POKU VRS BOAHEMAA (A1/02/23) [2024] GHADC 156 (8 February 2024)

Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 IN THE DISTRICT COURT HELD ON THURSDAY THE 8TH DAY OF FEBRUARY, 2024 BEFORE HER WORSHIP VICTORIA VERA AKONU ESQ. DISTRICT MAGISTRATE KWABENA ATTAH POKU H/No. EC 145 Atuntuma VRS. SUIT NO: A1/02/23 PLAINTIFF MAAME AKOSUA BOAHEMAA Per her lawful Attorney: Michael Amoateng Mensah Of H/No. GPS AI-3496-4284 DEFENDANT PARTIES: Plaintiff and Defendant attorney present _____________________________________________________________________________________ _____________________________________________________________________________________ J U D G M E N T The Plaintiff’s writ of summons issued on 19th July, 2022 from the Registry of this Court is endorsed with the following reliefs: 1. “Declaration of title, possession and ownership of all that 4 acres farmland situate and lying at a place called “Adwurigya” at Atuntuma on Nkawie stool land and bounded by the properties of Madam Akosua Boahemaa (the defendant), Op. Kwasi Ntuah, Ante Abaade, Agya Seth, Opanin Talent Fordjour, Opanin Yaw Krah and Mad Akua Bee, and e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 2. Perpetual injunction restraining the Defendant, assigns, privies, workmen from interfering with the subject matter”. On 23rd September, 2022, the Defendant pleaded not liable to the Plaintiff’s claims and filed her Statement of Claim on 10th October, 2022. On 30th January, 2023, she appointed one Michael Amoateng Mensah, her son as her attorney who filed witness statement with the leave of the Court on 3rd February, 2023 and the one filed by the Defendant herself was expunged from the record of the Court. Whereas the Plaintiff testified and called five (5) witnesses, the Defendant did not call any witness. THE CASE OF THE PLAINTIFF The case of the Plaintiff in summary as contained in his statement of claim and witness statement is that the disputed farmland was originally acquired by Opanin Yaw Donkor in its virgin state who later sold some portions to various people including one Kwadwo Asare. He avers that he is in possession of the land belonging to Kwadwo Asare as he acquired same from the wife and children of Kwadwo Asare after same had been devolved to them after his demise and the said children have executed a sale agreement for him and that the Defendant is in possession of the land belonging to Kwabene Anto. It is his case that before he acquired the disputed farmland, which is 4 acres, he exercised due diligence from the boundary owners and other people and that after he had acquired the land, he had been in possession whereby he gave portion to a small scale miner and started cultivating cocoa in 2019 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 without and hindrance whatsoever from anyone and also when he acquired his land there were cocoa and palm trees which he fell same. He states that before the sale and transfer of the disputed farmland to him all boundary owners were informed about it and their respective boundaries were clearly spelt out and that there are boundary features indicating the respective farmlands of the parties herein. Further, the Plaintiff states that the Defendant has been harassing and trespassing on to his farmland and that she will not stop these acts until restrained by the Court hence this action. He tendered in evidence Exhibit “A” titled Transfer of farmland which has no jurat even though three (3) of the witnesses thumb-printed. EVIDENCE OF PW1 The PW1 is one of the grantors of the Plaintiff. Her evidence as contained in her witness statement is that her late father during his lifetime acquired the disputed 4-acre farmland from Yaw Donkor which was a secondary forest and cultivated cocoa which got burnt and the land become fallow but he later cultivated cocoa and palm plantation on portions and the rest for planting food crops like yam and plantain. She avers that the Defendant and her late husband trespassed on her father’s land and so upon a report made by her father, the elders went to the land a demarcation of the boundary was made in the presence of some witnesses such as Papa Akwasi Amoako, Maame Nyame etc. and flowers were planted as boundary features. e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 According to her, after the death of her father the disputed farmland was given to a caretaker called Kwame Baah for about 4 years and her mother also gave a portion to a Chinese miner who mined gold. She also sold some commercial tree like Emire on the land to one Yaw Gyamfi through her auntie Ama Nyame. She avers that her late father Opanin Kwadwo Asare gifted the entire land to all his children in the presence of his family members and they performed “aseda”. She avers further that together with her siblings they sold the disputed land to the Plaintiff and executed a deed of transfer of ownership to the Plaintiff who also granted the palm trees