THEOPHILIA ACHEAMPONG vs. SOS GHANA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (LAND DIVISION)
    TEMA - A.D 2016
THEOPHILIA ACHEAMPONG - (Plaintiff)
SOS GHANA - (Defendant)

DATE:  29TH NOVEMBER, 2016
SUIT NO:  E1/27/2016
JUDGES:  ALEXANDER OSEI TUTU J. SITTING AS JUSTICE OF THE HIGH COURT
LAWYERS:  EMMANUEL KYEI YANKSON FOR ERIC ASUMAN-ADU FOR THE PLAINTIFF
PEARL KWAMLA FOR DOE TSIKATA FOR THE DEFENDANT
JUDGMENT

Such is the trouble as in this case when a guardian and her “child’ of forty-two years relationship mount the litigation arena to face each other. The invitation for the contest was initiated by the Plaintiff barely a year ago and the Defendant accepted the challenge with a view to proving to the Plaintiff that it does not pay to tell the one carrying you at his back that he stinks. The facts simply are that the Plaintiff was among the pioneer inmates of SOS, Ghana admitted at their village at the age of ten (10) in 1974. She left the Village when she married. She was later accommodated at the Village, where she stayed for a long time with her husband and children. Recently, when the Plaintiff’s daughter began renovation/extension works on the building, the Defendant razed everything down. The Plaintiff contends that the building was built and gifted to her, but the Defendant claimed otherwise.

 

The endorsement contained in the plaintiff’s writ of summons was:

a. A declaration of title to the property located at Community 6, Tema in the area known as S.O.S. Village,

b. A declaration that the demolition carried out by the Defendant was unlawful,

c. Damages for the unlawful demolition of Plaintiff’s property.

d. Perpetual injunction restraining the Defendant, his agents, assigns and privies from in any way interfering in the use of Plaintiff’s property, situate and lying at Community 6, Tema known as S.O.S. Village.

 

The Writ of Summons was accompanied by a 15-paragraph statement of claim. The defendant’s Statement of Defence did not include a counterclaim, but it was determined to do battle with the poor Plaintiff. An African proverb says: “A goat’s frown cannot stop it from being taken to the market.” After pleadings, the underneath issues filed by the counsel for the parties were adopted by the court.

a. Whether or not one Handel, who was the one time village coordinator informed the plaintiff a village child then that he would build a residential accommodation for her and did instruct the then father of the village Mr. Owoo to look for a residential plot for the construction of the said house.

b. Whether or not the said Mr. Owoo informed Mr. Handel that there were some vacant lands at the village as a result of which Mr. Handel directed that a house be built for the Plaintiff on the said land.

c. Whether or not the Plaintiff since 1989 has been in quiet and undisturbed possession of the property and has also exercised acts of ownership over the said property.

d. Whether or not the property was gifted to the Plaintiff by the Defendant after its completion in 1989.

e. Whether or not the Plaintiff sought permission of the village father, Isaac Kojo Ackon to construct additional rooms to the original house (extension).

f. Whether or not the plaintiff was informed by the said Isaac Ackon to restrict himself to only the space adjoining her land before she starts the construction.

g. Whether the Defendant through Mr. Isaac Ackon verbally informed the Plaintiff through her daughter to commence the construction with the proviso that it should be limited to the space adjoining her land.

h. Whether or not the Plaintiff embarked on the extension works on the property to the roofing level based on the assurance she received from the village father, Isaac Ackon.

i. Whether or not the Plaintiff spent an amount of Forty Thousand Ghana Cedis (GH¢40, 000.00) on the extension works.

j. Whether or not the house was given to the Plaintiff’s husband as a duty post accommodation.

k. Any other issue (s) that may arise out of the pleadings.

 

The plaintiff testified and called her daughter Alice Afumaa Menlah Dorsey to corroborate her evidence. On the part of the Defendant, two persons spoke on its behalf.

