Adu v Gyamfuaa and Another (A1/14/19) [2024] GHADC 692 (20 November 2024)

IN THE DISTRICT COURT HELD AT TWIFO PRASO ON WEDNESDAY THE 20 TH DAY OF NOVEMBER, 2024 BEFORE HIS WORSHIP MAXWELL OFORI KPODO ESQ AFIA ADU PLAINTIFF SUIT CASE NO. A1/14/19 VRS 1. ABENAA DEFENDANTS 2. CHARLES ASIEDU GYAMFUAA -------------------------------------------------------------------------------- --------------------J U D G M E N T Reliefs Sought: Plaintiff claims from the Defendants jointly and severally for declaration of title, possession and ownership of all that piece or parcel of farm land lying, situate and being at a place commonly known and called Ampenkro Akoto, bounded by the properties of Badu, Ama Gyaawa, Yaa Fosua, Gyamfuwaa and Kwabena Nkrumah which farm the 1st Defendant being niece to Plaintiff’s late father Kwaku Akese had forcibly taken over the farm and had same entrusted the farm into the hand of the 2nd Defendant without any justifiable reason. INTRODUCTION 1 | P a g e The Plaintiff, Afia Adu, seeks a declaration of title and possession over a piece of land located in Twifo Ampenkro, which she claims was inherited from her late father, Kwaku Akese. She contends that the Defendants, Abenaa Gyamfuaa and Charles Asiedu, have encroached upon her land, asserting that the land forms part of a larger tract belonging to the Abrade family. The principal issue before this Court concerns the boundary demarcation of the disputed land and the extent to which the Plaintiff has established her entitlement to the land. FACTS OF THE CASE The Plaintiff claims that the land in dispute was inherited from her father, Kwaku Akese, and that she has exercised acts of ownership over the land through farming activities and other overt acts of possession. To substantiate her claim, she presented a survey plan prepared by a licensed surveyor, which outlines the boundaries of the land based on natural markers such as the Pra River and certain trees. DEFENDANTS CASE The Defendants, on the other hand, assert that the land forms part of a larger family property belonging to the Abrade family. They provided a competing survey plan and challenged the Plaintiff’s boundaries, arguing that the Plaintiff had overreached beyond what was lawfully hers. Both parties relied on the 2 | P a g e testimonies of community members and elders, some of which were conflicting in relation to the established boundaries. ISSUES FOR DETERMINATION Whether or not plaintiff is entitled to a declaration of title to the land in dispute CONSIDERATION BY THE COURT The law on proof in Ghana is regulated by the Evidence Act 1975 (NRCD 323) and the common law. The general position of the law is captured in the maxim. “He who asserts must prove”. That general position of the law was affirmed by Kpegah J. A. (as he then was) in ZABRAMA VRS. SEGBEDZI [1991] 2GLR 221 at 224 as follows: “a person who makes an averment or assertion which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden, unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”. The general rule of proof in civil is that a party who in his pleadings or writ of summons raises issues essential to the success of his or her case assumes the onus of proof. See FAIBI VRS THE STATE HOTELS [1968] GLR 471 SC. See also the 3 | P a g e case of BANK OF WEST AFRICA VRS ACKUN [1963] 1 GLR 176 SC. See also section 10(1) of the Evidence Act, NRCD 323 which provides as follows: “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” Similarly, section 12(1) of the NRCD 323 also reads as follows: “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” The learned Appau JSC, in delivering the decision of the Supreme Court held in Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah & 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S. C. (Unreported) as follows: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975, Act 323 and the decision of this Court in Adwubeng v. Domfeh [1996-97] SCGLR 660 at p. 662”. In considering whether the Plaintiff is entitled to a declaration of title and possession of the land in dispute, I am guided by the well-settled principles of law as articulated in Yehans International Ltd. v. Martey Tsuru Family & Anor [2018] DLSC 2488, where Adinyira JSC held that a party claiming title must prove: 4 | P a g e i) Their root of title, ii) Their mode of acquisition, and iii) Various acts of possession exercised over the land. In