on it to a palm wine tapper. According to her when the Plaintiff went to inform her that the Defendant is claiming about 2 acres of the land granted to him, she went to the Defendant and the only reason the Defendant gave was that she was worried about the Plaintiff giving the land to miners for gold instead of farming. EVIDENCE OF PW2 His evidence is that he shares boundary with the Parties herein and that when you are coming from Atuntuma township, one will first enter the Defendant’s land followed by the Plaintiff’s before his own and that he had been on his land since 1970. He avers that Opanin Kwadwo Mosi (Kwadwo Asare) acquired the disputed land from Opanin Yaw Donkor and before his demise, he gifted same to his children who have also sold same to the Plaintiff in 2018. e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 He avers further that in 2019, the Plaintiff sold a portion of the disputed farmland to small scale miners and they mined for 2 months without the Defendant or anyone laying claims to same and that he does not share boundary with the Defendant. EVIDENCE OF PW3 His evidence is that he inherited his family land from his brother and that land is in the disputed area and shares boundary with the Parties herein. He states that when he inherited this land, the Plaintiff’s grantors Maame Adwoa Nyamekye and Anastasia Owusu were in possession of the disputed farmland as they had cocoa on a portion. He avers that the Plaintiff’s grantors were in possession of the disputed land until 2018 when they sold same to the Plaintiff who extended the cultivation of cocoa on the portion that was secondary forest. He avers further that the Plaintiff had been in peaceful possession until in March, 2022 when the Defendant approached him that she has engaged the services of a surveyor to measure the land again and so he should be present but he refused to avail himself for that exercise. He states that the disputed farmland does not belong to the Defendant. EVIDENCE OF PW4 Her evidence is that her late brother Kwadwo Fordjour a.k.a Kwadwo Asare bought the disputed farmland and cultivated cocoa on a portion which got burnt twice, subsequently continued to cultivate cocoa and palm plantation on a portion and the remaining fallow land he cultivated food crops such as cassava, plantain etc. e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 She avers that his brother later gifted the disputed farmland to his children and wife who performed “aseda” in the presence of her family of which she was present. It is her evidence that her brother’s wife and children relocated from Atunutuma to Mpatuom but before that, one of the children Adwoa Nyamekye on behalf of her sibling and with the consent of their mother granted the fallow portion to an Abunu Tenant to cultivate same on abunu basis. She avers further that when abunu tenant could not cultivate the land, they decided to sell the land and she informed the Plaintiff who expressed interest and so together with Adwoa Nyamekye and their mother, they took the Plaintiff to the land for inspection. The Plaintiff after the inspection paid the appropriate fees and document was prepared for him and she told the Plaintiff to take possession immediately which he did by cultivating the portion that shares boundary with the Defendant into cocoa. She states that there are boundary features there such as flowers and Emire tree. EVIDENCE OF PW5 His evidence is that the Plaintiff granted the palm trees on the disputed land to him to distill Akpeteshie and that all the palm trees were planted by someone. He avers that during the time that he was on the land distilling the Akpeteshie, he saw one Kwaku Boateng mining on the dispute portion and upon his enquiry, he was told that it was the Plaintiff who gave him the land to mine. e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 THE CASE OF THE DEFENDANT The Defendant basically denies the case of the Plaintiff and states that she had inherited the disputed farmland from her late husband in 2001 after his demise and the Ebusuapanin, Opanin Koo Kusi (the father of the Plaintiff) had shared the deceased properties. In further denial, the Defendant states that she does not know any Kwadwo Asare whose land devolved to his wife (Madam Mary) and children and through them he acquired the disputed farmland whom the Plaintiff claims. She however avers that she knows the husband of Mary was called Kwadwo Mosi and he never had or owned any farmland at the disputed area let alone to have shared boundary with him. She states again that her late husband Opanin Kwabena Anto acquired vast land from Opanin Yaw Donkor of which the disputed farmland forms part and when her husband was alive, the said Kwadwo Mosi trespassed on to a portion of the land and her late husband, together with Yaw Bio and his friend Akwasi Nsiah confronted him. As he was not able to give any tangible reasons for trespassing on to the land, he