DWAMENA AND OTHERS VRS. OBUOBI (A1/01/23) [2023] GHADC 1313 (1 November 2023)

IN THE DISTRICT COURT KIBI, EASTERN REGION, HELD ON WEDNESDAY 1ST NOVEMBER, 2023 BEFORE HER WORSHIP MRS. JULIET OSEI – DUEDU SITTING AS

A MAGISTRATE SUIT NUMBER: A1/01/23 1. KWASI DWAMENA FIRST PLAINTIFF 2. YAW ASANTE DENKYIRA SECOND PLAINTIFF 3. MARTIN APPIAH THIRD PLAINTIFF SUING PER THEIR LAWFUL ATTORNEY – ESTHER NYARKOA DANKWA VRS 1. MR. OBUOBI FIRST DEFENDANT 2. MR. APPIAH AGYEI SECOND DEFENDANT

JUDGMENT On the 13th October, 2022, the plaintiffs herein suing per their lawful attorney, Esther Nyarkoa Dankwa, instituted this action against the defendants in this case, claiming the following reliefs; “a. A declaration that the defendants are trespassers to the land, the subject matter of the suit. b. Recovery of possession of the land described hereto above from the defendants. c. An order of perpetual injunction restraining the defendants, their assigns, privies or whomsoever from developing, building, selling, assigning among others over the land subject matter of the instant suit. d. Damages for trespass against the defendants. e. Costs including legal fees.” The brief facts of the case per plaintiffs’ statement of claim are that, they purchased a parcel of land, the subject matter of this dispute from one Margaret Abena Owusua, (aka. Sakrawusu), the grandmother of the defendants, around 21st July 1998. Though their lessor subsequently died without any surviving child, the said sale was known to the entire family, having been witnessed particularly by her customary successor, one Beatrice Aduako. Plaintiffs upon taking possession of the land used same for farming purposes. Defendants have however, entered their lawfully acquired land, and are speedily developing same to change its nature and character, hence the present action. 2 The defendants who disputed the facts

as stated by the plaintiffs denied any sale of the disputed land by their paternal grandmother. Claiming to have been in possession of the land for the past 15 years, Defendants, filed their statement of defence and counterclaim on 11th January, 2023, praying the court as follows; “a. Declaration of title to all that piece and parcel of land situate and lying and being at No Weapon with an approximate area of 3 acres. b. Ejectment and recovery of possession. c. General damages for trespass. d. Perpetual injunction against the plaintiffs their agents, privies, assigns, and any other person taking instructions from the plaintiffs from having anything doing on the defendants’ land for the quiet enjoyment of their land.” Particularly, in all civil suits as the instant case, the burden of proof, that is, the duty of producing evidence in support of averments necessary for the court’s decision is upon the party who makes the averments. Primarily, the burden of proof is usually on the plaintiff because he makes the primary averments upon the institution of the action. However, where the plaintiff adduces sufficient evidence in the discharge of the primary burden, the onus shifts under section 14 of the Evidence Act 1975, (NRCD 323) onto the defendant, who under section 10 (2)(b) of the same Act is required to adduce sufficient evidence in rebuttal to avoid a ruling against him on a

particular issue, Faibi V State Hotels [1968] GLR, 471, referred. And where a defendant like the defendants herein has a counterclaim, the same primary burden of proof and standard of proof are placed on him as it is with the plaintiff, Birimpong V Bawuah [1994 – 95] GBR 837, applied. On the standard burden of proof in civil matters also, sections 11(4) and 12(1), the Evidence Act, state same as proof by the preponderance of probabilities. And section 12(2) defines this proof as the degree of certainty of belief in in the mind of the court by which is convinced that the existence of a fact is more probable than its non – existence. Thus, it is on the balance of probabilities that plaintiffs must convince this court regarding their claims against the defendants, and vice versa respecting defendants’ counterclaim. Additionally, the law is settled that, where a party’s claims are for possession and perpetual injunction, he puts his title in issue and therefore assumes the onus of proving his title by the preponderance of probabilities, just like any party who claims declaration of title, Appiah V Amponsah Alias Mansah [2009] SCGLR, 95, referred. On this authority therefore, since plaintiffs herein are claiming recovery 3 of possession and perpetual injunction against the defendants, they have put their title in issue and must prove same as defendants will do under

their counterclaim for declaration of title. And where in land cases, a party claims inter alia, declaration of title, some essential requirements must be met to enable their case succeed. The case of Fofie V Wusu [1992 – 1993] GLR, 877, held that, to succeed in an action for declaration of title, a party must adduce evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title. Furthermore, in Mondial Veneer (GH) Ltd. V Amua Gyebi XV [2011] 1 SCGLR, 466, the Supreme Court speaking through the esteemed Jurist Georgina Wood CJ, said “…In land litigation, the law requires the person asserting title and on whom the burden of persuasion falls as in the instant case; to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party will be entitled to the claim.” On the facts of the present case therefore, parties bear the same burden of proving these essential requirements in accordance with the requisite standard of proof. At the trial of the case, the lawful attorney of plaintiffs, (hereafter, attorney simply,) testified for the plaintiffs without calling any other witness. The second defendant also testified on the joint behalf of both defendants and

called three witnesses. And at the end of the trial, it became undisputed between the parties that they both trace their root of title to the same grantor. However, whilst plaintiffs rely on a sale of the land, defendants depend on a gift by the said grantor. The afore stated facts apart, the following issues came up for determination by the court; 1. Whether or not the land, the subject matter of the dispute was validly, sold by Maame Sakrawusu before her demise.

2. Whether or not Maame Sakrawusu made a gift of the disputed land to the defendants before her demise. I will address these issues seriatim. First is the issue of the alleged sale of the disputed land to plaintiffs by their grantor. It is the case of the plaintiffs that they acquired the disputed land from their grantor, Maame Sakrawusu a native of Asiakwa in 1998, (but now deceased). Upon the said acquisition, plaintiffs allowed their grantor to farm the land for her livelihood. The grantor never had biological children of her own as such while alive, she was taken care of by defendants’ mother, one Ama Obenewaa. This made it possible for the said mother to farm 4 the land as well. According to the attorney she visited the land from time to time until the demise of the grantor. The plaintiffs thereafter executed a lease agreement with her next of kin, Maame Beatrice Aduako, a copy of which was tendered in evidence as exhibit A. Exhibit A was witnessed by two family members of the grantor’s family, who at all material times have been privy to the said land transaction. Exhibit A was subsequently registered with the Lands Commission and evidenced by exhibit B. Though the grantor’s next of kin was ready to testify to these facts, she was threatened by the defendants and so could not proceed. Exhibit C, a video recording from the said next of kin was therefore tendered in

evidence, instead. The power of attorney executed in the attorney’s favour was also tendered as exhibit D. It is clear from the evidence above that plaintiffs trace their root of title to the parties’ common grantor whom defendants equally admit as the original owner of the disputed land. Their opted mode of acquisition is equally, by purchase, with the purchase price given in exhibit A as, GHC 50.00 per each acre of land, as at 1998. The land in question has been described in the schedule to exhibit A as, situated, lying and being at “No Weapon City”, Asiakwa with its various adjoining land owners stated therein. The approximate area of the land is also stated as 4.5 acres. Thus, on its face value, it appears plaintiffs have satisfied the essential requirements regarding proving their title to the disputed land. The gravamen of plaintiffs’ story yet, is the ardent challenge by the defendants to their mode of acquisition, that is the sale of the land in question. It is the contention of the defendants that the land which was originally owned by their grandparents, devolved unto their parents and then onto them by custom upon their parents’ demise. They have been in undisturbed possession of the land, farming same with different crops without any knowledge of any sale of the land to the plaintiffs. According to the defendants, not only are they not in known of the said sale, but

