IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
NATHANIEL A. BADDOO & 3 ORS. - (Plaintiff)
MRS. MERCY AMPOFO & 2 ORS. - (Defendant)
DATE: 24TH FEBRUARY, 2016
SUIT NO: OCC/95/14
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
FRANK NARTEY FOR PLAINTIFF
E.N. POKU FOR 1ST AND 2ND DEFENDANTS
YAW ACHEAMPONG BOAFO FOR 3RD DEFENDANT
The Plaintiffs herein instituted the instant action in their capacity as the Administrators of the Estate of Rudolph Numo Baddoo after they had been granted Letters of Administration de bonis non by a Kumasi High Court. By their initial writ of summons issued on 18/05/2012, and subsequently amended on 06/06/2014, they claimed the following reliefs:
A declaration that Plot Numbers 4 and 5, Block 11, Bompata, Roman Hill, Kumasi which belonged to the late Rudolph Numo-Baddoo forms part of the Estate of Rudolph Numo Baddoo.
An order of perpetual Injunction restraining Defendants by themselves, servants, agents, assigns, workmen or however described from holding themselves out as owners or administrators of the said Plot numbers 4 and 5, Block 11, Bompata Roman Hill, Kumasi or seeking to deal with same in any way.
An order directed at Defendants to account for all expenditure incurred and income generated from the management of Plot Numbers 4 and 5, Block 11, Bompata Roman Hill, Kumasi beginning 1991 to date of final judgment.
By their respective amended statements of defence filed on 07/08/2015 pursuant to an order of the court dated 05/08/2015, the 1st and 2nd Defendants denied the Plaintiffs claims. The 1st Defendant then counterclaimed as follows:
A declaration that the Plaintiffs are bound by the agreement dated 8th March, 1993, and made between the family and Linda Nsiah Ababio ( the developer)
A declaration that the building put up by the 1st and 2nd defendants was gifted to them by the late Rudolph Ichbod A. Numo-Baddoo's children absolutely.
An injunction to restrain the Plaintiffs by themselves, their servants or agents or otherwise howsoever from disposing or interfering with the interest of the Defendants and the said developer in the said buildings, and from interfering with the quiet enjoyment of the tenants in the buildings.
Further or other reliefs.
The 2nd Defendant also counterclaimed for the reliefs as set out below:
I. A declaration that the two-storey building in front of Plot No. 4 is the property of the 1st and 2nd Defendants
II. A declaration that the plaintiffs and for that matter the Baddoo' family are bound by the agreement dated 8th March 1993 and made between the Baddoo family and Linda Nsiah Ababio ( the developer).
III. An injunction restraining the plaintiffs by themselves, servants, agents, assigns, workmen howsoever described form interfering with the tenants' quiet enjoyment of the property, and the right of the defendants over the said property.
IV. Further or other relief.
On 27/06/2013, the Court made an order joining the 3rd Defendant to the suit and by her statement of defence , which was subsequently amended on 25/3/2015,she also counterclaimed for the following reliefs:
Declaration that the family of the deceased Fred Mensah Baddoo is bound by the terms of the Agreement executed on 8th March 1993 between the 1st Defendant and herself and on behalf of the Mensah Numo-Baddoo family.
An order of perpetual injunction restraining the Plaintiffs herein whether by themselves, their agents, workmen and all privies from developing or in any dealing with the land the subject matter of the instant action or in any way interfering with the 3rd Defendant's quiet enjoyment thereof.
THE PLAINTIFF'S CASE
The Plaintiffs case is set out in their amended statement of claim and amended reply to the amended statements of defence filed by the Defendants. They described themselves as grandchildren of the late Rudolph Numo Baddoo who died on 5th April, 1946 and the current Administrators of his Estate. Details of the Plaintiffs pleadings were repeated on oath by the 3rd Plaintiff who gave evidence on their behalf. In order not to sound repetitive, I will proceed to bring out the evidence of the 3rd Plaintiff.
At the commencement of his evidence-in-chief given on 6/03/2015, the 3rd Plaintiff put in evidence a copy of the Letters of Administration de bonis non( Exhibit A), and he told the court that he was testifying in his capacity as one of the administrators of the estate of his grandfather. He recounted how exhibit A was granted to them. According to him, the late Mrs. Mercy Emilia Baddoo was granted Letters of Administration ( L/A) in respect of the estate of her late husband, Rudolph Numo Baddoo but she was unable to distribute the estate before she died in 1974. All subsequent family heads of the Baddoo family did not also obtain Letters of Administration to distribute the property and have since passed on. Thus, the current head of family, and the rest of the family authorized the Plaintiffs to apply for a special Letters of Administration to administer the un-administered estate of their grandfather. However, the 1st Defendant who is the wife of the 2nd Defendant, and a sister-in-law to the Plaintiffs caveated and filed an affidavit of interest (Exhibit B). After a full trial, the caveat was removed by Batu J in a ruling dated 05/04/2012 (exhibit C).
According to the 3rd Plaintiff, the 1st and 2nd Defendants have held themselves out as administrators of the estate and as owners of the property in issue and have thus created conflicting situations. In support of these facts, he tendered a letter which the 1st Defendant wrote to Hesse & Hesse claiming to be owners of the property (exhibit E). So far as the Plaintiffs are concerned, the property are still in the name of their grandfather as revealed in a search report obtained from the Lands Commission (exhibit D series), and that the same were never vested in the children of Mrs. Mercy Baddoo.
Touching on plot number 4, the 3rd Plaintiff said their grandfather constructed the ground floor to a two storey building on it. In respect of plot 5, the 3rd Plaintiff said it had a building on it and that it was occupied by two different tenants with their families. He went on to say that because the 1st and 2nd Defendants live in Kumasi and have closest proximity to the property, they were given power of attorney to manage the property just as J.J. Peele & Co did. On the interest of the 1st and 2ndDefendants in this property, the 3rd Plaintiff told the court that they can only have a financial interest.
Turning to the 3rd Defendant, the 3rd Plaintiff said the position of the Baddoo family is that the agreement said to have been made between her and the 1st Defendant is just an afterthought to deprive them of their rights over the property. He added that since the estate has not been distributed, nobody has the right to give away the same, or portions of it. In denial of the investments said to have been made by the Defendants on this property, the 3rd Plaintiff testified that the original property was generating income at the time it was managed by J.J. Peele and later, the 1st and 2nd Defendants. He explained that it was the accrued income which the 1st and 2nd Defendants used to develop the land, but they have never rendered accounts to the family. It was as a result of this that the Baddoo family, acting through the Plaintiffs,and their lawyer decided to take steps to sell the property. Again, he testified that Fred Baddoo and his siblings knew about the development but opposed it as evidenced by a letter written by some of the siblings to Peter Ala Adjetey, Esq. (exhibits F and F1).
Responding to questions on exhibit 9 during cross-examination by counsel for the 1st and 2nd Defendants, the 3rd Plaintiff denied that Laud Baddoo gave any such document, and that the instruction was for his younger brother to manage the property, not to develop it. He said the same of exhibits 7 and 8. When asked questions about his visits to the 1st Defendant's house in Kumasi, the 3rd Plaintiff said when he returned from the USA in 1993 to date, he has come to Kumasi a lot of times without visiting them. But when he was confronted with exhibit 2, a photograph of some family members including himself and which was taken in the 1st Defendant's house sometime in 1994, his response was that the photograph was taken in 1989 before he travelled. He however agreed that the children of the 1st and 2nd Defendants , including the 2nd Defendant's lawful attorney, Rudolph Papa Nii Ampofo Jnr., were in the photograph. He again confirmed this fact when Counsel for the 3rd Defendant/ took his turn to cross-examine him. He agreed with counsel for the 3rd Defendant that he was present at the naming ceremony of the 2nd Defendant's lawful attorney before he travelled to the USA in 1989, but could not tell whether his said nephew was born on 17/06/1988. He again agreed with Counsel for the 3rd Defendant that exhibit 2 was taken in the 1st Defendant's house and that he appeared to be older than one year, and, it is possible that exhibit 2 was taken much latter. To further test his credibility on his evidence concerning visits to the 1st Defendant in Kumasi during the period when the property in issue were being constructed, Counsel for the 3rd Defendant asked him when and where he married his wife. Readily, he told the court that the marriage ceremony took place at Fumesua, near Kumasi, but he could not remember the date of his traditional wedding. When cross-examination continued the following day, counsel asked him whether he had checked the date of his traditional wedding , but his response was a big NO. Further, he was asked questions about the role played by J.J. Peele & Co. And, his responses were that he did not know of J.J Peele and had never gone to their office. Concerning his attempts to sell the property prior to this action, the 3rd Plaintiff said that was a family decision. Again, he was confronted with questions on the squatters who were on the land. To this line of questioning, he admitted that there were squatters as well as tenants. And, that revenue from these tenants formed part of the financing of the property he intended to sell as per exhibit 3, since the managers of the property never rendered accounts to the Baddoo family. In his view, anybody who relied on the power of attorney to do anything on the land only has a financial interest (emphasis added). He disagreed with Counsel for the Defendants that the only reason why he applied for the Letters of Administration de bonis Non was to enable him sell the property in dispute.
THE 1ST AND 2ND DEFENDANTS CASE
The Defence put up by the 1st and 2nd Defendants are identical. It is as follows: They alleged that the estate of Rudolph Ichbod Numo Baddoo was vested in his children by the late Mrs. Mercy Emilia Numo Baddoo after the death of her husband. And, in accordance with Ga Customary Law, the estate devolved on the children of the late Rudolph Ichbod Numo Baddoo. Having been given a power of attorney by a Baddoo head of family, Fred Mensah Baddoo, the 1st and 2nd Defendant's alleged that they entered into an agreement with a developer, the 3rd Defendant herein. At that time, the Plot number 5 was undeveloped and was occupied by squatters, and on plot No. 4 was a small uncompleted dilapidated structure which was also occupied by certain individuals and squatters as their residence. That part, they contended that out of their own resources, they put up a two storey building on the land. Prior to these developments, it is the case of the 1st and 2nd Defendants that they incurred expenses in reclaiming the land through a law suit, and also in getting the chief of Asem to rescind his decision of re-entering the land. They further alleged that the Plaintiffs action is caught by the Limitations Act because they have always been aware of these developments and they are also estopped from making their claims at this time.
The 1st Defendant testified in person, but her husband, the 2nd defendant appointed a lawful attorney who is also his son to give evidence on his behalf. The 1st Defendant told the court that the property in issue was formerly managed on behalf of the Baddoo family by a law firm, J.J. Peele & Associates but it was not generating any income. However, sometime in 1985 and 1987, the then head of the Baddoo family, Mr. E.S.T. Laud Baddoo, the father of the 2nd Plaintiff, approached her husband per their solicitors in a letter that he should rehabilitate and develop the plots in question. The said letter was tendered as exhibit 6. After receiving exhibit 6, the 1st Defendant said all effort by the 2nd defendant to find financiers to develop the property failed. After the death of E.S.T. Laud Baddoo, the 1st Defendant said a principal member of the Rudolph Numo Baddoo family by name Walter Baron Baddoo wrote two letters in the year 1991 (exhibits 7 and 8) to J.J. Peele Co. to formally introduce her to continue all proceedings and developments on the property started by the 2nd Defendant, Rudolph Papa Nii Ampofo. Eventually, the 1st Defendant said she approached the then head of Numo Baddoo family, Fred Mensah Baddoo, with all the documents she had. Thereafter, the family head and his sister, Mrs. Faustina June Yeboah, came to Kumasi and they all went to the office of J.J. Peele, specifically to see Lawyer Arnold Prempeh who was the head of the office. After some discussions relative to the development of the land , the 1st Defendant said Fred Mensah Baddoo gave her a power of attorney (exhibit 9). She further tendered in evidence notices and letters directed at the tenants and squatters on the land to quit as exhibits 10, 11 series, 12, and 13.
