BANABAS TERKPERTEY VRS NANOR ADJIRACKOR [2024] GHAHC 371 (15 October 2024)

IN THE CIRCUIT COURT, HELD AT ODUMASE KROBO, IN THE EASTERN REGION, ON THE 15TH DAY OF OCTOBER 2024, BEFORE HIS HONOUR KWESI APPIATSE ABAIDOO SUIT No. A1/24/2021 BANABAS TERKPERTEY ) SUING FOR HIMSELF AND ON BEHALF OF ) === PLAINTIFF TERKPERTEY FAMILY OF SOMANYA ) VRS NANOR ADJIRACKOR ) SOMANYA ) === DEFENDANT COUNSEL: JERRY OBENG KWAKYE FOR THE DEFENDANT JUDGMENT The plaintiff on the 6th day of August 2020, caused a writ of summons to issue against the defendant seeking the following reliefs; a. A declaration of title and recovery of possession of all that piece of land situate at Akorley-Somanya, measuring about 15 acres more or less, and forms part of the 40 acre of land which shares boundary with Mr. Chin, Kwesi Konyo, Omonor family land and Main road from Somanya to Accra. Page 1 of 7 b. Interlocutory injunction restraining the defendant, and his agents from the land in dispute by the way of injunction order. c. Cost. The facts necessitating the issuance of the writ of summons are adequately stated in the statement of claim accompanying the writ of summons. The facts are that, the plaintiff who is the current head of family of Terkpertey family of Somanya-Sawer, claims that the disputed land measures 15 acres and forms part of a 40 acre land belonging to his family. The land was acquired by his great grandfather, Nene Kwame Terkpertey Suorwu in the year 1892 when the Krobos descended from the Krobo Mountains. Upon acquisition, the land was shared among the children of the plaintiff’s great grandfather’s children, namely; Tettey Akpaga, Nene Kwame Terkpertey (who is the direct grandfather of the plaintiff), Teye Kponglo, Kwame Omonor, Kwesi Suorwu and Adjesiwor Terkpertey. The plaintiff alleged that the defendant has encroached on15 acres out of 40acres of land they had from their great grandfather. Based on the encroachment by the defendant the parties went into an arbitration on the 26th day of May 2014, the plaintiff was declared the holder of title to the 15 acre land. However, the defendant has refused to vacate the land, and has made a mango plantation on it. It is on the basis of these facts that the plaintiff has issued the instant writ of summons against the defendant for the reliefs stated above. The defendant per his amended statement of defence stated that his father, Theophilus Adjabeng Adjarackor bought a 30.09 acre land from one Kofi Terkpertey in the 1966 and is evidenced by a deed of conveyance executed on the 26th day of July 1966 with the deed registered at the Lands Registry Department in Accra with registration number 1195/1966. That upon acquisition of the land, the defendant and his family have been in quiet possession of the land until somewhere in the year 2014, when the plaintiff surfaced from nowhere and started laying adverse claim to the land in dispute. The parties attempted arbitration but he refused to offer drinks and money demanded by the panel, as in his opinion the arbitrators were prejudiced. The during the failed arbitration the then head of the plaintiff’s family, Joseph Terkpertey testified against the plaintiff and said that the land has been given to the Page 2 of 7 defendant’s father in the year 1963 and as evidenced by a deed executed in the year 1966. In argument, the defendant argued that the attempted arbitration was a nullity by virtue of the fact that the arbitrators were not clothed with the power to interpret legal documents. He contended that his (defendant’s) family members have been on the land since acquisition, and have made mango plantation on the land. Based on these averments, the defendant prayed the court to deny the plaintiff’s claims. Per the averments and arguments of the parties, the following issue comes up for determination; Whether or not the plaintiff and his family have title to the land in dispute which measures 15 acres more or less, and forms part of the 40 acre of land which shares boundary with Mr. Chin, Kwesi Konyo, Omonor family land and Main road from Somanya to Accra. The plaintiff in his writ of summons and the accompanying statement of claim is alleging that the defendant has trespassed unto his family land which measures about 15 acres out of the total family land of about 40 acres. The defendant in his statement of defence denied having trespassed unto the said land and averred that he acquired the land from the Terkpertey family which measures about 30.9 acres. This obviously situate the instant litigation in the realm of trespass. It is trite learning that, in as much as in civil litigations the standard of proof is proof by preponderance of probabilities, the plaintiff in a land litigation must as of necessity prove his title to the land in order to succeed. Failure of which the plaintiff’s action must fail. The plaintiff only proves his case when he leads admissible evidence in proof of his assertion that he owns or has a superior title to the land in dispute. It is trite learning that, in civil litigations the pleadings of the parties’ forms the bed-rock on which their respective case lies on. The averments contained in the parties’ respective pleadings determines the evidence the parties