IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (LAND DIVISION)
ACCRA - A.D 2016
KINGSLEY DARKO - (Plaintiff)
AWONYE AKORLEY, MARTIN, ISAAC TOGBOR, PAPA KWAO - (Defendants)
DATE: 23RD JUNE, 2016
SUIT NO: E1/02/2012
JUDGES: ALEXANDER OSEI TUTU J. SITTING AS JUSTICE OF THE HIGH COURT
SILAS OSABUTEY ESQ. FOR THE PLAINTIFF
ERIC ASUMAN-ADU ESQ. FOR THE DEFENDANTS
BUT IS REPRESENTED BY DAVID BONDORIN
The plaintiff claimed to have purchased House Number B40 situate at Ashaiman from the late Ayerh Oberko on 17th October, 2010 as per his statement of claim. Defendants were the gratuitous licensees of his late transferor who were introduced to the plaintiff. Ayerh Oberko told them that plaintiff was their new landowner before he died in February 2012. After his funeral, plaintiff notified the defendants to vacate the premises but they refused to give vacant possession and would not, unless compelled by the Court to do so. The court has always been the last hope of any aggrieved person and does not shy away from ensuring justice when invited to do so. Dotse JSC in the unreported case of Francis Yirenkyi v. The Republic; Criminal Appeal No. J3/7/2015, dated 17th February, 2016, SC stated:
“The one place where a man ought to get a square deal is in a courtroom, be he any colour of the rainbow.”
It is against that backdrop that the plaintiff commenced the present action on 27th June 2012 per his lawyer, Paul K. Opoku Esq. of Allotei Mingle & Co. asking for:
a. An order directed at the defendant to vacate the said premises and give vacant possession of same to the plaintiff.
b. Costs of the suit herein.
Defendants disagreed with the plaintiff on his claim that Aryeh Oberko owned the property and did sell it to him. Therefore, when they were served with the writ, Defendants immediately caused their lawyer, Affum Agyepong to enter an appearance and a defence. They added a counterclaim against the plaintiff as follows:
a. A declaration that the property i.e. H/No. B40 Ashaiman near Weekend Bar Ashaiman is the property of Akornor Family of New Ningo.
b. Recovery of Possession.
c. Perpetual Injunction to restrain the plaintiff, his servants, workmen and anybody claiming through him from having anything to do with the property interfering with the subject matter of this dispute pending the final determination of this suit.
It is worthy to note that both parties changed their initial counsel along the line. Whereas the plaintiff engaged Silas Osabutey Esq. in place of Paul K. Opoku, the defendant went in for Eric Asuman-Adu Esq. I commend these new counsel for their commitment to the trial.
After the close of pleadings, His Lordship Kyei Baffour on 28th November, 2013 set the following issues down
i. Whether or not at the time plaintiff bought the house the subject matter of this suit, the house legitimately and lawfully belonged to the said Aryeh Oberko, the vendor.
ii. Whether or not the vendor made all necessary transfers into the name of the plaintiff after the plaintiff had given valuable consideration for the property.
iii. Whether or not the plaintiff owns the house, the subject matter of this suit.
iv. Whether or not plaintiff is entitled to his reliefs.
v. Whether or not the house in dispute is the family property of the defendant and various family heads of the defendants had managed the said property in dispute on behalf of the family.
vi. Whether or not one Maku Akornor, sister of Kwamina Akornor took over the management of the house in dispute upon the death of Tei Akornor.
vii. Whether or not the alleged vendor, Aryeh Oberko of Odumase now deceased was a member of the Akornor Family of New Ningo.
viii. Whether or not Ayeh Oberko changed the property into his name with the consent and knowledge of the Head and principal members of the Akornor Family of Ningo.
ix. Whether or not the Defendants are entitled to their Counterclaim.
x. Any other issue (s) raised out of the pleadings.
The plaintiff, in the course of the proceedings brought an application for preservation of the property. It was granted on 28th November 2014, pending the final determination of the matter. The plaintiff testified and relied mainly on documents to prove his case without calling any witness. It is not contrary to the law for a sole witness to testify in proof of an issue. See the cases of Akrofi v. Otenge & Anor. [1989-90] 2 GLR 244, S.C.; Clipper Leasing Corporation v. A.G. &Anor. Civil Appeal No. J4/40/2015, dated 9th March 2016, SC (Unreported) and Nsowaa & 2 Ors. v. Bamba & Anor.  86 GMJ 21 @ 29. Conversely, the 4th Defendant testified on the collective behalf of all the defendants. They called one witness in support of their case.
