PEH VRS ATTA & ANOTHER (A1/35/2018) [2024] GHADC 253 (23 May 2024)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ONTHURSDAY THE 23RD DAY OF MAY,2024,BEFORE HIS WORHSIP ISSAH ABDUL-WAHAB (DISTRICT MAGISTRATE) SUIT NO. A1/35/2018 BETWEEN PEH KWABENA C. K (PER HIS LAWFUL ATTORNEY ADWOA OFORIWAA ) - - - PLAINTIFF VRS: 1. ATTA AFUA 2. SIMON KWAME MENSAH @ KWAME BENMANKWAN ) ) ) - - DEFENDANTS J U D G E M E NT The plaintiff filed this suit on the 12th day of July,2018 seeking the following reliefs; (a) A declaration of tile to and recovery of possession of all that piece and parcel of un-numbered building plot lying and situate at Brodi on Nsawkaw stool lands and bounded by the properties of the Roman Catholic Church Brodi, Wenchi to Sampa main road, OpaninBonare and Kuma Paul. (b) General damages for trespass. (c) An order of the court for perpetual injunction restraining the defendants, their agents, workmen, labourers, descendants and all those who claim through them from interfering with the said plot. The defendants pleaded not liable to the claims of the plaintiff after same were read and explained to them. This court after having considered the pleadings filed by the parties together with the plaintiff’s particulars of claim, set the following issues down for trial; (1) Whether or not the said un-numbered building plot described by the plaintiff in his particulars of claim is the property of the plaintiff; (2) Whether or not the plaintiff has any valid title to the said un-numbered plot; (3) Whether or not the defendant trespassed onto the said plot; and (4) Whether or not an order will lie to restrain the defendants from going onto the said plot. In her evidence in-chief, the plaintiff’s attorney told the court she is Adwoa Foriwaa and that she is a resident of Brodi near Nsawkaw but now lives at Sefwi- Kwasikrom where she farms. That she knows the plaintiff (her principal) who is her younger brother. That plaintiff gave her power of attorney to conduct the case for her (plaintiff). That she also knows the defendants. That 1st defendant is the twin sister of her late mother (Atta AkuaKakraa) and the second defendant (D2) is her uncle’s son. That the disputed land is situate, and being at Brodi near Nsawkaw on Nsawkaw stool lands and is bounded by the properties of the Roman Catholic Church, Brodi, the Wenchi to Sampa main road, OpaninBanare and Kuma Paul. Plaintiff contended that her late mother AttaaAfua was married to her step- father (the late Addo Kwame) and in the course of time he fell sick and was taken care of by her (plaintiff) late mother. That as a result of the care her mother provided, the step father recovered fully from his illness. Then the step father in appreciation of the care provided gifted the land in dispute to her mother and she provided the customary thanks offering (Aseda) in the form of two (2) bottles of “Akpeteshi” (local gin) in the presence of witnesses to seal the gift. That after that the mother took immediate possession of the land and has been exercising acts of ownership until her demise. That the mother built a single-room cottage on the land and they both lived there together. That the step father later died and his mother remarried one Opanin Willie Kwaku who lived at Duadaso No. 1 near Sampa. That the mother had to leave Brodi to join her new husband at Duadaso No. 1. That when the mother left, her twin sister Atta Afua (1st defendant) pleaded with her mother to stay in the cottage. That the request was granted and 1st defendant moved into the cottage with her (1st defendant) husband Shey Kofi. That the marriage between 1st defendant and Shey Kofi broken down and Shey Kofi left the cottage leaving on 1stdefendant. That 1st defendant also fell sick later and left to stay with her children at Sampa leaving the cottage vacant. That the second defendant’s (D2) father Kwadwo Anthony later asked his (plaintiff) mother for permission to allow 2nd defendant occupy the cottage and use same as a chop bar. That the request was granted and 2nd defendant used the cottage for a chop bar business which was what earned him the nickname “Barimankwan” in the community. That whiles in the cottage, 2nd defendant replaced the thatch roof of the cottage with iron sheets without his (plaintiff ) mothers permission. Plaintiff said the mother then complained