will lead in proof of their respective case. Page 3 of 7 The plaintiff after his allegation of trespass has been refuted by the defendant in his statement of defence that his father acquired the land from the Terkpertey family through Kofi Terkpertey, the plaintiff made the following averment in paragraph 4 of his reply to the statement of defence; “That the land in dispute was retrieved by the plaintiff’s mother (Adjesiwuor Terpkertey) from the defendant’s father in the 1963 when it came to light that Kofi Terkpertey had released the land in dispute to the defendant’s father without the consent of the rightful owner (plaintiff’s family at Sawer-Somanya).” This statement made by the plaintiff comes with the understanding that the land in dispute was once sold to the defendant’s father by the plaintiff’s family. That being so, if indeed the plaintiff’s family reacquired same from the defendant’s father as been alleged by the plaintiff, it beholds on the plaintiff to prove it by leading admissible evidence in support of the averment. This is the only way the plaintiff’s action will succeed. This is the position of the law enunciated in the case Of Majolagbe V. Larbi & Ors. [1959] GLR 190, per Ollenu J. (as he then was). Ollenu J., stated the principle succinctly at page 192, thus; “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” Corollary to the statement of the law as made by Ollenu J (as he then was) in the Majolagbe case, the Supreme Court in the case of Abgosu And Others v. Kotey And Others [2003-2005] 1GLR 685, explained sections 11 (1) and 14 of the Evidence Act (NRCD 323), Brobbey JSC, in the case of Abgosu And Others v. Kotey And Others [2003-2005] 1GLR 685, at pages 731 and 732, and I wish to quote it in estenso for our understanding of the burden of proof, thus; Page 4 of 7 “11. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” The second is section 14 which reads: “14. Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” These sections of NRCD 323 clearly require a defendant who wishes to win his case to lead evidence on issues he desires to be ruled in his favour. The effect of sections 11(1) and 14 and similar sections in NRCD 323 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 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 will induce the determination to be made in his favour. The logical sequel 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 the 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 may not always serve the best interest of the litigants, even if he is a defendant.” However, in our instant case, the plaintiff had the opportunity to have tendered a document which evidence the reacquisition of the land by his family through his mother Adjesiwuor Terkpertey, as been alleged. The plaintiff rather tendered “Exhibit A”, which is a deed Page 5 of 7 evidencing a grant of a portion of Terkpertey family land to one Odjeyem Joseph Kwesi from Nyewer Trom. The plaintiff relying on the oral testimony of himself and that of his younger sister, Dede Adjesiwuor, alone does not meet the standard of proof required by the law as stated in the Majolagbe case. As Ollenu J., rightly stated at page 191 of the Majolagbe case (supra), thus; “The law as to trespass is that if a person proves merely that he is in possession of land, that is sufficient to enable him to maintain trespass against anyone who cannot show a better title. Upon that [p.192] principle, granting for the moment that the case is trespass and nothing more, the onus is upon the plaintiff to prove that he was in possession of the land at the date when he alleged the defendants entered thereon.” In contrast, the defendant tendered Exhibit 2, which is a deed executed between one Kofi Terkpertey on behalf of the Terkpertey family, and Theophilus Adjabeng Adjarackor, the defendant’s father. Exhibit 2, evidence the lease of the land in dispute measuring 30.9 acres to the defendant’s father for a period of ninety-nine (99) years starting from 26th day of July 1966. Until the determination of the contract as contained in exhibit 2, any attempt by the plaintiff or his family to repossess the land from the defendant amounts to a trespass. The alleged attempt by the plaintiff’s mother to repossess the land is trespassory in nature which must not be entertained as the plaintiff was in legitimate possession of the land in dispute. Accordingly, I rule as follows; 1. That the plaintiff’s action fails and same is dismissed. 2. That the plaintiff’s second claim for interlocutory injunction was granted during the course of the trial (which is properly so, as the relief was for interlocutory injunction order). The court cannot make any pronouncement again on it. Although the defendant in his amended defence filed on the 2nd day of February 2021, failed to make a counter- claim for the grant of perpetual injunction against the plaintiff, it is in line with Order 1 Page 6 of 7 rule 2 of C.I 47 to avoid multiplicity of suit that I injunct the plaintiff, his family, and all persons deriving title through him or them from dealing with the land in dispute. 3. Cost of Gh¢3,000.00, is awarded against the plaintiff. H/H KWESI APPIATSE ABAIDOO (CIRCUIT COURT, ODUMASE KROBO) Page 7 of 7