IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (LAND DIVISION)
KUMASI - A.D 2016
VERONICA OWUSU SUBSTITUTED BY KWAKU NYAMEKYE & 2 ORS.(Plaintiff)
AMA KOBI & ANOR - (Defendant)
DATE: 1ST NOVEMBER, 2016
SUIT NO: FAL/59/10
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
KWAKU YEBOAH APPIAH FOR PLAINTIFF
FELIX AMOAH FOR DEFENDANT
This action was commenced on 17/02/2010 by one Veronica Owusu alias Akua Amankwaa. She described herself as the administratrix of the estate of the late Madam Elizabeth Adutwumwaa who was her mother. Following the death of the original Plaintiff, she was substituted by Kwaku Nyamekye, Agnes Acheampong and Frederick Opoku, her personal representatives, as the Plaintiffs. By their amended writ of summons filed on 07/07/2011, the Plaintiffs claimed against the Defendants herein as follows:
a) A declaration that title to Plot No.2, 4th Street Section2, Daban forms part of the estate of Madam Elizabeth Adutwumwaa @ Akosua Adutwumwaa.
b) Order for Recovery of Possession
c) Damages for trespass
d) Order for perpetual injunction restraining the Defendants herein whether by themselves or their assigns, agents, servants, workers and all or any other persons claiming ownership under or in trust from them or in any way interfering with or dealing with the land the subject matter of the instant action.
THE PLAINTIFF'S CASE:
The Plaintiffs described themselves as the administratrix and Administrators of the estate of the late Veronica Owusu who was the daughter of the late Madam Elizabeth Adutwumwaa alias Akosua Adutwumwaa. They averred that Veronica Owusu, as customary successor, was granted Letters of Administration by the Circuit Court, Kumasi, to administer the estate of her mother who died on 9th November 1995. Their case is that plot No. 2 4th Street Section 2 Daban-Kumasi forms part of the estate of the late Elizabeth Adutwumwaa but the 2nd Defendant has deposited sand thereon with the intention of developing the same. The Plaintiffs further averred that in 1986, the late Madam Elizabeth Adutwumwaa acquired the disputed plot from Nana Owusu Dominie, acting for and on behalf of the Baesiakwan stool; the grant was confirmed by the late Otumfour Opoku Ware II and documents were executed in her favour. Her development of the land was halted because of the resolution of a dispute between Kaase and Daban Stools but the Kaasehene died before the matter could be resolved. After the death of the Kaasehene, the 1st Defendant who holds herself out as the queen mother of Daban claimed that the disputed land forms part of her stool land and that she has the right to dispose of the same. The Plaintiffs also averred that after the death of the Kaasehene, the 1st Defendant went to Veronica Owusu (decd) in the company of another person and claimed to have sold the land to that person. It is the case of the Plaintiffs that all their efforts to get the Defendants to desist from their unlawful activities in relation to the land have proved futile.
The Defendants denied the capacity in which the original Plaintiff instituted this action and maintained that the letters of administration issued to the original Plaintiff in respect of the estate of Akosua Adutwumwaa was procured by fraud. They then asserted that whereas Veronica Owusu hailed from Sawuah, the late Elizabeth Adutwumwaa alias Akosua Adutwumwaa hailed from Daban. And, since Veronica Owusu was older than Akosua Adutwumwaa, the latter could not have been the mother of the former. The Defendants also denied the Plaintiffs assertions on how Elizabeth Adutwumwaa alias Akosua Adutwumwaa came to own the property as well as her exercise of ownership rights.
The 1st Defendant alleged in paragraph 7 of the statement of defence that the disputed property belongs to her and when it came to her notice that Akosua Adutwumwaa had wrongfully obtained a lease in respect of the land, they had an arbitration and Akosua Adutwumwaa handed over the original lease to her. And, when it came to her notice that Akosua Adutwumwaa should have transferred the plot into her name and that the handing over of the original lease was not enough, the late Akosua Adutwumwaa had died. That notwithstanding, the 1st Defendant contended that she had been in undisturbed possession of the plot since 1994 until she transferred the same to the 2nd
Defendant sometime in 2009, an assertion which the plaintiffs denied in their reply. The 1st defendant pleaded estoppel; the particulars being that Veronica Owusu approached her for permission to occupy a portion of the disputed plot and would vacate whenever the 1st Defendant was ready to commence construction but the 1st Defendant rejected that request. The 1st Defendant described Veronica Owusu as an imposter who lacked capacity to sue.