to 2nd defendant’s father and he said he was not aware 2nd defendant had replaced the roof as he lived in Enchi in the Western Region, and promised to find out the reason why 2nd defendant did that. That 2nd defendant said the roof was dilapidated and that was why he changed. Plaintiff said his mother then told 2nd defendant she had no money to pay for the iron roofing sheets and 2nd defendant’s father said 2nd defendant was also her son and could also maintain the house. Plaintiff stated that 2nd defendant later stop operating the chop bar and left the disputed land to go and arm but comes back occasionally. Plaintiff said after his mother deed the roofing sheets were later ripped off by rainstorm which made the whole house uninhabitable. That as a result he (plaintiff) and other siblings decided to pull the old house down and put up a new one. Then they saw 2nd defendant moulding cement blocks on the land. That the plaintiff (Per Kwabena) then confronted 2nd defendant and to his (plaintiff) surprise 2nd defendant was laying adverse claim to the land in dispute. That plaintiff then informed her (plaintiff’s Attorney) about the trespassory acts of 2nd defendant. That she then went with the plaintiff to complain to the 1st defendant (D1) who is the twin sister of his late mother. That 1st defendant then told them she permitted 2nd defendant to build on the land because it is her (1st defendant) personal property. That plaintiff told 1st defendant her claim was false as the land belongs to his late mother (Atta Afua Kakra). That plaintiff then told the defendant if they did not stop the trespass he will go to court. That plaintiff then instituted an action at the District Court in Wenchi with a suit No. A1/56/2017, a copy of the Writ herein exhibited and marked ‘A’. That before the said suit was heard one Yaw Bile @ Yaw Bire can elder family member came and sought leave of the court to have the matter settled out of court. That those who sat on the matter were; Opanin Yaw Bleh, (presiding) Nana Kwadwo Seth, and OpaninNkyifie. That after the hearing the panel ruled in favour of the plaintiff and made it clear to 1st defendant that she does not have the capacity to give the disputed land or permit 2nd defendant to occupy same because the land does not belong to her. That whiles they waited for Op. Yaw Bire @ Yaw Bleh to report back to the court, of the outcome of the settlement, 1st defendant did not accept the decision of the panel or elders and continued to trespass onto the land. That the plaintiff had no other option than to engage a lawyer to subsequently institute this action. That the defendant’s will not stop their trespassory acts if they are not stopped by the court. The plaintiff’s sole witness (P. W.1) told the court he is Shey Yaw Simon. That he is a native of Brodi but is currently living at WassaAmenfi in the Western Region and is a farmer. That he knows the plaintiff who is his maternal uncle. That the plaintiff’s attorney is his mother. P. W.1 said he knows the defendants as well. P. W.1 said the 1st defendant is the elder sister of the plaintiff’s mother. That plaintiff’s mother as the twin sister of the 1st defendant. That the plaintiff’s mother permitted the 2nd defendant to use a single room structure on the dispute plot for his (2nd defendant) chop bar business. After the 2nd defendant was granted permission to use the room the 2nd defendant wanted to erect a shed to provide a place for his customer to sit. P. W.1 said he was in J. H. S 2 at the time. That it was he (P. W.1) and others including one Kofi Ottoo that the 2nd defendant pleaded with to help him erect the shade. That at that time when one OpaninBonare complained about the said shade, as a boundary owner, P. W.1 said they informed one Opanin Kwadwo Anthony (2nd defendant’s father) and he said the land belongs to Atta Afua (Kakra) who is the plaintiff’s mother and the aunt of the 2nd defendant. That Op. Kwadwo Anthony advised the 2nd defendant to take good cage of the land and that in future when he (P. W.1) comes to take possession, he the 2nd defendant should vacate the land. P. W.1 said after his J. H. S education he (P. W.1) left for Wassa- Amenfi in the Western Region to do farming. That he once came back and noticed that 2nd defendant had stopped the chop bar business and that the single