The Case of the Plaintiff
It is the plaintiff’s case that he purchased the disputed house from Ayerh Oberko on 17th
October 2010 as his personal and lawful property in consideration for:
a. Gh¢20,000 cash.
b. A house to be built at Odumase for his grantor.
c. A house to be built at Bethlehem-Tema.
d. A Taxi Cab with Reg. No. GT 9259 W
e. A further cash assistance of GH¢5,000.
According to plaintiff, all these considerations were paid to Ayerh Oberko in the presence of defendants. Indeed, the defendants were well aware of the transaction from the beginning to the end, plaintiff asserts. The late Oberko acknowledged payments by issuing receipts and a statutory declaration to that effect, which were all tendered in evidence as exhibits. It is the further case of the plaintiff that because his grantor at the time of the sale did not have a lease covering the house, he subsequently applied to TDC, the owners of the land for regularization of his documents, which he funded.
His transferor, after introducing him to the defendants as their new landlord passed away in February 2012. It was thereafter that he decided to take possession of the premises and the defendants proved recalcitrant. He was compelled to issue the writ in this case to seek the intervention of the court to have them ejected.
The Case of the Defendants
On their part, the defendants contend that the house in dispute was put up by one Kwamina Akornor over 45 years ago. He was the father of the 1 st defendant. Upon his death, one James Nartey Akornor who was an uncle succeeded Kwamina Akorno. Also upon his succession, he took over the management of the house till his death. His brother Tei Akornor and later Maku Akornor succeeded in that order and managed the house on behalf of their family.
Aryeh Oberko, according to the defendants is not a member of the Akornor Family of New Ningo, but managed to change the property from the name of Akorno Apena Nartey into his name at Tema Development Corporation (TDC) without the knowledge and consent of the Akornor Family of New Ningo. For that reason, they deny that Ayerh Oberko owned the house during his lifetime. Not even Aryeh Oberko’s own son being the third defendant could agree with plaintiff that Aryeh Oberko owned the property. If Ayeh Oberko did not have title to the property, he could not have sold it to the plaintiff, because it is a family property, the defendants contend. All the occupants living in the house including some of the defendants are all family members. It was based on these facts that the defendants counterclaimed for a declaration that the property in dispute belongs to the Akorno Family of New Ningo.
Whether or not at the time plaintiff bought the house the subject matter of this suit, the house legitimately and lawfully belonged to the said Aryeh Oberko, the vendor.
The plaintiff has the incidence of proving this issue, since he is asserting. It is trite in the law of evidence that he who alleges must prove. Ayebi JA in Fordjour v. Kaakyire  85 G.M.J. 61 85 held: “In civil claims, the burden of first proving the existence or non-existence of a fact lies on the party against whom judgment would be given if no evidence was produced on either side, regard being had to any presumption that may arise on the pleadings.” See also Ackah v. Pergah Transport  31 G.M.J. 174, S.C. and Mac Dan v. Gabriel Gborbleshie  84 G.M.J. 90 @ 113. Now the issue here is; was Ayerh Oberko, the owner of the property in dispute at the time the plaintiff allegedly purchased it? There is overwhelming evidence on record that Aryeh Oberko did not own the property at the time plaintiff purchased it.
Plaintiff’s admission that Property was not in Aryeh Oberko’s name Plaintiff had earlier created the impression that the property was at the time he allegedly purchased it in Aryeh Oberko’s name, but after being quizzed under cross-examination by counsel for the defendants on 15th April, 2016, he did a ‘U-turn’ and conceded that the documents were rather in the name of Akpene Nartey Akornor.
“QUESTION: At the time you allegedly acquired the property from Ayerh Oberko, the property was in the name of Apena Nartey Akornor.
ANSWER: My lord, that is correct, but I have explanation. The first Defendant told me that the house belonged to Ayerh Oberko and not Apena Akornor. She was asked to pay property rate at TDC and that is when he used his name.”
The purchase Dates & Letters of Administration obtained by Aryeh Oberko
Plaintiff tendered letters of administration obtained by Ayerh Oberko in respect of the estate of Apena Nartey Akornor dated 2nd December 2010 as exhibit ‘F’. Meanwhile, plaintiff claimed he purchased the property on 17th September, 2010. Going by that date, it became obvious when plaintiff was under cross-examination that at the time of the purchase Ayerh Oberko had not become the owner of the property.