was informed to harvest his food crops and warned never to plant any cash crop on the land and so Kwadwo Mosi harvested his food crops and vacated from the land. She avers that Kwadwo Mosi’s wife, Madam Mary and his children had access to the her (the Defendant’s) land, during the time they were harvesting the food crops. According to her, together with her husband they cultivated cocoa on a vast portion of their land and some portion reserved to cultivate food crops later. She avers that when the Plaintiff was mining on the disputed land, she e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 summoned him in the presence of one Teacher Brenya and told the Plaintiff to stop mining since the land belonged to her late husband. She avers further that the Plaintiff’s grantors do not own the disputed farmland and that if the Plaintiff had contacted her before buying the disputed farmland he would have known that his grantors do not own the disputed land and that when the Defendant heard that the Plaintiff was going to purchase the disputed land she called the Plaintiff and told him not to buy it since the said grantors did not have any land to sell same to him. However, in 2018, she noticed that the Plaintiff was clearing a portion of her land and she again told him to leave the land as the said Kwadwo Mosi or Kwadwo Asare whom he claims through, has no land at the disputed area. According to her, she confronted the Plaintiff and asked him to leave her land. She tendered in evidence the following Exhibits “1” – Power of Attorney, “2” – Site plan in the name of the original owner Opanin Yaw Donkor and “3” – Site Plan in the name of the Defendant. According to her the Plaintiff is taking advantage of her since he knows the history of the disputed land. She states that the Plaintiff is not entitled to any of his reliefs. APPLICABLE LAW/BURDEN OF PROOF The Plaintiff has the burden to prove his case to the standard of probabilities according to law without relying on the weakness in the other party’s case. He has the burden to identify positively the boundaries of the land in e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 dispute, isolated acts of ownership to show he has been in peaceful possession of same and when that burden is discharged, a declaration will be made in his favour. Sections 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) which are relevant to this case, provide as follows: Section 11 – Burden of producing Evidence defined “(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” “(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable that its non-existence. Section 12 – Proof by a preponderance of the probabilities “(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities” “(2) Preponderance of the probabilities means that degree of certainty of beliefs in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence” Section 14 – Allocation of burden of persuasion “Except as otherwise provided by law, unless 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 that party is asserting”. e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 The standard of proof required in a civil suit was explained in the case of BISI & ANOR. VRS. TABIRI ALIAS ASARE [1987-88] 1 GLR 360 head note (2) as follows: “the standard of proof required of a Plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability. But probability denoted an element of doubt or uncertainty and recognized that where there are two choices it was sufficient if the choice selected was more probable than the choice rejected…..” The burden of persuasion in civil matters was explained by the Supreme Court in the case of GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD VRS. HANNAH ASSI [2005-2006] SCGLR 458 as follows: “(1) since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue (Odametey vrs. Clouch [1989-90)1 GLR 14; Odonkor vrs. Amartei [1992-93] GBR 59, Tuakwa v. Bosom [2001-2002] SCGLR 61). Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgment might 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 be given in favour of a party on the preponderance of the probabilities ‘rather than on an archaic principle which might not accord with reason or common sense’ “. In the case of SAKORDIE VRS. F. K. A. CO. LTD [2009] SCGLR 65 @ 69 where it was held as follows: “It is also provided in the Evidence Act, 1975 (NRCD) Sections 11(4) and 12 as follows: “11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence.” The Plaintiff claims to be in peaceful possession of the disputed farmland even though the Defendant has denied same, he has also called his grantors and his boundary owners to testify for him. However, I will have to determine if the disputed farmland belonged to his grantors for them to have granted same to him. ISSUES FOR DETERMINATION: 1. Whether or not the disputed farmland belonged to the Plaintiff’s grantors. 