THE CASE OF THE PLAINTIFF

The Plaintiff is a food vendor, while the Defendant is a Non-Governmental Organization. At age 10, plaintiff was admitted to the Defendant’s Village as one of their pioneer inmates. It was until she got married that she left the Village to live with her husband at Site 7 of Community ‘1’ Tema. Later, the then coordinator of the Defendant, Mr. Handel visited Ghana and when he discovered that the plaintiff and her husband were living in a deplorable condition, he promised to build a house for the plaintiff. As the first product of the Village to marry, the coordinator of the Village discussed with the village Director, Mr. Owoo to find a residential plot and build a house for her. That was in 1987. Two years later, the building had been completed and it was handed over to the Plaintiff. Plaintiff mentioned names like Mr. Akonah Attah, the then village father; Mr. Kojo Dadzie who later became the S.O.S. father at Asiakwa and Dr. Asare, the then Director of S.O.S. Ghana as those present at the handing over ceremony of the building. The property was given to the plaintiff unconditionally. Plaintiff then moved into occupation of the building with her late husband, Mr. Menlah.

 

Initially, Plaintiff was paying utilities, until the Defendant asked her to stop paying. The late husband of the Plaintiff who was a photographer by profession was later engaged as a photographer for the S.O.S. Village. Plaintiff eventually left the Village to live at Nankese when a misunderstanding ensued between her and her late husband. Her children and husband continued to live in the building at the village to enable the former attend school at Tema. According to the Plaintiff, she continued to visit her children at the Village until Mr. Menlah passed on in August 2013. After his death, the Plaintiff and her children have continued to exercise acts of ownership.

 

In June 2015, when PW1 wanted to renovate the house and do some extension works, she informed the Plaintiff, who in turn asked her to see the village father before commencing the project. Despite giving her the go-ahead, the defendant demolished the construction works done by PW1, which was valued GH ¢40,000.00.

 

In her evidence, PW1 told the court that the building was built for her mother by Mr. Handel and she had lived in the said house, the subject matter of this litigation from 1989 to 2014 when she married. Concerning the house, PW1 considers it as becoming more like their family house where they converge on festive occasions. When she informed her mother about the renovation works she planned undertaking, she was asked to seek permission from the Defendant, which she did. She painfully told the court how the Defendant demolished their constructional project costing GH¢40,000.00 without adequate notification to them. PW1 led evidence on the gift of the property, even though she was not there. It was interesting to see how forcefully, she gave her evidence. It was under cross-examination that she was exposed and had to change the ‘tone of her voice’. By way of a comic relief, I agreed with an observant shopkeeper friend of mine when he once told me: “No man lowers his voice best than a man in need of condoms at a shop.”

THE CASE OF THE DEFENDANT

Defendant does not deny that the Plaintiff was one of its children admitted at their village until she married. When it was found that her living condition was deplorable, she was accommodated at their village together with her husband who was physically challenged and a photographer of S.O.S. Ghana. Defendant vehemently denies that the building was purposely built for the Plaintiff as a gift. Rather, Defendant explained that it was a house built to accommodate the staff of S.O.S. Mr. Handel, who Plaintiff purports to have built for her, according to the Defendant, was not a Coordinator of S.O.S., but the S.O.S. International Officer in charge of Africa and did not have the mandate to give the building to the Plaintiff.

 

On the renovation works by PW1, which was demolished, the Defendant justified it giving the explanation that once the construction by PW1 was illegal, because its prior written consent was not sought, its demolition was also legal. Defendant did not care whether the Plaintiff was its own product and had some life lessons for the Plaintiff not to ever call the forest that shelters her as a jungle. Probably, a Malaysian Proverb which says: “Do not think there are no crocodiles because the water is calm” resonated in its mind. With this background, I proceed to deal with the issues.

 

 

Issue (a): Whether or not one Handel, who was the one time village coordinator informed the plaintiff, a village child then that he would build a residential accommodation for her and did instruct the then father of the village Mr. Owoo to look for a residential plot for the construction of the said house.

 

and

 

Issue (b) Whether or not the said Mr. Owoo informed Mr. Handel that there were some vacant lands at the village as a result of which Mr. Handel directed that a house be built for the Plaintiff on the said land.

Plaintiff insisted that Mr. Handel was a one-time village coordinator who tasked Mr. Owoo, the then village father to find a residential plot to build a residential house for Plaintiff as her accommodation. It was also her case that Mr. Owoo suggested a vacant land at the village as a result of which a house was built for the Plaintiff. Since these allegations were made by the Plaintiff and the Defendant did not withhold its disagreement, It was incumbent on her to adduce evidence in proof of them. She could have done that by the production of a document or by calling either the said Mr. Handel or Mr. Owoo to affirm her statement. Her lawyer is rather blaming the defendant for failing to call these persons as witnesses. A Canadian based Philosopher, Matshona Dhliwayo once said: “A person who cannot dance must not blame the song.” Who owes the burden of proof in this case? The Plaintiff of course since she is the one asserting. The attempt to shift the legal burden on the Defendant does not accord with the rules of evidence. The law is that the party asserting the affirmative assumes the legal burden of proof.