Kodlinye v. Mbabefo Odu [1935] 2 WACA 336, the court emphasized that a plaintiff seeking a declaration of title must rely on the strength of their own case, not the weakness of the defendant's. Failure to discharge this burden results in judgment being entered for the defendant, even if the defendant’s case is weak. In cases like Akoto II v. Kavege [1984-86] 2 GLR 365, it is reiterated that a plaintiff seeking a declaration of title must clearly disclose their root of title, the method of acquisition, and present acts of possession. Importantly, in Nyikplorkpo v. Agebdotor [1987-88] 1 GLR 165, it was held that the identity and boundaries of the land must be established with positive evidence, such as the testimony of boundary neighbours and properly drawn plans. ANALYSIS The Plaintiff asserts that her root of title is based on inheritance from her late father, Kwaku Akese, who cultivated the land before his passing. This root of title was supported by traditional evidence and witness testimony. Furthermore, the Plaintiff has demonstrated that she has exercised acts of ownership over the land through farming activities. However, merely demonstrating 5 | P a g e ownership through inheritance is insufficient if the Plaintiff fails to establish the clear boundaries and limits of the land in question. The Plaintiff presented a survey plan based on natural landmarks such as the Pra River, which she contends form the lawful boundaries of her land. The surveyor provided testimony that the land was demarcated using both modern surveying techniques and traditional markers recognized in the community. It is well established in law that a plaintiff seeking a declaration of title must clearly identify the boundaries of the land in dispute. In Nyikplorkpo v. Agebdotor, the Court held that the plaintiff must establish the identity of the land with positive evidence, such as calling boundary neighbors to testify to the ownership of adjoining lands. The Plaintiff, however, failed to call boundary neighbors to corroborate her claims about the extent of the land. Additionally, the evidence regarding the natural landmarks was challenged by the Defendants, who provided an alternative survey plan with conflicting boundary demarcations. In Tetteh v. Hayford (2012) SCGLR 417, the Supreme Court underscored that the onus of proving the boundaries of the land lies on the plaintiff. Without a properly oriented plan or compass bearings, the Court would hold that the plaintiff had failed to discharge this onus. In the present case, while the Plaintiff’s survey plan was submitted, it was not corroborated by sufficient 6 | P a g e independent testimony to clearly establish the boundaries of the land. The Defendants argued that the Plaintiff’s boundaries encroached upon family land belonging to the Abrade family. While they produced a survey plan to support their case, the Defendants’ evidence on the boundaries was equally lacking in precision. Neither party presented compelling evidence to definitively resolve the boundary dispute, as the testimonies from both sides were conflicting, and neither survey plan was fully supported In an action for a declaration of title, the burden of proof lies on the Plaintiff to establish the precise identity and boundaries of the land in dispute. This requires the Plaintiff to provide clear and credible evidence, including calling boundary neighbors or presenting independent evidence to confirm the exact limits of the land. This legal principle is well-established, as articulated in Anane v. Donkor (1965) GLR 188 at p 192, where the court emphasized that the identity of the land must be clearly defined to avoid future disputes and ensure that any orders for possession or injunctions can be effectively enforced. In the present case, the Plaintiff failed to meet this burden. She did not call any boundary neighbors as witnesses or provide sufficient independent evidence to establish the specific boundaries of the land. Without clear proof of the land's identity, the Plaintiff's claim cannot succeed. 7 | P a g e After considering the evidence and relevant legal authorities, I find that the Plaintiff has failed to prove her case on the balance of probabilities. Consequently, the Plaintiff’s case is dismissed in limine. Costs of GH¢2,000 are awarded in favor of the Defendants. (SGD) H/W MAXWELL OFORI KPODO (DISTRICT COURT MAGISTRATE) 8 | P a g e