Ampomsah and Another v Tetteh and Another (A1/09/2023) [2025] GHADC 88 (27 February 2025)

IN THE DISTRICT COURT HELD AT NEW TAFO-AKIM ON THURSDAY 27-02- 2025 BEFORE HER WORSHIP JOSEPHINE SARFO (MRS.) SUIT NO: A1/09/2023 ABUSUAPANIN KWAKU AMPOMSAH SUING FOR HIMSELF AND ON BEHALF OF ALL MEMBERS OF THE NYARKOA FAMILY OF NEW TAFO-AKIM PLAINTIFF VRS 1. SAMUEL TETTEH 2. OPANYIN AMOAH ODURO DEFENDANTS PLAINTIFF ABSENT REP BY NANCY SARFOA 1ST DEFENDANT-PRESENT 2ND DEFENDANT LAWFUL ATTORNEY-PRESENT JUDGMENT The Plaintiff in its writ seeks the following reliefs: a. An order of the court at the Defendant to yield vacant possession of the Nyarkoa family land titled D)menemu, situate at Bompobiriso on the Maase road and sharing boundaries with Nana Yaw Okyere, Obaapanin Ama Serwaa, Opanin Kofi Badu and Opanin Yaw Offin. b. Defendant be ordered to render account on the palm trees and cocoa plantation he has harvested since 2015. c. Recovery of possession of the said land. d. Perpetual injunction restraining defendant, his assigns, privies, agents, successors from having anything to do with the Nyarkoa family land. e. Cost of litigation and any order(s) the honourable court may deem fit. The Plaintiff brings this suit for himself and on behalf of the Nyarkoa family of New Tafo-Akim. He avers per the statement of claim that the 1st Defendant was appointed as caretaker of the land in dispute by the Nyarkoa family to cultivate palm trees and cocoa however, since 2015, 1st defendant has failed and refused to render any accounts whatsoever to the family and has also prevented them from visiting the farm. The Plaintiff avers that the family summoned 1st defendant at the Old Tafo stool and the panel ruled against him and ordered him to render accounts to the Nyarkoa family and further ordered the 1st Defendant to pay an amount of GHC 2,300.00 as compensation to the family. The 1st Defendant in his statement of defence denied the claim of the Plaintiff. He avers that he was not appointed as caretaker by the Plaintiff of the farm in dispute in 2015 as alleged by the plaintiff. According to the 1st defendant, the late Yaw Ofori Asiedu was appointed as caretaker of the farm by Opanin Ofosu Appiah, who is the actual owner of the farm. In 1979, the said Yaw Ofori Asiedu also appointed 1st Defendant’s mother, Dede Comfort as caretaker of the farm in dispute. That he assisted his mother to cultivate the farm till the mother passed away in 2020 after which he took over as caretaker till date. 1st Defendant avers that his mother was instructed by Opanin Ofori Asiedu to render accounts on the farm to the wife of Opanin Ofosu Appiah by name Obaapanin Janet Ofosu Appiah which she did till her death in 1998. From the year 1998, the mother rendered accounts to Madam Margaret Ofosu Appiah, Grace William Baffoe and Mercy Oduro who are all children of Obaapanin Janet Ofosu Appiah successively. That upon the death of Margaret Ofosu Appiah, he begun rendering accounts to Grace William Baffoe until she also passed on in 2008 when he begun rendering accounts to Mercy Oduro till she also passed on in 2020. 1st Defendant avers that Opanin Ofori Asiedu was a nephew to Opanin Ofosu Appiah. That he prevented the Plaintiff and his family from having access to the farm in dispute because they are strangers to him. That the Tafo Stool demanded an amount of GHC 2,400.00 from him on the basis that he had wasted their time when he requested for the attendance of the actual owners of the land subsequent to the summons of the Plaintiff. According to 1st Defendant he was not ordered by the Stool to pay any form of compensation to the Plaintiff. 1st Defendant counterclaimed as follows: a. Declaration that the land in dispute is Ofosu Appiah’s family property. b. Cost of litigation and any order as the honourable court deem fit. The 2nd defendant who was joined to this suit per an application granted by this Court on 04/05/23, avers that it was not the Plaintiff who appointed 1st Defendant as caretaker of the farm in dispute and never has 1st Defendant rendered accounts to the Nyarkoa family. 