After successfully evicting all the occupants on the land through a law suit at her expense, the 1st
Defendant testified that she eventually entered into an agreement with the 3rd Defendant to develop the land pursuant to exhibit 9. She tendered a copy of the said agreement as exhibit 14 and added that copies were sent to her lawyer's office and to Fred Mensah Baddoo respectively. She then gave details of the said agreement thus: The 3rd Defendant was to put up a storey building on plot number 5, take rent for 45 years after which the property will be shared equally between herself and the Baddoo family; to rehabilitate the broken down building and take rent for 25 years and then give half of it to the Baddoo family.
As she developed the two storey building on a portion of plot number 4 which she and the 2nd Defendant are laying claim to, the 1st Defendant said her finances went low and as a result, she contracted a loan from one Rev. Fr. Raphael Peprah as evidenced by exhibit 15. On a subsequent occasion when she approached the 3rd Defendant and his junior brother, Mawutor in respect of financing the building on plot 4, this was what ensued:
“When I told Dr Ampofo and uncle Mawutor about this, Dr Ampofo told me that he does not know why my husband has decided to be involved in this Baddoo estate. That their name is Ampofo and they come from Peki Avetile and they inherit patrilineally and he is also not a contractor, he is a scientist and does not know how to build houses so he is not interested in investing in this estate. I am talking about the building we are putting up on plot 4 and the work going on , on plots 4 and 5. He did not contribute. I completed in 1995 after borrowing a lot of money."
To further convince the court about the developments on Plots 4 and 5, the 1st Defendant tendered exhibits 16 to 20 series being photographs of how the land looked like before and during the construction. Again, to counter exhibit F and , to demonstrate that the Baddoo family were aware of the development, she tendered a photograph of Faustina June Yeboah which was taken on the property, (exhibit 21). According to the 1st Defendant, Faustina June Yeboah a.k.a. Aunty Naakai and Dr. Ampofo ( 3rd Plaintiff herein) were regular visitors to their Kumasi house and knew of the development. She further indicated that Dr Ampofo even visited her Kumasi home several times after the completion of the building. A clear example being the time he performed his marriage ceremony when stayed in the 1st Defendant's house with his daughter, Dzifa. The 1st Defendant re-emphasized that she was among those who went to perform the "knocking ceremony" on behalf of the 3rd Plaintiff prior to his marriage to his wife, Joyce in the year 2001 and during this period, they had extensive discussions on the developments on the subject property.
After completing the two storey building on plot 4, the 1st Defendant said she was cash strapped and at the same time no tenants were forthcoming. Thus, she approached Fred Mensah Baddoo a.k.a. "Woopa", meaning "our father" in Ga language, and narrated her situation to him for a possible reimbursement. Then, in the presence of his siblings except Bertha, " Woopa" as he was affectionately called, gifted the portion of plot 4 where she and 2nd defendants had put up a storey building in these Ga words: " yoofoyoo obommoden ke ha wo. Mii dzzz no ma ha bo ke owu kosekose" which means " Nursing mother, you have done well for us. I bless this for you and your husband perpetually". In view of this perpetual gift, the 1st Defendant said there was no accounting to be made considering the loans and the debt.
Concluding, the 1st Defendant said sometime in the year 2004 whilst she was in the USA, the 3rd Plaintiff and some other people wanted to sell the development but she stopped them. Then, in June 2008, Hesse & Hesse advertised the property put up by the defendants for sale (exhibit 24). So, she also put up a counter advertisement - " Commercial Property Not For Sale". She then urged the court to grant her counterclaim.
In view of the similarity of the interests of the Defendants, counsel for the 3rd Defendant was the first to cross-examine the 1st Defendant. Here again, the 1st Defendant confirmed all what she said in her evidence -in-chief concerning the Power of attorney given to her (exhibit 9) as well as the role played by the 3rd Defendant subsequent to the agreement contained in exhibit 14. She also confirmed her evidence that Faustina Yeboah was a regular visitor to her Kumasi house. In response to a question as to whether there was a complete house on the land as indicated earlier by the 3rd Plaintiff , she disagreed and said provided the following answer:
“There was a building but it was not a complete house. It was a ground floor of a storey building that was supposed to have been constructed and it was so dilapidated with the roof of concrete weakened and most of the rooms could not be habited. Only two tenants could live in the house. All others were squatters who were even evicted so no proceeds were coming from the property".
When asked about the appeal against the ruling of Batu J. removing the caveat, she indicated that even though records were settled in the past, she has not been summoned to appear before the Court of appeal so in her view, the appeal is still pending.
Counsel for the Plaintiff took his turn to cross-examine the 1st Defendant. In a long and winding cross-examination which compelled the witness to be repeating substantial portions of her evidence-in-chief and answers under previous cross-examination, Counsel sought to discredit almost every bit of her testimony. But the 1st defendant stood her grounds. She refuted all suggestions made by counsel that her account of events cannot be true- especially the suggestion that Faustina June Yeboah a.k.a. Auntie Naakai could not have deserted her brother Baron Baddoo who was suffering from stroke to be with the 1st Defendant in Kumasi.
Again, in response to a question posed by counsel to the effect that when the caveat was filed, the 2nd Defendant only deposed that he was a part owner of the property but never said the same had been gifted to him " kose kose", the 1st Defendant said she was unable to provide answers to depositions made by her husband.
The last bit of the cross-examination dealt with the financing and the actual amount spent in developing this property. In response to these line of questioning, the 1st Defendant said the property the defendants put up had been valued by a valuer, the quantum was huge ,but she could not remember the exact figures. Finally, she disagreed with the interpretation placed on exhibit 14 by counsel for the Plaintiff and maintained that the Defendants acted in accordance with the said Power of Attorney.
The 1st Defendant called two witnesses. DWI gave his name as Oheneba Agyemang Badu, also known as Lawyer Arnold Agyemang Prempeh, the senior and managing Partner of J.J. Peele law firm.
He corroborated the evidence of the 1st Defendant that even though J.J. Peele was managing properties numbered Plots 4 and 5 Roman Hill, they were not getting any monies out of it. He also confirmed receipt of exhibits 7, 8 and 9 by his office whilst managing these properties. Again, DW1 backed the 1st Defendant's earlier testimony in respect of the squatters on the plots, and the legal processes which culminated in the eviction of the occupants from the land. According to him, the donee of the power of attorney engaged his firm to evict the squatters which they did. He further testified that the 2nd and 3rd defendants showed exhibit 14 to him in 1993 and added that J.J. Peele did not give any money to the 1st and 2nd Defendants to develop the property.
Following the laid down trend, counsel for the 3rd Defendant cross-examined DW1 first. When questioned on the contents of exhibits 7,8,9 and 14, the witness said the documents mean what they say on the face of them, and nothing more. With specific reference to exhibit 14, DW1 said the 3rd Defendant was mandated to construct a storey building on the undeveloped plot No. 5, among others. He had earlier given evidence that he visited the land in issue prior to the eviction of the squatters. So, in cross-examination when he was asked to tell the court those he went with, he said : " I can remember the head of family Fred Mensah Baddoo, Rudolph's sister whose name I cannot recollect and
Mrs. Mercy Ampofo (1st Defendant)." In response to whether Fred Mensah Baddoo was aware of exhibit 14, DW1 said Fred Mensah Baddoo prepared exhibit 14, and never intimated to him that he was unaware of it, neither did he register any protest to his office.
Next to cross-examine DW1 was counsel for the Plaintiff. His interest as per the line of questioning was in the eviction of the occupants of the land by the issuance of a writ of possession. The witness maintained that these occupants who refused to leave were not paying rent and so it became necessary for J.J. Peele to take a civil action to evict them. He again confirmed that exhibit 14 was shown to him in the year 1993.
DW2, Grace Esi Anderson, described herself as a sister to the 1st Defendant. After narrating the events that led to the developments on Plots 4 and 5, she corroborated the evidence of the 1st Defendant as regards the gifting of the two storey structure on plot 4 by "Woopa" to the 1st and 2nd Defendants but with some inconsistencies. She told the court that in her presence, " Woopa" in appreciation of what the 1st Defendant had done uttered these words in Ga: "Adzi moko ni wo nkuee te Abaafe tse ni ahaye shikpon be Paa Nii Nii hi fita wekuer he?" - meaning If it had been taken over by someone, who can retrieve the land/ After all Paa Nii ( Rudolph Papa Nii Ampofo) is also part of the family."
Subsequently , DW2 said she and her uncle , Kwadwo Aboagye (now deceased), accompanied the 1st Defendant to present Aseda to "Woopa" and Faustina Yeboah in the form of schnapps and three bottles of beer respectively.
During cross-examination by counsel for the 3rd Defendant, DW2 re-emphasized that when they went to see the Baddoo's and the statement ending "kose kose" was made, those present were " "Woopa", Auntie Naakai alias Faustina Yeboah and Uncle Annan but none of them raised any objection. When Counsel for the Plaintiffs also cross-examined DW2, she stressed that even though Uncle Annan was present, the talking was done by " Woopa" and Faustina Yeboah. And, these people represented to them they were the principal members of the Baddoo family. She further stated that all this while, the Baddoo family was aware of the development done on the land by the 1st Defendant.
Evidence was adduced on behalf of the 2nd Defendant by his lawful attorney, Rudolph Papa Nii Ampofo Jnr. He identified the 3rd Plaintiff as his uncle whom he lived with in Accra until the issues concerning the Roman Hill property emerged. He made himself out as a little boy in exhibit 20, i.e. a photograph which was taken at the time trenches were being dug for the construction. He corroborated the evidence of the 1st Defendant to the effect that there was a wooden structure and a corn mill on plot number 5. And that there was a dilapidated building on plot number 4. Of particular importance is his evidence in respect of the fact that the 3rd Plaintiff was a regular visitor to his parents in Kumasi, even beyond 1993, and even slept in their house the night before his wedding. He identified himself in exhibit "2" as the little boy sitting in between the 3rd Plaintiff's legs. According to him, he was born on 17/06/88 but exhibit 2 was taken after 1993. He was emphatic that there were times when the 3rd Plaintiff visited them and the 1st Defendant requested her children to excuse them whilst they discussed matters which did not require the presence of children. And, sometimes, he overheard them mention the name "Roman Hill". He also confirmed the evidence of the 1st Defendant that Auntie Naakai was aware of the development and described Auntie Naa Kai's photograph taken on the premises (exhibit 21) as "someone who was not objecting to the development". He again corroborated the evidence of the 1st Defendant on the state of the property on plot 4 at the time they were given authority to develop it, her personal resources committed to the project, the agreement with the third defendant and the unwillingness of the 3rd Plaintiff to contribute towards the project.
During cross-examination by Counsel for the 3rd Defendant, the 2nd defendant's lawful attorney maintained his case that Auntie Naakai, Fred Mensah Baddoo and the Baddoo family were aware of the commercial development being carried out by the 3rd Defendant. He also indicated that he was aware of the steps taken by the 3rd Plaintiff to sell this property.
Counsel for the Plaintiff also embarked on a long and circuitous journey to discredit all the evidence given by the 2nd Defendant's lawful attorney on the basis that at the time of the developments in issue, he was too young to be able to perceive what was going on and his account can therefore not be accurate. However, the witness maintained that his account was accurate irrespective of his age at the time of the development.