“ QUESTION: Mr. Darko, you will agree with me that, at the time you allegedly purchased the property, the property was not in the name of your vendor, that is Ayerh Oberko?
ANSWER: My lord, it was not in his name and it was explained to me why it was not in his name.”
That aside, there are several questions surrounding the actual date the plaintiff purchased the property. He had not been consistent. He gave about three different dates.
➢ First in his statement of claim filed on 27th June, 2012 at paragraph 2, he gave the date as 17th October 2010.
➢ At paragraph 3 of his exhibit B, being the Statutory Declaration prepared by Ayerh Oberko, the property was sold to plaintiff on 17th September, 2011.
➢ In exhibit C, being oaths of receipts issued by Ayerh Oberko, the date of the sale was 17th September, 2010.
One wonders which of the dates the plaintiff wants the court to believe or rely upon. Though inaccuracies and contradictions in dates alone, according to the Osei (substituted by Giliard) v. Korang [2013-2014] 1 SCGLR 221, holding 3 and Great Commission Church International v. Acolatse  75 G.M.J. 39 @ 46 should not always be relied upon to reject a party’s case, it is nonetheless a significant factor where the party proves so inconsistent, such as in this case. The court in the circumstance has no difficulty relying on other evidence to decide the case, but it appears that the inconsistencies in the plaintiff’s case go beyond the dates of the purchase.
Plaintiff conceded that it was consequent to his purchase that Ayerh Oberko obtained the grant of Letters of Administration, which he funded. What this means is that at the time Ayerh Oberko purportedly transferred the property to him, Ayerh Oberko had no title to do so.
He answered under cross-examination thus:
“QUESTION: The Letters of Administration was taken after you allegedly bought the house, is that not the case?
ANSWER: That is so my lord.”
● Is the plaintiff protected by law as an innocent purchaser? This is fundamental. it is a basic principle of law that a transferee acquires no better title than his transferor had. It is known in Latin as the Nemo dat quod non-habet rule. Benin JSC in the Registered Trustees of the Catholic Church, Achimota Accra v. Buildaf & 2 Ors. (2015) 91 G.M.J. 1, S.C. decided: “That is the law that only the owner of land can give away
title to a third person.” See also: In Re Korangteng (Dec’d); Addo v. Koranteng & Ors. [2005-2006] SCGLR 1039 and Ansah & Anor. v. Joe & Anor.  GLR 395, S.C. @ holding 3. Had the sale taken place at all after the grant of letters of administration, there would still be issues with it because nothing is on record to show that the letters of administration affected the property in dispute. The list of inventory for the estate of Apena Nartey Akorno whose letters of administration plaintiff claimed Ayerh Oberko obtained does not mention the property in dispute anywhere in the letters of administration. He could have tendered the list of inventory in evidence or any document connecting the property to the letters of administration if he really wanted the court to take him seriously. The Nigerian Court of Appeal in Ostankino Shipping Co. Ltd. v. The Owners of the MT ‘BATA 1’; Suit No CA/L1925/07, dated 12th January, 2011, C.A. held: “Where a party wants the court to give effect to the content of the document then it must be tendered in court in spite of its admission.”
● Issue of the Vesting Assent
Another herculean hurdle plaintiff’s case was confronted with is vesting assent. If we are to give plaintiff the benefit of doubt that the property was part of the estate at all, no vesting assent was prepared and registered in the name of Ayerh Oberko for him to have become the beneficial owner. Dennis Adjei JA at page 33 of his book, Land Law, Practice and Conveyancing in Ghana put it: “A beneficiary of an estate cannot alienate a property such as land devolved to him under a will or by intestacy without a registered vesting assent…. Until a vesting assent is registered in favour of the beneficiaries, they would lack the capacity to alienate it.” The Court of Appeal espoused the law in Conney v. Bentum Williams [1984-86] 2 GLR 301 @ Page 304 as: “… It is after probate had been granted to the executor that the provisions of the will can be carried out. And after the grant of probate, a beneficiary of any real estate under the will must have a vesting assent executed in his favour by the executors under the Administration of Estates Act, 1961 (Act 63), ss. 1 (1), 2 (1) and 96 (1). Until that was done, any purported sale of the real estate by the beneficiary or the devisee would be of no legal consequence and the purchaser thereof would not have a valid title.”