2nd Defendant avers that 1st defendant and his family have been on the land in dispute since 1979 and have been rendering accounts to 2nd Defendant and his siblings. That one Nancy Okyere and Kwabena Asiedu colluded and summoned the 1st defendant before the Tafo Stool knowing very well that 1st defendant is just the caretaker and that the Plaintiff and the aforementioned persons are taking advantage of the absence of the Ofosu Appiah’s from Tafo to claim title to the farm in dispute. 2nd Defendant states that the Plaintiff has been warned and told severally that the land in dispute is not the property of the Nyarkoa family. The 2nd defendant therefore counterclaims against the Plaintiff as follows: a. Declaration of title of land situate, lying and being at Odomonom near Old Tafo-Akim with approximate area of 24.65 acres and bounded by Yaa Korkor’s property, Opanin Yaw Kyere’s property, Opanin Akosah’s property, Papa Gyinaye’s property, Madam Janet Addobea Ofosu Appiah’s property, Kwaku Bredu’s property, Banahene’s property and Grace Yeboah’s property. b. Recovery of possession of the said land. c. Perpetual injunction restraining Plaintiff, their agents, their assigns, their privies and anybody claiming through him from interfering with the said land. At the close of the pleadings, the issues which came up for determination by the Court were: 1. Whether or not the land in dispute belongs to the Plaintiff Nyarkoa family or the 2nd Defendant, Ofosu Appiah family. 2. Whether or not the 1st Defendant should be ordered to give account of his stewardship from 2015 till date to the Plaintiff, Nyarkoa family? 3. Whether or not 1st Defendant should be evicted from the land in dispute? ANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW As there is a claim and a counter claim both parties have obligations to prove their claims and counter claims on the balance of probabilities. The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is instructive in this regard that: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” In respect of the defendants’ counter claim it is to be viewed with the same scale of measurement as if they were the plaintiff. As far back as the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that: “a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”. Dotse JSC came to the same conclusion on counter claim actions in the case of JASS CO. LTD v APPAU [2009] SCGLR 269 at 271 that: ‘whenever, a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’ The Plaintiff testified through his lawful attorney Kwabena Asiedu. He stated that he is the head of the Nyarkoa family and the immediate uncle of the late Opanin Ofosu Appiah. That the land in dispute was originally acquired by his grandmother, Ama Nyarkoa. Ama Nyarkoa gave birth to four children, namely, Kofi Oduro, Yaw Asiedu, Ofosu Appiah and Abena Gyamfua. Upon the death of Ama Nyarkoa in 1954, Kofi Oduro, her son, succeeded her. Kofi Oduro died in 1963 and was succeeded by Ofosu Appiah who took care of the land in dispute from 1963 to 1980 when he also passed on. Abena Gyamfua succeeded him and took care of the family land from 1980 to 1988. From 1988 to 2013, Abena Nyarkoa aka Maafio who succeeded her mother, Abena Gyamfua, also took care of the land. Yaa Akyea succeeded Abena Nyarko and from 2013 to 2018, was in charge of the family land. Nancy Okyere was appointed as her successor upon her demise in 2018 and she has been in charge of the family land since. The Plaintiff stated that in 2013, during the tenure of Yaa Akyea as custodian of the family land, the two daughters of Ofosu Appiah, ie. Grace Baffoe Appiah and Mercy Oduro Appiah approached Plaintiff and Yaa Akyea and requested for a portion of the family land for farming. The family agreed and a surveyor, Kwadwo Buabeng, was employed to assign a portion of the family land to the two daughters at the expense of Yaa Akyea. Kofi Nimo, Kwaku Boateng, Samuel Tetteh, the care taker of the land, and Opanin Okyere were witnesses to this transaction. Yaa Akyea also used her own resources to renovate the three rooms cottage situate on the land in dispute. That when 1st Defendant was summoned by the family before the Tafo Stool, the Stool