 

It has been held at holding 1 of Faibi v. State Hotels Corporations (1968) GLR 471 that The onus in law lays upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led.”

 

Benin JSC also in John Tagoe v. Accra Brewery Ltd. [2016] 93 G.M.J. 103 @ 123 couched it: “It is trite law that he who alleges, be he plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when he has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be.”

 

Also in Barker –Wood v. Nana Fitz [2007] SCGLR 879, the Supreme Court held The common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim.” See also Ankomah v. City Investment Co. Ltd. (2008) 19 MLRG 83; (2013) 43 MLRG 36, per Dotse JSC and Marian Obeng Mintah v. Francis Ampenyin [2016] 95 G.M.J. 1.

 

Again, if Mr. Handel asked Mr. Owoo to find a suitable residential plot to construct a house for Plaintiff, then the present house in dispute was outside Mr. Hendel’s purview, considering the fact that the Defendant’s land is an institutional land and not residential plot as contemplated by Mr. Hendel. And that might explain why the Plaintiff told the Court that she was waiting on the Defendant to be relocated so that Defendant could take over the present house. If the building was put up for the Plaintiff, why would Mr. Hendel and Mr. Owoo not have effected ownership at the Tema Development Corporation (TDC) in her name? The court does not find the two issues to have been proven.

Issue (c): Whether or not the Plaintiff, since 1989 has been in quiet and undisturbed possession of the property and has also exercised acts of ownership over the said property.

 

The totality of the evidence does not put the occupation of the Plaintiff of the house in dispute, but the main contention arises from her claim to ownership. It is true that possession evinces a presumption of ownership under section 48 of the Evidence Act, 1975 (NRCD 323), but the presumption is not an inconclusive one. The law also is that long possession by itself does not ripen into ownership. See Brown v. Quashigah (2003-2004) SCGLR 92; F. K.A. Co. Ltd. & Anor. v. Akramah II [2015] 90 G.M.J. 178, C.A. @ 221, per Kanyoke JA; Sagoe v. SSNIT (2011) 30 GMJ 13 and Rebecca Ceasar v. Tetteh Kwaofio (2006) 8 MLRG 116, CA @ 132.

 

Where the occupant of a land was put on it by another, the long occupation does not oust the owner of title, unless the occupant exercised clear acts of adverse possession. See Twifo Oil Plantation Project Ltd. v. Ayisi and Others (1982-83) GLR 881, CA; Duro v. Anane (1987-88) GLR 275, CA and Mensah v. Blow [1967] GLR 424, CA. Before the presumption of ownership can avail the Plaintiff, she ought to demonstrate that she had exercised effective acts of ownership. In this case, her purported acts of ownership exercised over the property are weak. Apart from living in the house for quite a considerable period, there is nothing more to show. Perhaps, if it were not mere possession but cogent acts of adverse possession, then she would have made a case. She was initially paying utilities, but was stopped by the Defendant. All the other occupants were not paying utilities. If the Defendant was paying the utilities and even the property rates (my emphasis); was that not evidence of its control over the occupants of their premises? If all the occupants of the other houses were staying there at the behest of the Defendant, what makes that of the Plaintiff different? Why was the Plaintiff not the one responsible for the payment of the property rates, but the Defendant? Why was the Defendant able to stop the Plaintiff’s husband from doing some extension works when he tried to? Why did the Plaintiff not fight back at that time?

 

It is in evidence that the Plaintiff asked her daughter to seek the Defendant’s permission before doing the renovation works. Is it not surprising for an owner of a house to obtain the prior permission of another before dealing with her own property? Plaintiff’s explanation that she asked her daughter to seek permission from Defendant because, it had earlier promised to relocate her and take over the property is an affirmation of the Defendant’s ownership of the property. If the current building had completely been given her as a gift, what authority again did the Defendant have to take over the property? I think that in itself goes to show that the Plaintiff was not gifted with the house but was living in it at the behest or pleasure of the Defendant. These alone are enough proof to debunk the Plaintiff’s claim to ownership of the property.