The learned justice of the Court of Appeal in his book supra commenting on the above authority emphasized that the principle in the case above does not apply to beneficiaries of a will only but also those under intestacy and that even where a vesting assent has been prepared, it would still be ineffective and incapable of passing title until it had been duly registered in accordance with section 24 of the Lands Registry Act, 1962 (Act 122). See also pages 313-314 of Ghana Land Law and Conveyancing (2nd edn.) by BJ da Rocha and CHK Lodoh. Once the property in issue was not vested in Ayerh Oberko, he did not legally become owner of it to have validly transferred same to the plaintiff.
In exceptional cases, the law creates a situation where a transferee may be able to acquire title from a person whose title is impeachable. And this occurs where the third party transferee can prove that he is an innocent purchaser for value without notice. But to be able to raise that plea the person must have acquired a legal estate and not an equitable one as the plaintiff in this case may appear to have. The Court of Appeal in Yeboah v. Amofa & Anor. [1997-1998] 1 GLR 674 @ holding 3 decided: “The pleas of bona fide purchaser without notice could only be successfully raised by a party who had acquired a legal estate and not a mere equitable estate.”
A duty is generally placed on any purchaser of a property to do thorough enquiries about the property he intends to purchase. In Osumanu v. Osumanu & Anor. [1995-96] 1 GLR 672, the Court of Appeal at holding 1 of the headnotes decided: “An intending purchaser of property was put on his inquiry to make such investigations as to title as would enable him to rely on the plea of bona fide purchaser for value without notice. If he failed to make such inquiries, he acted at his own peril if subsequent events disclosed the existence of a valid challenge to the title he acquired,”
Dzamefe JA of the same court recently held in the case of Kwanko II v. Lebanon Society  70 GMJ 118 @ 127 as follows: “It is trite law that the buyer must always beware. The law is clear, caveat emptor. It is the duty of diligent and serious purchaser of landed property to conduct a search on ownership and title of the property before entering into any contract for purchase. We are not oblivious of the law about a bona fide purchaser of property for value without notice. The difference however is that if after all diligent search, the buyer had no knowledge about any encumbrances, then he can seek refuge before equity as a buyer for value without notice.” See also Bonsu v. Kusi  26 GMJ 20 SC; [2008-09] 2 GLR 316, Braimah v. Amarkie  19 MLRG 43 @ 46-47, SC, West African Enterprises Ltd. v. Western Hardwood Enterprises Ltd. [1995-96] 1 GLR 155, holding 7 and Mensah v. Kwablaligbidi  75 GMJ 157 @ 187.
In sum, the essential ingredients of the defence of bona fide purchaser for value without notice were spelt out at holding 1 of Apollo Cinemas Estates (Gh.) Ltd v. Chief Registrar of Lands & Ors. [2003-2004] 1 GLR 167 as follows: “The plea of bona fide purchaser for value without notice was absolute, unqualified and unanswerable defence against the claims of any prior equitable owner. However, in order for the plea to be successfully invoked the party relying on it had to prove that he had: (a) acted in good faith; (b) paid consideration in money (c) the legal estate properly vested in him; and (d) no notice, actual or constructive of other encumbrances on the property.”
In this case, the legal estate has not been vested in plaintiff and so that alone disqualifies him from invoking the plea. The second ingredient of the plea required the consideration to be only in money. But in this case, it was not wholly money.
Further, the evidence clearly shows that plaintiff was not prudent or diligent enough. How could he have purchased a property from a person who did not have title to the property and after the purchase sponsor the person to regularize his documents?
It was evident from plaintiff’s testimony that he paid no serious regard to undertaking enquiries before the alleged purchase. He claimed the property was originally acquired by Aryeh Oberko’s father in 1937 who conveyed it to a trustee for the benefit of Ayeh Oberko, then a young chap. Though he had alleged, when asked about the name of this said father of Ayerh Oberko, he answered that he did not know. Can such a purchaser be considered a prudent buyer? I think not. Since the property was not in the name of Aryeh Oberko at the time plaintiff allegedly purchased same, any prudent purchaser in the shoes of the plaintiff would have inquired who Aryeh Oberko’s father was, how he came by the property among others.
Under cross-examination he answered thus:
“QUESTION: You also said that it was Aryeh Oberko’s father who purchased the house; is that correct?
ANSWER: That is so my lord.
QUESTION: Do you know the name of the father?
ANSWER: No my lord, I do not know his name.”