room structure on the plot had collapsed. Then later he saw that 2nd defendant had moulded blocks on the disputed plot and had even dug a foundation in readings for a bulding project. P. W.1 said he told 2nd defendant to stop and wait for the return of the plaintiff’s attorney who is his (P. W.1) mother because he (P. W.1) knows how 2nd defendant got onto the disputed plot and that he (P. W.1) was not also sure if it was his (P. W.1) mother (plaintiff’s attorney) who gave 2nd defendant permission to build on the land. That when he (P. W.1) told 2nd defendant to stop, it led to a confrontation between them and he (P. W.1) left the place. That 2nd defendant then summoned him (P. W.1) before the Akwamuhene. That before the chief and his elders 2nd defendant claimed that his father gifted the disputed plot to him. P. W.1 said he challenged the claim and told the elders that 2nd defendant was put on the land. P. W.1 said there he called one Adwoa Tawiah and the plaintiff’s mother as witnesses. That Adwoa Tawiah corroborated his (P. W.1) ascertion that the disputed plot belong to Atta Afua Kakra (the plaintiff’s mother and the twin sister of 1st defendant. That as part of the efforts to settle the matter amicably the Akwamuhene pleaded with him (P. W.1) to go and demarcated the plot into two (2) and one (1) portion given to the 2nd defendant (D2) for peace to prevail. P. W.1 said he told the Akwamuhene that he (P. W.1) cannot re-demarcate the plot without the consent of the plaintiff and the plaintiff’s attorney. He then told the Akwamuhene to tell the 2nd defendant to vacate the land in eth meantime. That they left the Akwamuhene’s place without a resolution of the matter. P. W.1 said he later informed the plaintiff and the plaintiff’s attorney of what happened at the Akwamuhene’s place. That the plaintiff rejected the suggestion to re-demarcate the plot. The 2nd defendant also refused to vacate the plot P. W.1 said he later learnt that the plaintiff brought the matter to court. The evidence of the defendants herein also consisted of the testimony of the second defendant (D2) who testified for himself and the 1st defendant (D1) as well as the testimony of their (defendants) sole witness (D. W.1). The second defendant (D2) told the court he is Simon Kwame Mensah and that he is a farmer and lives at Brodi. That he knows the 1st defendant (D1) as well as the plaintiff herein. That he knows the disputed plot number 111 Block ‘F’ Brodi. That he (D2) is currently in possession of same and the plaintiff is laying adverse claim to the said plot. 2nd defendant said the plot in dispute was acquired by his (D2) late father She Kwadwo Anthony from the late Peh Kwabena Peegi, the then Akwamuhene of Brodi. That after the acquisition, She Kwadwo Anthony went into possession of the plot and dug a foundation on it and also deposited. That he wanted to put up a brick building on the plot. 2nd defendant said the size of the plot did not fit She Kwadwo Anthony’s plan so he could not put up the building. That he also had a dispute with the Roman Catholic Church over the boundary of the plot. That the Brodi Plot Allocation Committee then gave She Kwadwo Anthony another plot of land as a replacement and sold the plot number 111 Block ‘F’ Brodi to him (2nd defendant). That after her (2nd defendant) paid for the said plot number 111 he was issued with a payment receipt or chit (Exhibit ‘1’) which 2nd defendant tendered and had it marked as Exhibit ‘1’. That pursuant to the grant the Brodi Stool then caused a site plan to be issued in respect of the plot number 111 Block ‘F’ which was tendered and marked Exhibit ‘2’. 2nd defendant said prior to the sale of the plot to him, he had long erected a brick building on same where he (2nd defendant) lived with his children. That he currently has block building on same which is up to Window Level. That is on the said plot number 111 Block ‘F’ Brodi. 2nd defendant said the said plot number 111 Block ‘F’ Brodi is not the property of the plaintiff. And that the plaintiff has never been in possession of the said plot number 111 Block ‘F’ and that the said plot number 111 has never been acquired or being in possession of Addo Kwame. 