 

Issue (d): Whether or not the property was gifted to the Plaintiff by the Defendant after its completion in 1989.

I find this to be the core issue in the suit around which other issues revolve. It is not contestable that the Defendant accommodated the Plaintiff many years back when the latter married and was living in a deplorable condition. Plaintiff and her family’s occupation of the house is also not in dispute. But as to whether the Plaintiff was only put in the house at Defendant’s behest or the building was unconditionally gifted to the Plaintiff is what is in controversy. It was evident from the trial that the house was wholly built by the Defendant with the Plaintiff’s contribution of zero cedi.

 

Where a person purchases or builds a property in the name of another person and with no contribution from the donee, he or she is deemed to hold the property as a trustee for the one who financed the property. This is what is known as resulting trust in equity. BJ da Rocha & CHK Lodoh at page 113-114 of their invaluable book; Ghana Land Law and Conveyancing (2nd Edn.) in discussing the principle stated: Where land is conveyed to one person but the purchase price is paid by another person, there is a resulting trust in favour of him who paid the purchase price unless a gift is intended by the one paying the purchase price in favour of the other…. Such a resulting trust is based only on prima facie presumption that the person who paid the purchase price did not, in the absence of express words, intend to forgo the beneficial interest to himself.”

 

In the case of In Re Koranteng (Dec’d): Addo v. Koranteng & Ors. [2005-2006] SCGLR 1039, Date Bah JSC delivering the judgment of the Court held at holding (2) of the headnotes as follows: In essence a resulting trust was a legal presumption made by the law to the effect that where a person had bought property in the name of another, that other person would be deemed to hold the property in trust for the true purchaser. It was a trust implied by equity in favour of the true purchaser… Thus for a resulting trust to be established there had to be proof that the purchase money for the disputed property had been advanced by the beneficiary of the resulting trust.” See Quartey v. Armah [1971] 2 G.L.R. 231 @ 237 and Fianko & Anor. v. Djan & Ors. [2007-2008] 1 SCGLR 165.

 

The principle however may be rebutted where there is a clear evidence that the property was given as a gift, or it was a loan or upon the application of the doctrine of advancement. See Dennis Adjei’s book; Land Law, Practice and Conveyancing in Ghana at page 217.

 

From the facts, the Plaintiff relies on the element of a gift to rebut the presumption. She is required to establish it because the Defendant has come out to deny her claim. After carefully considering the Plaintiff’s evidence, I find her efforts at establishing the gift as follows:

a. That the building was solely built for her by SOS, via Mr. Owoo upon the directions of Mr. Handel.

b. That when the building was put up, it was formally handed to her in the presence of witnesses like Mr. Akonah Attah, the then village father; Mr. Kojo Dadzie who later became the S.O.S. father at Asiakwa and Dr. Asare, the then Director of S.O.S. Ghana.

c. That the Plaintiff and her family have lived in the property for a long time.

 

The question is; are these enough to prove the gift of the property to the Plaintiff? Regrettably, I cannot give an answer in the affirmative. What are the documents she has to show? Nothing! apart from the photographs, which she could not even identify any of the persons captured in it. The photographs show people inspecting a building and I do not see how it establishes the gift. It is trite law that transfer of an interest in land is supposed to be in writing and signed by the party seeking to rely on it or by his or her duly authorized agent. See section 1 of the Conveyancing Act, 1973 (NRCD 175). Let me point out here that the requirement for registration of an interest in land does not exempt gifts of immovable nature. See section 10 of the Act.

 

Benin JSC in Kofi Sarpong (Dec’d) (Substituted by) Nana Kwasi Koduah v. Franklin Adubobi Jantuah; Civil Appeal No. J4/15/2015, dated 17th February, 2016 (Unreported) at page 7 decided: The law should be applied strictly here as the plaintiff’s only route of ownership is the purported sub-lease from Madam Afua Addai which is non-existent. And the law as stated earlier, does not recognize verbal agreements beyond three years ... Thus, the law as stated in sections 1, 2 and 3 (1) (f) of the Conveyancing Decree, 1973, NRCD 175 required any such lease to be evidenced in writing else it is ineffective to convey any title. Therefore the plaintiff who has no such agreement . . . could not claim to be the owner in possession . . . The plaintiff could not act in violation of the law and ask a court of equity to come to his aid. For the law does not recognize, let alone give effect to lease of 28 or 21 years which is not backed by any writing.”