made it clear to him that the land belonged to the Nyarkoa family and thus he could not prevent them from having access to the land or its proceeds. That 1st defendant was only a caretaker of the land in dispute and due to his insubordination in denying the family proceeds and access to the farmland the family is evicting him and recovering the land in dispute from him. PW-1, Opanin Kwaku Boateng, testified that in 2013 when the two daughters of Opanin Ofosu Appiah approached the Nyarkoa family and requested for a portion of the family land for farming, he was invited by the Plaintiff and Obaapanin Yaa Akyea to represent the family and act as a witness. he was present when the surveyor, Opanin Kwame Buabeng assigned a piece of the land to the two daughters. Kwadwo Boateng alias Koo Nimo, 1st Defendant and Mr. Okyere were all present. PW-2, Kwame Buabeng, testified that he was called upon by the Plaintiff and Obaapanin Yaa Akyea to go and apportion a portion of the land in dispute as a surveyor to the two daughters of Opanin Ofosu Appiah. Kwadwo Boateng alias Koo Nimo, 1st Defendant, PW-1 and Mr. Okyere were also present. The evidence of the 1st Defendant can be surmarised as follows: that the land in dispute belongs to Opanin Ofosu Appiah who appointed his nephew, Ofori Asiedu, as his caretaker. In the year 1979, Ofori Asiedu appointed the 1st Defendant’s mother, Dede Comfort, as caretaker on the land. He assisted his mother to cultivate the land until 2015 when he took over completely from his mother due to old age. That they have been rendering accounts to the Ofosu Appiahs starting from the wife, Janet Ofosu Appiah then successively to his three daughters, Margaret Ofosu Appiah, Grace William Baffoe and Mercy Oduro who passed on in 2020. 1st Defendant stated that he has been rendering accounts to the grandchildren of Ofosu Appiah without any interference from any of their family members and never sighted the Plaintiff on the land until recently when one Grace Okyere came to introduce herself to him as a family member and owner of the land. That when the said Grace Okyere summoned him at the Tafo Stool, he made the panel aware that he was only a caretaker and requested that the owners be invited as well. The 2nd Defendant gave evidence through his lawful attorney, Eugene Ofosu Appiah. He stated that his grandfather, Eugene Ofosu Appiah, originally acquired the land in dispute and in his lifetime cultivated the land together with his wife and children. One Azaglo was appointed as caretaker of the farm. His grandfather, Eugene Ofosu Appiah, became sick and was cared for by his nephew, Ofori Asiedu. After his recovery, he took the farm from Azaglo and handed it over to Ofori Asiedu to act as caretaker. Upon the death of Ofosu Appiah, Ofori Asiedu handed over the farm to Janet Ofosu Appiah, the wife of Ofosu Appiah, and his children. Warning letters were issued to the Plaintiff and his nephew when they once made attempts to trespass unto the land in dispute. A copy of the letter was tendered as Exhibit 2. That Janet Ofosu Appiah also owns a land which shares boundaries with the land in dispute and one Helena is the caretaker of the said farm. Upon the death of Janet Ofosu Appiah, the mother of 2nd Defendant and her siblings took over the farms of their parents. A composite plan was drawn to cover both lands, a copy of which was tendered into evidence as Exhibit 1. According to 2nd Defendant, Ofori Asiedu, appointed Comfort Dede, a sister to Helena as caretaker of the land in dispute. Both Helena and Comfort Dede rendered accounts of both farms to the mother of 2nd Defendant and her siblings. Copies of receipts of payment made by them were tendered into evidence as Exhibit 3 series. In 2015, due to old age, 1st Defendant was appointed to take over from Comfort Dede as caretaker of the farm in dispute. That it is the strategy of the Plaintiff to harass their caretakers in their absence and that the land in dispute is not Nyarkoa family property. It is clear from the evidence adduced so far that the Plaintiff is tracing the title to the land in dispute to Ama Nyarkoa and claiming that it is the