the entire family is not and has never been aware of it as well. Defendants created this impression through second defendant’s (D2’S) cross – examination of plaintiffs’ witness as follows; Q. You claim that in the year 1998 they purchased the disputed land why then, have they failed to take possession of same all this while. A. It is because you are not a family member, but the family members are aware that we have bought the land. This is after plaintiffs in their statement of claim have described defendants as relatives of their grantor to which, defendants admitted in their statement of defence and explained further that the said grantor is their deceased 5 grandmother. This fact, was not denied by plaintiffs in their reply. When D2 was asked by Counsel for plaintiff to explain how the grantor became their grandmother this is what he said (it is so quoted because D2 testified in the English language), “According to the history of the family, Maame Sakrawusu and her siblings were three in all including herself. We were not born to see the other siblings but only Maame Sakrawusu, as the youngest of them. Yaa Afoah was the eldest followed by Akua Ayaw and then Margaret Owusuaa a.k.a. Maame Sakrawusu. Our biological grandmother was Yaa Afoah, the eldest.” This evidence was materially supported by that of defendants’ first witness (DW1), and head of family. DW1 explained further

that, it was Yaa Afoah who birthed defendants’ father Martin Kwabena Agyapong who farmed the disputed land, and defendants continued same after his demise. And it is with this understanding that DW1 said this under cross – examination; Q. You would agree with me that the land in question belongs to Margaret Owusua aka. Maame Sakrawusu. A. No, I don’t agree with you because she is the youngest among three siblings. Q. The land in dispute does not belong to the defendants in this matter is that correct? A. What I know is that, their grandmother who birthed their father, worked on the land with her two other siblings. Plainly, defendants are not total strangers to the grantor’s family, in the light of the above, as the witness wants the court to believe. DW1 equally denied any knowledge of the sale of the land in his capacity as the head of family. According to his testimony, as Akyem custom or tradition demands, after the death of defendants’ father and grandmother no one has come to demand any debt whatsoever owed by their father. This evidence appears to run contrary to that of plaintiffs’ witness that the alleged sale was known to their grantor’s entire family. And in the face of such stiff opposition, it is imperative that plaintiffs strictly prove their supposed sale. I must state that, the sale itself appears to bedeviled by some unsurmountable hurdles to be considered

hereunder. From all indications, the whole transaction on the sale of the disputed land was allegedly concluded orally between plaintiffs and their grantor in 1998. This informal contract of sale was not reduced into writing back then. It therefore failed to comply with the applicable law at the time, section 2 of the Conveyancing Act 1973 (NRCD 175) which enjoined all such contracts to be in writing unless exempted under section 3 of the Act. The parties 6 alleged agreement not being so exempted, should have thus, been in writing to begin with before same could be enforced against the vendor or others claiming through her. Being in its informal or unwritten state also, it took plaintiffs twenty-three (23) years to reduce the contract into a lease agreement, exhibit A for that matter, dated, 21st April, 2021. Not only that, the said deed of sale was so executed and even registered after the demise of plaintiffs’ grantor. The attorney did not purchase the land for and on behalf of the plaintiffs, neither was she with them at the time of purchase. She is therefore, not privy to the 1998 agreement. She puts it clearly in the following dialogue; Q. Have you purchased any land from Margaret Owusuaa? A. No. I wasn’t the one who purchased the land. Q. Who then purchased the land? A. They are three, Kwasi Dwamena Brew, Yaw Asante Denkyira and Martin Appiah. Q. What is your relationship

with them? A. They are my husbands. I am married to one of them, Yaw Asante Denkyira. Obviously, the attorney knows nothing about the supposed sale except what she was told by her husbands. In the given circumstances, the material witnesses needed by plaintiffs in their journey to establish their ownership by sale of the disputed land, are plaintiffs themselves and or any of their grantor’s family members they are alleging were present at the transaction at all material time. The need for such proof cannot be over emphasized since plaintiffs on the facts of this case are asserting a claim against a deceased person, their grantor. The rule is that, evidence against a deceased person must be scrutinized with the utmost suspicion. And in the case of Moses V Anane [1989 – 90] 2 GLR 694 CA, the court held that proof by such evidence must be strictly and utterly convincing as one of the protagonists was dead and could not assert his claim. In the present case, none of the plaintiffs and partakers of this whole transaction with its peculiar term of the purchasers’ possession of the demised property through the vendor, testified personally for same to be scrutinized to establish its veracity or otherwise. In saying this, I have not lost sight of the rule that, a party is not bound to testify by himself as he can adduce evidence from other sources, Nyamekye V Ansah [1989 – 90] 2 GLR,

152, CA, referred. However, since plaintiffs witness does not have personal knowledge of the 23-year-old oral agreement, the 7 testimony of any of the plaintiffs in this situation, would have been a better option. Similarly, since plaintiffs bear the onus of proving their asserted sale, it was important that they call any of the grantor’s family members who they claim witnessed the sale as a material witness. Plaintiffs having failed to do so sought cover under an unfounded allegation of defendants’ threat to, not all but one said family member and so relied on exhibit C instead. Exhibit C is a video recording from one Beatrice Aduako and the alleged next of kin with whom plaintiffs executed the lease agreement. According to paragraph 10 of the attorney’s witness statement, the grantor’s next of kin who executed the lease document was ready to testify before the court. Sadly, she was threatened by defendants not to proceed to testify. In cross – examination however, the witness admitted as follows; Q. Per paragraph 10 of your witness statement, is there any threat issue in the video Beatrice Aduako made? A. There is a threat issue, your sister called and insulted her badly, that is why she said she would not come and testify. Q. I mean is there any allegation of defendants threatening Madam Beatrice Aduako in the video? A. She did not say that in the video but you even

threatened me. Q. Did Beatrice Aduako admit in the video that she has engaged us so far? A. No, but your sister called all the children of Beatrice and warned them not to let their mother come to court. With the above admission by the witness, paragraph 10 of her witness statement is a complete falsehood, or fabrication concocted by plaintiffs in an attempt to shirk their responsibility to call a material witness to the over 20 years old alleged agreement. In actual fact, not only was there no allegation of threat against the defendants herein in exhibit C, the person therein never said anything about her refusal to testify and the reason thereof. Since in the video it was the attorney who went to the woman to inquire about her knowledge of the sale, she could have as well, asked her to come and testify on the things she talked about, but she chose not to. She did not even suggest the need to testify in court to ascertain her view on it. All the woman said in the video was that, defendants’ sister called to insult her for her seeming assistance to the plaintiffs regarding their claim to the disputed land. It is interesting to note that, the speaker in the video, did not 8 seem perturbed at all by the said insults. Her response to the alleged insults rained on her personally, excluding any of her children is quite absorbing. She stated in Twi inter alia that, “wo baa ye no wo