 

In Nana Amua Gyedua XV v. Mondial Veneer (Gh.) Ltd [2009] 5 G.M.J. 218 @ 224, a High Court in Accra presided over by Gyan J. (as he then was) also decided: “The Conveyancing Decree (NRCD 175) demands that unless excepted under the law, a contract for the transfer of an interest in land cannot be enforced unless it is evidenced in writing and signed by the person against whom the contract is to be proved or his authorized agent.”

In the absence of a documentary transfer, solace lies only under the exceptions provided under section 3 (1) of the Conveyancing Act.

 

Exceptions (c), (d), (e) and (f) dealing with a court’s order, a will or intestacy, prescription and a lease not exceeding three years respectively, do not come near this case. The closest of the exceptions are what I will like to examine at this stage.

 

Exception (a) deals with an operation of law. What does the law say about such gifts? Generally, no agreement is enforceable as a contract, unless it is supported by a consideration. This means therefore that if a gift is given under common law other than customary law, with no consideration, it cannot be enforced unless it is sealed by a deed. So in the absence of a consideration a deed is required. Crackneil in his book, Obligations: Contract Law (4th Edition) at page 40 states: “It is a general principle of the English Law of Contract that an informal gratuitous promise is not enforceable as a contract, either the promise must be formalized by being made under seal, or it must be supported by consideration.”

 

Christine Dowuona-Hammond in her book, The Law of Contract in Ghana espoused the principle at page 82 as follows: “The doctrine of consideration therefore has to do with the reason for the enforceability of promises as contracts. The promisee must be able to show that he has provided consideration for the promise which he seeks to enforce, thus giving the courts a reason to lend its authority to the enforcement of the agreement. Thus at common law, it is one of the fundamental principles that an agreement is not enforceable unless it is made by deed or supported by consideration.”

In But v. Chapel Hill Properties Ltd. (2003-04) SCGLR 636, it was held: A gift promise even if accepted is not a binding contract, unless perfected by an irrevocable act such as execution of a deed of gift under seal”. In Marfo & Ors. v. Adusei [1964] G.L.R 365, the Supreme Court held an agreement not supported by a consideration nor evidenced by a deed as unenforceable. It means therefore that the Plaintiff in this case having provided no consideration cannot enforce the agreement unless backed by a deed. On the necessity for consideration, William Christopher Handy in one of his humorous works philosophically scribbled: “Life is like a trumpet – If you do not put anything into it, you don’t get anything out of it.”

 

For exception (b) dealing with the application of the rules of equity, I do not have to belabor the point, because, I have already mentioned that where a property is acquired for a person and he or she contributed nothing for its acquisition, he or she would be deemed in equity to be holding it in trust for the financier.

 

The exception (g) deals with licenses. It is the Defendant’s case that the Plaintiff was allowed to live in the property at their pleasure. This makes it a license. Licenses are not among the transactions requiring writings under the law. And should this exception be considered at all, it would rather solidify the case of the Defendant and justifies why they did not have the transaction documented.

 

The final exception (h), deals with oral grants under customary law. It seems to me that since the transaction involved an institution (being the Defendant, S.O.S.); It would not readily be affected by customary law. But if I have to consider the exception under customary law at all, I will say that this point rather makes the Plaintiff’s case shrinks the more. Counsel for the Plaintiff referred to Sarbah’s essentials of a gift in his address as: “the relinquishment of one’s own right and creation of the right of another in lands, goods or chattels, which creation is only completed by the acceptance of the offer of the gift by that other.

 

To constitute a valid gift, an intention of giving or passing the property in the thing given to the donee by the donor who has the power so to do is necessary. The giving and acceptance must be proved and evidenced by such delivery or conveyance as the nature of the gifts admits

 

The essentials include an acceptance, which must be demonstrated by clear acts. And where it involves landed property it has to be made by the presentation to the donor of some token of acknowledgement and gratitude.

 

Djabanor J. in the case of Ackun and Anor. v. Yanney (1962) 1 GLR 464 at holding 1 of the head notes held: The essential requirements of a valid gift in accordance with customary law are publicity, acceptance and placing the donee in possession. The acceptance is normally evidenced by the presentation of a drink. But in addition to this drink the donee must make a valuable presentation to the donor.”