family land of Ama Nyarkoa. The 1st Defendant atones tenancy to the land in dispute to the family of the 2nd Defendant who traces title to the land in dispute to Opanin Ofosu Appiah; that the land in dispute was not family land but the self-acquired property of Opanin Ofosu Appiah. Both defendants alluded to the fact that 1st defendant has been accounting to Opanin Ofosu Appiah since 1979 when the mother of 1st Defendant through Ofori Asiedu was appointed as caretaker of the land in dispute. The plaintiff through his lawful attorney conceded that Ofori Asiedu invited the 1st Defendant to join him in farming on the land in dispute. This is clearly a departure from the Plaintiff’s claim that they appointed the 1st Defendant as caretaker of the farm in dispute in the year 2012. During cross-examination of the Plaintiff’s lawful attorney by the 1st Defendant on 20/10/2023, this is what ensued: Q: Do you know one Mr. Ofori Asiedu? A: Yes, he was farming on the land in dispute on abunu basis. It was through him 1st Defendant came to farm on the land. …………….. Q: I put it to you that in 1979, Ofori Asiedu came to us to inform us that his uncle Ofosu Appiah has a farm at Addo Nkwanta and came to invite us to farm on the land in dispute. A: Ofori Asiedu was farming on Abunu basis on the land and later invited 1st Defendant to join him in same. The above exchange between the Plaintiff’s lawful attorney and the 1st Defendant ties in with the 1st Defendant’s evidence that Ofori Asiedu appointed his mother, Comfort De de as caretaker of the land in dispute and her mother farmed on the land from the period until the year 2015 when he had to take over fully from her mother as the caretaker of the disputed land due to old age and has since been rendering accounts to the family of Ofosu Appiah. It further confirms the Defendants’ evidence that the 1st Defendant has been a caretaker of the land in dispute and has been rendering accounts to the immediate family of Ofosu Appiah without any protest from the quarters or family of the Plaintiff. Exhibit 3 series which is receipts of payments made by 1st Defendant to the Ofosu Appiah family further confirms the landlord tenant relationship between the 2nd and 1st Defendants. In explaining the reason for the Plaintiff’s family acquiescence in watching on for the relationship of landlord and tenant to thrive well over forty years between the 2nd Defendant family and the 1st Defendant, this is what ensued between the Plaintiff’s lawful attorney and 2nd Defendant during cross-examination of the Plaintiff’s lawful attorney on 13/11/23: Q: Where was the Nyarkoa family when 1st Defendant was accounting to Ofosu’s Appiah’s children for the past 40years? A: The caretaker (1st Defendant) never granted us the opportunity to meet him. This exchange between the Plaintiff’s lawful attorney and 2nd Defendant reveals a lot of inconsistencies in the Plaintiff’s evidence and that of their witnesses. First, the basis of the Plaintiff’s claim is premised on the fact that the Nyarkoa family appointed 1st Defendant as caretaker of the land in dispute in 2012 but since the appointment he has failed and refused to render accounts to the family and thus seeking for his removal from the land in dispute and recovery of same from the 1st Defendant. The lawful attorney of Plaintiff defended the Nyarkoa family’s silence in allowing the 1st Defendant to account to the children of Ofosu Appiah on the basis that the 1st Defendant never allowed a meeting between them. This evidence is not only implausible but an afterthought. As, if the Plaintiff indeed owned the land in dispute and appointed the 1st Defendant as they claim, the Plaintiff would not have looked on for tenancy to be atoned to the Ofosu Appiah family since 1979 when the 1st Defendant and his mother took over as caretakers of the farm. The Plaintiff would not have sat on their rights if the land in dispute was indeed the property of the Nyarkoa family. It is a hackneyed principle distilled from several case law that a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who can prove a better title: see the case of In re Adjancote Acquisition; Klu