. In expressing his candid opinion on exhibit A, DW6 said:
Exhibit A is a mere site plan. A mere site plan which is not scientifically prepared meaning that the plan was prepared without going to the site to do any meaningful survey. Such a plan can be prepared by any quack draughtsman but it does not conform to the standard set by the Survey and Mapping Division. More often than not, its position on the plan is not a true replica of its position on the ground simply because no proper survey was done."
DW6 further observed that:
"... Survey and Mapping does not deal with curbed distances as exist on exhibit A. It should have been broken into segments. Exhibit A does not relate to the Town Planning Scheme covering the area because that parcel of land being claimed by the plaintiff does not exist on the Town Planning Scheme. That area is zoned as a cemetery cite"
Before then, DW1 had testified about the procedure for acquiring building permits. Key to these requirements is the production of evidence of title to land and here, he said his outfit request for a 'file confirmation letter" from the Lands Commission. After the purchase and completion of the building permit forms as well as architectural designs certified by a licensed architect, the application is received by the technical officers at the Development Control Office of the KMA; a technical sub-committee vets the plan and recommend it to the Statutory Planning Committee for its consideration. If it is approved, then the Mayor in his capacity as the chairman of the Statutory planning Committee signs, the Metropolitan Medical Officer and the Town & Country Planning officer also append their signatures. Concluding his evidence on this point, DW1 said any person can purchase building permit forms but evidence of title is required before the processes can be set in motion.
I must say that the explanation given by DW1 on the procedure for obtaining a building permit is convincing and displaces the plaintiff's evidence that it was the defendant who told the KMA not to issue the permit to her. The bottom line is, where is her evidence of title to the disputed land? Clearly, her exhibits A and B will not pass as evidence of title to land. In particular, her exhibit A is a recent document and as rightly observed by DW6, it is a mere sketch which does not conform to the planning scheme of the Asokwa Industrial area which has not been revised.
With the evidence of DW6 in mind, Exibits A and B put together cannot by any stretch of imagination be proof that Odikro Nana Kwasi Mensah sold the disputed land to the plaintiff. In other words, the fact of sale cannot be inferred from these documents and therefore the plaintiff's assertion that the said Odikro sold the disputed land to her on the date indicated therein is false and ought to be rejected ought right.
The evidence of DW2, an officer at the lands Commission, Kumasi, took the case to another unexpected level. Surely, that evidence must have come as a big surprise to the plaintiff and her counsel and the substance of that evidence could not be discredited by them at the end of the day, even in the face of the extensive cross-examination by counsel. DW2 explained to the court the various categories of land in Kumasi and said they consist of Government land (which could be vested land or state land); and stool land. Among other things, DW2 said Asokwa Lands are owned by the Golden stool, but vested in the Government and managed by the Lands Commission on behalf of the Golden Stool. The witness spelt out the procedure for acquisition of vested land by an individual or organization. According to him, an applicant first applies to the Lands Commission for a parcel of the vested land and upon payment of inspection and presentation fees, the application is received; the applicant seeks the consent of the Golden Stool. If consent is given, an inspection is conducted and it is submitted to the Lands Commission for approval and engrossment of lease. Both the lessor and the lessee execute the lease after endorsement by Otumfour. The witness also confirmed that the plot numbered 85, Block B, Asokwa, does not exist in the records of the Lands Commission.
The above vital evidence was not challenged by the plaintiff during cross-examination. Generally, where a party fails to cross-examine on a material fact, that party is deemed to have admitted those facts. But then, that rule is not absolute as was held in GPHA v Nova Complex Ltd (2007-2008) SCGLR 806 at 810. Indeed, the strict reliance on that rule was rejected in the case just cited, but the exceptions which the court contemplated therein are purely matters of fact, especially where the pleadings show that those facts are not being admitted.
Also, in Kombat v Lambim (1989-90) 1 GLR 324, Benin J ( as he then was) expressed the following opinion in a situation where an unrepresented illiterate failed to cross-examine on vital evidence given by the opposing party. The court held (holding 2) that:
"The plaintiff being an illiterate was not expected to know the intricacies and importance of cross-examination especially where he himself had closed his case. In that respect it was desirable that the trial magistrate draw his attention to the relevance and importance of cross-examination and what it meant, and whatever the witness said had to be recorded. For having closed his case it was only legitimate for the illiterate party to think that the other party was also stating his case, and might not even be aware that he was entitled to cross-examine his opponent. In that situation failure by the plaintiff to cross-examine the defendant would not amount to an admission of his evidence."