The Plaintiffs in their reply indicated that the only arbitration which concerned the disputed land was one involving Daban, Atasomanso and Kaase lands which was under the auspices of his royal Majesty Otumfuo Osei Tutu II which was adjudged in favour of the Atasomanso and Kaase Stools.
ISSUES FOR TRIAL
At the application for directions stage, the following issues were set down by the court as the issues for trial:
1. Whether or not Plot No. 2, 4th Street Section 2, Daban, Kumasi forms part of the estate of the late Elizabeth Adutwumwaa?
2. Whether or not the 1st Defendant has any interest in Plot No. 2, 4th Street Section 2, Daban, Kumasi?
3. Whether or not the Plaintiff is the daughter of the late Elizabeth Adutwumwaa?
4. Whether or not the Plaintiff lawfully obtained Letters of Administration in respect of the estate of the late Elizabeth Adutwumwaa?
5. Whether or not the Plaintiff is entitled to her claims?
SUBMISSIONS BY COUNSEL FOR DEFENDANTS.
Counsel for the Defendants submitted that the Plaintiffs tendered a lease in the name of Akosua Adutwumwaa, apparently referring to Madam Elizabeth Adutwumwaa, to support their assertion that the disputed plot was acquired by Madam Elizabeth Adutwumwaa. However, they could not produce the original lease, neither was the lease bearing the name Elizabeth Adutwumwaa traceable to the Lands Commission or Deeds Registry. Counsel submitted further that all other documents tendered in evidence by the plaintiffs have Madam Elizabeth Adutwumwaa as the official name, with Akosua Adutwumwaa as the alias except the lease document. He wondered why only the lease bore the name "Akosua Adutwumwaa". He then referred to the search conducted at the Lands Commission by the plaintiffs' lawyer over a year after the commencement of this suit, the caveat filed by the Plaintiffs' lawyer as well as the response from the Lands Commission as contained in exhibit 3, and argued that from the responses of the Lands Commission, there is no recorded transaction affecting any lease in the names of either Elizabeth Adutwumwaa or Veronica Owusu. On that premise, counsel argued that the late Elizabeth Adutwumwaa did not own any land or the disputed land affected by any lease or recorded transaction at the Lands Commission.
Counsel further attacked the capacity of the 3rd plaintiff's attorney to testify in this case on the basis that the power of attorney, Exhibit A, which she relied on is defective. Referring to answers given by the said attorney under cross-examination wherein she admitted that exhibit A bears an address in Germany, counsel argued that the document ought to have been notarized by a notary public. He also argued that in the absence of the notarization as well as the address of the witness, its authenticity cannot be presumed and same ought to be rejected by the court. He submitted further that in the absence of such notarization, the power of attorney cannot empower the 3rd plaintiff. He then urged the court to disregard the evidence given on behalf of the 3rd plaintiff. He cited and relied on two cases: i) Juxon Smith v KLM Dutch Airlines (2005-2006) SCGLR 438; ii) Aboagye Frimpong v MEG 94 (2013) 58 GMJ, CA 131.
After applying the principles of proof in civil suits as stated in sections 10(1) & (2) and 11 (1) & (4) of the Evidence Act 1975 NRCD 323, counsel concluded that the plaintiffs have failed to prove that the land in dispute forms part of the estate of Madam Elizabeth Adutwumwaa who the plaintiffs describe as Akosua Adutwumwaa. He pointed out that if the original Plaintiff knew that the disputed land forms part of the estate of Madam Elizabeth Adutwumwaa, she would not have conducted a search at the Lands Commission to ascertain ownership of the property after obtaining Letters of Administration in respect of her estate.
Turning to the evidence of PW1, counsel submitted that contrary to the pleadings of the original Plaintiff that Elizabeth Adutwumwaa originally acquired the land from the Baesiakwan Stool, the witness who described herself as the queen mother of Kaase told the court that Adutwumwaa's son by name Kwesi Sarfo was the person who acquired the land. Since the land was acquired in 1986 and at a time when PW1 had not been enstooled, counsel submitted that she lacks the requisite knowledge and her evidence cannot be seriously relied on in support of the Plaintiffs' case.
In his view, the Plaintiffs merely succeeded in repeating their pleadings on oath without proof and in that regard, no evidential burden shifts unto the Defendants to lead any evidence in rebuttal. He stressed that the Plaintiffs have to win their case on the strength of the case presented but not on the weakness of the defence of the Defendants.
SUBMISSIONS BY COUNSEL FOR THE PLAINTIFFS.