v Agyemang II [1982-83] GLR 852, CA. The law creates in favour of a possessor of land, presumption of title, if the possessor is able to establish physical possession, the intent to hold unto that possession and an immediate right of possession. See Section 48 of the Evidence Act, 1973 [NRCD 323]. The Defendants in this case have shown by uncontroverted evidence that they have exercised physical possession and had immediate right of possession over the land in dispute through the landlord tenant relationship as borne out by the evidence on record as opposed to the Plaintiff who recounted that the land was acquired by Ama Nyarkoa and came into the possession of Ofosu Appiah when was appointed customary successor from 1963 to 1980. Even more telling on the Plaintiff’s lack of title to the land in dispute is the fact that, the Plaintiff’s own testimony revealed that Ofosu Appiah whom they asserted held in trust the family properties including the land in dispute was customary successor from the year 1963 to 1980 yet they failed to take any step after the demise of Ofosu Appiah to recover the land in dispute from his immediate family moreso when the evidence before the court clearly shows that beyond the year 1980 when Ofosu Appiah passed away, other members of the Nyarkoa family specifically, Abena Gyamfua, Abena Nyarkoa, Yaa Akyea and most recently, Nancy Okyere were successively appointed as customary successors. It never dawned on the Plaintiff family to recover the land in dispute from the 2nd Defendant Ofosu Appiah family having alleged the land was the Nyarkoa family land. Nothing prevented the Plaintiff from asserting their rights over the land in dispute from 1980 thereafter. I am further compelled to believe the Defendants’ claim to the land in dispute per the documentary evidence tendered in by the 2nd Defendant being Exhibit 1 which is a site plan in the name of Eugene Ofosu Appiah and Daughters covering the land in dispute for the law enjoins the court to lean favourably towards authentic documentary evidence where it has to weigh that evidence against conflicting oral evidence. In the case of Yorkwa v Dua [1992-93] GBR 278, the Court of Appeal per Brobbey JA as he then was had this to say, “whenever there is in existence a written document and oral evidence over a transaction, the practice in this court is to consider both the oral and the documentary evidence and often to lean favourably towards the documentary evidence, especially where the document is found to be authentic and the oral evidence conflicting”. PW-2, Kwame Buabeng further admitted under cross-examination by the lawful attorney for the 2nd Defendant that upon his checks at the Ministry of Agriculture, the farmland in dispute was registered in the name of Eugene Ofosu Appiah. This clear admission by the Plaintiff’s own witness puts a death knell as to the dispute in title and ownership of the disputed farmland and confirms the 2nd Defendant’s family as the owners of the land in dispute. Having come to the conclusion that the land in dispute was originally acquired by Eugene Ofosu Appiah and not the property of the Nyarkoa family, there is no legal or equitable basis for this court to exercise its coercive powers in evicting the 1st Defendant from the land in dispute or ordering him to render accounts to the Plaintiff. In view of the foregoing, I hold that the Plaintiff’s claim to the land in dispute is significantly outweighed by the 2nd Defendant’s claim and I accordingly dismiss all the reliefs being sought by the Plaintiff as without merits. I enter judgment in favour of the Defendants and I accordingly make the followings orders; 1. The land in dispute is the property of the immediate family of Ofosu Appiah and I accordingly declare title to same in favour of the Ofosu Appiah family represented by the 2nd Defendant. 2. Recovery of possession of the said land. 3. Perpetual injunction restraining the Plaintiff, his assigns, privies, agents, successors from having anything to do with the disputed land. 4. Cost of GHC 4,000.00 awarded against the Plaintiff in favour of the Defendants. SGD H/W JOSEPHINE SARFO (MRS) 12