That aside, he was not consistent with the role played by the defendants. Whereas, in his reply to the Defendants’ Statement of Defence and Counterclaim, he stated at paragraph 3 that it was the first defendant who led him to Ayerh Oberko, under cross examination in court however, he roped in all the defendants (See page 3 of the Record of Proceedings).
● Issue of limitation in trust cases
Also, if the property was held in trust for Aryeh Oberko, why did he not take steps to have it for over 40 years afterwards? Plaintiff says Ayerh Oberko’s father died in 1969 and Akornor Apena Nartey was made a trustee to take care of the property for Ayerh Oberko, in which will was the latter appointed a trustee? Even if the will had been tendered at all, would Ayerh Oberko’s interest in the property not be threatened by limitation? . Under section 15 of the Limitation Act, 1972, NRCD 54, a beneficiary cannot bring an action to recover money or other trust property in respect of any breach of trust after six years from the date on which the right of action accrued. Having referred to the law, I will go no further with the issue of limitation because it was not raised by the defendants. Issues of limitations are not there for the courts to raise when the defendant does not plead them. See Adom v. Marfo  38 MLRG 58 @ 61;  35 GMJ 103, Dolphyne (No. 3) v. Speedline Stevedoring Co. Ltd. [1996-97] SCGLR 514 and William Ashitey v. Hydrafoams Estates (Gh.) Ltd., Civil App. No. J4/33/2013, dated 28th May, 2014, SC (Unreported). In the circumstance, the limitation defence can only be treated as academics and the court will not consider it in this judgment.
Whether or not the vendor made all necessary transfers into the name of the plaintiff after the plaintiff had given valuable consideration for the property.
Having found that Ayerh Oberko never became owner of the property, any purported transfer by him to the plaintiff becomes invalid. Plaintiff’s own exhibit D’ being TDC document dated 10th November, 2014, TDC sought to deal with Ayerh Oberko and not plaintiff. Plaintiff claims to have provided valuable consideration. Even his alleged consideration could not be reasonably proved. They were mainly bare. For instance, in respect of the Taxi Cab, he could have led some evidence to demonstrate that he owned the Taxi before he transferred it to Ayerh Oberko, since it was capable of proof. Could he not have tendered DVLA documents in his name as counsel for the defendant opined? Could he not have tendered even a photograph of it? Better still, could he not have tendered receipt of the purchase? Was the Taxi a used one or it was new?
In respect of the house mentioned by plaintiff as part of the consideration, one does not know whether it was built or purchased at all by the plaintiff. In one breath, the plaintiff indicates he built it for Ayerh Oberko; in another breath, he did not build it but he bought it for him. These are the contradictory answers given by the plaintiff under cross-examination at page 11.
“QUESTION: You have made mention of a house situate at Bethlehem that you allegedly built for your vendor
ANSWER: That is so my lord.
QUESTION: Who is in possession of that alleged house?
ANSWER: My lord, the papers are with Awonye Akweley, the 1st Defendant as well as Paapa Quao.
QUESTION: Who are in possession of the house?
ANSWER: My lord already there were people in the house before I bought the house and they did not evict the people from the house so they have been paying rent to them.
QUESTION: I am suggesting to you that the Defendants herein do not know about any house that you are alleging you built for Ayerh Oberko.
ANSWER: My lord, that is not correct. They know something about it and they even know the place. The papers are with them.”
The plaintiff used both ‘built’ and ‘bought’ interchangeably, whereas the two are different. In his Statement of Claim, Plaintiff in describing the consideration paid to Ayerh Oberko, said of the said house at paragraph 3 thus:
“(b) A house to be built at Odumase for his grantor and
(c) A house to be built at Bethlehem-Tema.”
The consideration was an executory one to be performed in the future, but the pleadings fall short of when exactly these houses were built, so they remain mere promises. Could the plaintiff not have tendered a photograph of these houses? What about the contractors and artisans who built them? Would it not have been prudent to tender receipts of the items purchased to construct the said houses? Or, if they were bought by the plaintiff, could he not have mentioned the name of the person he purchased from? These and many more of the evidences on record leave the plaintiff’s consideration unproved. Clarity, indeed matters in proving an issue in court. A life-changing speaker and Best –Seller author, Steve Maraboli in his book; ‘Life, The Truth and Being Free’ had this to say about clarity: “A lack of clarity could put the brakes on any journey to success. In the case of Marian Obeng Mintah v. Francis Ampenyin, Civil App. No.J4/18/2013, dated 25th March, 2015, S.C. (Unreported) when a party claimed to have contributed to the improvement/construction of a building, Akamba JSC formed the opinion that with building construction works, they are “capable of proof either by receipts of specific purchases or by corroborative testimonies of artisans and what charges or payments were made.”