2. Whether or not the Plaintiff has been in peaceful possession of the disputed farmland after it was granted to him? In resolving issue one, I first have to determine whether the disputed farmland was gifted to the Plaintiff’s grantors as being claimed as they must be owners before they can transfer their interest to the Plaintiff. 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 The evidence of the PW1 who is one of the grantors of the Plaintiff is that her father during his life time gifted the disputed farmland to them which they performed “aseda” and they later agreed to dispose of the said land hence the sale to the Plaintiff. It is not clear when the said gift was made, however all the witnesses spoke about this gift. Generally, a gift could be made of anything to one provided the subject matter is a self-acquired property of the donor. The Black’s Law dictionary defines gift as “the voluntary transfer of property to another without compensation”. However,gift is also explained by Kwamena Bentsi-Enchill in his book titled GHANA LAND LAW – An Exposition, Critique and Analysis at page 360 as follows: “a gift is like a sale in which the vendor expects no price to be paid and asks for none. That is to say it is a voluntary transfer of title to another for no consideration. As in a sale, the donor must be the owner of the thing given, have the competence to transfer it and fully intend so to do, and purport to do so. If these conditions are satisfied, but the intended done refuses to accept the proferred gift, then there is no gift. For a donee willing to accept the gift is needed for the making a gift; and an acceptance of some sort by the donee is necessary to complete the gift”. From the above explanation the property to be given out must the self- acquired property of the donor, he must have capacity to give out the property (he must be of sound mind and must not be a minor) and the donee 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 must accept the gift and under our customary law the donee accepts the gift by providing ‘aseda’ to the donor. For a customary gift to be valid certain elements/requirements must be existing and these are provided for in a number of decided cases. The Supreme Court in the case of YOGUO & ANOR. VRS. AGYEKUM & ORS. [1966] GLR 482 gave the requirements of a valid customary gift as follows: “a valid gift, under customary law, is an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstances of the case may permit. For purpose of the required publicity, the gift is made in the presence of independent witnesses, some of whom should be members of the family of the donor who would have succeeded to the property if the donor had died intestate and, also, in the presence of members of the family of the donee who also would succeed to the property upon the death of the donee on intestacy. The gift is acknowledged by the donee by the presentation of drinks or other articles to the donor, the drink or articles are handed to one of the witnesses – preferably a member of the donee’s family, who in turn delivers it to one of the witnesses attending on behalf of the donor; libation is then poured declaring the transfer and the witnesses share a portion of the drink or other articles. Another form of publicity is exclusive possession and the exercise of overt of ownership by the donee after the ceremony….” 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 See also ABDUL RAHMAN VRS BABA LADI; CIVIL APPEAL NO. J4/36/2013, 29TH JULY, 2013 where it was held as follows: “on proof of gift inter vivos, counsel for the appellant cited three relevant decisions of this Court. ‘These are Mahama Hausa v. Baako Hausa [1972] 2 GLR 469; Asare vrs. Kumoji [2000] SCGLR 298; Akumsah vrs. Botchway & Jei River Farm Ltd. [2011] 1 SCGLR 288. The most important element of a customary gift that runs through these authorities and several others is that the gift must be offered and accepted and must be witnessed by somebody else other than the donor and donee. ‘Thus when the fact that a gift has been made is challenged, it will not be sufficient to state barely that a gift was made; you have to go on to show the occasion, if any, on which the gift was made; the date; the time, if possible; the venue and most importantly, in whose presence it was made”. The question that begs for determination now is, is the disputed farmland self-acquired property of Opanin Kwadwo Mosi a.k.a Opanin Kwadwo Asare for him to have given same to his children? Both the Plaintiff’s grantors and the Defendant claim their root of title from Opanin Yaw Donkor. The Defendant states that her late husband acquired a vast farmland including the disputed portion from the said opanin Yaw Donkor, about 50 years ago and the said opanin Yaw Donkor hand over his site plan in his own name to her husband, that is Exhibit 2, PW1 did not state when her father acquired the disputed land and undercrosss examination, she admitted that she does not when her father