Gyekye Vrs Boakyehene [2022] GHADC 320 (21 December 2022)

IN THE DISTRICT COURT SITTING AT TWIFO PRASO, CENTRAL REGION ON FRIDAY THE 21ST OF DECEMBER, 2022 BEFORE HIS WORSHIP MAXWELL OFORI KPODO, ESQ. SUIT NO. A2/87/2022 ABUSUAPANYIN KWABENA GYEKYE …………. PLAINTIFF VRS NANA BOAKYEHENE II ………….. DEFENDANTS ---------------------------------------------------------------------------------------------------- J U D G M E N T By a writ issued on 15th February, 2022 seeking the following reliefs thereof. Reliefs Recovery of cash the sum of GH¢18,000 and cost of legal fees PLAINTIFF’S CASE According to the Plaintiff he is the head of family of Abena Badu gate of Twifo Mampoma Royal family and brings this action in that capacity. It is the case of the Plaintiff that the gates of Twifo Mampoma royal family is made up of 2 gates by name, the Abena Badu Gate and Apentua Gate The Plaintiff in this case belongs to the Abena Badu gates Royal family. He avers that the royal family owns several tracts of land at Twifo Mampoma which has been handed over to Essilfua farms limited to cultivate and proceeds are paid annually to the Defendant who is the chief and current occupant of the stool. He further avers that there was an existing agreement between the principal elders and members of the royal family that the proceeds from the land when paid to the chief will be shared into 3 equal parts thus one part goes to the chief and the queen mother for the maintenance of the palace and the remaining two go to the Abena Badu and Apentua gates family. He again stated that for several years the proceeds paid were shared in the manner aforesaid as agreed by the parties and all successive members of the royal family followed it. However, since the year 2020 the Defendant has refused, failed and neglected to share the proceeds of the farm land which belong to the royal family in accordance with the customary agreement entered into and that all efforts directed at the Defendant by the Plaintiff to comply with the agreement by paying their share of the proceeds received have proven futile. The Defendant denied every allegation made by the Plaintiff however, admitted that he is the chief of Twifo Mampoma and receives proceeds from the royal family land for the maintenance of the stool but denied vehemently that there was no such agreement that the proceeds received will be shared among the two gates of the royal family and insists that proceeds from royal family land property are not shared to members of the royal family and that the Regional House of chiefs did not state that it should be shared. BURDEN OF PROOF It is indeed trite learning to state that in all civil cases the standard of proof is on the preponderance of the probabilities. See ADWUBENG v DUMFEH (1996-97) SCGLR 660, BISIE AND ANOR v TABIRI @ ASARE (1997-98) 1 GLR 360 as well as ACKAH v PERGAH TRANSPORT LTD (2010) SCGLR 728. In the latter case for example, at page 736 of the report, Adinyira JSC re-echoed the position of the law in these words; “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…” I must quickly add however that the burden of persuasion is not static but swings like a pendulum depending on the circumstance of each case. It is for this reason that it is provided in section 14 of the Evidence Act, 1975 (NRCD 323) as follows “except as otherwise provided by law, and unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or nonexistent of which is essential to the claim or defence he is asserting” I will finally refer to the case of Re: Ashaley Botwe Land: Adjetey Agbosu & Others v. Kotey & Others [2003-2004] 1 SCGLR 421, a case in which Brobbey JSC held that notwithstanding the burden of the Plaintiff to establish its case, a Defendant cannot sit aloof and lead no evidence in support of his case. The learned justice of the Supreme Court noted that: “The effect of Section 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 his claims he is entitled to from the Defendants. At the same time, if the Court has to make a determination of a fact of an issue and the 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 the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the Court such facts or evidence that would induce the determination to be made in his favour. The logical sequence to this is that if he leads no such facts or evidence, the Court will be left with no choice but to evaluate the entire case on the basis of the evidence before the Court which may turn out to be only the evidence of the Plaintiff. If the Court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose. Such loss may be brought about by default on the part of the Defendant in the light of the statutory provisions, literally relying on the common law principle that the Defendant does not need to prove any defence and therefore does not need to lead any evidence and may not always serve the best interest of the litigant even if he is a Defendant” I have identified the following issues: Issues Whether or not there was an agreement that the proceeds of the royal family land will be shared among members of the royal family in 3 equal parts. Analysis The Plaintiff in support of his case called two witnesses who are principal members of the royal family. Their entire evidence before the court clearly corroborated the evidence of the Plaintiff. They insisted that the agreement was made since the year 1994 and they have been sharing the proceeds in that manner until recently when the Defendant stopped sharing it with them in breach of the customary agreement made between the two gates of the royal family. I noticed that the Defendant on the other hand testified alone and did not call any witness in support of his case. It is settled law that the absence of corroboration generally does not make the case of that person fatal because corroboration is not a requirement of