After setting out the respective cases of the parties, counsel started his submissions by drawing the court's attention to the provisions of section 11(1) and (4) of NRCD 323 which counsel for the defendants has already referred to. Thereafter, he introduced section 13(1) of NRCD 323 which deals with proof of a crime in a civil suit or criminal case. Here, he argued that it is the legal duty of the person alleging the commission of a crime, even in a civil suit, to lead evidence to prove the same beyond reasonable doubt. He cited and relied on two cases, namely: i) Fenuku v John Teye (2001-2002) SCGLR 985; ii) Sasu Bamfo v Sintim (2012) 1 SCGLR 136.
Next, counsel spent some time discussing the law on corroboration. Referring to section 7(3) of NRCD 323 he conceded that corroboration is not a general requirement to sustain any finding of fact as was stated in Republic v Munkaila (1996-97) SCGLR 445. After quoting copiously from Kusi & Kusi v Bonsu (2010) SCGLR 60; and Opoku v Sarfo & 2 Ors ( 2014) 71 GMJ 1 where the Supreme Court held among other things that findings of fact can be based on the evidence of a sole credible witness in which case multiplicity of witnesses will be unnecessary, he argued that in certain situations where the fact in issue calls for that corroborative evidence, it is desirable that such evidence be corroborated.
Counsel then turned to apply these legal principles to the facts of the instant case. In sharp contrast to the submissions of counsel for the defendants that the Plaintiffs merely repeated their bare assertions on oath, counsel for the plaintiffs referred the court to exhibits C (funeral brochure made for the burial of Elizabeth Adutwumwaa) and D ( Letters of Administration procured by Veronica Owusu) and argued that in both documents, Elizabeth Adutwumwaa is also described as Akosua Adutwumwaa. He emphasized that the Defendants could not discredit these exhibits.
Continuing, counsel submitted that in both exhibits, the original plaintiff, Veronica Owusu was described as the daughter of Elizabeth Adutwumwaa. He argued that exhibits C and D corroborate the P n laintiffs' viva voce evidence that Elizabeth Adutwumwaa is the same person as Akosua Adutwumwaa, mother of Veronica Owusu, and urged the court to find as such.
On the allegation of fraud made against the original plaintiff by the defendants, counsel's position is that the defendants' failed to meet the requisite evidential burden of proof beyond all reasonable doubt as spelt out under section 13(1) of NRCD 323.
Counsel's next submission was on whether the disputed land forms part of the estate of Elizabeth Adutwumwaa which he is of the opinion can be dealt with by considering whether the 1st Defendant's alleged relative Akosua Adutwumwaa existed. On this issue, he made the following submissions: that there existed no such relative of the 1st defendant by that name; beyond just repeating the averments in her pleading, the 1st Defendant offered no other form of proof; her DW2 who claims to be her sister failed to corroborate her story; while 1st Defendant claims the said Akosua Adutwumwaa was her sister, DW2 claims the said Adutwumwaa was she and the 1st Defendant's mother's sister and by Ashanti custom, their mother; and the sharp inconsistencies in their evidence raise serious doubts about the existence of any such person.
Counsel invited the court to consider the evidence of PW1, queen mother of Kaase, which point to the fact that the late Adutwumwaa's son, Kwasi Sarfo acquired two plots including the disputed one in the name of his mother long before the place was developed and that the original Plaintiff and her son were in occupation of the same. He then pointed out that even though PW1 and the 3rd Plaintiff's attorney gave overwhelming evidence of acts of possession by the original Plaintiff and her family, the 1st defendant could not challenge the same. But, DW1 sharply contradicted her own evidence and maintained that their alleged relative Akosua Adutwumwaa did nothing on the land. Counsel then linked this to a statement given on oath by the 1st Defendant, exhibit H, wherein she deposed that even during the lifetime of Akosua Adutwumwaa, she (1st Defendant) was in occupation of the land.
Counsel introduced the question of credibility and urged the court to find that the 1st defendant lacks credibility in view of the inconsistencies and untruths in her evidence, more particularly, her evidence against a dead person which the court must look with the greatest suspicion. A clear instance which he brought to the court's attention is the testimony of the 1st defendant that Akosua Adutwumwaa willingly handed the title deeds to her which is a departure from her pleadings i.e. she had pleaded that the late Adutwumwaa handed the title deeds to her after there had been an arbitration, yet she offered no evidence to prove that assertion.