In my opinion, the exceptions to the rule on "failure to cross-examine" as stated in the two cases just referred to will not apply to the circumstances of the case before me. First, the plaintiff was represented by a lawyer throughout the proceedings and so the question of her literacy or illiteracy does not arise. Second, her lawyer commenced his cross-examination of DW2 on 29/07/15 and ended on 31/07/15. In the intervening period, he could have officially verified if Asokwa Lands are not vested in the government and managed by the Lands Commission on behalf of the Golden Stool as stated by the witness. Yet, he chose to extensively cross-examine on matters which do not in any way advance the plaintiff's case. No attempt was made to discredit all this important evidence on the Asokwa lands being vested lands. On that score, the plaintiff is deemed to have admitted that piece of evidence.
That apart, the plaintiff failed to introduce any cogent evidence to establish that the Asokwa Lands in issue are not vested Lands.
The evidence of DW2 makes the plaintiff's claim that the Asokwa Stool granted the disputed land, or any interest therein or in any parcel of land at all depicted on exhibit A to her more disturbing and untenable. The plaintiff's claim of title to the disputed land is further compounded by exhibits 3 and
The plaintiff who admits that she is a retired revenue officer of the KMA cannot be said to be a stack illiterate who cannot even write her name or sign. Her assertion that she thumbprints instead of signing is totally false, having regard to the entirety of the court's records. Exhibit 3, dated 30/12/1990 is reproduced below for its full force. It states:
Madam Comfort Oforiwaah
House Number 33 Block B
Asokwa Bungalow Kumasi.
ALLOCATION OF PLOT- OLD ASOKWA.
I have to state that I am a petty trader resident at Asokwa (old).
There lies a vacant space on a plot of land situate and lying at Asokwa.
I have kindly consulted Odikro Nana Kwasi Mensah; Odikro of Asokwa, to allow me erect a wooden structure on the space of the plot to enable me sell petty items like Akpeteshie, cigarettes, etc.
The odikro has obliged me to use the space for the purpose, and i am by this letter informing the authorities.
(sgd.) Comfort Oforiwaah.
Exhibit 3 was copied to the City Engineer, K.M.A.
Exhibit 4, also dated 30/12/1990 states:
I, COMFORT OFORIWAAH of House Number 33 Block B Asokwa Bungalow, Kumasi, have paid an amount of C 20,000.00 (Twenty Thousand cedis) and a bottle of schnapps being Aseda to NANA KWASI MENSAH, Odikro of Old Asokwa in respect of a piece and parcel of vacant plot allocated to me by the Odikro for the purpose of selling general items i.e. Akpeteshie, cigarettes etc of which amount and the Drink the Odikro has acknowledged receipt.
(sgd.) Comfort Oforiwaah
(thumb printed) Nana Kwasi Mensah II.
Obviously, exhibits 3 and 4 cannot amount to evidence of sale of land because the plaintiff was given access to the land for a limited purpose, i.e. to do her petty trading.
It can be reasonably inferred from the totality of the evidence on record that the land which the plaintiff lays claim to at the Old Asokwa more particularly described as a "disused cemetery" is owned by the Golden Stool and same is vested in the Government and managed by the Lands Commission on behalf of the Golden Stool. In view of this undisputed fact, the Asokwa stool could not have sold or granted any valid interest therein to the plaintiff as rightly submitted by counsel for the defendant. To worsen the plaintiff's case, her lawyer, Sarfo Gyamfi Esq. wrote to the Metropolitan Chief Executive of the KMA on 01/06/2011 in respect of the plaintiff's title to the disputed land. In that letter, exhibit 2, the lawyer emphatically stated that a piece of land at the "Disused Cemetery" in Asokwa was sold to his client by the Asokwa Odikro on 30/12/1990. This fact of sale contradicts the contents of exhibit B wherein the Odikro merely gave a vacant land to the plaintiff to "sell things on". That in law cannot amount to a grant of an interest in land.
The plaintiff has also not led any cogent evidence to show that she applied to the Lands Commission, Kumasi, to be allocated an identifiable land in the Asokwa old town or industrial area and that the Golden Stool consented to any grant in her favour. More importantly, the Asokwa Odikro who put the plaintiff into possession for a particular purpose indicated in exhibit B never gave her a formal allocation paper/document, a fact which the plaintiff herself admits.