2nd defendant concluded that the plaintiff is not entitle to the claims and prayed that same be dismissed. The sole witness of the defendants was one Kwasi Tawiah, who said he is a farmer and lives at Brodi. That he knows the parties herein and also knows the disputed plot number 111 Block ‘F’ Brodi. That over 20years ago the 2nd defendant engaged him (D. W.1) to put up a building on the plot for him (2nd defendant). That it was a two bedroom building. That after the building was done 2nd defendant moved into it with his wife and children and that is where they live. D. W.1 said he is a native of Brodi and that for the many years he has lived in Brodi. It is the 2nd defendant he (D. W.1) has known to be in possession of the disputed plot. That when 2nd defendant engaged him to put up the house, no one came and questioned him (D. W.1) on the plot. That he (D. W.1) did the work to the end without any hinderance. I must submit at this stage that, I have dutifully examined and carefully evaluated all the evidence adduced by the parties herein. That is, their testimonies including all the exhibits tendered. However, before I resolve the issues set down for the trial, it is instructive to state the burden imposed on the averring party by in a civil trial. Sections 11 (4) and 12 (1) of the Evidence Act. 1975 (NRCD 323) place the burden on the party laying a claim in a civil litigation. Indeed Section 11 (4) States that;“ in other circumstances the burden of producing evidence requires a party to produce sufficient evidence, so that on al the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”. This is the evidential burden. Then on the standard of the burden imposed Section 12 (1) States that “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities”. This is the persuasive burden. The preponderance of the probabilities is explained further in Section 12 (2) of NRCD 323 to mean. “That degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of the a fact is more probable than its non-existence”. These principles of law expoused above have been reinforced by the courts in a stream of decided cases including the case of Faibi Vs State Hotels Corp {1968} GLR, 176 when was held that “ In a civil trial the party who in his/her pleadings or Writ of Summons raise issues that are essential to the success of their claim assumes the onus of proof. Again, it is trite, leaving that in a litigation for ownership of land, the party who claims possession and perpetual injunction must prove his/her title. See the case of Asante Appiah Vs Amponsah (alias) Mansa {2009} SCGLR, 90 at 96 in which the Supreme Court of Ghana Speaking through Brobbey JSC said “ The law is well established. That where a party’s claims are for possession and perpetual injunction, he puts his title in issue. He thereafter assumes the onus of proving his title by a preponderance of probabilities, like any party who claims declaration of title to land. Again, it is the law, as set out in the Case of Nana AwuaGyebu XV Vs Mondial/Veneer Co Ltd {2011} 32, MLRG, 84 SC, that in a situation where a party claims ownership of Land, the party must prove; (a) His. Her root of title, (b) The incidence of acquisition. (c) Evidence of acts of unchallenged possession of the disputed land. Having therefore examined the law, it is important to now resolve the issues. On the first issues of the title of the plaintiff herein, it is important to observe that the plaintiff contended that the disputed plot was gifted to their mother, the late Atta Afua by late Addo Kwame, who at the time was married to their mother Atta Afua and so was their step-father. The plaintiff per his lawful Attorney asserted that the gift was in appreciation of case that their mother Atta Afuagave to the said Addo Kwame when he was very sick at the time of the said marriage. So, clearly from the evidence of the plaintiff, it can be gleaned that the plaintiff seeks to trace his root of title to the disputed plot to his late mother Atta Afua and whose made of acquisition of the disputed land was by a gift. This claim by the plaintiff has however not been supported or corroborated by any witness or document in respect of his (plaintiff) claim of that the disputed plot was originally acquired by Opanin Addo Kwame and who later made of gift of the said land to his (plaintiff) mother Atta Afua (kakra). Indeed this is land and everything about it ownership and/or alienation must be founded on evidence. The testimony