In conclusion, counsel submitted that the Plaintiffs have substantially discharged the evidential burden imposed on them by the law in respect of the issues under consideration, but the Defendants have failed to prove that the 1st Defendant had any interest in the disputed land. He urged the court to enter judgment in favour of the Plaintiffs.
ISSUE OF CAPACITY OF THE ORIGINAL PLAINTIFF
From the pleadings, the capacity of the original plaintiff to sue is an issue which cannot be swept under the carpet. The reason being that capacity goes to the root of every matter and a court cannot go into the merits of the case without first delving into it.
Commenting on the importance of the determination of capacity whenever it arises in any matter, Dennis Agyei JA, in his book Land Law, Practice And Conveyance in Ghana(2015), stated at page 37 that:
“ 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 has 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.
It is to be noted that the original Plaintiff sued in her capacity as the administratrix of the estate of Elizabeth Adutwumwaa who was her mother but the 1st Defendant challenged this assertion and alleged that Veronica Owusu was older than Elizabeth Adutwumwaa and so the latter could not have given birth to the former. She then alleged that Veronica Owusu lacked the capacity to sue.
It is provided under sections 1(1) and 2(1) of the Administration of Estates Act, 1961, Act 63 that:
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. Status of personal representatives
(1) The personal representatives are the representatives of the deceased person with regard to the movable and immovable property of the deceased person.
Under section 108 of Act 63, the interpretation section, 'personal representative' is defined as follows:
“personal representative” means the executor, original or by representation, or the administrator for the time being, of a deceased person.
"Administrator" and "Administration are also defined there under in this manner:
' “administrator” means a person to whom administration is granted'
“administration” means, with reference to the movable and immovable property of a deceased person, letters of administration, whether general or limited, or with the will annexed or otherwise'
Since a personal representative becomes vested with the movable and immovable property of a deceased person immediately after his death as provided for by Act 63 referred to, supra, the law is settled that trustees, administrators or executors, as the case may be, are the proper persons to sue and be sued in respect of the property they hold in trust or estate. See Dennis Adjei (2015),supra, page 45.
This position of the law has again been explained by their Lordships in the case of Okyere (decd) (substituted by Peprah) v Appenteng & Adomaa (2012) 1 SCGLR 65 where Brobbey JSC commented as follows:
" The import of the judgment in this case is this: when a person dies testate or intestate, his estate devolves on the executor or personal representative respectively; until a vesting assent has been executed to the beneficiaries or devisees; until that grant the beneficiaries or devisees have no title or locus standi over any portion of the estate."
In the trial, the 3rd Plaintiff's lawful attorney tendered the Letters of Administration granted by the High Court, Kumasi to Veronica Owusu @ Akua Amankwa, daughter of Madam Elizabeth Adutwumwaa @ Akosua Adutwumwaa to administer the estate of the latter who died on 09/11/1995, as exhibit D. The Order of priority of grant of Letters of Administration where a person dies intestate after the enactment of P.N.D.C.L. 111 on 14/06/1985 is stated under Order 66 rule 13 of the High Court (Civil Procedure) Rules 2004 C.I. 47 as follows:
a) any surviving spouse;
b) any surviving children;
c) any surviving parents;
d) the customary successor of the deceased.
Therefore, once it is established that the original plaintiff, Veronica Owusu, fell into any of the above listed categories, she qualified to apply for and obtain Letters of Administration. Unlike the 1st defendant who had nothing to support her bare assertion that Veronica Owusu lacked the capacity to sue, the plaintiffs' exhibit C at least depicts the photograph of the late Elizabeth Adutwumwaa alias Akosua Adutwumwaa whose children are listed on page 4 thereof, the last but one being Veronica Owusu alias Akua Amankwaa. So, as a daughter, I reiterate the point that she could apply for Letters of Administration, and rightly did so and based on that she came to court. The 1st Defendant could not discredit exhibit C which also confirms the identity of the Veronica Owusu described in exhibit D. As rightly observed by counsel for the Plaintiffs' in his submissions, the 1st defendant categorically stated in paragraphs (2) and (3) of her statement of defence that:
(2) The Plaintiff hails from Sawuah while the late Elizabeth Adutwumwaa @
Akosua Adutwumwaa was from Daban and they are not related in any way both maternal and paternal.
(3) The Plaintiff is older than the late Akosua Adutwumwaa and she could never have given birth to her and the Plaintiff is an imposter.
Yet, at the tail end of her evidence-in-chief, the 1st defendant had this to say:
"I do not know where Veronica Owusu hails from... I am the customary successor of Akosua Adutwumwaa because i am the head of family. I do not know the relationship between Madam Elizabeth Adutwumwaa and Veronica Owusu. I do not know where they come from."