By the preponderance of the evidence on record, I find that the plaintiff's claim of having purchased plot number 85 Block B, Asokwa from the Odikro of Asokwa, the late Nana Kwasi Mensah, is false. I further find that the plaintiff was merely allowed to have the use of a portion of the "disused cemetery" at Asokwa for her trading activities and nothing more. I accept the defendant's version that plot number 85 does not exist on the ground and that the Asokwa lands are vested lands which can only be acquired through the Lands Commission which the plaintiff has not done.
I therefore conclude that the plaintiff has failed to prove any sale and/or grant of the disputed portion of the "disused cemetery" at Asokwa to her in accordance with law. Even if there was any such sale and/or grant to the plaintiff by the Asokwa Odikro, that purported grant without recourse to the Lands Commission, would have been void in the light of the established fact that the Asokwa lands are vested lands.
It is to be re-emphasized that the twenty thousand cedis (now GHS 2.00) and a bottle of schnapp which the plaintiff gave to Odikro Nana Kwasi Mensah on 30/12/1990 paved the way for the plaintiff to ply her trade on the land. The word "Aseda" used in exhibit 4 is to be construed within its own context. Reading exhibit 4 as a whole, the "Aseda" was a sign of appreciation to the said Odikro for granting the plaintiff permission to ply her trade on the disputed land and not as a valuable consideration for the sale of the land to her or for the development of the land. Even if Odikro Nana Kwasi Mensah could dispose of the disputed land in his own right, on the face of exhibit 4, he did not intend to make an outright grant to the Plaintiff. If he intended to sell the land outright as far back as 1990, there would not have been the need for him to write exhibit B, eight (8) years down the line, granting permission to the plaintiff to "sell and Fill" gas on the said land. It can therefore be reasonably inferred from the clear actions of Odikro Nana Kwasi Mensah (deceased) that the plaintiff was a bare licensee on the disputed land even as at 21/09/1998. Then, on 07/12/1999, the plaintiff applied to the Asokwa Sub-Metropolitan District Council to register her temporary structure to operate a beer bar (see exhibit 22). It is therefore not surprising that the plaintiff was unable to produce any evidence of title when she eventually applied for a building permit at KMA as a result of which her application was neither processed nor approved by KMA.
It is trite learning that a bare licence cannot create any interest in land. And, counsel for the defendant was right in her submission that the plaintiff cannot rely on her long existence on the land as a licensee to claim title to the land. Generally, a bare licence is automatically revoked upon the death of the licensor or upon the alienation of the land on which the right of licence was exercised by the licensee. See Adjei D.D. (2015) LAND LAW, PRACTICE AND CONVENYANCING in Ghana, Adwinsa Publications, page 251; Terunnase v. Terunnanse (1968) AC 1086; King v David Allen & Sons ( 1916) AC 54 HL.
So, in this case it is on record the plaintiff’s alleged grantor died in the year 2002. She laboured under the wrong impression that her so-called grantor had the right as it were and gave her permission to operate her business on the land. By law, that right was automatically revoked in the year 2002 when Odikro Nana Kwasi Mensah died.
Even if Odikro Nana Kwasi Mensah were to be alive today and in the face of the evidence that the land in issue is vested land, the plaintiff's right as a licensee would have terminated the moment a grant was made in favour of the Golden Stool on 18/07/2012 as per exhibit 14.
Counsel for the plaintiff sought to challenge the grant evidenced by exhibit 14 during cross-examination on the basis that it was made after the plaintiff had commenced her action in March, 2011. As demonstrated above, the plaintiff as a bare licensee, had no business to remain on the land after the death of Odikro Nana Kwasi Mensah in the year 2002. In the absence of any prior formal grant of the disputed land, or any part thereof by the Lands Commission, it acted within its legal mandate to make a grant to the Golden Stool. The grant was as a result of a request made on behalf of the Golden Stool by Dadson & Associates in a letter to the Lands Commission dated 24/08/2011 (exhibit 17)
After the death of Odikro Nana Kwasi Mensah in the year 2002 and the automatic revocation of her licence by reason of the death, the plaintiff had no legal right to remain on the disputed land. From that point on, she was in adverse possession. However, there is abundant evidence on record to the effect that at various times in the year 2010, the plaintiff's presence and development activities on the land were questioned by the defendant, the KMA and Nananom at the Asantehemaa's palace. Notable among these are exhibits 2,7, G, H series and J. From the year 2002 to 2010 is a period of eight years which is less than the twelve years that an adverse possessor cannot be removed from the land.