At paragraph 9 (c) of the plaintiff’s witness statement filed on 20-11-15, plaintiff contends that he paid GH¢30,000 to Ayerh Oberko for the purpose of building the Odumase House. In plaintiff’s pleadings, it was agreed with Ayerh Oberko that he was to build the house at Odumase, however in his evidence it is not the case, he paid money for Ayerh Oberko to be used to build the Odumase House by himself. In the pleadings, it was not stated anywhere that Ayerh Oberko built the House by himself after collecting an amount of GH¢ 30,000 from plaintiff. When a party sets up a case different from what had been pleaded, it does his case no good. See Samanhyia v. Bih  5 MLRG 1 @ 87, CA. According to Marty Rubin, “when the meaning is unclear there is no meaning.”
Further, the documents plaintiff relies on as proof of the sale are Statutory Declaration and a receipt purportedly prepared by Ayerh Oberko. The law is clear that Statutory Declarations generally are self-serving and have no probative value. See Nii Tackie Amoah VI v. Nii Armah Okine & Ors.  77 GMJ 124 @ 145, per Adinyira JSC; Hydraform Estates Ltd. v. Kumnipa  70 GMJ 48 @ 58 and Osae v. Adjeifio [2008-2009] 1 GLR 606, SC. With the receipt too, Oppong v. Anarfi [2010-2012] 1 GLR 159, SC and Donkor v. Alhassan [1987-88] 2 GLR 253 @ 256 make it clear that receipt per se is not an instrument of transfer of an interest in land.
Besides, Ayerh Oberko appeared to be illiterate. The jurat prepared for him was not in conformity with the law. The one who allegedly read it to him is unknown. In Abel Nortey (suing for himself and on behalf of Osuwem Family of Prampram v. African Institute of Journalism and Communication  77 GMJ 1, Akamba JSC held at page 33 as follows: “The conditions to be fulfilled under section 4 of Cap 262 by persons writing letters and other documents for illiterates whether gratuitously or for reward are: (1) that the writer should clearly and correctly read over and explain the letter or document or caused same to be read over and explained to the illiterate person. (ii) Cause the illiterate person to write his signature or make his mark at the foot of the letter or other document or to touch the pen with which the mark is made at the foot of the letter or other document. (iii) Clearly write his full name and address of the letter or other document as writer thereof; and (iv) state on the letter or document of the nature and amount of the reward, if any charged.”
In Nana Akwesi Darko v. Nii Allotey Quashie [18/11/99] CA No. 28/99, CA (Unreported), Twumasi JA held: “Suffice it to say that on the question of jurat there was in fact one appearing on Exhibit 1 at page 135, but it was a defective one because the person who purported to have explained the contents of Exhibit 1 did not write his name, a feature which throws dust of fictitiousness on the whole document.”
It becomes more serious when the person purporting to have signed is deceased. This is because the law from the outset views documents of claims against deceased persons with suspicion and the authorities abound on that. See Ofori v. Star Assurance Co. Ltd.  83 GMJ 94 @ 100; Amankwah v. Nsiah [1994-95] GLR 758 and Hammond v. Amuah  1 GLR 89 @ 91. Because they are viewed with suspicion, the evidence required is always higher. On this, see Osei (substituted by Giiard v. Korang (supra); Moses v. Anane [1989-90] 2 GLR 694 and Tanoh v. Abban-Mensah & Ors [1992-93] 1 GBR 308. For this reason, the law initially expected the evidence to be corroborated. See In Re Agyepong (Dec’d); Poku v. Abosi & Anor [1992-93] GLR 254 @ holding 5 and Fosua v. Dufie [2008-2009] 2 GLR 1 @ 42-43.
But Brobbey at page 175 of his book, Practice & Procedure in the Trial Courts and Tribunals in Ghana (2 edn) explains that by virtue of section 7 (3) and (4) of NRCD 323, corroboration is no longer a requirement in proof of an issue. The documents show that plaintiff had witnesses who signed for him.
He claimed one is deceased. That was not proved. The other, he claimed had travelled. The law is that being outside the country is not an excuse not to appear in court to testify, once the person is a material witness. See the case Republic v. T O Asare  GLR 93, holding 6.