bekyiaa me…” (obviously referring to defendants’ sister) This assertion literally means, did you even come over to greet me on your return? A clear indication that, defendant’s sister is outside the jurisdiction. The question then is, could this be the reason for whatever Beatrice Aduako said in the video? Are her assertions borne out of some form of mischief or retaliation for the failure of defendants’ sister to pay that courtesy visit to her? Since she did not testify in court for her assertions to be so scrutinized through cross – examination, these suspicions cannot be overlooked by the court. Imperatively, what exactly is the content of exhibit C in the light of paragraph 8 of the attorney’s witness statement? The paragraph states thus, “This was witnessed by two persons who are family members and at all material times have been privy to this land transaction between plaintiffs and their lawful grantor…” Obviously, the document being referred to here is the exhibit A, the 99- year lease agreement between the plaintiffs and their deceased grantor. In the document, Beatrice Aduako is alleged to have thumb printed as the next of kin for the grantor. The material witnesses and family members for the lessor who were privy to the lease per the above paragraph are named as, Charles K. Acheampong and E. K. Adu. The question is, if indeed these witnesses are there why

should plaintiffs even consider Beatrice Aduako as a material witness since she never witnessed any such transaction per her own statement in exhibit C. According to her, she was with her mother and another woman (both of whom are currently deceased), when plaintiffs’ grantor came to her that, she was selling her land to one Aunty Naa and her children. Exhibit C consists of two videos on two different days, 16th and 17th February, 2023, respectively. No reason is given in the first video for the sale but in the second, the reason assigned is, ‘financial difficulty’. According to the speaker, she succeeded plaintiff’s, grantor but she did not pursue the land because of the information on the sale. The actual Twi expression used by her in exhibit C is … “Maame Sakrawusu bekakyere me se oton asaase no ama Aunty Naa ne ne mma…” Meaning, she was only informed about the yet to be sale by plaintiffs’ grantor. She was not part of the transaction, neither did she witness same. She was only informed not even of an already transacted sale of her land, with its alleged condition or term, but rather a yet to be, sale. An intended sale for that matter. Since the grantor is no more, and Madam Beatrice did not actually witness the sale, what if right after that alleged information, the grantor changed her mind and never carried her intentions through? The fact of Madam Beatrice’ decision not

to pursue the land because she thought or assumed that it has indeed been sold is no concrete proof of the alleged sale. Not 9 being privy to the transaction also, Madam Beatrice did not know anything about the parties’ agreement to possess the land through their grantor. Thus, granted without admitting that there was a land sale transaction, there is no evidence whatsoever that plaintiffs took immediate possession via their grantor. In furtherance, very insightful is the attorney’s own assertion in exhibit C of other available material witnesses, plaintiffs could have easily called. During the attorney’s interview of Beatrice Aduako and upon the latter’s assertion of the demise of both her mother and Maame Safoaa who were present at the time of Maame Sakrawusu’s declared intention to sell the land, she made an interesting remark. The attorney unequivocally stated that, the situation at hand, leaves them with one Osoko and his wife Aboagyewaa, as the only ones who could speak to the said sale. Consequently, it is not the case that plaintiffs were bereft of any witness after all. They always had other witnesses, necessary to prove their case but they failed to call any of them. In the case of Owusu V Tabiri [1987 – 88] 1 GLR 287, where the defendant failed to call a chief who alone could testify on the existence of a valid arbitration in proof of his allegation to that effect,

the court held same to be fatal to his case. In the present case also, plaintiffs’ failure to lead vital evidence on the tardy transaction or call a material witness to do so as explained above, is fatal to their assertion of a valid sale. Most especially, when their alleged grantor is deceased. In any case, Beatrice Aduako only named the intended purchasers as, Aunty Naa and her children, and there is no evidence on record that this group refers to the plaintiffs in this case or includes them. From the foregoing, exhibit C is self - serving, as it provides no evidence in proof of a valid transaction but only reinforces plaintiffs’ unsubstantiated position as purchasers of the disputed land. It therefore has no probative value in assisting plaintiffs discharge of the onus of proof borne by them on this issue. Also, the very execution of the lease agreement raises some suspicions. First of all, as defendants challenged the capacity of the alleged customary successor of plaintiffs’ grantor, she herself raised the same challenge in her video. According to her, the head of family questioned how she became the grantor’s customary successor. It appears the attorney is fully aware of this fact based on her answers to the questions asked on the issue. This is what transpired; Q. I suggest to you that Beatrice Aduako was not the next of kin after the demise of my grandmother, Margaret

Owusuaa. A. I know she was the next of kin. Q. The next of kin for my grandmother is Maame Botwe Baawaa. 10 A. Maame Botwe Baawaa is a fairly old woman whose daughter is Beatrice Aduako and because she was very old, we made her daughter represent her. Q. There was no agreement within the family that, because Maame Botwe was old her daughter should replace her. A. It happened. Q. Upon the death of my grandmother, Beatrice Aduako could not enter into any agreement as the next of kin as she was not. A. She succeeded her so she could do so. Clearly, plaintiffs and their witness were fully aware that their alleged next of kin was not in that capacity when she purportedly executed exhibit A in their favour. If they decided to suo motu change the succession order in another person’s family, then, they should have been candid enough to have indicated same in the document. Again, it appears per exhibit A that plaintiffs do not know the exact size of the land allegedly bought by them. While they allege same to be 4.5 acres in the lease agreement itself, the site plan attached to it states the acreage as, 2.33 acres (0.94 hectare.) What then is the actual land size purchased by the plaintiffs? When the witness was questioned on this disparity during cross – examination, she provided no tenable reason. Also, the date, 10th April, 2021, stated in the exhibit as its commissioning date before

the registrar of this very court, is a Saturday as rightly argued by D2 when cross – examining the witness. Since it was a Saturday, how could the lease be so commissioned, knowing very well that the court does not sit on Saturdays? Once again, no reasonable explanation was offered. Furthermore, the witness having admitted that plaintiffs were issued with a receipt upon payment of the purchase price, said she inadvertently did not exhibit same with the other documents. She however failed to produce the said receipt in court subsequently. She equally said in re – examination that the total sum paid as purchase price was GHC 2.5 million in 1998 and GHC 250.00, currently. The question however is, if the price stated in the lease is GHC50.00, for each acre, then the total amount for the four and half acres will be, GHC 225.00, and not the GHC 250.00 being alleged. There is no receipt from the vendor to confirm any of these. Thus, not only has the tardy land transaction not been strictly proven as against a deceased vendor, the subsequent lease agreement is equally flawed. 11 On the available evidence therefore, I find and hold that there was no valid sale of the disputed land by plaintiffs’ alleged grantor, plaintiffs having failed to convincingly establish same. On the issue of a gift inter vivos of the disputed land, made to defendants by their grandmother, the least said about