THE 3RD DEFENDANT'S CASE
The 3rd Defendant took her turn to testify and her evidence was in line with her amended statement of defence and counterclaim as set out earlier. She narrated how she got to do business with the 1st defendant, resulting in the execution of exhibit 14. Prior to that, the 3rd Defendant said at the instance of the 1st Defendant, Fred Mensah Baddoo and Faustina Yeboah came to Kumasi, and Fred confirmed that he had given the Power of Attorney to the 1st and 2nd Defendants. According to 3rd Defendant, Fred led her to J.J. Peele and introduced her to DW1, Lawyer Arnold Prempeh as the developer. Later, she said Fred personally led her to the land in question. As requested by Fred, the 3rd Defendant said a copy of the agreement was given to him and one was sent to the office of J.J. Peele. Thereafter, she organized her finances, commenced the construction in 1993 and completed in 1996. During the construction, she testified that Faustina Yeboah was the only family member she saw on the property on at least two occasions, and she commended her for the work done. She denied that she has connived with the 1st and 2nd Defendants to take over the property and that prior to the commencement of the instant suit in 2012, nobody had challenged her ownership of the property i.e. by virtue of her 25 years interest in the property on plot No. 4; and 45 years interest in the property on plot No. 5 apart from the publication in the Daily Graphic relative to attempts by the Baddoo family to sell off this property (exhibit 24).
In a brief cross-examination by Counsel for the 1st and 2nd Defendant, the 3rd Defendant stressed that the Baddoo family did not contribute financially towards the project. As to be expected, Counsel for the Plaintiff challenged the evidence given by the 3rd Defendant, particularly, her evidence that Faustina Yeboah came to Kumasi and went to the project site. Counsel also disputed her testimony on the state of her finances, but she maintained that being an astute business woman, she had the requisite resources to develop the property and that exhibit 14 is a genuine agreement which is binding on the Baddoo family.
Let me state the issues for determination at this point. In view of the checkered history of this case coupled with the undue delay, each lawyer was ordered to file his issues for trial and the same were admitted by the court. Put together, those issues and other issues arising from the subsequent amended pleadings are as follows:
Whether or not the issue of Mrs. Mercy Emilia Baddoo having distributed the estate of Rudolph Numo- Baddoo or same having devolved under Ga Customary law is Res Judicata per suit number C6/88/12 and thus precluding the Defendants from re-litigating the same?
Whether or not the buildings were erected with the authority, and consent of the family of the late Rudolph Numo-Baddoo?
Whether or not the Plaintiffs are estopped from bringing this action?
Whether or not the action is statute barred?
Whether or not the Plaintiff's have capacity to commence and maintain the instant action?
Whether or not the building put up by the 1st and 2nd Defendants on a portion of plot number 4 was gifted to them by the Baddoo family?
Whether or not the Power of Attorney granted to the 1st and 2nd Defendants by Fred Mensah Baddoo dated 23rd September 1991 is valid, binding , and of legal effect?
Whether or not pursuant to the said power of attorney, the 1st and 2nd Defendants were legally mandated to enter into the agreement with the 3rd Defendant dated 8th March 1993?
Whether or not the Agreement dated 8th March, 1993 and entered into between Fred Mensah Baddoo and the 3rd Defendant pursuant to a valid Power of Attorney is binding and of legal effect?
10. Whether or not the 3rd Defendant acquired any interest in the disputed property by reason of the said agreement?
. Whether or not the Plaintiffs are entitled to their claims?
. Whether or not the 1st , 2nd and 3rd Defendants are entitled to their respective counterclaims?
BURDEN OF PROOF IN CIVIL SUITS
Before the above stated issues can be resolved, there is the need to state the nature and degree of proof required in a case such as the instant one and what is expected from each of the parties to the suit. It is provided in sections 11(4);12 (1) (2); 14; and 17 (1) of the Evidence Act, 1975 N.R.CD. 323 as follows:
Sec. 11 (4)
In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.
Sec. 12. Proof by a preponderance of the probabilities
(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.
Allocation of burden of persuasion Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non- existence of which is essential to the claim or defence that party is asserting.
Sec. 17 Allocation of burden of producing evidence
Except as otherwise provided by law,
(a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;
(b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.
There are a plethora of judicial decisions on proof in civil suits where the principles in the foregoing paragraph have been discussed. Starting from the earlier decisions which laid down the principle to the more recent ones, which expounded same, some of the authorities are these Majolagbe v Larbi ( 1959) GLR 190 at 192; Zambrama V Segbedzie (1991) 2 GLR 221, CA; 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 and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2).
In all these cases, their Lordships were guided by the relevant provisions in NRCD 323 as outlined above and they explained that in all civil suits, a party who makes an averment, which is denied, bears the burden of proof except where provided by law; and that the degree of proof is " by the preponderance of the probabilities". This principle was well explained by Kpegah JA ( as he then was) in the Zambrama case, referred to, supra. In reviewing the earlier Majolagbe case, his Lordship stated:
"The correct proposition is that , a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden"
It flows from the above that if a plaintiff makes some positive averments which are denied by his opponent, then the evidential burden as well as the burden of persuasion will rest on him, until the burden shifts. However, in some cases, even though the burden of persuasion will initially be on the Plaintiff, depending on the pleadings and facts which are admitted, the evidential burden will be on the Defendant. Date-Bah JSC discussed the distinction between the "burden of persuasion" and " the burden of producing evidence" in the case of Sumaila Bielbiel v Adamu Dramani & Attorney General (No.3) (2012) SCGLR 370. As noted by his Lordship, in most cases, the burden of persuasion as well as the evidential burden rest on the same party.
This takes me to the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors ( 2003-2004) SCGLR 420. Brobbey JSC made this observation as regards the burden of proof on a Plaintiff. He stated:
... 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 ..."
At this juncture, I will proceed to determine the issues which have been set down. For each issue or group of issues as the case may be, I will first look at the party who bears the burden of persuasion as well as the evidential burden. I will then consider the submissions made by counsel in the light of the evidence before making my findings of fact and conclusions.
ISSUE OF PLAINTIFFS CAPACITY TO COMMENCE THE INSTANT ACTION.
The issue of capacity is very crucial and ordinarily, it must be dealt with before the court considers the merits of the case, where appropriate. In his book on Land Law, Practice And Conveyance in Ghana(2015), the learned author, and my esteemed Senior Brother, Justice Dennis Agyei had this to say at page 37:
“capacity goes to the root of every action and a person who has an iron cast case would not be heard on the merits of her case where she is unable to satisfy the court that she as capacity to maintain the suit. Where the issue of lack of capacity is raised, the court is prohibited from determining the case on its merits without first considering the issue of capacity."
Also linked to the above is the instructive statement made by Apaloo JSC in Akrong v Bulley (1965)
GLR 469 SC thus:
“I need hardly say that i reached this conclusion with no relish, especially as the Plaintiff made out an unimpeachable case of negligence against the defendants on the merits. But the question of capacity, like a plea of limitation is not concerned with the merits.
The law is settled that trustees, executors and administrators are the proper persons to sue and be sued in respect of the properties they hold in trust for the estate. Indeed, Order 4 rule 13(1) of the High Court (Civil Procedure Rules) 2004, C.I 47 provides inter alia that Trustees, executors or administrators may sue and be sued in that capacity. Again ,the Supreme Court in Okyere (decd) ( Substituted by Peprah) v Appenteng & Adomaa (2012) 1SCGLR 65 re-emphasized the above position of the law. In that case, Brobbey JSC commented on the position of the law that when a person dies testate or intestate, his estate devolves on the executor or the personal representative respectively. Until a vesting assent has been executed to the beneficiaries or devisees, they have no title or locus standi over any portion of the estate. See also the Administration of Estates Act, 1961, Act 63. So, in the case before me, the Plaintiffs are enjoined by law to prove that they have the requisite capacity to institute and maintain the action. In doing so, it is to be noted that the Original owner of the property died in 1946 when the Administration of Estates Act had not come into force, but, the Plaintiffs obtained their Letters of Administration de bonis non in the year 2012.
The argument by counsel for the Plaintiffs was based on exhibit A, whose authenticity according to him, remains unchallenged. Counsel referred to sections 1(1), 2(1) and 108 of the Administration of Estates Act, 1961 (Act 63), and argued that the Plaintiffs being the administrators of the undistributed portion of the estate of Rudolph Numo Baddoo are his personal representatives. And, to the extent that exhibit A was granted to the Plaintiffs prior to the institution of the instant action, the Plaintiffs are clothed with capacity.
The closing submissions of Counsel for the 1st and 2nd Defendants were silent on this issue.
However, Counsel for the 3rd Defendant discussed it alongside the well established authorities such as Akrong v Bulley, supra; Sarkodee I v Boateng (1982-83) GLR 715 and Republic v High Court, Accra; Ex-Parte Aryeetey (Ankrah Interested Party) (2003-2004) SCGHLR 398. Counsel also made reference to the Plaintiffs exhibit A, being the Letters of Administration de bonis non and then linked it to Order 66 rule 59(2) of the High Court (Civil Procedure) Rules, 2004 C.I. 47 which states:
"where all persons to whom a grant of letters of administration has been made have died without completing the administration, the court shall make a grant in respect of the un-administered assets to those entitled"
At that point, Counsel conceded that Letters of Administration were granted to Mrs. Mercy Emilia Baddoo on 14th July, 1948 in her capacity as a wife. That was where his submissions on the issue of capacity ended. He did not consider the effect of the grant of Letters of Administration to Mrs. Emilia Baddoo on the grant of Letters of Administration de bonis non to the Plaintiffs as per exhibit A. And that leaves me wondering as to whether counsel now concedes that exhibit A properly clothes the Plaintiffs with capacity to sue.
By the preponderance of the evidence on record in respect of this issue, I am inclined to accept the arguments of counsel for the Plaintiffs that by virtue of exhibit A and the relevant provisions of the Administration of Estates Act,( Act 63), the Plaintiffs are clothed with capacity to institute and maintain this action. This is so because even though the evidence of the 1st defendant suggests that an appeal was filed against the grant of exhibit A, she failed to demonstrate to the satisfaction of this court that beyond the mere filing of the appeal and putting together record of proceedings in 2012, she has taken further any step. It is more probable than not that that appeal may have been struck out after all these years. For now, exhibit A remains a valid document and must be considered as such. Having been granted Letters of Administration de bonis non, the Plaintiffs have acted within their power as administrators to institute the instant action. In short, they have the requisite capacity to maintain this action and I so hold.
ISSUE OF THE PLAINTIFFS ACTION BEING STATUTE BARRED.
Litigation must necessarily come to an end. It is in view of this obvious fact that The Limitations Act,1972(NRCD 54) has prescribed limitation periods for various actions. Where a cause of action accrues to a person but he fails to take advantage of it within a stated period, that cause of action may subsequently be barred by the Limitations Act, supra. In the case before me, the Defendants who are alleging that the Plaintiffs' action is statute barred bear the onus of proof.
Counsel for the 1st and 2nd Defendants based his arguments on section10(1) and (2) of NRCD 54 which sets the Limitation period in actions to recover land at twelve years from the date a person was seen to be in adverse possession. His contention was that once an action is statute barred, a court is precluded from granting any relief no matter the merits of the case. And in this case, he indicated that from the evidence on record, the 1st and 2nd Defendants commenced construction of their property which was subsequently gifted to them, in 1991 and ended in or about 1995.He further contended that the 3rd Defendant also commenced her building sometime in 1993 based on exhibit 14. Counsel also referred to the Plaintiffs exhibit F, and argued that if that document is anything to go by, then it meant that as far back as March 7, 2000, two daughters of the late Rudolph Numo Baddoo were also aware of the development of the properties on the land the subject matter of this suit which they claimed was not authorized. He then made specific reference to pages 23 and 24 of the proceedings dated 18/03/15 thus:
Q. Do you know construction of the property we are litigating was started in 1992 and completed in 1996?
A. Maybe, I do not know.
Q. And since 1994 to date you have been in the country
A. That is true
Q. And since that time on, the family has been aware of the construction of this property?
Based on the foregoing, coupled with exhibits F and 21, i.e. a letter said to have been written to Ala Adjetey Esq. and a photograph of Mrs. Faustina June Yeboah which she posed for on the property in issue, Counsel submitted that since all these events involving some children of the late Rudolph Numo Baddoo took place over twelve years before the instant action was commenced, the same is statute barred.