In the circumstances, I find that the plaintiff had not been able to establish his purported consideration satisfactorily. I also find that no valid transfer of the property was made into the plaintiff’s name.
Whether or not the plaintiff owns the house, the subject matter of this suit.
If the plaintiff’s transferor had no title to transfer at the time he purportedly sought to do so, plaintiff could not have obtained any better title. Ownership of land may be proved by way of possession or document (s). See Nsowaa & 2 Ors.  86 G.M.J. 21 @ 24, CA and Deliman Oil Co. Ltd. v. HFC Bank Gh. Ltd.  92 G.M.J. 1 @ 8, C.A. From the evidence, the plaintiff is not in possession of the property. He is now seeking the court’s intervention to be able to take possession. The land is not also registered in his name. TDC’s document he tendered written in 2014 amply demonstrates that the property is not in his name. So if he claims ownership, what makes him owner of the property when the property is not registered in his name and he is not in possession of the land? In the absence of satisfactory evidence I cannot disagree with the English-born American author, Christopher Eric Hitchens when he said, “what can be asserted without evidence can also be dismissed without evidence’.
I do find that the plaintiff does not own the disputed property.
Whether or not the house in dispute is family property of the defendant and various family heads of the defendants had managed the said property in dispute on behalf of the family.
The defendants counterclaimed and they are asserting that the property is a family property. They thus assume the onus of proof in respect of the issue. Counsel for the plaintiff is urging the court to disregard the entire witness statement of the 4th Defendant for its want of a jurat. It is trite that, documents by illiterate persons must have a jurat and that non-compliance with the Illiterates Protection Ordinance Cap. 262 (Section 4) is fatal. See In Re Kodie Stool; Adowaa v. Osei [1998-99] SCGLR 23; Wiafe v. Kom  1 GLR 240 @ 244-245 and Yalley Jnr. v. Kell & Anor. [1995-1996] 1 GLR 91, CA. Counsel for the plaintiff’s submission that the 4th Defendant’s witness statement be treated a nugatory from the outset sounds convincing. However, the rule is not without exception. Let me say that documents prepared by lawyers for illiterates can be without a jurat. In other words, the Illiterates Protection Ordinance does not apply to documents prepared by lawyers. See Section 9 of Cap. 262. In the case of Owusu v. Kumah & Anor. [1984-86] 2 GLR 29, the Court of Appeal hit the nail by the head when it held at holding 1 that Cap 262 expressly excluded documents made for illiterates by lawyers.
Therefore, once it was the lawyer who prepared the witness statement for the 4th defendant, the absence of a jurat is no consequence. That notwithstanding, the defendants did little in proving their counterclaim. The fourth defendant who testified on behalf of the other defendants was an apology of a witness. He ended up denying virtually every question put to him by counsel for the plaintiff, including his own evidence contained in his witness statement. Defendant’s only witness (DW1) was no better. It was obvious that the two had come to the court to suppress the truth or the facts. DW1, from the evidence on record did not consider himself as a witness but as one of the defendants.
In Tanko v. Karami [1989-90] 2 GLR 189, the Court of Appeal held that where a witness gave evidence with a motive to help a friend, the court was entitled to place no weight on that evidence.” Similarly, in Ofori Agyekum v. Madam Akua Bio (Dec’d) substituted by Agartha Amoah; Civil App. No. J4/59/2014, dated 13th April, 2016, (Unreported), the Supreme Court said of a witness who had come to court to support a party at all cost that: “It is certain the defendant’s key witness was only determined to support her case at any cost to the extent of saying Yaw Manu was not around during the construction. This was blatantly false which does the defendant’s case no credit.” The Court further stated: “When a party resorts to plain falsehood, it is indicative that he has a bad case.” I respect the defendants’ counsel for boldly admitting in his written address that his clients’ evidences were not free from inconsistencies. In their pleadings they had given systematic succession to the property right from its original owner, Kwamina Akornor who allegedly acquired it. In evidence however, the fourth defendant denied his own assertion. The law is that the court should not attach weight to a witness whose evidence on oath contradicts his earlier evidence. See State v. Otchere  2 GLR 463, S.C.
Counsel for defendants urged the court to disregard the inconsistencies in his clients’ evidence.