The above piece of evidence is a complete departure from the 1st Defendant's averments in her pleadings in respect of the identity of Veronica Owusu and Elizabeth Adutwumwaa alias Akosua Adutwumwaa. Whereas the Plaintiffs' exhibits C and D confirm their assertions that Veronica Owusu was the daughter of Elizabeth Adutwumwaa alias Akosua Adutwumwaa, the 1st Defendant's testimony contradicts her pleaded case as far as the identity of Elizabeth Adutwumwaa alias Akosua Adutwumwaa is concerned. The 1st Defendant failed to explain away this inconsistency either in her evidence-in-chief or under cross-examination.
The legal effect of this was demonstrated in the case of Appiah v Takyi( 1982-83) 1 GLR 1 at page 7 per Mensa Boison J.A. thus:
"Where there is a departure from pleadings at trial by one party whereas the other's evidence accords with his pleadings, the latter's is, as a rule, preferable."
This principle was also applied in Zambrama v Segbedzi (1991) 2 GLR 221; and Yaa Semanhyia & Ors v Elizabeth Bih & Ors 2006) 5 M.L.R.G. 184 at 195 per Dotse JA. (as he then was)
I will therefore accept the submissions of counsel for the plaintiffs on this issue. My conclusion is that the identity of Veronica Owusu as a daughter of the late Elizabeth Adutwumwaa @ Akosua Adutwumwaa has been adequately proved in the case before me. I do not see any irregularities on the face of exhibit D. The 1st Defendant has not been able to pin point any irregularities on the said document. In the circumstance, I hold that in her capacity as a daughter of the late Elizabeth Adutwumwaa alias Akosua Adutwumwaa, Veronica Owusu was entitled to apply for and be granted Letters of Administration in respect of her deceased mother's estate. Having obtained the Letters of Administration, exhibit D, and in line with sections 1(1) and 2(1) of the Administration of Estates Act, 1961, Act 63 which is further supported by the case of Okyere (decd) (Substituted by Peprah) referred to, supra, Veronica Owusu was the proper person who could sue and be sued in respect of her mother's estate and I so find.
ISSUE OF THE CAPACITY OF THE 3RD PLAINTIFF'S LAWFUL ATTORNEY TO TESTIFY.
This was raised for the first time by counsel for the Defendants in his closing submissions. He cannot be faulted because the question of capacity can be raised at any time.
The law regulating powers of attorney in Ghana is the Powers of Attorney Act 1998, Act 549 section of which reads:
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 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 authorised 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.
Now to counsel's contention that since the donor's address indicated on exhibit A is an address in Germany, the Power of Attorney ought to have been notarized or the signature ought to have been authenticated to make it effective. Indeed, his submission that a power of attorney executed abroad for use within the jurisdiction must be notarized is the correct position of the law. A case in point is Hussey v Edah (1992/93) 4 GBR 1703 where Hayfron Benjamin JSC stated (holding 5):
"A power of attorney was 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."
The only hurdle to be cleared now as far as exhibit A is concerned is whether the document was executed in Ghana or Germany on 12/04/2011. When exhibit A was tendered, counsel for the Defendants did not object to it. During cross-examination, he sought to discredit it but failed because the attorney duly explained that when Veronica Owusu died, the donor who is ordinarily resident in Germany came to Ghana for the funeral and it was during this period that he executed exhibit A. The donor of exhibit A, Frederick Opoku, is one of the persons named in exhibit B as the administrators of the estate of Veronica Owusu (decd). On the face of exhibit B, it was granted by the High Court, Kumasi on 11/04/2011. There is no suggestion or the slightest indication that the Letters of Administration were granted to Frederick Opoku in absentia. The only plausible inference is that he appeared before the court which granted the Letters of Administration on 11/04/2011. That apart, exhibit A was stamped on 13/04/2011 in accordance with section 12 of the Stamp Act 1965 and the chargeable duty was assessed at GH¢ 2.00. The document was given the Land Valuation Division number LVD/ASR/964/11. Considering the sequence of events from 11/04/2011 to 13/04/2011, it is highly probable, than not, that exhibit A was executed in Ghana by the donor, Frederick Opoku. The fact that he used his Germany address on exhibit A per se is not conclusive that the document was executed in Germany. In the case of the witness, the donee explained that there was no space provided for the address of the witness in exhibit A. I have scrutinized exhibit A and that assertion is true. The donee cannot be faulted for not providing her address. Here again, counsel for the Defendants has been unable to prove to the satisfaction of this court that Mrs. Mary Opoku who witnessed the document did so abroad.