 

Similarly in the case of In Re Suhyen Stool (2005-06) SCGLR 424, the requirements of a gift at customary law were outlined as:

i. There must be a clear intention on the part of the donor to make a gift.

ii. Publicity must be given to the making of the gift.

iii. The donee must accept the gift by himself giving thanks offering or conventional aseda or enjoying the gift or by doing act which fulfilled the objective which the giving of aseda was meant to fulfill, namely the expression of gratitude and the symbolic acceptance of the gift

Aseda or thanksgiving is a pivotal element of a valid customary law gift. Recent judicial authorities on the principle include: Comfort Darko v. Julian Darko [2016] 97 GMJ 153 @ 166-167, C.A; Serwaa v. Mensah [2009] 9 GMJ 130, C.A.; Nana Akua Ampomah II v. Adu Yeboah & Another (2014) 69 GMJ 137 @ 150, Per Irene JA; Torgbui Dzokui II of Zuta v. Atise Adzamli & Others, Civil Appeal No. J4/36/2015, dated 9th December, 2015, SC (unreported); Tetteh v. Ameni-Quarshie (2011) 33 GMJ 46, CA; Wiredu & Obenewaa v. Agyei & Others (2007) 11 MLRG 14; Samanhyia v. Bih (2006) 5 MLRG 184 @ 187, CA.

 

In this case, there is no such acceptance; there is no witness to the gift called. The assertion is just bare. In Giwah & Ors. v. Ladi [2013-2014] 2 SCGLR 1139 at 1148, Benin JSC held: The most important element of a customary gift of landed property that runs through these authorities and several others, is that the gift must be offered and accepted and must be witnessed by somebody else other than the donor or the donee. Thus when the fact that a gift has been made is challenged, it will not be sufficient to state barely that a gift was made; one has to go on to show the occasion, if any, on which the gift was made; the date, the time, if possible, the venue and most importantly, in whose presence it was made. These factors as to making a customary gift are by no means exhaustive… “ In view of the fact that the Plaintiff only made bare assertions, I can only come to the obvious conclusion that the building was not gifted to the Plaintiff as she alleges.

 

Issue (e): Whether or not the Plaintiff sought permission of the village father, Isaac Kojo Ackon to construct additional rooms to the original house (extension);

Issue (f): Whether or not the plaintiff was informed by the said Isaac Ackon to restrict himself to only the space adjoining her land before she starts the construction;

Issue (g): Whether the Defendant through Mr. Isaac Ackon verbally informed the Plaintiff through her daughter to commence the construction with the proviso that it should be limited to the space adjoining her land.

Issue (h): Whether or not the Plaintiff embarked on the extension works on the property to the roofing level based on the assurance she received from the village father, Isaac Ackon.

Issue (i): Whether or not the Plaintiff spent an amount of Forty Thousand Ghana Cedis (GH¢40, 000.00) on the extension works.

All the above issues basically deal with the permission obtained to undertake the renovation works and I will treat them together. These issues enjoined the Plaintiff to lead evidence to prove them, but she failed. She claimed she sought permission from the village father before undertaking any constructional works. Defendant denied. Was the Plaintiff not expected to prove same by leading credible evidence? Even at all, the evidence shows that the Plaintiff was not the author of Exhibit ‘B’, the letter written for permission. It was written by PW1. PW1 had no direct relationship with the Defendant. What duty did the Defendant owe to her? She was not the one put in possession of the property by the Defendant. If she sees herself as capable of dealing with the Defendant directly, why did she not join the Plaintiff to pursue this matter as a party? Was it not her renovation works, which were razed down by the Defendant? If she found it prudent to pursue the matter in this court at the back of the Plaintiff, why did she not find it expedient to allow the Plaintiff to directly write to the Defendant to seek its permission? The permission sought by PW1 was in writing, why did she not wait for a response to her letter before commencing the construction? Granted she had an oral encouragement from the village father at all to commence the work, it was not formal. It was a risk she undertook before the formal approval. It does not seem to me that any diligent person would not have waited for the formal approval before beginning the project. Joyce Ross in one of her witty writings quoted: “Those who fart in church must sit in their own pew.”