In the circumstances of this case, the plaintiff cannot rely on her long possession to claim title because she is not covered by any of the provisions under the Limitations Act, NRCD 54, section 10.
WHETHER OR NOT THE ASOKWA STOOL ONLY GAVE A 10-YEAR TENANCY AGREEMENT TO THE PLAINTIFF TO OCCUPY THE DISPUTED LAND.
As indicated earlier, the onus of proof of this issue is on the defendant and he tendered exhibit 5 to buttress his oral testimony that the disputed piece of land was not sold to the plaintiff but she only executed a ten-year tenancy agreement in respect of the same. The plaintiff did not dispute the existence of exhibit 5, but stressed that it was in respect of a different portion of the "disused cemetery". I need not belabour this point, whether exhibit 5 relates to the land at the "disused cemetery" which the parties herein are fighting over, or it is in respect of a different portion of the "disused cemetery" at Asokwa given out by Opanin Yaw Mensah, the legal effect will be the same. And it is that the Asokwa lands form part of the Golden stool Lands vested in the Government and managed by the Lands Commission on behalf of the Golden Stool. Consequently, any agreement in respect of any portion of the "disused cemetery" without recourse to the Lands Commission is void ab initio.
WHETHER OR NOT IT WAS THE KMA WHO DEMOLISHED PLAINTIFF'S SANDCRETE BUILDING ERECTED ON THE DISPUTED LAND?
In paragraph 9 of the plaintiff's amended statement of claim, she asserted that "...the defendant on the 07/06/2010 and in a bullying fashion entered plaintiff's land and demolished plaintiff's sandcrete building thereon."
The evidence of the Plaintiff and PW1 was to the effect that they were present when the defendant came in the company of certain men who caused the demolition on the disputed land. Has the plaintiff established the identity of those men and the capacity in which they acted? The answer is an obvious no!
The plaintiff again said in her evidence -in-chief that it was after the defendant had been convicted by the court at KMA that he came to her house to cause damage to her concrete blocks and the building on the plot. The date of conviction is therefore crucial. The defendant conceded that he was convicted by the Circuit Court at KMA, Kumasi for offensive conduct but the same was quashed on appeal to the High Court as per exhibit 8. From the heading in exhibit 8, the defendant was sentenced by His Honour William Boampong on 16/02/2011. The date on which the sentence was passed was never challenged by the plaintiff at this trial. So, it is right to conclude that if the defendant caused any demolition at all, which he has denied, it might have happened on or after 16/02/2011, which is contrary to the plaintiff's own pleaded case that on 07/06/2010 the defendant demolished her house! Her evidence on that point is therefore not worthy of credit. As was held in Yaa Semanhyia & ors v Elizabeth Bih & Ors (2006) 5 M.L.R.G. 184 at 195:
"It is an acceptable practice that whichever party sets up an entirely different case from that which has been pleaded must fail and or bear the consequences"
The Defendant's exhibits 7 (same as exhibit 23) shows that as far back as 07/05/2010, the KMA gave notice of its intention to demolish an unauthorized structure at the "disused cemetery". Prior to that, the KMA, acting through its Presiding Member, Hon. Nana Kofi Senya, invited the defendant to a meeting concerning the building of an illegal structure at Asokwa Old town Cemetery. He had petitioned the Assembly over this unauthorized structure. The said invitation is dated 25/03/2010. In the event that any demolition took place in the year 2010, i am unable to find that the same was done by the defendant herein in the face of exhibits 7 and 23. Going by the evidence of the Plaintiff and PW1, it may well be that the defendant was present at the time of the demolition, but they have not been able to prove to the satisfaction of this court that it was the defendant who instructed those men to demolish the structure. Since the KMA issued a notice of demolition on the developer of the land in dispute which happens to be the plaintiff herein on 07/05/2010, and her said property was actually demolished subsequently, the plaintiff ought to have proceeded against the KMA in respect of any such demolition if she had any solid proof that KMA had no legal right to cause the demolition to be done.