Looking at exhibit A as a whole, coupled with other pieces of evidence on record, particularly, exhibit B, I will accept the explanation given by the donee that the document was executed in Ghana when the donor came to perform Veronica Owusu's funeral. That said, the requirement for notarization or authentication as neatly set out by counsel for the Defendants will not apply to the circumstances of this case. I find that exhibit A is a valid power of attorney; any evidence given pursuant to that document is admissible and will not be excluded as counsel for the Defendants has invited the court to do.
THE ISSUE OF FRAUD
Here again, the defendants who alleged that Veronica Owusu obtained Letters of Administration in respect of Akosua Adutwumwaa by fraud bears the onus of proof. The particulars of fraud given under paragraph 4 of their statement of defence is that "she applied for the Letters of Administration in her capacity as a daughter and customary successor when they are not related".
On this point, I will uphold the submissions by counsel for the plaintiffs that indeed Veronica Owusu was the daughter of Elizabeth Adutwumwaa alias Akosua Adutwumwaa. I made a finding to that effect in determining the capacity of Veronica Owusu to institute the present action. Once again, the 1st Defendant who testified in person could not introduce any cogent evidence to show that Veronica Owusu was not the daughter of Elizabeth Adutwumwaa alias Akosua Adutwumwaa. Contrary to her allegation that Veronica Owusu applied for the L/A in her capacity as 'daughter and customary successor', exhibit D shows that she applied in her capacity as a daughter simpliciter! Interestingly, it was the 1st defendant who applied for Letters of Administration in respect of an Akosua Adutwumwaa who died on 09/02/1999 in her capacity as sister/successor. Yet, when the biological sister of the 1st Defendant testified as DW2, she maintained that the Akosua Adutwumwaa in issue was a sister to the their mother, and by Ashanti custom, she was their mother. If that evidence is anything to go by, it can be reasonably inferred that the 1st Defendant did not have any sister by name Akosua Adutwumwaa. And indeed, she could not provide any documentary proof such as a photograph to prove to the court that her Akosua Adutwumwaa ever existed.
In the case of SA Turqui & Bros v Dahabieh (1987/88) 2 GLR 486, CA, the court made the following statement on what constitutes fraud in law:
"A charge of fraud in law could be taken to be properly made against a party who knowingly or recklessly whether by conduct or words used unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party"
Going by this definition, and on the totality of the evidence before me, can it be said that the Original Plaintiff perpetrated fraud by obtaining the letters of Administration in respect of the estate of her late mother? Obviously not! Now, on the evidence, between the original Plaintiff whose capacity to obtain Letters of Administration in respect of Elizabeth Adutwumwaa alias Akosua Adutwumwaa has not been faulted, and the 1st Defendant who applied for Letters of Administration about a decade later in respect of a "non-existent sister" she described as Akosua Adutwumwaa, who has perpetrated fraud on the other? Certainly, it was not the original Plaintiff.
Having cleared these preliminary matters, I will now determine the real issues in controversy. I must stress that the 3rd and 4th issues i.e. whether or not the Plaintiff is the daughter of the late Elizabeth Adutwumwaa; and whether or not the Plaintiff lawfully obtained Letters of Administration in respect of the estate of the late Elizabeth Adutwumwaa have already been determined in the course of resolving the preliminary matters. The findings so made are that the original Plaintiff, Veronica Owusu was the daughter of Elizabeth Adutwumwaa alias Akosua Adutwumwaa and that Veronica Owusu lawfully obtained the Letters of Administration in respect of her mother's estate.
WHETHER OR NOT PLOT NO. 2, 4TH STREET SECTION 2, DABAN, KUMASI FORMS PART OF THE ESTATE OF THE LATE ELIZABETH ADUTWUMWAA?
It is important at this juncture to establish the real identity of the deceased person whose estate is in issue. Having extensively examined the evidence on record and after perusing the closing submissions made by both counsel, I have no doubt at all in my mind that Elizabeth Adutwumwaa also called Akosua Adutwumwaa who died on 09/11/1995 as per exhibits C and D is the same person as Akosua Adutwumwaa who was the lessee in the lease executed on 02/07/1986, exhibit E.
Generally, a lease is an interest in land for a fixed period. A lease may be terminated by: i) expiry of the term of the lease or the occurrence of an event which under express provision in the lease terminates it; ii) notice; iii) surrender; iv) merger; or v) forfeiture. See Da Rocha and Lodoh (1995) Ghana Land Law and Conveyancing page 33.