For the 3rd Defendant, Counsel also towed the line of argument of learned Counsel for the 1st and
2nd Defendants to the effect that the Baddoo family had always been aware of the developments on the subject property but failed to take any action within twelve years. He concluded his submissions on this issue by relying on the case of Bogoso Gold limited v Ntrakwa ( 2011) 1 SCGLR 415 where it was held thus:
“On a plea of defence of the statute of limitation, the burden of dislodging it would shift to the plaintiffs. However, in appropriate cases, a statement of claim, disclosing on its face that the period of limitation had expired, might be struck out as disclosing no reasonable cause of action"
Based on the above, Counsel submitted that the instant action be dismissed for being statute barred by reason of limitation.
As to be expected, Counsel for the Plaintiffs took his turn to address the court on this very significant issue. In his closing submissions, he argued the issue of limitation together with the question of estoppel and whether the buildings were erected with the consent of the Rudolph Numo Baddoo family. However, I will single out the issue of limitation and consider the other submissions on estoppel later.
Like the defence lawyers, Counsel for the Plaintiffs also based his submissions on NRCD 54, but with different reasons. Reading through his well written submissions, the argument he made was that the
1st and 2nd Defendants were not on the land in dispute as adverse possessors, but relied on an expired power of attorney, exhibit 9, to justify their presence on the land. In particular, counsel contended that since the 1st and 2nd Defendants claimed to have first entered the land on the basis of exhibit 9, they cannot turn round and claim that they have been in adverse possession. He further referred to various portions of the Defendants pleadings where they conceded that at all times material, the Baddoo Family was aware of their presence on the subject matter. Concluding, counsel submitted that by the Defendant's own showing, they were never in adverse possession of the land in question. As such, they cannot hide behind the Limitations Act to perpetuate their stay. He therefore urged the court to find that the Plaintiffs action is not statute barred by reason of the limitations Act, NRCD 54.
It is provided under section 10 of the Limitations Act, 1972 NRCD 54 as follows:
Section 10. Recovery of land
(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 first 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.
(3) Where a right of action to recover land has accrued, and before the right of action is barred, the land ceases to be in adverse possession, the right of action does not accrue until the land is again taken into adverse possession.
(4) For the purposes of this Act, a person is in possession of a land by reason only of having made a formal entry in the land.
(5) For the purposes of this Act, a continual or any other claim on or near a land does not preserve a right of action to recover the land.
(6) On the expiration of the period fixed by this Act for a person to bring an action to recover land, the title of that person to the land is extinguished.
(7) For the purpose of this section “adverse possession” means possession of a person in whose favour the period of limitation can run.
Can it be said on the basis of the evidence adduced by the Defendants that they were at any point in time in adverse possession of the land in dispute so as to be caught by the limitations Act? Throughout the evidence-in-chief of the defendants and in cross-examination, they were consistent on their evidence that they were put into possession by some authority or power conferred on them by specific members of the Baddoo family at different times. Exhibits 6,7, 8, 9 and 14 clearly support the contention of counsel for the Plaintiffs that by the Defendants own showing, they were not in adverse possession of the land in issue. It appears to me that the Defendants have resorted to this position because the Plaintiffs have challenged the basis for which they were put into possession of the subject property.
The legal effect of the Defendants not being in adverse possession can be seen in the case of Mmra v
Donkor ( 1992-93) 4 G.B.R. 1636, where the supreme court held thus( holding 6):
"Under the Limitation Decree 1972 (NRCD 54) s 10, if an occupier was not in adverse possession, the period of limitation could not run against the true owner. A person was said to be in adverse possession if he went into possession or dealt with the property without the knowledge or consent of the owner..." See also
Memuna Moudy v Antwi (2003/2004) SCGLR 967 where the Supreme Court held among other things that where an implied permission of the land owner can be inferred, the presence of an intruder on the land cannot amount to adverse possession.
By the preponderance of the evidence on record, i find that the Plaintiffs have displaced the evidential burden that shifted onto them to prove that the Defendants were not in adverse possession. The Defendants claim that they have been in adverse position is untenable. I am satisfied with the arguments canvassed here by Counsel for the Plaintiffs and find that the Defendants have never been in adverse possession of the subject property. Therefore, the period of Limitation never run against the Plaintiffs or the Numo Baddoo family generally. In short, the Plaintiffs action is not caught by the Limitations Act.
ISSUE OF RES JUDICATA
This arises from issues 1. That is, whether or not the issue of Mrs. Mercy Emilia Baddoo having distributed the estate of Rudolph Numo- Baddoo or same having devolved under Ga Customary law is Res Judicata per suit number C6/88/12 and thus precluding the Defendants from re-litigating the same? I think there are two sides to this issue and will consider them as such.
The question of estoppel per res Judicata was premised on suit number C6/88/12 in which the High Court (differently constituted) had to determine who was entitled to a grant of Letters of Administration. In doing so, that court had to resolve certain matters, namely: (i) whether or not there was any remainder of the estate of Rudolph Numo Baddoo; and if so, (ii) whether Letters of Administration could be granted in respect of the un-administered estate to the Applicants therein?
On the one hand, the contention of the Applicants as can be gleaned from their pleadings and exhibit C, i.e. the ruling of the High Court in Suit No. C6/88/12, was that the property at Roman Hill, Kumasi, was not administered by the late Mrs. Mercy Baddoo who was granted Letters of Administration in 1948 and the same was not vested in Rudolph Numo Baddoo's children. On the other hand, the Caveatrix (now 1st Defendant) contended that the entire estate devolved on the late Rudolph Numo Baddoo's children in accordance with Ga customary law (see paragraphs 5 to 10 of exhibit H- the affidavit in opposition to the application for the grant of Letters of Administration by the Plaintiffs herein) and that the Kumasi property was given to J.J. Peele& Co., a firm of solicitors to manage same on behalf of the children.
Counsel for the Plaintiffs who seeks to rely on the ruling in suit No. C6/88/12 referred this court to pages 1 and 2 of the ruling therein as contained in exhibit C where the court found as follows:
"Rudolph Numo-Baddoo died on 5th April, 1946 survived by a widow Mercy Emilia Baddoo and eight children. Letters of Administration were granted to the widow to administer the estate. Mercy Baddoo died on 8th March 1974 leaving un-administered:
a) House number C30/1 Adama Avenue, Adabraka and
b) Plot numbers 4 and 5 Block II Bompata, Roman Hill, Kumasi.
Counsel further argued that it was based on the above findings that the High Court granted exhibit A to the Applicants therein (now Plaintiffs herein). He submitted that by that determination, any question as to whether there was any un-administered portion of the estate based on which exhibit A was granted to the Plaintiffs could only be dealt with on appeal. Hence, the Defendants cannot raise the same issue as a defence in a subsequent suit like the instant one. Counsel cited and relied on two cases. These are: (i) Conca Engineering v Moses (1984) 2 GLR 319 which was relied on in R v High Court, Ex-Parte Hesse(2007-2008) 2 SCGLR 1230 and (ii) Sasu v Amua-Sekyi (2003-2004) SCGLR 742 at 757 . He placed specific emphasis on pages 327; 328-329 of the report in the Conca case thus:
“... the defendant is estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment."
"... if the identical question arising in the second action actually arose in the first, and has been or must necessarily be deemed to have been decided with complete precision one way or the other as the foundation of the default judgment signed by the Plaintiff, then at least while that judgment stands, that question is concluded between the parties."
Then at page 757 in the Sasu case it was stated:
"The plea of res Judicata prohibits the court from enquiring into the matter already adjudicated upon. It ousts the jurisdiction of the Court"
Against this backdrop, Counsel for the Plaintiff submitted that the issue as to whether or not the Estate of Rudolph Numo-Baddoo was completely administered is concerned, same has been decisively put to rest per Suit No. C6/88/12.
Counsel for the 3rd Defendant who had earlier submitted that the Court should evaluate the circumstances which led to the grant of exhibit A and dismiss the Plaintiff's case on grounds of lack of capacity did not find it necessary to make any submissions on the issue of estoppel per Res Judicata. His arguments were on Laches and Acquiescence which i will look at later whose legal effect may be the same when proved. The closing submissions filed by Counsel for the 1st and 2nd Defendants were also silent on this issue.
On the part of the 1st Defendant, she admitted during cross-examination that an appeal against the ruling contained in exhibit C was filed on 24/04/2012 as per exhibit 1. When asked whether she had pursued that appeal, she told the court that she went to the Registry several times and was told that she will be notified when the Court of Appeal Judges come from Accra but she has not received any such notice. The Plaintiffs through their Counsel disagreed with these answers in cross-examination.
I have perused exhibit C. Even though Batu J. indicated that the sole issue for determination before him was who was entitled to a grant of letters of administration, he effectively found that the properties at Roman Hill were left un-administered by the late Mrs. Mercy Baddoo. It was as a result of this finding that exhibit A was granted to the Applicants. To that extent, I agree with the submissions made by Counsel for the Plaintiff. Now to the Appeal, filed by the 1st Defendant, in April, 2012. Is it actually pending? Is it not strange that after the appeal records were bound in 2012, no further step has been taken by either party? Was the record settled and transmitted to the Court of Appeal at all? How many times have the Appeal Court Judges come to Kumasi since May, 2012? Did the Appellant bother to find from the registry why her appeal had not been listed? Answers to these questions cannot be inferred from the evidence adduced by any of the Defendants, particularly, the 1st Defendant. If genuinely, the appeal evidenced by exhibit 1 is still pending, and its outcome could impact on the instant suit , what prevented the 1st or 2nd Defendants from exercising their rights under the rules of court relative to the instant suit? The attitude of the 1st defendant leaves me wondering whether the said appeal is actually pending, or that she has merely failed to pursue the same. To the extent that the 1st Defendant has failed to pursue her appeal, I find that the ruling contained in exhibit C remains a valid ruling.
It can inferred from the ruling of Batu J. in exhibit C that the grant of Letters of Administration to the Applicants therein meant that Mrs. Mercy Baddoo did not fully distribute the entire estate of the late Rudolph Numo-Baddoo. In exhibit H, the Caveatrix raised the question of the estate having devolved on the Children of the late Numo-Baddoo who hailed from Ladabi, Accra. However, in his ruling, Batu J. said the following at page 3: "the issue of determination as to what interest the Caveatrix and her husband have does not fall for determination here, see In re Gyan- Fosu ( decd), Boafo v Akwatia Pekoh III (1974) 1 GLR 147, CA."
In effect, his Lordship did not determine whether the estate of Rudolph Numo-Baddoo devolved in accordance with Ga Customary law as argued by counsel for the Plaintiff - that was not conclusively determined in suit No C6/88/12. More so, the fact that letters of Administration was granted to Mrs. Mercy Emilia Baddoo in her capacity as a spouse of the late Rudolph Numo-Baddoo does not necessarily imply that the estate devolved according to Ga custom. Persons may be entitled to a grant in different capacities- e.g., as surviving spouse, surviving child, customary successor and the like.
For a judgment to operate as estoppel, the court has to inquire whether the said judgment was "in rem" or in" personam". The distinction between these was made by Dennis JA in his recent book on Land Law referred to , supra. At page 163, the learned Author stated:
A judgment in rem determines all issues pertaining to the rights and status of the parties or things including the title or right to the things and how they could be alienated and it binds all the persons within the jurisdiction of the court that pronounced it. Judgment in personam on the other hand is between the parties (inter partes) and operates as an estoppel against the parties to the suit only. Where the earlier judgment was in rem, it is likely to operate as an estoppel against all issues as to the parties and the subject matter and their rights, titles and status and how alienation of the subject matter could be made by the parties therein."