acquired the land. This is what transpired on 23rd February, 2023 under cross examination: 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 Q: Who gave you the land that you sold to the Plaintiff? A: It was given to me by my father, Kwadwo Asare. Q: How did he acquire the land? A: He bought it from one Nana Yaw Donkor. Q: Do you know when your father got the land from the said Nana Yaw Donkor? A: No. I cannot tell. However, PW2 stated at paragraph 9 of his witness statement that opanin Kwadwo Mosi acquired his land in 1980 and this is what transpired when he was crossed examined on 7th March, 2023: Q: [Paragraph 9 of your witness statement referred], do you still stand by that? A: Yes. Q: I am putting it to you that opanin Yaw Donkor had sold the land to the Defendant’s husband – my father before 1980. A: I do not know. The PW4 who is a sister to the said Kwadwo Mosi and a witness in Exhibit A also stated under cross examination that her brother acquired the land about 40 years ago (at the time of her being cross examined). So if the Plaintiff’s grantors father acquired the land in 1980 (43 years) and about 40 years ago as being claimed by the witnesses and the Defendant’s 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 husband’s also acquired his own in 1960 and about 50 years ago which ever came first, then the Defendant’s own was first in time as her husband acquired his earlier. The law is the where a land has been granted to someone, the grantor or the previous owner has no more interest or claim to the land which had been granted to someone previously and can therefore not grant the same land to anybody. This brings to mind the Latin Maxim of “Nemo dat quoud non habet”. Nemo dat quoud non habet is a Latin Maxim which means “no one can give that which he has not” or a legal principle which says that only the owner is capable of passing a good title to another person. The land in dispute was granted to the Defendant’s late husband in 1960 and to the Defendant’s grantors father in 1980 or thereabout. Where title has passed from the owner to another person, the owner has no title or anything else to be further granted to anybody subsequently. See the case of SAKORDIE VRS. F. K. A. CO. LTD [supra] 65 @ 70 where it was held as follows: “An effective customary conveyance divested the grantor of any further right, title or interest in the land to convey or grant to a subsequent grantee”. On the strength of the above provision, I therefore find and hold that Opanin Yaw Donkor having sold the disputed land to the Defendant’s husband earlier in time, did not have any more land to have sold same to the Plaintiff’s grantors father. 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 I hereby hold that the disputed land, was not self-acquired property of the Plaintiff’s grantor. Having held that the property that is the disputed farmland is not self- acquired property of the Plaintiff’s grantors father, I need not go further in to the provision of “aseda”, what was offered, those present who were neutral. I now move on to determine issue 2. It is trite that a Plaintiff who seeks for declaration of title, recovery of possession etc is obliged to lead cogent evidence in support of his/her acquisition of the land or root of title. In the case of ACQUAH VRS. PERGAH TRANSPORT LIMITED & ORS. [2010] SCGLR 728 the Court held “………………to succeed in an action for declaration of title to land, injunction and recovery of possession, the Plaintiff must establish by positive evidence the identity and the limits of the land claimed by him”. Where the Plaintiff fails to prove the identity of the land he claims with the land in dispute, his claim must fail. It was held in the case of ANANE VRS. DONKOR [1965] GLR 188 as follow: “A claim for declaration of title or an order for injunction must always fail, if the Plaintiff fails to establish positively the identity of the claimed with the land the subject of matter of his suit”. The identity of the farmland being claimed by the Plaintiff is not in doubt as a he has described his land as 4 acres farmland situate and lying at a place called “Adwurigya” at Atuntuma on Nkawie stool land and bounded by 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 the properties of Madam Akosua Boahemaa (the defendant), Op. Kwasi Ntuah, Ante Abaade, Agya Seth, Opanin Talent Fordjour, Opanin Yaw Krah and Mad Akua Bee and it is exactly the same description given by Defendant. So the identity of the farmland is not in doubt. However, the Plaintiff tendered in evidence exhibit A which is Statutory Declaration titled TRANSFER OF FARMLAND dated 16th November, 2018, to prove his root of title and acquisition. Paragraphs 3, 4 and 5 of the said document is as follows: “3 That we are the rightful/legitimate owners of farmland situates/lying at a place called Atuntuma in the Atwima Mponua District of Ashanti Region” “4 That the said farmland shares common boundaries with the properties of Mad. Akosua Boahemaa, Op. Kwasi Nkyea, Ante Abaade and Agya Seth” and “5 That we have transferred the ownership of the said farmland absolutely for good to Mr. Kwabena Atta Opoku of Atuntuma in the Atwima Mponua District of Ashanti Region”. The Plaintiff’s Exhibit A does not describe the farmland that was sold to him Plaintiff except to mention the boundary owners and how many acres was granted to him. Also this is what transpired when the Defendant crossed examined the Plaintiff and some of his witnesses to know from which document was exhibit A prepared. 