it the better. Defendants never pleaded any such gift in their statement of defence nor did they state same in their witness statement. They however, tendered in evidence a deed a gift as exhibit 1, without any objection from Counsel from plaintiffs. Exhibit 1 was allegedly executed in defendants’ favour by their head of family, DW1 in this matter to evidence an earlier gift of the land made by their grandmother to all her grandchildren, defendants inclusive. This was D2’S evidence under cross – examination. Defendants in their pleadings and evidence – in – chief relied on long possession of the disputed land, about 15 years of farming same without any let or hinderance. Their surprise of a gift during cross – examination is therefore a departure from their pleadings and evidence – in – chief. Since D2’S evidence is at variance with their pleadings, their gift story is completely rejected by the court, Appiah V Takyi [1982 – 83] GLR 1, applied. The most serious aspect of this gift story is the falsity of the execution of exhibit 1 by DW1. D W1 in cross – examination, denied the execution of exhibit 1 in this manner; Q. Did you execute a deed of gift in the year 2021 in favour of one Margaret Owusuaa in respect of this land? A. No, I have not done anything like that. Q. I put it to you that there is a document before this court precisely a deed of gift, exhibit 1 for that

matter, and you were the one who purportedly executed same in favour of one Margaret Owusuaa, what do you say to that? A. I know nothing about that. These answers indeed make exhibit 1 a complete falsehood, a fabrication intended to blind the eye of the court in its administration of justice. The court frowns on this very act by the defendants and holds that, the disputed land was never gifted to the defendants by their paternal grandmother, in her lifetime. The above notwithstanding, there is the fact of defendants undisturbed possession of the disputed land for over twenty (20) years now. According to DW1’S unchallenged evidence, defendants father farmed the disputed land and upon his demise, defendants continued same as his customary successors. According to D2’S testimony also, their father died on the 2nd January, 2001. Hence, at the time of coming to court in October, 2022, defendants had been on 12 the land for about 21 years. Plaintiffs on the other hand pleaded in paragraph 6 of their statement of claim that they took possession of the land after purchase and used same for farming purposes. This fact was never substantiated by any evidence. The evidence on record discloses that, plaintiffs have never been in possession of the land in contention, either personally or in any other form, except their unproven assertion of a licence to their grantor to farm same

after their purported sale transaction. Since the said permission could not be established, no credence can be given to plaintiffs alleged possession of the land. If indeed, plaintiffs’ attorney had been visiting the land from time to time, as she is alleging, she would have seen the presence of the defendants on the land and alerted them of the sale for a confirmation by their grantor to the defendants before her demise, as defendants were in physical possession of the land. Possession it is said to be nine – tenth of ownership. It is therefore trite learning that a person in possession of a land can maintain an action against the whole world in respect to that land except the true owner. In the instant case, since defendants are in possession of the land with no emergence of any true owner yet, they cannot be declared trespassers, nor can the said possession be recovered from them. This is the considered opinion of the court; though defendants cannot be declared as title owners of the disputed land having woefully failed to establish their alleged gift. In sum, I enter judgment in this case as follows; 1. On the balance of probabilities, plaintiffs have failed to make a case for the claim for which they seek the reliefs endorsed on their writ, consequently their action and the reliefs thereof fail.

2. On the same preponderance of probabilities too, defendants have equally failed to establish their counterclaim with the reliefs stated therein, defendants counterclaim fails accordingly. However, since defendants have been in possession of the land for such a long time, they are declared as having possessive rights only, over the disputed land. Each party bears its own costs in the light of the above decision. SGD H/W MRS JULIET OSEI – DUEDU ESQ

DISTRICT MAGISTRATE 1/11/2023 IN THE DISTRICT COURT KIBI, EASTERN REGION HELD ON TUESDAY 21ST NOVEMBER, 2023 BEFORE HER WORSHIP MRS. JULIET OSEI – DUEDU SITTING AS

THE MAGISTRATE SUIT NUMBER: A1/05/23

ADUANA FAMILY OF AKYEM ASAFO PER THE FAMILY HEAD HANNAH

BOATEMAA FIRST PLAINTIFF

NICHOLAS SARKODIE DARKO SECOND PLAINTIFF

VRS

SAMPSON KWAKU ANNOR DEFENDANT

JUDGMENT First plaintiff herein suing in the representative capacity described above, mounted the instant action against the defendant in this case on the 5th January 2023, for the following reliefs; “1. Declaration of title and recovery of possession to all that piece and parcel of cocoa farm land, measuring more or less 7 acres being at a place commonly known and called Taaben Akyem Asafo and bounded by the properties of; (a) Stephen Koranteng, (b) Ataa Owiredua, (c) Florence Ama Aboagyewaa and (d) Awotse Kwao.

2. Interlocutory injunction restraining defendant his assigns, labourers, workmen, agents, privies and servants etc., from having anything to do with the land until the final determination of the suit.

3. Costs.” The court upon consideration of the facts of the case, subsequently, ordered the second plaintiff herein, Nicholas Sarkodie Darko, to be joined to the suit as such. This decision was informed by Order 9 rule 5 of the District Court Rules, 2009 (C. I. 59.) The second plaintiff in his witness statement claimed an interest in the subject matter as the son of defendant’s deceased land owner hence the joinder and its resultant change in the title of this suit accordingly. Second plaintiff upon the joinder, opted to rely on all processes filed by first plaintiff on the reason that, hos story is no different from hers. The brief facts of the case per plaintiffs’ statement of claim attached to their writ, suo moto but subsequently adopted by the court, are that defendant having extended his cocoa farm onto the Aduana family’s land situated at Taaben, has willfully refused to share the proceeds therefrom with the family for over 18 years now. Defendant who disputed the facts as stated by the plaintiffs alleged that the farmland given to him by his landowner was 5 acres but not seven (7), and it was for the cultivation of a cocoa farm, by his own efforts 16 years ago. The farm was to be shared on Abunu basis after six (6) years. Upon the demise of his landowner therefore, he shared the first proceeds after the agreed period with his daughter, one Dora who is currently outside

the jurisdiction. Defendant duly filed his statement of defence on these facts on the 18th April, 2023, after the parties failed attempt at settlement. He counterclaimed for his agreed share as covenanted with his deceased landowner or, a compensation in the sum of, One Hundred and Fifty Thousand Ghana Cedis (150,000.00), in the alternative. Generally, the onus of proof in civil trials as in the instant case, depends on the pleadings of the parties. As such; the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof, Faibi V State Hotels Corporation [1968] GLR 471, applied. And the standard burden of proof in all civil matters without any exception to land matters, is proof by the preponderance of the probabilities only, Serwah V Kesse [1960] 227 SC, referred. This is provided in sections 11(4) and 12(1) of the Evidence Act 1975 (NRCD 323.) Section 12(2) of the Act also, defines proof by a preponderance of probabilities to mean the degree of certainty of belief in the mind of the court by which it is convinced that the existence of a fact is more probable than its non – existence. The Supreme Court in the case of Bonsu V Kusi [2010] 16 GMJ 20 SC @ page 70, equally explained this civil proof as the conviction that evidence of certain facts carries in the mind of the judge or jury. It is not pre – ordained and has

no objective existence, capable of discovery either by logic or analysis. What suffices in each case vary depending on the nature of the case and the person to whom the evidence is addressed. It should be noted that this same standard burden of proof is borne by a defendant who makes a counterclaim against the plaintiff in a cross – action as in the present case. Thus, the parties herein are required by law to prove their respective claims on the balance of probabilities within the meaning explained above. It should be noted that, first plaintiff after personally initiating this action, gave a power of attorney to one Collins Appiah to prosecute same on her behalf which he did together with second plaintiff (P2). At the trial of this case, first plaintiff’s attorney did not testify on her behalf but called a witness to do so. P2 testified on his own behalf and called no witness, and so did the defendant. At the end of the trial the following facts became undisputed as between the parties; 1. That the farmland, the subject matter of this dispute is a 5 – acre cocoa farm. The testimonies of all the parties clearly, state so in their respective witness statements.