of the plaintiff’s sole witness (P. W.1) one Shey Yaw Simon did not also support the claim of the plaintiff relative to the proof of his root of title to the disputed plot. P. W.1’s 22 paragraphed, witness statement which was adopted as his testimony before this court, narrated the events within his knowledge from the time the 2nd defendant took possession of the disputed land. As a matter of fact the only thing said by P. W.1, Shey Yaw Simon regarding the plaintiff’s claim of ownership, is contained in paragraph 4 where the witness (P. W.1) stated that the 2nd defendants’ father Opanin Kwadwo Anthony went to the plaintiff’s mother, Atta Afua (kakra) to plead with her to allow the 2nd defendant use a single room structure on the land for his (2nd defendant) chop bar business. Before this the witness (P. W.1) herein never provided any further particulars of the plaintiff’s root of title to the disputed land regard how the plaintiff’s mother Atta Afua acquired the disputed land. The corroboration of the testimony of the plaintiff on his root of title is essential given the fact that possession in land matters is a function of ownership or title and not conclusive evidence in determining ownership. At lease the late Opanin Addo Kwame whom plaintiff claims was the grantor of his (plaintiff) late mother Atta Afua has family members. It should have been possible for the plaintiff to call any member of his family to corroborate their claim or ascertion that the disputed land was a gift from Addo Kwame to Atta Afua. Again, a member from the family of the late Atta Afua (kakra) could also have been called to speak to the said gift by Addo Kwame to Atta Afua who were married. These testimonies if provided would have corroborated and enhanced the probative valued of the claim by plaintiff on his root of title to the disputed plot. Here it is essential to state that these inadequacies in the evidence of the plaintiff have been worsen and further degraded with the denial by the defendants of the said claim of the plaintiff and the insistence by the defendants that the disputed plot was acquired by the Sah Kwadwo Anthony from one Peh Kwadwo Peegi, the tneAkwamuhene of Brodi. A claim the 2nd defendant supported with Exhibit ‘1’ and ‘2’, a Plot Allocation receipt or chit and a site plan respectively. These documents or exhibits dated the 26th of May,1996 and 31st Augsut,2018 respectively were both admitted in evidence and properly evaluated. On the issue of whether or not the defendants trespassed onto the disputed plot, the question to answer here is what the identity of the disputed land is and whether that has been satisfaction proved or established by the plaintiff. The plaintiff asserted that the 2nd defendant trespassed on the disputed plot and has refused or failed to vacate same after he (2nd defendant) was granted permission by the plaintiff’s late mother (Atta Afua) to use a structure (single room) on the land for his “chop bar business”. The 2nd defendant denied this and contended that a certain Sah Kwadwo Anthony acquired the plot number 111 Block ‘F’ Brodi and which plot he (2nd defendant) is currently in possession of and has been in possession of same for years and which same plot he did his (2nd defendant) “chop bar” business on. Here it is imperative to state that whereas the 2nd defendant is very certain on the identity of the plot he currently is in possession of, which is plot number 111 Block ‘F’ Brodi, the plaintiff on his parts, per his writ of summons talks about a certain un-numbered building plot lying and being at Brodi on Nsawkaw Stool Lands and bounded by the properties of the Roman Catholic Church, Brodi the Wenchi to Sampa road, OpaninBonare and Kuma Paul respectively. These descriptions are clearly not the same. And that being the case, can it be said and quiet conclusively that the plaintiff herein is talking about the plot that the 2nd defendant is in possession of? From the descriptions given by the parties herein, the answer will be no. And if so then clearly the plaintiff cannot be said to have proved or established the identity of the plot he claims ownership of. This because the description of the disputed plot given by the plaintiff appears to be pointing to a different land and not the one the 2nd defendant is in possession. And here again it is instructive