On 18/03/2013 the Asokwa Sub-Metropolitan Council also wrote to the developer, obviously the plaintiff, to desist from her unauthorized development failing which the "Assembly will not hesitate to demolish" her structure and surcharge her accordingly. This notification and caution is contained in exhibit 24. The plaintiff's solicitor replied to exhibit 24 by a letter dated 21/03/2013, exhibit 25. The Sub-Metro again responded to exhibit 25 and on 28/03/2013, a letter was written to the plaintiff's solicitor drawing his attention to the fact that the Sub-Metro was only carrying out its legal mandate because by virtue of section 64(1) of the Local Government Act, Act 462, nobody can construct a building or structure without obtaining a permit from the District planning authority (see exhibit 26). Subsequent to exhibit 26, DW3 said the Asokwa Sub-Metro moved onto the site, commenced the demolition but in the course of the exercise, the plaintiff created a "nasty scene" so they could not pull down the entire building and had to leave. So again, going back to the plaintiff's evidence-in-chief that there was a demolition after the defendant's conviction and sentence which was on 16/02/2011, it can be reasonably inferred that any such demolition was what DW3 from the Asokwa Sub-Metro spoke about. Even if the defendant was present, how could that demolition be his act? What step has the plaintiff taken to challenge the actions of the Asokwa Sub-Metro if indeed she had the legal right to construct any structure on the land during the reference period? I see none from the record before me. I will accept the submissions of counsel for the defendant that the defendant had no direct link to the actual act of demolition.
By the preponderance of the evidence adduced by the parties, the plaintiff has failed to link the defendant to the actual act of demolition to make him liable for any damage that might have been caused and I so find. On the basis of that finding, I conclude that the defendant is not liable to the plaintiff for any damage caused to her property which in any case was illegally constructed at the "disused cemetery" in Asokwa Old Town.
WHETHER OR NOT THE INSTANT MATTER WAS ONCE DETERMINED AT MANHYIA PALACE BEFORE A PANEL COMPOSED OF REPRESENTATIVES OF GYASE-KOTIMSO/NKONSON DIVISION?
As to be expected, the onus of proof of this issue rests on the defendant. He testified that a report was made to the Asantehemaa's court and a panel consisting of Kotimso and Nkonson presided over by Nana Gyaasehemaa, Nana Po, went into the matter. The plaintiff was told what she was expected to do, but she rather continued developing the foundation she had started. At the request of counsel for the plaintiff during cross-examination, the proceedings before Nananom at the Asantehemaa's court were tendered through the defendant as exhibit J.
I have scrutinized exhibit J. The impression created by counsel for the plaintiff during cross-examination that exhibit J is not authentic is indeed worrying. All that exhibit J talks about is the report made by Nana Asokwahene in respect of the illegal structure being developed by Comfort Oforiwaa; her reaction to the issue before Nananom when she was invited and the conclusion reached by Nananom that she should desist from that illegal activity. By the plaintiff's own showing, she did not have any building permit to put up that sandcrete structure; she could not support her application for a building permit with any credible evidence of title and so her application was never processed. Her exhibits C,D and E are of no probative value. In the midst of all these established facts, there was no motivation on the part of Nananom to "cook up" a document such as exhibit J and in the manner suggested by the Plaintiff's counsel. I accept the contents of exhibit J as credible and hold that Nananom of Gyase Kotimso/Nkonson determined the issue of the illegality of the plaintiff's construction at the "disused" cemetery on 16/03/2010.
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HER CLAIM
Without much ado, I can confidently say that by the preponderance of the evidence on record, the plaintiff is not entitled to any of her claims against the defendant. Since her bare licence has terminated and she has become a trespasser on the land, she ought to be removed forthwith by the statutory authorities who are in charge of the management and control of the Asokwa lands on behalf of the Golden Stool.
The plaintiff's case is indeed pathetic but the truth must be told. And the truth is always a bitter pill. After I had written my judgment, counsel for the plaintiff filed a process on 14/07/16 titled" WRITTEN SUBMISSION OF THE DEFENDANT/APPELLANT" and i wondered the essence of that process since there is no appeal pending before me. Obviously, I ignored that document!
The plaintiff's action fails. Judgment is entered in favour of the defendant. The interlocutory injunction placed on the disputed land is hereby lifted.
After considering the submissions of both counsel on the award of cost, I award cost of GH¢3,000.00 against the plaintiff in favour of the defendant.