2. That the said farmland was granted to defendant by his land owner, Opanin Mireku, now deceased.

3. Defendant’s landowner died around 2013.

4. That the farmland again, was an uncultivated land granted to defendant by his late landlord.

5. That defendant single – handedly cultivated same into the 5 – acre cocoa farm by his own strength and bore all other associated costs.

6. That defendant was therefore to use the proceeds from the farm for the first six (6) years to defray his expenses and thereafter, a sharing between him and his land owner in accordance with their terms of agreement.

7. That apart from the defendant, all the other witnesses to the exact agricultural tenancy agreement between defendant and his landlord are deceased.

8. That defendant does not claim ownership of the 5 – acre farmland, neither does he challenge the limits of the land in question as described by the plaintiffs in their statement of claim. The above facts apart, the issues to be determined by the court are; 1. Whether or not defendant has been in possession of the land for nineteen years without rendering accounts to anyone.

2. Whether or not the 5 – acre farmland granted defendant by his landlord is part of the Aduana family land.

3. Whether or not defendant’s counterclaim is maintainable against the plaintiffs. Now, to the first issue of how long defendant has been in possession of the land without rendering accounts to plaintiffs’ family. Plaintiffs in paragraph 7 of their statement of claim pleaded that defendant has been on the disputed land over 18 years, while defendant denied same and pleaded his duration on the land as, about 16 years. Plaintiffs’ witness (PW1), testified that defendant has been in possession of the land for 19 years without accounting on his work to anyone. Thus, the land was granted to defendant by his land owner in 2004. In fact, plaintiff’s attorney in cross – examination of the defendant suggested this very date to him but defendant disagreed, and stated 2008 as the year of the said grant. This is all that was said by PW1 by way of evidence in establishing the duration of defendant’s possession of the disputed land. The evidence of the second plaintiff (P2), however, states two different periods. It is noteworthy that P2 introduced himself as the biological son of defendant’s land owner. Though he was not privy to the tenancy agreement, between his deceased father and the defendant, he testified that his father subsequent to the said agreement, informed him about it. Hence, in paragraph 3 of his witness statement, he states definitely that the grant was made by his father

about 18 years ago. He however, confuses his story when he testifies further in paragraph 9 of the same statement that, to the best of his knowledge and from the family, defendant has been on the family land for 19 years. The question then is, which of these two different years does P2 want the court to believe? The difference of a year may seem infinitesimal but relevant to this case in view of the accepted terms by the parties that, defendant was to cultivate and maintain the cocoa farm for the first six years for the sharing to be done thereafter. It is the defendant’s story to the contrary that, his land owner granted him the land in 2008 and that was when the whole agreement was made. No specific day and month were stated by him and he testified that he has been on the land for about 16 years now. Upon the demise of his land owner also, he has been rendering accounts to his daughter, Dora. He was sharing both foodstuffs and the proceeds from the sale with her before she travelled outside the jurisdiction. On her return to the jurisdiction in 2022 they agreed that her father’s equal share of the proceeds should be given to her. He therefore has her share of GHC 2,000.00, out of the GHC 4,000.00, realized in that year, still with him to be given to her on her next visit. According to plaintiffs however, the said Dora has denied any such meeting and the agreement therefrom

with the defendant. Defendant tendered exhibit 1, a copy of the Ghana Cocoa Board, Cocoa Farmers’ Passbook was in support of his case. Per exhibit 1, though the year of issuance is not stated, the date of the first sale is, 22/10/12. Thus, as at 2012, defendant had started harvesting the cocoa. The weight of cocoa beans sold on that date is also stated as 60 kg. With the farm being at Akyem Asafo, with the less likelihood of the harvested cocoa being smuggled outside the jurisdiction, the above facts appear to accord with matters of common notoriety, in the cocoa farming industry. This is because, the facts above indicate that the first sale of the cocoa beans took place in October, 2012, about four years from 2008, the year of cultivation of the farm, per defendant’s evidence. For a 5 – acre cocoa farm, the quantity per the facts is more probable than the 8 years plaintiffs’ evidence seem to suggest in the light of exhibit 1. On the issue of accounts however, this court is convinced that defendant has indeed not rendered any accounts of his stewardship to either his landowner during his lifetime or any of his relations upon his demise after the 6 years, agreed by the parties. How could defendant leave P2 who is equally his landowner’s son and resident in the jurisdiction, to deal with his sister who is not available as a witness to verify his story? Besides, per defendant’s

own testimony, the said Dora called him from overseas and instructed him to share the proceeds henceforth, with her siblings in Ghana which definitely includes P2, but he has blatantly refused to do so. Again, it is the unchallenged evidence of P2 that when his father fell ill midway into the agreement, defendant had not rendered any accounts to him as at that time. He was asked by his father to demand from defendant, the family’s portion of the proceeds realized from the harvested cocoa then, but defendant instead of the money brought to his father, a sack of foodstuffs. This court believes P2’S story because, the parties in the course of the trial, agreed that plaintiffs’ claim for interlocutory injunction be waived to avoid the cocoa farm being left uncared for. Consequently, the court ordered that defendant together with plaintiffs’ attorney, should harvest the ripe cocoa sell same for transparency, but defendant ignored the said order and did everything alone. So, defendant by his own showing has demonstrated that, he has never been, nor is willing to go into accounts with his deceased landowner’s relations. This is the impression created by the conduct of the defendant in this trial, despite his first 6 years ‘accounts free’, period. On the available evidence therefore, it is my finding that defendant has been in possession of the disputed land for about fifteen (15)

years now, without rendering any account whatsoever to anybody. I now turn my attention to the issue of whether or not the 5 – acre farmland granted to defendant forms part of the Aduana family land. Plaintiffs herein are claiming declaration of title to and recovery of possession of a 7 – acre family land. In the case of Abbey and Others V Antwi [2010] SCGLR, 17, the court held that: “In an action for a declaration of title to land, the plaintiff must prove, on the preponderance of probabilities, acquisition either by purchase, or traditional evidence, or clear and positive acts of unchallenged and sustained possession, or substantial user of the disputed land…” Relating this to the case under consideration, plaintiffs in the instant case must establish these relevant factors, to succeed in their claim. As earlier observed in this judgment also, in spite of plaintiffs’ claim, the undisputed evidence of P2 and PW1 confirm that of the defendant to the extent that, the size of the farmland in contention is 5, but not seven acres. Again, all the parties accept that the 5 – acre farmland was granted to defendant to cultivate same into the cocoa farm, not by any of the plaintiffs herein but the late Opanin Mireku. It is further accepted by all parties that, the late Opanin Mireku made the said grant not in his capacity as a family head of the plaintiffs’ family at the time.