I would say that the ruling or judgment of the court contained in exhibit C was "in personam". So, as between the Applicants therein (now Plaintiffs herein) and the Caveatrix (now 1st Defendant), the issue on the remainder of the estate of Rudolph Numo-Baddoo and who is entitled to the grant of Letters of administration have been conclusively determined- that is Res Judicata. However the same cannot be said of the 3rd Defendant who was not a party to that suit. That apart, Batu J did not decide who was entitled to what, and according to which custom. It follows that the question of the estate devolving according to Ga customary law has not been conclusively determined by any court of competent jurisdiction. Generally, after the grant of the letters of administration, the administrations will have to distribute the property and vest the same in the beneficiaries. It is at this point that issues of customary law, intestate succession law or the matrimonial causes Act (where applicable) and who is entitled to what will come in. So the Plaintiffs herein still have that hurdle to jump. In my opinion, the question of whether the Estate of Rudolph Numo-Baddoo devolved under Ga Customary law is not RES JUDICATA by virtue of exhibit C. Therefore, the arguments of counsel for the Plaintiff on that issue will not hold, except in respect of the undistributed property.
ISSUE OF THE VALIDITY AND LEGAL EFFECT OF THE POWER OF ATTORNEY GRANTED TO 1ST AND 2ND DEFENDANTS by FRED MENSAH BADDOO (exhibit 9).
This covers issues 7 and 8,to be precise, (i)whether or not the Power of Attorney granted to the 1st and 2nd Defendants by Fred Mensah Baddoo dated 23rd September 1991 is valid, binding , and of legal effect? and (ii) whether or not pursuant to the said power of attorney, the 1st and 2nd Defendants were legally mandated to enter into the agreement with the 3rd Defendant dated 8th March 1993? This second leg calls for an interpretation of the power of attorney. The Defendants who rely on the power of attorney as a defence must bear the burden of proof thereof.
For the 1st and 2nd Defendants, counsel argued that even if the property in question was not vested in the children of the deceased, in terms of section 1(2) of the Administration of Estates Act, 1963. Act 63, the estate devolves on the customary successor until a personal representative is appointed. He submitted that at the time of giving the power of attorney (exhibit 9) in 1991, Fred Mensah Baddoo was the customary successor and head of the Baddoo Family, particularly the direct children of the deceased and their offspring. Thus, it was well within his power to have granted the Power of Attorney to the 1st and 2nd Defendants. He relied on Hussey v Edah (1992-93) GBR 1703 and Dzanku v Afalenu & Anor (1968) GLR 792-794 HC to buttress his point. Further, Counsel indicated that pursuant to that power of attorney, the 1st and 2nd Defendants had the requisite capacity to enter into an agreement for the rehabilitation and development of the land the subject matter of this suit. Counsel invited the court to take notice of the wording in exhibit 14 thus "which expression shall include his successors, assigns or agents howsoever arising". By these words, counsel argued that the fact that the donor of the power of attorney has passed on does not invalidate the agreement which was duly entered into in his life time.
On his part, counsel for the 3rd Defendant relied on Gordon v Essien (1992) 1 GLR 232 and argued that a power of attorney takes effect from the date of execution. He referred to clauses 3 and 4 of the power of attorney, exhibit 9 and argued that by those express terms, the 1st and 2nd Defendants were authorized to commence and carry on Development of the said properties in whatsoever manner they deem fit (emphasis added). He invited the court to peruse the specific terms of the agreement entered into with the 3rd Defendant (exhibit 14) alongside the provisions of section 6 of the Powers of Attorney Act, 1998 Act 549. On the strength of that provision, he argued that since Fred Mensah Baddoo could execute the agreement as head of the Baddoo family, then the 1st Defendant acting on behalf of the 2nd Defendant as Attorneys of Fred Mensah Baddoo could execute exhibit 14 and the same was duly executed.
Counsel for the 3rd Defendant quoted a substantial part of the evidence of the 3rd Defendant as regards the power of attorney and the subsequent agreement as in exhibit 14. From her evidence, counsel stressed that the 3rd Defendant actually dealt with the donor who represented to her that indeed he granted such power of attorney.
In conclusion, counsel submitted that the power of attorney was executed by Fred Mensah Baddoo on 23/09/1991 and exhibit 14 was made on 08/03/1993. It was further submitted that by reason of the fact that the said Fred Mensah Baddoo was acting in his capacity as head of family acting with the consent of his only sibling alive at the time, Mrs. Faustina June Yeboah, who for all intents and purposes was a principal member of the family, the binding acts on him as the donor of the power of attorney is binding on his successors in title as head of Family and on the Baddoo family. Hence, exhibit 14 is binding on the Baddoo family and for that matter on the Plaintiffs and the death of the Donor in 1996 will not relieve the Baddoo family of its binding obligations pursuant to the execution of exhibit 14.
Counsel for the Plaintiff did not say much about the validity of exhibit 9 in his written submissions. His argument was principally based on the last paragraph of exhibit 9 where it was stated that the principal "... HEREBY undertake to ratify whatsoever my Attorneys or Attorney shall lawfully do or cause to be done in the premises. “Counsel’s position is that the donor, Fred Mensah-Baddoo did not ratify any acts done by the donee prior to his death. He then reviewed the evidence adduced on the side of the defendants and concluded that it was only the 1st Defendant who said ratification was done. Yet, she was unable to show how it was done. In effect, counsel invited the court to hold that the Baddoo family and for that matter the Plaintiffs are not bound by the acts of the donee which were never ratified by the donor.
In the case of Hussey v Edah, quoted above (per Hayfron-Benjamin JSC, a power of attorney was described as:
"... a formal document by which one person, usually called the principal or donor, divest to another, usually called the attorney or donee, authority to represent him or act in his stead on certain purposes spelt out in the document. If such a power was for use abroad it ought to be authenticated by a notary public. A power of attorney might be terminated as provided therein or upon the completion of its object or by death..." See also Dzanku v Afalenu & Anor, referred to, supra.
The above statement gives a broad definition of a power of attorney but there are various types of powers of attorney. In the Black's law Dictionary (2009) 9th ed. page 1290, these classifications are given: durable power of attorney, the general power of attorney, the irrevocable power of attorney or power of attorney coupled with an interest and the springing power of attorney. Whereas a special power of attorney confers power on the donee to do a specific thing, a general power of attorney gives a broader power to the donee to execute all the acts or powers conferred on him by the donor. On the basis of the foregoing, it is obvious that exhibit 9 is a general power of attorney.
I am mindful of the fact that exhibit 9 was made prior to the coming into force of the Powers of Attorney Act, 1998, Act 549.Presently, for a power of attorney to be valid, it must conform to section 1 of Act 549 which states:
Sec 1. Execution of powers of attorney
(1) An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorized by the donor in the presence of the donor.
(2) Where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument.
(3) Where the instrument is signed by a person authorized by the donor, two witnesses shall be present and shall attest the instrument.
(4) This section applies in addition to a requirement under an enactment in respect of witnessing of an instrument creating a power of attorney including the rules relating to the execution of instruments by bodies corporate.
It is of extreme importance to set out in extenso the Power of attorney in issue, exhibit 9. It states:
POWER OF ATTORNEY
"... I, FRED MENSAH BADDOO of House No. C 30/1, Adama Avenue, Adabraka, Accra, Head of Baddoo Family HEREBY APPOINT MR. RUDOLPH PAPA NII BADDOO AMPOFO CURRENTLY ON A SHORT COURSE IN PHILADELPHIA, U.S.A. and MRS. MERCY BADDOO AMPOFO of Plot No. 14 Block "G", Adiebeba, Kumasi to be my true and lawful ATTORNEYS in the Republic of Ghana and for the purpose aforesaid. I hereby confer upon my ATTORNEYS the following powers and authorities namely:-
1. To manage and superintend the management of the property now at Roman Hill, Kumasi, Ashanti Plot 4 and 5 Bompata OZENL 37 and 38 and to grant tenancies in respect of the rooms therein, accept surrenders of such tenancies upon and subject to such terms and conditions as they may think fit and to sign and give notice to tenants and occupiers thereof to quit or to repair or abate any nuisance or to remedy any breach of covenant or condition or for any other purpose whatsoever and to enforce all remedies open to me in respect of the said house or any room therein whether for the purpose of viewing the state thereof or in exercise of any right of re-entry or other right of entry vested in me.
2. To commence, carry or defend all actions and other proceedings touching the said property Plot 4 and 5 formerly Bompata OZENL 37 and 38, Roman Hill, Kumasi and to settle and compromise any actions proceedings accounts claims demands dispute or reckoning whatsoever wherein I am now or at any time hereafter shall in anywise interested or concerned with any person or persons whomsoever.
3. To commence or carry on the development and rehabilitation of the said property Plot 4 and 5 formerly Bompata OZENL 37 and 38, Roman Hill, Kumasi in whatsoever manner they deem fit.
4. At all times the two ATTOREYS appointed by me under this power of Attorney may act jointly or in the absence of any of them whether through death, incapacitation or one of them being abroad the remaining Attorney shall act under the powers given by this presents and whatsoever is done shall be taken as valid.
AND I HEREBY undertake to ratify whatsoever my Attorneys or Attorney shall lawfully do or cause to be done in the premises.
IN WITNESS WHEREOF I have hereunto set my hand and seal this 23rd day of December, 1991.
SIGNED SEALED and DELIVERED
by the said FRED MENSAH BADDOO.
The Powers of Attorney Ordinance, 1933 Cap. 263 has been repealed by The Powers of Attorneys Act, 1998, Act 549. To the extent that exhibit 9 was made in 1991, its form will not be affected by the requirements of Act 549. Exhibit 9 as it stands qualifies to be a valid General Power of Attorney.
Next, I need to determine whether the donor had the capacity to donate those general powers. From the very first paragraph of exhibit 9, the donor indicated that he was giving the power of attorney in his capacity as the Head of the Baddoo Family. It stands undisputed from the evidence on record that after the death of Rudolph Numo-Baddoo in 1946, his surviving male children became heads of family at various times until Fred Mensah Baddoo became head of family as of the time exhibit 9 was executed. At customary law, when a person is appointed a customary successor of a deceased person, he becomes the head of the deceased's immediate family. As such, he has power to deal with the self acquired properties of the deceased. And where the deceased died intestate, the head of family as customary successor can deal with the property until a personal representative or an administrator is appointed. Indeed, this has been the arguments put up by the counsel for the Defendants. These arguments are actually premised on sections 1(2) (a) of the Administration of Estates Act, 1961, Act 63 which states:
"1. Devolution on personal representatives
(1) The movable and immovable property of a deceased person shall devolve on the personal representatives of the deceased person with effect from the date of death.
(2) In the absence of an executor the estate shall, until a personal representative is appointed, vest
(a) in the successor, if the entire estate devolves under customary law.
From the evidence on record, the late Rudolph Numo Baddoo was a Ga man and upon his death intestate, the entire estate devolved in accordance with Ga customary law. It is also on record that the Plaintiffs were given Letters of Administration de Bonis Non to administer the land subject matter of this suit, among others (exhibit A). Therefore, it can be reasonably inferred that prior to the grant of exhibit A, the property described therein had not been administered, and no administrators had been appointed after the late Mrs. Mercy Emilia Baddoo's death. It is on record that she was granted letters of Administration in 1948 but she failed to fully administer the estate so as to vest the same in the beneficiaries. The Plaintiffs did not introduce any convincing evidence to discredit the Defendants story that at the time exhibit 9 was made, Fred Mensah Baddoo was the head of the immediate Family of Rudolph Numo Baddoo. On the balance of probabilities, I accept the Defendants version that at the time exhibit 9 was made, Fred Mensah Baddoo was the head of the Baddoo Family, and by extension, the customary successor of Rudolph Numo Baddoo. That being the case, Fred Mensah Baddoo rightly executed exhibit 9 which deals with the self acquired properties of Rudolph Numo-Baddoo (decd). The power of attorney, Exhibit 9 is therefore a valid document.