to state that the burden of proving or establishing the identity of the disputed plot is on the plaintiff or the party making the averment. That is the duty of the plaintiff. See the Case of Aryeh &Akakpo VsAyaaIddrisu {2010} SCGLR, 891 at 901. When the Supreme Court held inter alia that “ to succeed in an action for the declaration of title to land, injunction and recovery of possession, the plaintiff must establish by positive evidence the identity and the limit of the land he claims”. Here plaintiff having named the boundaries and/or boundary owners of the disputed plot said it is un-numbered, which means on the identity of the disputed plot the plaintiff only stated its boundaries, without establishing its number, (since he says it’s a building plot) or its size and also the exact location in doing this, even without the plot been numbered, plaintiff could have called any of the persons he said share boundary with the plot to attest to its identity and with the view to helping this court properly determine if that is the plot the 2nd defendant is in possession of. This the plaintiff did not do. And the sole witness he (plaintiff) called (Shey Yaw Simon) also did not lead any evidence on the true, identity of the disputed plot. Indeed the only person the witness (P. W.1) mention as a boundary owner is one OpaninBonare whom the plaintiff also named in his writ of summons. P. W.1 never mentioned the other boundary owners named by the plaintiff. So here again, it is unclear to the court even after having considered all the evidence of the plaintiff, if the plot that the 2nd defendant is in possession of is the same plot the plaintiff claims. And that being the case, and given the position of the law that the duty is on the plaintiff to prove the identity of the land he claims this court is of the considered view that plaintiff has not established any act of trespass on the part of the 2nd defendant. Finally, I wish to submit that the position of the law following form the decision in Fofie Vs Wusu {1992-93} GLR, 877, is that it is the plaintiff who bears the burden of establishing the identity of the land she is laying claim to. Failure to prove this identity is fatal to a claim for declaration of title. “ This is even so when the 2nd defendant contended that the Sah Kwadwo Anthony was granted another land and the one he (2nd defendant) currently occupies (Plot Number 111 Block ‘F’ Brodi) was then sold to him (2nd defendant) by the Brodi Plot Allocation Committee. The evidence of which are Exhibits ‘1’ and ‘2’. From the evidence as adduced therefore I found the following as facts; (1) That the disputed plot which the plaintiff claims is un-numbered and which plaintiff said the 2nd defendant is in possession of District from the plot number 111 Block ‘F’ Brodi the 2nd defendant says he occupies. (2) That the plaintiff’s claim that the said disputed plot was gifted to his late mother by Op. Addo Kwame, has not be proved. (3) That the 2nd defendant herein has been in possession of the said plot effectively for several years which started with the operation of an eating or “chop bar”. (4) That the claim by the plaintiff that his late mother Atta Afua permitted the 2nd defendant to stay on the plot through the 1st defendant is supported by the evidence. From the law on the burden of proof as stated above and the evidence as adduced culminating in the findings of fact made, it is my considered conclusion that the plaintiff herein has not been able to prove his claims and same failed. The reasons for the above conclusion include; (1) That the plaintiff even though claims ownership of the disputed plot failed to establish or prove his root of title. (2) That the plaintiff also failed to establish the true identity of the disputed plot. (3) That the plaintiff failed also to prove that the 2nd defendant herein is a trespassor or has trepassesed onto the disputed land. (4) That the plaintiff has not discharged the burden imposed on him relative to the proof of his claims, (5) And on the preponderance of the probabilities. The case of the plaintiff is hereby dismissed in its entity. Cost of GH₵4,000.00 is hereby awarded for the defendants and against the plaintiff. COUNSEL MR. SIMON ABLEDU FOR PLAINTIFF. MR. MOSES KOFI OBAH FOR DEFENDANTS …………SGD……………. ISSAH ABDUL-WAHAB (MAGISTRATE) 14