Actually, plaintiffs averred in paragraph 3 of their pleadings that the family land was divided into two parts, one for defendant’s landowner, a member of the Aduana family for the cocoa cultivation for the family’s benefit. According to the evidence of P2, the land so granted to the defendant is a family land. This evidence was simply repeated by PW1 without any further clarifications or details on how the family came by the said land. And since, Opanin Mireku did not also place defendant in possession of the said land in his capacity as the then family head, there is no evidence of any clear and positive acts of unchallenged and sustained possession, or substantial user of the disputed land by the plaintiffs’ family. Plaintiffs’ evidence for this reason, remain a mere recitation on oath without more, of their averment of the family character of the disputed land, Majolagbe V Larbi [1959] GLR, 190, applied. It is defendant’s case however that, his deceased landlord gave him his personal farmland he had inherited from his mother, which is the 5 – acre land to farm on same. He was initially extending the farm beyond the 5 acres but first plaintiff herein stopped him on the reason that, the said extension was not part of his landowner’s land. The only landlord he has and has known in respect of the disputed land, is the late Opanain Mireku, hence his decision to deal with

his surviving child, Dora upon his demise. He reported first plaintiff’s conduct to his landlord who then asked him to cultivate the five acres and no more. This is what defendant said in cross – examination by first plaintiff’s attorney; Q. When Opanin Mireku gave you the land and you started farming same, I came to warn you that you were trespassing into first plaintiff’s land but you said it was only Opanin Mireku you acknowledged as your landowner, is that not so? A. That is not true. Q. I suggest to you that, after working on the land from 2004 till date, you have not rendered accounts to anyone not even Dora as you allege because I called her for a confirmation and she denied any such accounts. A. I don’t know you nor the first plaintiff in respect of the disputed cocoa farm, because when Mr. Mireku gave me the land and I started weeding same, first plaintiff came to warn me that, I had exceeded the land of Mr. Mireku so I should stop which I did by limiting the farming to the 5 acres. I however reported the matter to Mr. Mireku and he had asked me keep to the 5 acres. Mr. Mireku then explained the situation to me that, though the land was initially a general family land, it has now been shared among the individual family members according to how far each person’s mother by her independent efforts and her own individual means, could farm. Each member now farms along; “ne

Maame sekan ano”, to use the exact Twi expression used by defendant in his testimony. What this means is that, each member now farms the portion hitherto owned by their respective mothers who so reduced same to their self-acquired properties, through their own individual efforts. According to defendant again, his landowner then advised that he sticks to only his mother’s portion which is the 5 acres he had already weeded. Plaintiff subsequently gave the said portion he was extending the farm to, to another person who has since cultivated same into a cocoa farm for her. It is interesting to hear the attorney questions the defendant further, not in challenge of his answer but in confirmation of same. This is what transpired; Q. Where you said first plaintiff, Hannah Boatemaa gave to another person to farm does not belong to her but to another family member who asked her to work on it for him, I suggest that to you. A. I know nothing about that. From the above, it is obviously, true that, the otherwise family land has been shared as defendant is saying. P2’S evidence in cross – examination equally supports defendant’s evidence of the land being the bona fide property of his landlord, contrary to his own evidence – in – chief and that of PW1. This is what P2 said; Q. What specific land did your father inform you that he has given to me to farm? A. My father informed me that, it was

his mother’s land which has been given to him that he was giving to you to farm. These were his exact words but I don’t remember the year he said this to me. However, when my father asked me to come for his share of the produce from the you, it was around, 2011 /2012. Per P2’S evidence above, the farmland given to defendant by his landlord was the latter’s bona fide property he inherited from his mother, just as defendant testified. The law is settled that, where the evidence of one party on an issue is corroborated by the evidence of the opponent or the opponent’s witness, whiles that of the opponent on the same issue stands uncorroborated, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some reason, patent on the face of the record, the court finds the corroborated one incredible or impossible, Asante V Bogyabi [1966] GLR 418, SC , reiterated by the Supreme Court in; FKA Company Ltd. V Effah Sarkodie [2009] 7 G. M. J. 185 @ 190, referred. Since defendant’s case is accordingly corroborated by P2, with no recorded reason to the contrary, this court also accepts defendant’s version of the facts on this issue, and holds that the farmland given to defendant does not form part of plaintiffs’ family land. It is pertinent to state here also that, first plaintiff’s assertion that defendant extended his farming activities beyond

the land of Opanin Mireku remains bare facts in her pleadings, since there is not an iota of evidence proffered by her witnesses in proof of same. Now to the final issue of whether defendant can maintain his counterclaim against plaintiffs herein. Defendant per his counterclaim is asking for a strict adherence by the parties to his original agreement with P2’S father or be compensated in the sum of GHC 150,000.00, in lieu of same. An interesting request indeed. After defendant has failed to account to his landlord’s children does it even lie in his mouth to ask for compensation? Anyway, since it has been held in this judgment that, the 5 - acre farmland is not a family land, first plaintiff as a family head, lacks the needed capacity to mount the present action against the defendant herein. P2 as the undisputed son of defendant’s late land owner and a beneficiary with an immediate interest in same, has the capacity to sue and be sued on behalf of his deceased father’s estate including the disputed land, in which the proceeds therefrom are obviously being dissipated by the defendant in this case. I say so irrespective of the fact that, P2 has not exhibited any letters of administration respecting his deceased father’s estate. The Supreme Court in the case of, Boya V Mohammed (substituted by) Mohammed and Mujeeb [2017- 2020] 1 SCGLR 997, held that, the beneficiaries of the estate

and defendants in that matter had immediate interest in the property, the subject matter of the dispute and for that matter had capacity to defend and even sue for declaration of title, notwithstanding the fact that they had not obtained any letters of administration. This decision was subsequently concurred by the same court in the case of Bandoh V Apeagyei – Gyamfi and Another [2018 – 2019] 1 GLR 299, with a further clarification that, the above proposition of law is only fair and equitable in view of the interest created in the estate of beneficiary children, under the Intestate Succession Act, PNDC Law 111. On these authorities therefore, P2, can so sue for the reliefs endorsed on his writ of summons, as such, defendant’s counterclaim is equally maintainable against only him. The question however, is whether on the merits of this case, the said counterclaim should succeed? The unchallenged agreed term between defendant and his deceased land owner, was that he should farm the disputed land for 6 years and use the proceeds therefrom to offset, his cultivation cost. In actual fact, this has been the story of all the parties from the very inception of this case. There was no variation anywhere that the six years should start counting after the cultivation of the farm. The court will therefore not make any such consideration. Having already held in this judgment that the land

was granted to the defendant with the said term of agreement in 2008, defendant’s 6 years expired in 2014. Hence, from 2015, defendant was to account to the children of his deceased land owner, since per his evidence, the said land owner died in 2013. They were to have gone into accounts for either the abunu or abusa sharing of the proceeds from the farm or the land itself as it would be agreed by them. I say so because, beyond the agreed term of the first 6 years, parties disagree on the other terms of the original agreement. While P2 maintains an abusa sharing of the proceeds from the sale of the harvest as what his father informed him about, defendant maintains an abunu sharing of the farm, that is the land itself. Defendant however failed to account to any of the beneficial children of the cocoa farm. His alleged accounts to Dora, is unsubstantiated as he failed to call her evidence in support of his allegation in the face of paintiffs’ vehement denial of same. Per exhibit 1 series also, the highest amount received from 2015 to February, 2023, is GHC 4, 414.80, dated, 14/08/16, with the lowest being, GHC 190.00, for 09/08/15. With these accounts, it will be unfair to grant defendant the GHC 150,000.00, compensation he is asking for in lieu of the sharing agreement. In the given circumstances, the only considered opinion of the court, reasonable enough to serve the justice