 

It is clear at this stage that the project was not undertaken by the Plaintiff, but rather PW1. The latter is not a party to the suit. At page 5 of the proceedings, the Plaintiff admits she was not present when Mr. Ackon gave them the go-ahead to do the expansion works. It means the alleged consent by Mr. Ackon is a hearsay, which is inadmissible and it does not matter that Defendant did not object to it. Anin Yeboah JSC in Total Ghana Ltd. v. Thompson [2010-2012] 1 GLR 153 held at holding 2 as follows: Where inadmissible evidence had been received in court (whether with or without objection), it was the duty of the courts to arrive at their decision upon legal evidence only.” See Samuel Kwasi Ntire and Anor. v. Gbawe Mantse and Anor. SC, Unreported Civil Appeal No. 541/29/2004, dated 18th October 2006 per Dr Seth Twum ]SC and International Rom Ltd v. Vodafone Ghana Ltd.; J4/2/2016 dated 6th June 2016, S.C. (Unreported, per Akamba JSC.

 

Granted the Plaintiff was gifted with the house at all, what authority did she have to deal with an adjoining land, since her evidence does not show she was given a land but a house? If the building went with a house, then it would not match her evidence that it was a house that was built for her. That will beg the question, what was the size of the land? Plaintiff nowhere told the court. And the law is clear that a person seeking for a declaration of title must be able to describe the exact land claimed. The Supreme Court in Tetteh & Anor. v. Hayford [2012] 44 GMJ 11 held: “Failure to prove the identity of the land would be fatal to a claim for declaration of title. See Kpakpo Brown v. Bosomtwi Co.Ltd. (2001-2) SCGLR 876 and Darpoh v. Teye Akrong [2016] 95 GMJ 71 @ 100, C.A., per Acquaye J.A.

 

Issue (j): Whether or not the house was given to the Plaintiff’s husband as a duty post accommodation?

 

I am not sure it was the husband of the Plaintiff who was granted the house. The Defendant could not convince the Court that that was the case. If so, when did it put him in possession? What were the conditions of occupation? In the evidence of Margaret Nkrumah, the Chairperson of Board of SOS International Children’s Village Association (SOS Ghana), the Plaintiff’s husband was allowed to live in the house 17 years ago when the Plaintiff left, because he was their photographer and physically challenged. It is my view that the husband went to live in the house after the Plaintiff had been allowed by the Defendant to occupy it in 1989.

 

Under the omnibus clause arises the issue of whether the Defendant’s demolishing of the construction works was justified?

 

I have already found that PW1 had no mandate to do the extension works. The Defendant, in my opinion committed no illegal acts when it razed down the works. It is said that ashes fly back into the face of him who throws them. A person is under a duty to use all reasonable force to protect his life and property. It is not for nothing that the Criminal Laws of this country under section 39 of Act 29, 1960 even justifies the use of force in protecting one’s property and it does not matter that the force led to the commissioning of a felony. Counsel for the Defendant pointed out in her written address that the renovation work was contrary to section 64 (10) of the Local Government Act, 1993 (Act 462), which requires a permit before any structure could be undertaken. It came to light during the evidence that PW1 obtained no such permit from the Tema Municipal Assembly (TMA), the supervisory institution. Since the Defendant is the one known by the law to be the owner of the land in the books of TDC, it seems to me that it was its primary responsibility to ensure that such an illegal construction was actually curtailed.

 

Is the Plaintiff entitled to the reliefs she is seeking from the Court?

The Plaintiff is seeking from the Court the reliefs as mentioned earlier as:

a. A declaration of title to the property located at Community 6, Tema in the area known as S.O.S. Village,

b. A declaration that the demolition carried out by the Defendant was unlawful,

c. Damages for the unlawful demolition of Plaintiff’s property.

d. Perpetual injunction restraining the Defendant, his agents, assigns and privies from in any way interfering in the use of Plaintiff’s property, situate and lying at Community 6, Tema known as S.O.S. Village.

 

 

It does not appear to me that the Plaintiff has been able to establish any of the reliefs she is claiming and I proceed to dismiss her action in limine with cost of GH¢5,000.00 for the Defendant. It is unfortunate that Defendant who had been more than an angel to the Plaintiff had been brought here to be humiliated, but I urge them not to be weary in doing good as the apostle to the gentiles, Paul urges in Galatians 6: 9. I leave them with these hilarious words of Bukom Banku; “When your head is big, your neck also suffers.” And to the Plaintiff, with the words of the American Elizabeth Ann Bucchianeri as: “It was not curiosity that killed the goose who laid the golden egg, but an insatiable greed that devoured common sense.”