What then, is its legal effect? Upon a valid execution of a general power of attorney, the donee of the power, or if there is more than one donee, the donees acting jointly or acting jointly and severally, will have authority to do on behalf of the donor anything which can be lawfully done by an attorney. (See section 6 of Act 549).
It can be gathered from the content of exhibit 9 as set out above that the donees were to institute or defend actions in respect of the estate, create tenancies and accept surrenders, develop, rehabilitate and manage the properties in whatever manner they deemed fit. The state of the existing property on plot No.4, and the extent to which squatters had taken over the remaining land as well as Plot No. 5 can be clearly seen in the photographs tendered as exhibits 16, 17,18 and 19 series. When the 3rd Plaintiff was cross-examined, he told the court that he did not even know of the role played by J.J. Peele and Co until recent times. He spoke for the other plaintiffs who are the administrators of the estate. By their own showing, it is clear that they had not shown any interest in this property for decades and the same was going waste. The property could have been lost to adverse possessors as the evidence shows. It was therefore right for the head of family to take reasonable steps to protect and preserve the family property by legal and reasonable means. Since he was unable to do so personally, he authorized the 1st and 2nd Defendants to do the acts mentioned in exhibit 9.
The law is that a power of attorney can be revoked at any time by the donor. When he does so, he must take reasonable steps to bring the revocation to the notice of all parties. For instance, by communicating it in writing to the donees, followed by a publication in the mass media for the benefit of third parties who may deal with the donee(s). If that is not done, the attorney may continue to act under the original power of attorney and to bind the donor to 3rd parties by such acts. It is also trite law that a general power of attorney terminates on the death of the donor. See Hussey v Edah, supra.
In the case at hand, the Plaintiffs have not demonstrated on the balance of probabilities that at any time between 1991 when exhibit 9 was executed, and before the death of the donor in 1996, he duly revoked the power of attorney. The only reasonable inference that can be made is that exhibit 9 remained in full force until the death of the donor in 1996. His ratification can be inferred from the fact that he did not raise a finger at any of the acts done by the donees of the power of Attorney as seen in the evidence of the 1st Defendant which I find credible. For, ratification does not need to be done in any complex manner. The same can be inferred from subsequent consistent act or acts of the principal.
Consequently, the donor, Fred Mensah Baddoo is bound by all acts done within the ambit of exhibit 9 by the donees, the 1st and 2nd defendants herein, prior to his death in 1996. This takes me to the next set of issues for consideration.
ISSUES OF THE VALIDITY OF THE AGREEMENT ENTERED INTO BETWEEN THE THIRD DEFENDANT AND FRED MENSAH BADDOO PURSUANT TO THE POWER OF ATTORNEY AND THE INTEREST ACQUIRED BY THE 3RD DEFENDANT (IF ANY).
These are issues 8, 9 and 10 in the issues agreed to be tried. Obviously, the evidential and burden of persuasion rest on the Defendants.
The position of the Plaintiffs as per the evidence-in-chief of the 3rd Plaintiff and his answers under cross-examination was that exhibit 9 merely conferred on the 1st and 2nd Defendants the power to manage the land subject matter in dispute just as J.J. Peele did, and nothing more. Their evidence was to the effect that the donors of exhibit 9 could not have legally entered into any agreement with a third party in the nature of the purported agreement with the 3rd Defendant and that exhibit 14 is just an afterthought to deny the Baddoo family of their interest in the property. Their evidence did not state how or why exhibit 14 is an afterthought.
However, their counsel in his closing submissions engaged on a long and winding voyage to discredit the testimonies of the 1st and 2nd Defendants as well as DW1, Lawyer Arnold Prempeh. Counsel submitted that per exhibits 6, 7, 8 and 9, the property had not been administered as of 1991. Thus, it was only an administrator so called who could alienate any part of the property. He argued further that any person without Letters of Administration in respect of the said estate would not have legal powers to divest any such interest therein. Continuing, counsel submitted that since Fred Mensah Baddoo did not take any Letters of Administration, he did not have the capacity to alienate portions of the instant land to the 3rd Defendant based on the principle memo dat quod non habet. He relied on Seidu v Saanbaye Kangberee (2012) 2 SCGLR 1182 @1199 to buttress his point. This apart, Counsel contended that if the 3rd Defendant had acted diligently, she would have discovered that there was no vesting assent in the name of the person who executed exhibit 9 subsequent to which exhibit 14 was made. It was also his argument that even if exhibit 14 is a genuine document, the same was never registered as per exhibit D, and to that extent, it conferred no interest in the land on the 3rd Defendant. He cited and relied on Fianko v Aggrey (2007-2008) SCGLR 1135 @1143-1145 where the Supreme Court stated as follows:
'We quite agree with counsel for the plaintiff that exhibit 1 bears all the features of a deed of conveyance as required by section 1(1) of the Conveyancing Act, 1973 (NRCD 175)... So, as counsel put it: " In this wise, for the document to be valid and create legal obligations, it should have been registered in accordance with section 24(1) of the land Registry Act, 1963 (Act 122)."
This is trite law... Accordingly exhibit 1 is of no effect to transfer any interest in the disputed land to the defendant's father for lack of registration under section 24(1) of Act 122.'
Counsel brought the curtain down on these arguments with the case of Oppong v Anarfi (2011) 1SCGLR 556 @563 citing Agyei Osae v Adjeifio (2007-2008) 1 SCGLR 499 where the Supreme Court held that:
"The non-registration of an instrument affecting land is fatal and therefore cannot be the basis of a judicial decision."
The 1st Defendant maintained throughout her evidence-in-chief and under cross-examination that the donor of exhibit 9 rightly authorized the donees therein (including herself) to deal with the property in the manner they did. For, development entails the use of money. So impliedly, the donor knew they were going to source funds to develop the land. She testified further that her endless search for a financier to develop the property in terms of exhibit 9 resulted in the agreement with the 3rd Defendant, who after meeting Mrs. Faustina June Yeboah and the donor of the power himself, Fred Mensah Baddoo, became convinced about its authenticity before investing a fortune in the project. To that extent, the 1st Defendant is of the view that exhibit 14 is binding on the Baddoo family and the 3rd Defendant is entitled to her interest therein. The 2nd Defendant's Lawful attorney also corroborated this evidence, even though counsel for the Plaintiff sought to discredit him on the ground that he was too young as at that time to remember the events that might have transpired.
Their Counsel also took his turn to address the court on these issues. He based his arguments on the case of Agyei Osae v Agyefio, referred to supra where the Supreme Court held:
whenever there was in existence a written document and conflicting oral evidence, the practice of the court was to lean favourably towards the documentary evidence especially if it was authentic and the oral evidence was conflicting" Fosua & Adu Poku v Adu Poku Mensah (2009) SCGLR cited.
To the extent that there are no issues on the authenticity of exhibits 6, 7,8 and 9 on record, counsel invited this court to lean favourably towards the documentary evidence as the oral evidence is conflicting. In his view, exhibit 9 was validly granted by the head of Family and customary successor according to Ga Custom, and he validly dealt with the property. He also came to the conclusion that exhibit 14 is binding on the Baddoo family and the same was not an afterthought as seen in the evidence of DW1.
On the question of non-registration of exhibit 14, counsel for the 1st and 2nd Defendants was of the view that since it was not tendered to prove the Defendants title to the property, it was not mandatory that it be registered. He relied on Oppong v Anarfi (2011) 1 SCGLR 556 at 564 where Vida Akoto Bamfo JSC stated:
“ Exhibit A was therefore not required to be registered under the Land Registry Act, 1962 ( Act 122), s24(1) to be effective. Exhibit A was not tendered to prove the Plaintiff's title to the property. The Learned judge rightly overruled the objection."
Further, he argued that per the Supreme Court decisions in Amuzu v Oklikah (1998/99) SCGLR 14; and Nartey v Mechanical Lloyd Plant Ltd (1987-88) 2 GLR 314, non-registration being a defect can be cured and its absence would not deprive a party of the protection of the case. He therefore urged the court to hold that exhibit 14 is a valid document which confers the rights therein on the parties to the agreement.
The 3rd Defendant's evidence as regards exhibit 14 and what she regards as her interest therein was set out earlier when I stated the respect cases of the parties. In sum, she told the court that she had known the 1st defendant prior to this agreement and after the initial negotiation to prefinance the development, she met the donor of the power of attorney, and later his sister, Mrs. Faustina June Yeboah. So, she became convinced that she was dealing with the rightful owners. When Counsel for the Plaintiffs raised serious doubts about her financial position to have carried out the development in issue during cross-examination, the 3rd Defendant told the court that she was a successful timber merchant, exported logs abroad and also run boutiques stocked with goods she imported from abroad. She pressed on the fact that she had the requisite resources to finance the development which she did and as such, she is entitled to enforce her rights under exhibit 14 i.e. to receive rent for 25 and 45 years in respect of plots 4 and 5, and thereafter, a 50% share of the structures.
Interestingly, Counsel for the 3rd Defendant conceded that exhibit 14 may be a registrable document. However, its non-registration does not render it void and of no legal effect. He argued that the essence of registration is to give notice to the public of a pre-existing interest in any piece of land and it does not confer a state guaranteed title. In his view, the non-registration of exhibit 14 is of no adverse legal consequence in the instant case because as the evidence shows, the Baddoo Family has at all times been aware of the 3rd Defendant's interest in the property.
First, were the 1st and 2nd Defendants legally mandated to enter into an agreement with the third defendant? This calls for an interpretation of clause 3 of exhibit 9 which states:
"To commence or carry on the development and rehabilitation of the said property Plot 4 and 5 formerly Bompata OZENL 37 and 38, Roman Hill, Kumasi in whatsoever manner they deem fit."
The key words are: (i) commence; (ii) carry on development; (iii) rehabilitation and (iv) in whatsoever manner they deem fit. And what was the interpretation placed on these material words and phrases by the parties and their counsel.
The word "commence" is synonymous with the words 'begin; start; initiate; originate'. Its meaning is plain and devoid of any ambiguity. "Development" is also synonymous with the words 'increase; enlargement; improvement; expansion. The word development as a noun means the process of making something bigger, stronger, better or more enhanced- that is also free from any ambiguity. "Rehabilitation" or "Rehabilitate" is also synonymous with the words ' restore; repair; re-establish; mend. As a verb, 'to repair' means putting something old or damaged back into good condition.
In adopting the most suitable interpretation, i will also consider the circumstances which culminated in the execution of exhibit 9. First, as seen in exhibits 16 through 19 series, the existing structure on plot No. 4 was in a serious state of disrepair. The fact of unauthorized structures and squatters on plots numbered 4 and 5 cannot be glossed over when these photographs are critically viewed, coupled with the oral evidence of the 1st Defendant on the subject which I find credible. Then comes exhibits 6,7 and 8 which were written by some children of the late Rudolph Numo Baddoo at various times , but all in connection with the development and rehabilitation of the property in issue.I will set them out in extensor.
Exhibit 6 was written by E.S.T. Laud Baddoo on 15/09/87 and addressed to Messrs J.J. Peele & co. It reads:
IN RE R.A. NUMO-BADDOO (DECEASED)
I refer briefly to my letter herein written to you in October, 1985, and to reintroduce to you bearer himself Mr. Ampofo who is my nephew and stationed in Kumasi.
For the development of the estate herein I should be thankful if you would now enter into negotiations with him for the due rehabilitations of the premises and development of the plots in question.
I would that this would engage your earliest attention.
(sgd) E.S.T. LAUD BADDOO.