of this case, is to grant P2 and his siblings the same length of time, defendant has so enjoyed the proceeds from the farm to their exclusion, and thereafter, a renegotiation for new terms of agreements between defendant and his new land owners. After all, per his own evidence, the sharing was to be on equal terms. Having solely enjoyed for the past nine years therefore, P2 is equally entitled to same. In sum, I enter judgment in this for the second plaintiff in accordance with the relief one endorsed on his writ of summons in respect of the 5 acre cocoa farm agreed by the parties. Second plaintiff is to so enjoy the proceeds from the afore stated farm for nine (9) years to the exclusion of the defendant, effective, December 1st, 2023. The second plaintiff after the said period should renegotiate with the defendant, any sharing arrangement thereto. The claim for interlocutory injunction is struck out, same having been waived by plaintiffs in the course of the trial. Let the amount of GHC 1,200.00 from the sale of cocoa deposited in this court by the defendant be released to second plaintiff accordingly. The case of first plaintiff is however dismissed for want of capacity. Defendant’s counterclaim, fails accordingly. Costs of GHC 10, 000.00, for second plaintiff and against the defendant. IN THE DISTRICT COURT KIBI, EASTERN REGION, HELD ON TUESDAY 14TH NOVEMBER, 2023, BEFORE HER WORSHIP MRS. JULIET OSEI – DUEDU SITTING

AS A MAGISTRATE SUIT NUMBER: B7/10/23

THE REPUBLIC

VRS

GEORGE DANKWA

JUDGMENT On the 2nd February, 2023, prosecution in this case, alleging that accused person has stolen complainant’s harvested cocoa, worth GHC 400.00, arraigned accused before this court with the offence of stealing, leveled against him. Accused person was duly charged as follows; “Stealing Contrary to section 124 (1) of the Criminal Offences Act 1960 (Act 29.)” Accused person pleaded not guilty to the sole count of stealing after it was read and explained to him in the Twi Language. Once accused pleads as such, prosecution assumes the burden of proving the charge against accused person in accordance with sections 17 and 15 of the Evidence Act 1975 (NRCD 323.) The proof required of the prosecution in a criminal charge is also, proof beyond reasonable doubt. This is the highest standard of proof required under the 1992 Constitution and other statutes which regulate criminal trials in the country, article 19 (2) (c) and section 11 (2) of the Evidence Act, referred. Proof beyond reasonable doubt has also been explained by the superior courts to mean, that proof which makes the jury or trier of facts almost certain of the conviction of the accused. And in the celebrated English criminal case of Miller V Minister of Pensions [1947] 2 ALLER, 372 @ 373, Denning J as he then was explained the expression, “proof beyond reasonable doubt” as follows: “If the evidence is so strong against

a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt.” While proof beyond reasonable doubt is the burden that lies on the prosecution, the accused is only required to raise reasonable doubt as to his guilt, Commissioner of Police V Antwi [1961] GLR 408 SC, applied. Thus, whenever the accused is required by law to make a defence, sections 11(3) and 13 (2) of the Evidence Act, requires him to only raise a reasonable doubt as to his guilt. Again, it is the statute defining the offence preferred against an accused, which provides the elements of that offence, the prosecution must prove to the required standard. For the offence of stealing therefore, section 125 of Act 29 provides the essential ingredients as follows; 1. Appropriation of a thing, 2. Which appropriation was dishonest, 3. The thing belonged to another person. These elements of stealing were again discussed in the case of Lucien V The Republic [1977] 1 GLR 351, thus, the person who has been charged with the offence of stealing was not the owner of the thing stolen; the accused person must have appropriated the thing; and that the appropriation must be dishonest. See also the case of, Osei Kwadwo II V The Republic [2007 – 2008] SCGLR 1148. For the prosecution to succeed in

the instant therefore, it must prove all the three settled ingredients of stealing to the required standard stated above. With this standard of proof in mind, the question I ask is whether the prosecution has been able to successfully discharge the burden it assumed under the law. What evidence has been proffered by prosecution in establishing its case against accused? The prosecution called four witnesses in all, in so proving its case, the complainant, his labourer, his wife and the investigator in the case, as (PW1, PW2, PW3 and PW4) respectively. According to the testimony of PW1, he shares a common boundary with accused as cocoa farmers in a place called Bonkame at Bososo village. On the 19th December, 2022, whiles both farmers were harvesting their cocoa, there was a misunderstanding between them when accused entered his farm and harvested some of his cocoa but he allowed accused to take the harvested cocoa away. On the 20th of December, 2022, that is the next day after that incident, he hired labourers to gather the harvested cocoa from the previous day’s work. He then went to the far end of his farm and saw accused person with a sack loaded with some of his harvested cocoa from his (complainant’s) farm. Accused was carrying the sack of cocoa gathered at three different places in complainant’s farm worth, GHC 400.00, into his farm. According to complainant, he called

accused by his nickname, ‘Mataye’ and questioned him on his nefarious activities but he ignored him. He called two of his workers, Rubben Tetteh and Atsu Agbanyo to witness the incident which they did together with his wife he went to the farm with. Complainant maintained in cross – examination that upon seeing accused person with the alleged stolen cocoa, he raised an alarm by calling him a thief. It is notable that, PW2 and PW3 are; one of the workers named by PW1 and his wife he testified that they witnessed the theft on the day of the incident. Per PW2’S testimony, he was indeed hired by complainant together with Atsu and others on the day of the incident to gather and collect the harvested cocoa, as testified by complainant. According to PW2 however, accused started collecting the harvested cocoa with them before complainant recognized him and raised the alarm. Until then, the two labourers took one lane whilst accused took another in the collection of the cocoa in complainant’s farm. According to PW2 they initially thought accused was also a hired hand like them so they did not challenge his activities. When the alarm was raised by complainant, they ran to the scene of the crime and saw accused with the loaded cocoa leaving complainant’s farm to his. It was then that complainant informed them that he did not hire the services of accused person. The evidence of PW3

complainant’s wife seems to support that of her husband and PW2 materially on the fact that, accused was seen leaving complainant’s farm with the stolen cocoa. PW3 also testified that, on the previous day, her husband and accused quarreled over the rightful owner of the cocoa trees on their common boundary and accused harvested same. PW4’S evidence was just a repetition of what all the witnesses in the case had told him since he did not witness the alleged theft neither did his investigation reveal any other fact. He tendered in evidence, accused’s investigation cautioned statement, charge statement, photographs of the crime scene, and some empty cocoa pods as exhibits A to D respectively. Accused person’s defence is a total denial of the alleged offence. According to accused, no incident of the nature described by complainant and his alleged witnesses happened on the 20th December, 2022. The only incident which happened between him and the complainant was their dispute over who owns the cocoa at their common boundary which occurred on the 19th December, 2022. In fact, this evidence was duly supported by accused’s two children and his witnesses in this matter, who were with him on the day of the said dispute. According to accused and his witnesses also, the calling of accused as a thief by the complainant happened on the very day of the said dispute or confrontation and no