I realize that the 4th defendant signed the witness statement and further signed another statement of truth in the form of an affidavit before a commissioner of oaths verifying every statement in his witness statement as being truthful. Just like the plaintiff, I find that the defendants have not satisfactorily proved their counterclaim, bearing in mind that a counterclaim requires similar proof as the plaintiff’s claim. In Nortey v. African Institute of Journalism & Communication  77 G.M.J. 1 @ 40 it was held: “Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he or she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323, the Evidence Act (1975)”. See Op. Kwasi Asamoah v. Kwadwo Appea [2003-2004] SCGLR 226 @ 246 and Fosuhene v. Owusu  32 G.M.J. 163.
The issues whether or not one Maku Akornor sister of Kwamina Akornor took over the management of the house in dispute upon the death of Tei Akornor and whether or not the alleged vendor Aryeh Oberko of Odumase now deceased was a member of the Akornor Family of New Ningo
I do not intend to waste time on these issues as the main issues in the case have been addressed.
Whether or not Ayeh Oberko changed the property into his name with the consent and knowledge of the Head and principal members of the Akornor Family of Ningo.
Defendants challenge the documents Ayerh Oberko changed into his name and even the letters of administration he obtained. The plaintiff is then enjoined to establish that it was regular. What evidence did he adduce? I cannot find much. There is no indication that the family was aware with the letters of administration. It is common knowledge that with applications for letter of administration, the head of family usually deposes to an affidavit verifying the death of the deceased. The plaintiff ought to have tendered a copy of the head of family’s affidavit to convince the court that the family was well aware and that they mandated him to apply for the letters of administration. I believe that would have settled this issue. I am unable to understand how Ayerh Oberko was able to change the name on the documents into his name at TDC, when he had no vesting assent. In view of the suspicion surrounding how Ayerh Oberko managed to change the documents into his name, I can only put the blame at the door step of the TDC for not being meticulous enough. It seems to me that they only relied on the letters of administration. As I have earlier discussed, they should rather have demanded a duly registered vesting assent before changing the property into Ayerh Oberko’s name.
Whether or not plaintiff is entitled to his reliefs.
The plaintiff claim is only for the ejection of the defendants. He is understood to be saying he paid some considerations to Ayerh Oberko who started the process to regularize his documents, but suddenly passed away. Once, the property could not be registered in his name, perhaps, the best course opened to the plaintiff was to seek for a declaration of title in his name before asking for an ejectment, or alternatively, brought an action for specific performance against the administrators of the estate of Ayerh Oberko and after the property had validly been conveyed to him, before taking steps to possess it.
The very basis upon which the plaintiff built his case from the evidence was discredited. More importantly, plaintiff’s asserted that Apena Nartey Akornor’s name appeared on the document of TDC because, TDC demanded ground rent from him and he paid in his name. Is this statement not strange? His own document suggests the said Apena Akorno Nartey died in 1969. Meanwhile, the payments of the ground rent at TDC was in 2010; that was over 40 years after the death of Apena Akorno Nartey. How does plaintiff reconcile his own statement that Apena Akornor Nartey paid the ground rent at TDC in his name after TDC had made a demand for payment with the fact that Apena Akorno Nartey died in 1969? It could not be true that Apena Akornor Nartey’s name appeared in TDC documents after they had made a demand for payment and he had gone to pay. It is obvious the house had long been in his name at TDC and that the 2010 payment was only done in his name, but not by him.
Whether or not the Defendants are entitled to their Counterclaim
The defendants too fumbled in proving that the property is a family property. Both parties agree that the property as at 2010 was in the name of Akornor Apena Nartey and that receipts of the house were paid in his name. See Exhibit ‘E’ and 2. This raises a presumption of ownership. In Lin v. Tonado Enterprise Ltd.  13 MLRG 197 @ 208, Brobbey JSC held that payment of ground rent could constitute evidence of ownership.
Benin JSC in Ofori Agyekum v. Agartha Amoah, Civil Appeal No. J4/59/2014, dated 13th April, 2016 (Unreported) S.C. admitted that such payment raises a presumption of ownership, but that presumption is not a conclusive one as it can be rebutted by strong evidence to the contrary. In this case, the evidence to rebut it that it was a family property was lame. In the circumstance, I will prefer to leave it as a property of the said Apena Nartey Akornor and I so find.
In this suit, both parties have failed to prove their respective claims and counterclaim. The court accordingly dismisses both the plaintiff’s claim and the defendant’s counterclaim. I will award nothing as cost to either side.