In the case before me, the lease, exhibit E was to run 99 years effective 1st June, 1982 which means that at the time the lessee died in 1995, the lease had not expired. Neither was it terminated by any legally acceptable means before her death. PW1, queen mother of Kaase also gave credible evidence as regards how Kwasi Sarfo acquired the land in his mother's name for her and the subsequent acts of possession exercised by the rightful owner of the land.
Now, how did the lease get into the possession of the 1st Defendant? By paragraph 7 of her statement of defence, she alleged as follows:
"The plot in dispute is the property of the 1st Defendant and when it came to her notice that Akosua Adutwumwaa had wrongly obtained a lease in respect of her said plot they had an arbitration and Akosua Adutwumwaa handed the original lease to her."
In her evidence before this court, this is what the 1st Defendant said:
... Akosua Adutwumwaa acquired the disputed plot and processed the title documents before she died. Before her death, she brought all the papers on the plot to me. She brought the papers to me because I am the Obaapanin of Daban and also a family member. Since I am their head, I see to the resolution of matters which arise. She brought me a lease which she had obtained in respect of the land. After her death, I took the lease to the Lands Commission. The Lands Commission officials advised me to engage the services of a lawyer to apply for Letters of Administration. I applied for the L/A. With the L/A certificate, I went to effect the change of ownership into my daughter's name called Akua Afriyie... My daughter (Nana Akua Afriyie) sold the plot to the 2nd Defendant".
DW2, a biological sister of the 1st Defendant also told her story in this manner which contradicted that of her supposed sister:
I know Maame Akosua Adutwumwaa personally, she was my relative. She was my mother's sister. She originally acquired this plot from Kaasehene, Nana Domfe. She did not do anything on the plot after its acquisition. She had documents on the plot. What I know is that when I was a young girl, at the time we were staying at Ashtown, Akosua Adutwumwaa came there and said that she had acquired a plot from Kaasehene, Nana Domfe. She further stated that upon her checks on the land she discovered that the land falls on part of Daban land which the chief sold to her. She then said that 'if the land belongs to our forefathers then I will hand over the documents to you' , and she handed over the documents to my mother and before my mother's death, she handed over the documents to the 1st Defendant."
Under cross-examination by counsel for plaintiffs, DW2 repeated this piece of evidence as follows:
Q. You will agree with me that it will be an absolute untruth for anybody to allege that the documents were given to Auntie Ama Kobi first, instead of your mother?
A. That is so, because she gave it to my mother and my mother in turn gave it to Auntie Ama Kobi before her death.
The account of the 1st Defendant which has been so discredited by her own witness, DW2, exposes her as a person not worthy of credit with regards to how the lease came into her possession. As rightly submitted by counsel for the Plaintiffs, the 1st Defendant did not give the slightest proof of the alleged arbitration and the only irresistible conclusion is that there was no such valid arbitration between the 1st Defendant and the late Akosua Adutwumwaa.
Counsel for the Defendants elected to remain silent on these contradictions and departure from pleadings as it was obvious that the same will go against the defendants' case.
I accept the explanation given by the 3rd Plaintiff's lawful attorney that the original of exhibit E was with the late Kwasi Sarfo who died in Germany. I find as false the 1st Defendant's version of the rival stories relative to how the lease got into her possession and reject the same. Instead, I accept the evidence of the 3rd Plaintiff's attorney and that of PW1 with respect to how Elizabeth Adutwumwaa, also called Akosua Adutwumwaa, acquired the land and subsequently got a lease executed in her favour as the truth. The unavoidable conclusion is that the 1st Defendant obtained a copy of the lease through unorthodox means and proceeded to do what she did with it! But, the truth remains that at the time Akosua Adutwumwaa or Elizabeth Adutwumwaa died, the lease was still valid, she had not surrended it to her lessor, it had not expired, neither had it been terminated or nullified by any legally acceptable means. I therefore find that Plot No. 2, 4th Street Section 2, Daban, Kumasi forms part of the estate of the Late Elizabeth Adutwumwaa, also called Akosua Adutwumwaa.
WHETHER OR NOT THE 1ST DEFENDANT HAS ANY INTEREST IN PLOT NO. 2, 4TH STREET SECTION 2, DABAN, KUMASI?