other day. The above narration, is thus a summary of prosecution’s case against accused person and his defence in respect of same. And after a careful consideration of the above evidence, a common theme which runs through it, that of the PW3 inclusive, is the 19th December, dispute between accused person and the complainant over the cocoa trees on their common boundary. PW2 admits that accused harvested the said cocoa amidst protest from the complainant. The most important question therefore is whether, beyond this dispute, accused person actually went into complainant’s farm on the 20th December, and stole his harvested cocoa, worth, GHC 400.00. It is trite learning that, when accused person pleads not guilty to an offence charged against him, everything about the commission of the said offence is in issue including even the identity of the accused person. Accused person herein per his evidence in denial challenges the occurrence of the very offence he is charged with. Though all four prosecution witnesses insist on the commission of the offence on the 20th December, 2022, there seems to be some disparities in their various accounts on how the offence took place. Per PW1’S account, on the day of the alleged incident, he went to the farm and saw the workers gathering the harvested cocoa. He continued to the far end of the farm and that was where he saw that accused has

collected his gathered cocoa in a fertilizer sack and was heading towards his, (accused’s) farm. The cocoa was gathered at three different places. The question is, did complainant stand by quietly and watched accused collect the cocoa from all the three places before raising the alarm? Or, had he prior to the alleged theft identified those three groups and so could be so certain of the number and its associated value? If so, what about the numerous groups of gathered cocoa accused is alleged to have collected per PW2’S evidence before he was identified by complainant? Per the same evidence, again, upon seeing accused PW1 called the two workers to witness what has happened and he questioned accused person on same in their presence but the latter ignored him. His wife Mary also came. This evidence is at variance with that of PW2, Reuben Tetteh, one of the two workers complainant allegedly called to witness the theft and his wife as well. According to PW2, he had gone to the farm with his other colleague earlier, that day. Whilst the two of them gathered the harvested pods in one lane, accused also did same in another lane. They therefore thought he was also hired by the complainant. It was when complainant came to the farm later, and saw accused that he raised the alarm, and the two workers and complainant’s wife ran to the scene. What is surprising about this testimony is that,

PW2 and his colleague had seen accused gather and or collect the cocoa in complainant’s farm long before complainant allegedly came and raised the alarm, yet they never informed complainant about that. The normal reaction of any person in PW2’S position would have been to talk about accused’s conduct before he was caught. Is it not also strange that, all four persons stood by even after complainant had raised the alarm and watched accused carry the alleged stolen cocoa away. Are all these people, three strong young men and a woman who claim to have seen accused carry the stolen cocoa to his farm, saying that, they could not confront accused to retrieve the stolen items from him? If they so watched accused, how then did complainant arrived at the value of GHC 400.00? Could it be that they did no such thing because there was in actual fact, no such offence committed by accused on the day in question? Similarly, the evidence of PW3 complainant’s wife suggests that she did not get to know of the alleged theft through the alarm but that, she saw accused in the act. Paragraph 11 of her witness statement states as follows, “Later, when I and complainant went, to the farm, I saw accused person in complainant’s farm gathered his cocoa into fertilizer sack heading to his farm.” This is what PW3 however, said in cross – examination; Q. Where were you on the 20th December 2022, when you

saw me collecting your cocoa? A. Where we were harvesting the cocoa at the farm. Q. When complainant called you that I was stealing his cocoa and you came what did you do? A. Nothing, I didn’t do anything. Q. The people you claim complainant called to the place what did they also do? A. Nothing, we went to report the matter at the police station. So, what exactly is PW3’S story? Did she see accused steal the cocoa by herself or she was called by her husband to witness the alleged crime? This again, runs contrary to the evidence of her husband who claims that it was his alarm which brought her to the scene. Insightful further, is PW3’S answers to some questions asked by accused person during her cross – exanimation, stated below; Q. On the 19/12/22, you and I who got to the farm first? A. I cannot tell. Q. When I challenged your husband on harvesting the cocoa at the boundary, what Did he say? A. He said, “Mataye if you harvest the cocoa, I will arrest you. Q. After that dispute and you left, did we meet each other again? A. Yes, we me you on the way and my husband said he would arrest you and you said if he was a man, he should come closer. Could it not be that, accused person is being so blamed not for any other offence but the dispute over the common boundary and his prevention of complainant from harvesting the cocoa in that area? It has been accused person’s consistent song

all along that complainant had shifted the common boundary by cutting down the Ntomme planted thereto to demarcate same. He therefore prevented complainant from harvesting the cocoa in that area because he planted same before complainant moved the boundary from its rightful place. This has been accused’s case from the very day he was arrested, unflinchingly. These facts were clearly stated in exhibit A, accused’s investigation cautioned statement to the police dated, 28/12/22, the day of his arrest and were never changed in his evidence before the court on 13/09/ 23 about ten months on. This is what PW4 equally, said in cross – examination on accused’s story and its consistent nature. Q. On the 28/ 12/22, the day of my arrest when you took me to the farm do you remember that, I showed you the boundary area where the dispute occurred and the Ntomme used for the demarcation cut down by the complainant? A. Yes, I remember and also saw the said tree cut down but I don’t know who cou it. Q. Do you remember I told you complainant cut the tree? A. Yes, I do but complainant denied cutting the tree. Q. Did you inquire from me where the alleged stolen cocoa was? A. Yes, I did. Q. And what was my response? A. Your response was as per your investigation cautioned statement, nothing happened on the 20/12/22. It was on the 19/ 12/ 22, that a dispute arose between the two of you over the

cocoa at your common boundary area, but on the 20/12/22, nothing happened. And that you have not stolen any cocoa belonging to the complainant. Understandably, a congruous denial by defendant, through and through. It is pertinent to state here that, none of the prosecution witnesses stated the confrontation on the 19th December, in their witness statement. They had to be questioned on it by accused to admit to same. Complainant even referred to the said confrontation which his wife has clearly admitted to above, differently. Per his witness statement, complainant avers that the 19th December, misunderstanding occurred because accused entered his farm and harvested his cocoa, but he allowed him to carry same away. This is nothing but a twisted version of events on the 19th December. This version is equally at variance with the evidence of complainant’s wife under cross – examination, which evidence supports accused’s story on that day, completely. If complainant can so lie about the events of that day, what is the guarantee that, he could not do same on the 20th December, and coach his alleged witnesses to follow suit? Hence, whereas, accused has undeniably, been consistent in his defence of denial, same cannot be said of prosecution’s story. The presence in the prosecution’s case of the unclarified facts, essential to the commission of the preferred offence against accused

person, puts same not beyond reasonable doubt. This court on the basis of all the above stated reasons, is of the view that, accused has not been proved to have done what prosecution set out to establish in the charge. It is therefore unsafe to convict accused person. The old English case of Hobson (1823) 1 Lew CC 216 held that, “It is a maxim of English law that ten guilty men should escape rather than one innocent man should suffer.” In fact, this is the rationale or philosophy behind the highest standard of proof required under the Constitution, 1992. It thus, follows without more that, any doubt in prosecution’s case should inure to accused’s benefit. On the available evidence therefore, this court finds it doubtful that accused committed the offence charged on the alleged date, at all. Consequently, I hereby pronounce accused person not guilty of the offence, leveled against him. He is accordingly acquitted and discharged.