law. See ARYEE v SHELL GHANA LTD & FRAGA OIL LTD (2017-2020) SCGLR 721 @723 where the Supreme Court speaking through Benin JSC stated the position of the law on corroboration as follows: “It must be pointed out that in every civil case, all that is required is proof by the preponderance of the probabilities. See section 12 of the Evidence Act, 1975 (NRCD 323). The law of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved. The law does not require that the court cannot rely on the evidence of a single witness in proof of the point in issue. The credibility of the witness and his knowledge of the subject matter are the determining factors”. During cross examination of the Plaintiff by the Defendant on 21st June,2022 this is what ensued Q: At what time did we make agreement about sharing for the gates you alleged. A: Somewhere 1994 or 1995 Q: I am putting it to you that the agreement was made in 1994 A: That was why I said it was 1994 or 1995 there about I noticed that the Defendant’s line of questioning suggested to me that he agrees that there was an agreement concerning the sharing of the proceeds to the two royal family gates. If indeed there was no such agreement between the parties then, on what bases did the Defendant put to the Plaintiff that the agreement was made in the year 1994 and not 1995. Although corroboration is generally not a requirement of law, in certain circumstances, such as in this case it becomes very critical. It beats my imagination as to why the Defendant who is a chief of the town and a traditional ruler came to court on such an impotent stool property and yet failed to produce one single person from his royal family or community to give testimony in support of his case. The Supreme court in the 2020 Election Petition, JOHN DRAMANI MAHAMA v ELECTORAL COMMISSION AND ANOTHER supra, the Supreme Court cited case with approval when at page 21 of the judgment, Anin Yeboah CJ, speaking for the Court restated this principle eloquently as follows: “The law is that where corroborative evidence exists, the law expects a party to call such evidence in proof of his case and not mount the witness box and repeat his averments on oath. The dictum in MAJOLAGBE v LARBI & ORS (1959) GLR 190 by Ollenu J (as he then was), is still good law”. The land Act Section 13 of the land Act 2020 provides as follows: (1) Pursuant to clause (8) of article 36 of the Constitution, stool or skin, or family land shall be managed in accordance with this Part. (2) A chief, tendana, clan head, family head or any other authority in charge of the management of stool or skin, or clan or family land, is a fiduciary charged with the obligation to discharge the management function for the benefit of the stool or skin, or clan or family concerned and is accountable as a fiduciary. (3) A chief, tendana, clan head, family head or any other authority in charge of the management of stool or skin, or family or group land shall be transparent, open, fair and impartial making decisions affecting the specified land. (4) A fiduciary under this section who contravenes subsection (2) commits an offence and is liable on summary conviction to a fine of not less than five thousand penalty units and not more than ten thousand penalty units or a term of imprisonment of not less than five years and not more than ten years or to both. (5) The provisions of the Head of Family (Accountability) Act, 1985 (P. N. D. C. L. 114) apply to this Act with the necessary modifications. (6) Despite subsection (5), a person shall not bring an action under section 2 of the Head of Family Accountability Act, 1985 (P. N. D. C. L. 114) against the occupant of a stool or skin, or against a tendana, unless that person (a) Has first exhausted the established customary procedure for making the occupant of the stool or the skin or the tendana to render account or maintain records of the stool, skin or clan lands, where a procedure exists; (b) Is qualified under the relevant customary law to bring an action against the occupant; or (c) Is a subject of the stool or skin or a member of a clan of which the chief or tendana or clan head is the administrator of the stool or skin land and has been granted leave by a court upon proof that the person qualified to institute an action failed to take action within thirty days after being informed of the need to take action. From the foregoing, I am of the opinion that the Defendant who is a traditional ruler and head of the royal family is a fiduciary and under an obligation to account to members of the royal family about the proceeds of the land as required by the Land Act. On the whole therefore, I notice that the Plaintiff and his witness were credible, coherent in their testimony and gave a true historical accounts of the agreement which was entered into and what has been in existence for several years which I have no reasons to doubt. I am satisfied and find that there was an agreement by the members of the royal family to share the proceeds of the stool land in 3 equal parts. The Plaintiff has earned this view of the Court apart from the fact that the Defendant proved no match under the circumstances of the case. CONCLUSION On the totality of the evidence before the court and on the balance of the probabilities, I am convinced and hold that the Plaintiff was able to discharge the burden that was placed on him in proof of his case and I accordingly enter judgment for the Plaintiff and against the Defendant for all the reliefs he seeks. The Defendant is ordered to pay an amount of GH¢18,000 to the Plaintiff. And I further order that the Defendant should render accounts of all proceeds received from the stool in accordance with the Land Act 2020 to the members of the royal family. Cost of GH¢2,000.00 is awarded in favor of the Plaintiff against the Defendant. (SGD) H/W MAXWELL O. KPODO ESQ. (MAGISTRATE)