Exhibit 7 is also dated 12/04/91 and it was written and signed by Walter Baddoo, and addressed to
Messrs J.J. Peele & Co. Its contents are these:
IN RE R.A. NUMO-BADDOO (DECEASED)
I am writing to confirm the authority granted to my nephew Mr. R.P.N. Ampofo to rehabilitee and develop our father's property at Roman Ridge, Kumasi.
I attach herewith a photocopy of the original authorization signed by my brother, E.S.T. Laud Baddoo(now deceased) for your perusal. I would be obliged if you could submit to us an up-to-date statement of account on the estate. Thank you.
(sgd) W. BARON BADDOO.
Exhibit 8 dated 06/10/91, and also written by Walter Baddoo, copied to the 1st and 2nd defendants herein, and addressed to Messrs J.J Peele & Co reads:
RE: R.A. NUMO-BADDO (DECEASED)
I am writing in reference to the authority granted to my nephew, Rudolph Papanii Ampofo on the development and rehabilitation of our father's property now at Roman Hill Plot 4 and 5 formerly Bompata OZENL 37 and 38.
Rudolph is on a short study outside and i his absence, Mrs. Mercy Ampofo who has been formally introduced to you is authorized to continue with all proceedings and developments on the property started by R.P.N. Ampofo. I would that you give her all the needed support to effect the development and rehabilitation on the property.
Counting on your usual assistance.
(sgd.) Walter Baddoo.
I find from exhibits 6,7 and 8 above that the core Baddoo family has always been aware of the bad state of the property, and thus called for its development at different times. The 1st Defendant posed this question as she testified, and i also find it very useful to ask it again- " how was the property to be developed?" Obviously, when one seeks to improve upon, enlarge, repair and initiate, begin or originate something on an existing land, it has financial connotations or implications. Did the donor think of the consequences of his authorization as in exhibit 9? From the evidence on record, the last time any member of the Baddoo family requested for a statement of account on the estate prior to this suit was in April, 1991. DW1 has also told the court that when he joined J.J Peele & Co in 1975, they were already managing the estate and in his own words "nothing was coming out of it". The bad state in which the property was tells it all. Because, if the estate was generating income, a reputable law firm like J.J Peele & Co would have definitely used the proceeds to rehabilitate the property. It has also not been suggested that J.J Peele & Co embezzled any funds from the estate. If indeed, the Baddoo family was convinced that "something was coming out of the estate", what prevented Walter Baddoo from raising the issue when he wrote to the managers in October 1991 after E.S.T. Baddoo had passed on? In any case, there is nothing on record to show whether or not E.S.T. Laud Baddoo was furnished with the information he had requested from Messrs J.J. Peele & Co earlier on and was satisfied with the response. If he was not furnished with the information he requested for, what reasonable steps did he or any member of the Baddoo family take? Surprisingly, the 3rd Plaintiff in cross-examination said he did not know of J.J. Peele & Co. until recently. It can be reasonably inferred from the conduct of these male Children of Rudolph Numo Baddoo (decd) that even though there were some skeletal tenants on this dilapidated property, it was not generating any income worth the effort.
From the foregoing, I find that raising substantial capital to improve, expand, restore, repair and to start new developments on plots 4 and 5 fall within the mandate given to the 1st and 2nd Defendants in exhibit 9. Raising funds from a third party on agreed terms beneficial to the Baddoo family also fall within the phrase" in any manner the donees deemed fit." An attempt to interpret exhibit 9 in any other manner apart from this purposive approach will defeat the true intention of the donor.
Therefore, I find that exhibit 9 gave the 1st and 2nd Defendants the mandate to enter into any agreement with any third party for the purpose of rehabilitating the existing structure, expanding same and adding new structures and the Baddoo family ought to have known that those acts could not be achieved on a silver platter! I conclude that the agreement entered with the 3rd Defendant pursuant to exhibit 9 is valid.
Now, to the effect of non-registration. Both Counsel concede that by section 24(1) of Act 122:
"...an instrument, other than a will or a judge’s certificate, first executed after the commencement of this Act, shall not have effect until it is registered."
Under section 36 of the Act, an Instrument is defined as " a writing affecting land situate in the
Republic". The effect of registration is provided for under section 25(1) as follows:
"The registration of an instrument constitutes actual notice of the instrument, and of the fact of registration to all persons and for all purposes, as from the date of registration, unless otherwise provided in an enactment."
By the preponderance of the evidence on record, the Baddoo family can be imputed with notice of the development on the land by the Defendants, particularly the 3rd Defendant, based on exhibits 9 and
To the extent that exhibit 14 affected interest in the land described therein, it is an instrument affecting land in the Republic. However, the 50% interest is not immediate. It was dependent on the 3rd Defendant solely financing the development and taking rent for 25 and 45 years respectively. After taking the rent at the end of these periods, the Baddoo family is obliged to formally convey the 50% share to the 3rd Defendant in terms of exhibit 14. Definitely, that instrument will have to be registered. For now, the failure to register exhibit 14 is not fatal to the interest of the 3rd Defendant. As earlier found, the Baddoo family, including the Plaintiffs have demonstrated through their various acts in the past that the land was to be developed. I will view the documents said to have been written by two female children of the Late Rudolph Numo Baddoo (both decd) to Peter Ala Adjetey (decd) (exhibits F and F1) challenging the development on the land with the greatest suspicion in the absence of any corroborative evidence, especially when there is documentary (photograph) evidence that Mrs.
Faustina June Yeboah was aware of these developments. Grave injustice will be caused if the court were to insist on strict registration in the face of all these revealing evidence that the Baddoo family had notice of the development carried on by the 3rd Defendant.
I have reviewed the authorities cited and relied on by the lawyers on the issue under consideration. It must be put on record that what counsel for the 1st and 2nd Defendants quoted from the Nartey v Mechanical Lloyd case was not the majority decision of the Court. That was the contrary opinion of Amua Sekyi JSC who stated thus:
"Non-registration being a defect which can be cured, its absence will not deprive a party of the protection of the courts. In a proper case the courts can order that a document which has been registered be removed from the register and one which has been refused registration be registered."
But per Taylor and Wuaku JJ.S.C.:
"Since the document was not registered in accordance with the requirement of section 24 (1) of Act 122 it was ineffective and invalid to confer rights and impose obligations. Dicta of Archer J.A. (as he then was) in Asare v. Brobbey  2 G.L.R. 331 at 336, CA; of Annan J.A. in Amefinu v. Odametey  2 G.L.R. 135 at 144, CA approved. Hammond v. Odoi [1982-83] G.L.R. 1215, SC, applied."
In fact, the opinion of Taylor and Wuaku JJSC are in line with the reasoning in the authorities cited and relied on by counsel for the Plaintiffs, and which is the correct position of the law. However, the instant case can be distinguished on the ground that apart from creating a future interest in land, exhibit 14 is also evidence of the financial commitment on the part of the 3rd Defendant towards the development in issue. That does not require registration. And, to throw away the entire agreement for lack of registration under section 24(1) of 122 will be repugnant and equity frowns on that. In the peculiar circumstances of this case, I hold that irrespective of the Non-Registration of exhibit 14, it is a valid document as evidence of the facts recited therein. Thus, non-registration of exhibit 14 is not fatal at this time.
There is credible evidence on record which supports a finding that the 3rd Defendant completed the development in 1996 and before the donor of exhibit 9 passed on later that year. I find that the death of the donor of exhibit 9 does not affect the interest of the 3rd Defendant as spelt out in exhibit 14, and which is binding on the Baddoo family.
ISSUE OF ESTOPPEL (BY CONDUCT, LACHES/ACQUIESCENCE)
Estoppel is a valid defence in land matters. It relates to a conduct or declaration by a party on which people have relied and as a result changed their positions. This arises from issue 3, namely, whether the Plaintiffs are estopped from bringing this action?
Counsel for the 1st and 2nd Defendants considered this alongside the issue of Limitation which has been flawed. But, in respect of the estoppel, his argument was that the Baddoo family had always been aware of the development which ended in 1996 but never approached the Defendants to render any account, and they are estopped from doing so at this time but counsel for the Plaintiffs who has always maintained that the Baddoo family was unaware of the development disagreed with him. The position of Counsel for the 3rd Defendant was that even if the Baddoos were unaware of exhibit 14, they stood by for a stranger to develop their land and well over 18 years said nothing when the development came to their notice. Thus, they are estopped by their conduct from denying the 3rd Defendant's interest in the property. In effect, he argued that the Plaintiffs are caught by Laches and acquiescence.
The effect of the doctrine of Laches and acquiescence operates this way. When a land owner whose land is being developed by a stranger sits by unconcerned for an unreasonable period when he has notice of it, and allows the stranger to spend money to develop the land, he would be deemed to have waived his right to the land. See Ramsden v Dyson (1866) LR 129.
In order to determine this issue, I will have to look at what the parties are seeking from this court, especially the Plaintiffs reliefs endorsed on the writ of summons. Looking at relief (1), the Plaintiffs as administrators acted timeously in seeking that declaratory relief, having obtained letters of Administrators de bonis non in the year 2012. It is up to the court to determine whether they are entitled to that relief or not. The same cannot be said of relief (2). From the 1st Defendant's exhibit 21 taken in May, 1996, Mrs. Faustina June Yeboah of the Baddoo family was aware of the developments on plots 4 and 5. The Plaintiffs own exhibits F1 demonstrates that irrespective of this knowledge, she and her sister Bertha Dadey waited until May, 2000 before raising the issue to their solicitor, Peter Ala Adjetey and he did not also take any action as gleaned from exhibit F. By that time, Fred Mensah Baddoo had also passed on. If the Baddoo family had issues concerning the authority or mandate of the Defendants to develop the property based on exhibit 9, they ought to have acted within a reasonable time to stop the development. Interestingly, the Plaintiffs failed to introduce any convincing evidence to the contrary that the Baddoo family did not know of the development. Their lawyer tried to rely on the weaknesses in the Defendants case as proof. But then, the inconsistencies which counsel made capital of are inconsequential as the same were explained away by other pieces of evidence on record. Quite apart from that, the 3rd Plaintiff's credibility is left hanging in terms of section 80 of the Evidence Act, NRCD 323. He conveniently remembered things which inured to his advantage but completely feigned ignorance of the timing of important events which would have exposed him as a person not worthy of credit, relative to this case. For instance, when he denied visiting the 1st and 2nd Defendants home in Kumasi during the period of the construction and was confronted with exhibit 2, he seemed to be evasive as regards his presence in the 1st and 2nd Defendants Kumasi residence. He could not even remember his wedding date, not even slightly! But agreed that he still lives with the woman he customarily wedded but did not find it necessary to ascertain the date of marriage from her. With the credibility issues hanging on the neck of the 3rd
Plaintiff, I accept the 1st Defendant's account that he in fact came to Kumasi and was made aware of the development being carried out on plots 4 and 5. In any case, the weaknesses in the Defendants evidence alone cannot amount to proof of the Plaintiff's case.
It appears to me that the Plaintiffs and for that matter the Baddoo Family are unhappy because by exhibit 14 which their head of family consented to, a portion of their family property will go to a third party contractually. But, the law is that an alienation of family property by the head of family without the consent and concurrence of the principal members of the family is voidable, and not void. If dissatisfied, the family will have to act timeously and diligently to set aside the alienation. See Andrews v Hayford (1982-83) GLR 214.
Applying the above principle to the instant case, the Baddoo family ought to have acted within a reasonable time to set aside exhibit 14. And, having waited for over a decade, it does not lie in their mouth to stop the defendants from making any claim to the property. They are estopped from challenging the 3rd Defendant's interest in the property. And, since per exhibit 14, there is no obligation on the defendants to render any account to the Baddoo family, they are equally estopped from seeking that relief at this time. With these findings, issue (2) as to whether or not the buildings were erected with the authority and consent of the family of the late Rudolph Numo Baddoo has resolved itself.