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 Cross examination of the Plaintiff on 13th February, 2023: Q: What shows that the disputed land belongs to your grantors before they sold it to you? A: The land was given to them by their father. Q: Do you have any documents to support what you just said? A: Yes, I have documents which I have provided to the Court. Q: Which document is that? A: That is exhibit “A”. Q: I am putting it to you that exhibit A does not show that the disputed land belongs to your grantors? A: This is what they gave to me after I purchased the land from them. Q: Your exhibit A is titled Transfer of land; this shows that there was a document based upon which they are transferring ownership to you. So where is that document? A: Unless I enquire from my grantors. Q: I am putting it to you that your grantors have no documents to show that the disputed land belong to them based upon which exhibit A was prepared? A: They have a document but I did not request for it. Q: Did they show that document to you? 1 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 A: No, but they told me that their father had a document and that they will look for it for me. Q: I am putting it to you that your grantors have no land in the disputed area and that your exhibit A is just a receipt? A: They have land there. Cross examination of PW1 on 23rd February, 2023 Q: You claim your father got the land from Opanin Yaww Donkor, was any documents given to your father which shows that he had sold the land to him? A: Opanin Yaw Donkor gave my father documents. We cannot find the documents now as my father was living in Presta. Q: I am putting it to you that what you just stated is not true as it was the Defendant’s husband who had acquired the disputed land from opanin Yaw Donkor already? A: That is not true. Q: And Opanin Yaw Donkor gave the site pan covering the land to the Defendant’s husband (attorney’s father)? A: I do not know. And then on 7th March, 2023: Q: On what basis did you prepare exhibit A? A: Because the land belongs to me. 2 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 Cross examination of PW4 on 18th April, 2023 Q: You have signed exhibit A as a witness? A: Yes, that is so. Q: How did you do the transfer document in exhibit A? A: The land belonged to my children and same has been sold to the Plaintiff. Q: From which document was exhibit A prepared? A: It was after the land had been sold to the Plaintiff that we prepared Exhibit A. Q: From what you just said it means exhibit A is not based on any available document? A: Yes, there was a document. Q: Can you produce that document to the Court? A: I can produce that document to the Court. Q: Is it there or you are going to trace it? A: I am going to search for it because he died in Presta. And then on the 28th April, 2023 Q: Have you brought the document you claimed your brother had to Court today? 2 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 A: I cannot produce that document as I am only a witness to Plaintiff’s grantors. None of the witnesses who spoke about existing document could produce the said document and so if there is no document, on what basis or based on what document was exhibit A prepared for the Plaintiff? PW3 has stated at paragraph 12 of her witness statement that she told the Plaintiff, after the disputed farmland had been sold to him, to hurriedly go into possession and she denied same when she was cross examined on that. After the Plaintiff has established his root of title or acquisition and the boundaries of the land he claims, he must proceed to prove that since the land was granted to him, he has been in possession, or exercised overt acts of ownership over the land. According to the Plaintiff, immediately the farmland was sold to him, he took possession by clearing the land, granted the palm trees to one Yaw Boakye who distil Akpeteshie with it and cultivated cocoa on the disputed land. He cleared the secondary forest and planted food crops like cassava, cocoyam, maize which he sold some and fed his family with some. He also sold part to some community miner in 2019 to mine gold without any opposition from the Defendant until May, 2022 when the Defendant approached him that the disputed farmland forms part of her land for that matter he should remove all his things from the land. 2 