The 1st Defendant's testimony that she got hold of the original lease or a copy thereof because she is the 'Obaapanin' of Daban, head of family and a person who resolves dispute within her family does not constitute proof of any valid interest in the disputed land. Even if she had validly obtained the Letters of Administration in respect of the estate of Akosua Adutwumwaa, her duty was to administer the estate in accordance with the relevant provisions under the Intestate Succession Act, 1985 P.N.D.C.L. 111. Since the late Akosua Adutwumwaa was survived by her children, there is no way the 1st Defendant could have legally vested the disputed land in her own daughter instead of the children of Adutwumwaa because she had no personal interest in the land as shown by the preponderance of the evidence before me.
ARE THE PLAINTIFFS ENTITLED TO THEIR CLAIMS AGAINST THE DEFENDANTS?
The first claim is for declaration that title to the disputed property forms part of the estate of the late Madam Elizabeth Adutwumwaa @ Akosua Adutwumwaa. I have found in this judgment that indeed the late Elizabeth Adutwumwaa was the same person as Akosua Adutwumwaa who was the lessee of the lease dated 02/07/1986 and which remained valid even after her death. Therefore, the Plaintiffs are entitled to a declaration that title to the said property described as Plot No. 2, 4th Street Section 2, Daban, Kumasi forms part of the estate of the said Elizabeth Adutwumwaa who was also called Akosua Adutwumwaa and I so declare. It remains a mystery how the 1st Defendant managed to obtain another Letters of Administration in respect of the same estate over a decade later, vested it in her daughter instead of the real beneficiaries under P.N.D.C.L.111, succeeded in getting very respected and honourable stake holders who had no way of knowing her misdeeds to process and/or execute the deed of assignment.
In view of the finding of this court that the Original Plaintiff lawfully applied for and obtained Letters of Administration in respect of the estate of Elizabeth Adutwumwaa alias Akosua Adutwumwaa, the Letters of Administration which the 1st Defendant subsequently obtained in respect of the same estate was not proper and the same is of no legal effect. It follows that all processes initiated and/ or undertaken by, or through the 1st Defendant after the grant of the 2nd Letters of Administration to her cannot stand as the same are of no legal effect. Therefore, the Vesting Assent by which the 1st Defendant vested the disputed property in her daughter who subsequently sold the said property to the 2nd Defendant, and all processes executed in favour of the 2nd Defendant by virtue of the said Vesting Assent are of no legal effect and are hereby set aside. If the 2nd Defendant had done due diligence, it would have come to her notice that the person whom the 1st Defendant described as her "Akosua Adutwumwaa" did not exist.
Accordingly, the Plaintiffs' claim for recovery of possession and an order for perpetual injunction against the defendants are hereby granted.
The Plaintiffs have also asked for damages for trespass. Generally, trespass is actionable per se without proof of injury. However, in most cases, a Plaintiff should be able to prove injury which will invariably affect the quantum. The fact that damages are at large in cases of trespass to land does not mean that damages are to be awarded arbitrarily. The guiding principles in awarding damages for trespass were stated in Laryea v Oforiwaah (1984-86) 2 GLR 410 (holding 6) thus:
"... In awarding damages for trespass to land, regard should be had to the acreage of the land on which the trespass was committed, the period of wrongful occupation and the damage caused...".
The subject matter of the case before me is one building plot with an approximate area of 28,680 square feet. It is on record that the original Plaintiff's mother could not continue the construction on the land in issue due to a dispute between the Kaase and Daban stools which has since been resolved. For these reasons, I award damages for trespass in the sum of GH¢ 5,000.00 against the Defendants in favour of the Plaintiffs.
This case has been pending since the year 2010. I have taken into consideration the length of the litigation and expenses incurred by the Plaintiffs as I am entitled to do under Order 74 of the High Court ( Civil Procedure Rules) 2004 C.I. 47.These will serve as a guide in awarding cost against the Defendants.
Judgment is entered against the Defendants in favour of the Plaintiffs as follows:
It is declared that title to Plot No. 2, 4th Street Section 2, Daban forms part of the estate of the late Madam Elizabeth Adutwumwaa @ Akosua Adutwumwaa.
The plaintiffs' are to recover possession of the said land from the 2nd Defendant.
The Defendants, whether by themselves, or their assigns, agents, servants, workers and all or any other persons claiming ownership under or in trust from them are restrained from interfering with, or in any way dealing with Plot No. 2, 4th Street Section 2, Daban for as long as the lease granted to Elizabeth Adutwumwaa @Akosua Adutwumwaa remains valid.
Damages for trespass in the sum of GH¢ 5,000.00.
Cost of GH¢ 10,000.00.