ISSUE OF THE GIFTING OF PROPERTY CONSTRUCTED BY THE 1ST AND 2ND DEFENDANTS.
Here, the 1st Defendant recounted the Ga words which have gained popularity in this court and which I have already set out. The English translation being that Fred Mensah-Baddoo gifted that portion of the land to her husband who is part of the Baddoo family and herself. DW2 also told the court that she was present when the 1st Defendant presented aseda. This happened after the building had been put up by the 1st and 2nd Defendants from their own resources.
As Counsel for the Plaintiff rightly noted in his closing submissions, the 1st Defendant raised the issue of gift for the 1st time after the Plaintiffs had closed their case. However, Counsel extensively crossed examined the 1st Defendant on the non-existence of the alleged gift.
This fact notwithstanding, Counsel for the plaintiff carefully scrutinized the evidence adduced by the defence in respect of the gift and brought out various inconsistencies to the notice of the court. For instance, he indicated that the evidence of DW2 as regards the gift and presentation of Aseda conflicted with the account given by the 1stDefendant herself. A clear instance highlighted by Counsel was when 1st Defendant testified that she went to Fred Mensah Baddoo after the construction, and after narrating her financial predicament as a result of the huge construction expenditure, Fred Mensah Baddoo told her there was no need for account and that she and her husband should take the property "kose kose", that is " forever". He contrasted this with the evidence of DW2 who is a sister of the 1st Defendant . DW2 had told the court that in the company of their uncle and the 1st Defendant herself, they went to Fred Mensah Baddoo and after their uncle had narrated the reason for that visit, Fred Mensah Baddoo gifted the property in issue to her sister and her husband as a sign of appreciation by the Baddoo family. Was the gift then made in the presence of 1st Defendant alone or whilst DW2 and their uncle were present? To further attack the credibility of DW2, counsel made reference to her evidence that it was 2nd Defendant himself who commenced the eviction process by suing Alice Agbettor & others when in fact the exhibit 11 series demonstrate clearly that the suit was commenced in the name of Fred Mensah Baddoo per his Lawful Attorney, Mrs. Mercy Baddoo Ampofo. After pointing out a series of inconsistencies, Counsel invited the court to disregard the evidence of DW2 on the alleged gift and to find that there was no such gift. And, as regards the 1st Defendant's evidence, counsel referred to the unreported case of SA Addy v Ameley Armah , Land Court , Accra, 1960 summarized on pages 120-121 of Ollenu's Customary Land law in Ghana, 2nd edition, where it was held that by custom, the donee does not join the delegation to present the aseda. He argued that the 1st Defendant's presence at the said Aseda ceremony was in violation of an essential customary law requirement. He concluded his submissions by stating that none of the persons alleged to be present could give out a portion of the estate of Rudolph Numo Baddoo for two reasons- Letters of Administration had not been taken in respect of that property at the time; and the property had also not been vested in any of the children of the deceased. Therefore, Fred Mensah Baddoo could not have gifted the property to the 1st and 2nd Defendants.
The essentials of a valid customary gift were laid down in KYEI & ANOR V AFRIYIE (1992) 1 GLR per Lartey J as follows:
"The essentials of a valid gift in customary law were publicity, acceptance and placing the donee in possession. The way to give publicity to a gift of land was to make the gift in the presence of witnesses. The acceptance should be evidenced by the presentation of "drink" or some small amount of money to the donor, part of which was served to the witnesses. The requirement of witnesses however presupposed that those present to witness the transaction should include not only members of the donor's family but also others who would be deemed to be independent with no interest whatsoever in the gift. That was important because just as an owner and the family or beneficiaries required protection against fraudulent claims, so must a rightful donee have protection from wrongful deprivation of the gift after the donor's death...".
I am unable to agree with the position that the donee does not have to be present at the ceremony where the aseda is presented. On the above authority, it is my opinion that the presence of the donee at the aseda ceremony , even if not required, is crucial for evidential purpose. That apart, counsel in the case do not dispute the essentials of a valid customary gift and there is no need to belabour that point. So, the question that remains unanswered is whether any valid gift was made by Fred Mensah Baddoo?
Before determining this, I must say that the evidence on record relative to the gifting are conflicting, and therefore not reliable. It appears from the evidence that DW2 is the only surviving witness and she cannot be described as an independent witness because of her sister's vested interest. What is more, it has been demonstrated in this court the evidence of DW2 in respect of the gift is unreliable. I will therefore view her evidence with the greatest of suspicion. That leaves the evidence of the 1st Defendant as the only evidence of the said gift. Is that sufficient to support a valid customary gift?
First, let me consider the capacity in which Fred Mensah Baddoo is alleged to have made the gift. It is to be noted that this property was developed pursuant to exhibit 9 wherein Fred Mensah Baddoo described himself as Head of the Baddoo family. That notwithstanding, he is also a beneficiary of the estate as the same devolved in accordance with Ga customary law. It stands undisputed from the present sequence of events that as at 1991 when exhibit 9 was made, Letters of Administration had not been issued in respect of the remainder of the estate of Rudolph Numo Baddoo. It was held in Okyere (decd) (substituted by Peprah) v Appenteng & Adomaa (2012) SCGLR 65 that when a person dies intestate, his estate devolves on the personal representative and until a vesting assent has been executed to the beneficiaries, they have no title over any portion of the property. The import of the words attributed to Fred Mensah Baddoo meant that he was giving the property to the 1st and 2nd Defendants "kose kose" in his personal capacity. On the above authority, I do not think he was clothed with the capacity to do so prior to the grant of exhibit A. On that score alone, any purported customary gift of the property to the 1st and 2nd Defendants will fail as rightly argued by counsel for the Plaintiffs.
WHETHER THE PLAINTIFFS ARE ENTITLED TO THEIR CLAIMS.
With the conclusions reached on the status of Plot Numbers 4 and 5, Block 11, Bompata, Roman Hill, Kumasi, the Plaintiffs are entitled to a declaration that the said plots which belonged to the late Rudolph Numo-Badu form part of the Estate of Rudolph Numo Baddoo, but are now subject to the proprietary interest created in favour of the 3rd Defendant and I so declare.
By relief (ii), the Plaintiffs are also asking for an order of perpetual injunction restraining Defendants by themselves, servants, agents, assigns, workmen or however described from holding themselves out as owners or administrators of the said Plot numbers 4 and 5, Block 11, Bompata Roman Hill, Kumasi or seeking to deal with same in any way.
There is no doubt that the Defendants are not the current administrators of the said property and they cannot hold themselves out as such. However, I am unable to restrain them from dealing with the property in any way are in view of their financial and proprietary interest in the above mentioned properties.
On the totality of the evidence on record, the 1st and 2nd Defendants did not develop the property on Plot 4 with any form of financial support either from the Baddoo Family or with proceeds from the Estate of Rudolph Numo Baddoo. As such, they are not liable to account to the Baddoo family from 1991 to date. I will make clear orders as to how the 1st and 2nd Defendants can recoup the money they invested when i decide on their counterclaims in a short while.
ARE THE 1ST, 2ND AND 3RD DEFENDANTS ARE ENTITLED TO THEIR RESPECTIVE COUNTERCLAIMS?
Despite the failure of the customary gift which the 1st and 2nd Defendants relied on, there is abundant evidence on record which point to the fact that the 1st Defendant, whilst acting under the authority conferred on her husband and herself by exhibit 9 expended a lot of money in putting up that structure. As she put it "the amount is huge" but she failed to indicate the approximate quantum.
She suppressed that information from the court. Unlike the 3rd Defendant who had an express agreement to put up her structures, the 1st and 2nd Defendants did not have any such agreement but relied on a subsequent gift of that portion of the land by the head of family which has failed.
Generally, when a family member expends money to develop family property, he acquires a life interest only. Ordinarily, the 2nd Defendant who is a grandson of Rudolph Numo-Baddoo should have a life interest in the building he has put up on the land in issue on the family property and he is not under any obligation to render accounts to the Baddoo Family. However, as the evidence shows, his interest is intertwined with that of the 1st Defendant, his wife, who customarily is not a member of the immediate family of Rudolph Numo Baddoo. Sociologically, she is an immediate family member of Rudolph Papa Nii Ampofo by virtue of her marriage to the him. That being the case, she cannot have a life interest in the property of Rudolph Numo Baddoo which is quite regrettable looking at the substantial investment she has made so far.
The 1st and 2nd Defendants suppressed information about the total cost of the construction they undertook. They merely said the amount is huge. If that had been done, the court's task would have been reduced. In order to do substantial justice in this case as far as the interest of the 1st and 2nd Defendants is concerned, I appoint the Regional Valuer, Land Valuation Division of the Lands Commission, Ashanti region to: (i) value the entire structure put up by the 1st and 2nd Defendants on the frontage of plot 4,Roman Hill Adum, excluding the value of the land and determine the current market value of the structure; (ii) to calculate the total annual commercial rent payable, bearing in mind the rate of inflation and interest rates generally and make reasonable projections; (iii) the income derived from the property by the 1st and 2nd Defendants since 1996 based on the projections by the valuer is to be deducted from the current market value of the entire building;(iv) based on the projections, the valuer shall determine the period over which the 1st and 2nd Defendants can recoup their financial investment;(v) the 1st and 2nd Defendants and/or any person claiming through them shall continue to take rent from this property at the variable rate(s) so determined until the entire cost of the construction is recouped after which the property will revert to the Numo Baddoo Family.
Therefore, the 1st and 2nd Defendants are not entitled to a declaration that the storey building in front of plot 4, Roman Hill is their property. They are also not entitled to a declaration that the said property was gifted to them by the family of Rudolph Ichbod A. Numo Baddoo. Their interest is financial and appropriate orders have been made for them to recoup their investments.
However, I will grant the relief for injunction restraining the Plaintiffs either by themselves or any person claiming through them, their servants, agents, assigns, workmen howsoever described from interfering with the tenants' quiet enjoyment of the property put up by the 1st and 2nd Defendants in front of Plot 4, Roman Hill, Kumasi , and the right of the defendants over the said property until the same reverts to the Baddoo Family.
I have come to a conclusion that the Baddoo family has always been aware of the development by Linda Nsiah Ababio and are estopped from denying the same. I therefore declare that the Plaintiffs and for that matter the family of the deceased Fred Mensah Baddoo are bound by the terms of the Agreement executed on 8th March 1993 between the 1st Defendant on behalf of the Numo Baddoo family, acting per the head of family, Fred Mensah Baddoo and Linda Nsiah Ababio, the developer.
Accordingly, the plaintiffs either by themselves or any person claiming through them, their servants, agents or otherwise howsoever are restrained from disposing or interfering with the interest of Linda Nsiah Ababio in the buildings on Plots 4 and 5,Bompata, Roman Hill, Kumasi and from interfering with the quiet enjoyment of the tenants in the buildings. The Plaintiffs as administrators are however entitled to deal with the 50% share of the property which the Baddoo family is entitled to at the end of 25 and 45 years respectively in accordance with the existing agreement (exhibit 14) when the buildings are distributed.
Judgment is entered in favour of the Plaintiffs to the extent indicated above. Judgment is also entered for the Defendants on their respective counterclaims to the extent indicated above.
The Plaintiffs and the 2nd Defendant are closely related by blood. They are grandchildren of the late Rudolph Numo Baddoo. As I have always said, you cannot have an "ex-relative". The 1st Defendant is the wife and an in-law of the Plaintiffs. The evidence shows that they were very united and loved each other until issues surrounding the estate divided them. The 3rd Defendant is also a bosom friend of the 2nd Defendant as the evidence shows and it is as a result of their friendship and trust for each other that they entered into a contractual relationship. The least this court can do is to try to mend the broken relationships among the parties now that their disputes have been resolved. For these reasons, no cost will be awarded. The parties are to bear their own costs.