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 Subsequently, the Defendant caused damage to the equipment of miners and for that matter the miners stopped their activities on the land. The evidence goes to confirm that the Defendant challenged the Plaintiff when he went to the land and sold some to the galamseyers/miners This is what transpired when the Plaintiff cross examined the Defendant attorney on 13th June, 2023: Q: I am putting it to you that because the disputed land belong to me, I have sold a portion to galamsay for about 4 years nobody has confronted me? A: It is not true and that is the portion I objected to the sale to the galamseyer because same belong to the Defendant. The Plaintiff has also stated at paragraph 20 of his Statement of Claim that the Defendant was harassing and trespassing on to his land without any cause. So it is unfortunate for the Plaintiff to suggest that nobody challenged him when he sold a portion of the disputed farmland to galamsey for mining Even though the Defendant denied that there are palm trees on the disputed farmland, the Plaintiff called PW5 who testified that about 40 palm trees were sold to him to distil akpteshie. However, when the witness was asked, how he got to know that the disputed farmland belonged to the Plaintiff, he answered that “each of the parties showed me the boundaries of their respective land”. On what occasion did the Defendant showed him her boundary and what conversation might have taken place for the Defendant 2 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 to have shown her boundary to someone who was just distil akpateshie on someone’s? I find the evidence of the Plaintiff and his witnesses to be calculated and fabricated to outsmart the Defendant as the Plaintiff in breathe admits calling the Defendant when she was out of the jurisdiction and in one breathe deny same. I am of the opinion that if the Plaintiff had granted the palm trees on the disputed farmland to the PW5 at the blind side of the Defendant as there is evidence on record that for some time the Defendant was out of the jurisdiction. I also find and hold that the Plaintiff has not been in peaceful possession of the disputed farmland. Is the Plaintiff a purchaser for value without notice? Where a party acquires land without knowing that the same land had already been granted to someone or someone already had interest in the same land, the second grantee will be protected by law when he puts up the defence of bona fide purchaser for value without notice of any adverse interest. For such a defence to succeed, the burden now will be on the party to prove – See holding 3 of HYDRAFOAM ESTATES (GH) LTD. VRS. OWUSU (per lawful attorney) OKINE & OTHERS [2013 – 2014] 2 SCGLR @ 1117. That he is a diligent purchaser who conducted search at the appropriate State institution and acted in good faith. The Plaintiff must also prove that 2 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 when he took possession there was nothing to indicate that someone is in possession. The evidence of the Plaintiff is that conducted diligence before he purchased the disputed farmland. They went to the disputed land all the boundary owners excluding the Defendant who also shares boundary with the disputed land. PW1 stated at paragraph 13 of her witness statement as follows: “My siblings – Anastasia Owusu alias Maamente, Adoa Nkrumah, Kwabena Donkor, Brother Adansi, Ogaliba, Brother Tweneboah and Akwasi Adade went unto the land and because we had already plan the land for sales, there was demarcation that was done already by the Plaintiff’s grantors for about six months to separate the Defendant’s land from the disputed land”. Was the Defendant who also shares boundary with the disputed land invited? If the Plaintiff’s grantors as well as the Plaintiff himself had invited the Defendant this issue boundary demarcation would have been done properly and the Plaintiff’s grantor would not have unilaterally done the demarcation without the Defendant. The Plaintiff’s evidence that he knew the disputed land well cannot cure his refusal or his grantors refusal to have invited the Defendant to the disputed land for demarcation. In the circumstance, I find and hold that the Plaintiff is not a purchaser for value without the notice of the Defendant’s title to the disputed land. 2 e g a P Nyinahin District Court – Kwabena Atta Poku vrs. Maame Akosua Boahemaa – Suit No. A1/02/23 Having examined the evidence adduced by the parties and the witnesses together with the legal principles on the balance of probabilities, I hold that the Plaintiff was not able to demonstrate that he is entitled to the reliefs he is seeking and it is for this reason that I will dismiss the Plaintiff’s claims endorsed on his writ of summons and same is accordingly dismissed. I award cost of GHS2,000.00 against the Plaintiff and in favour of the Defendant. SGD. VICTORIA VERA AKONU DISTRICT MAGISTRATE 2 e g a P