VIELO VRS FOSU & ANOTHER (A1/13/2024) [2024] GHADC 366 (19 July 2024)

IN THE DISTRICT COURT KINTAMPO HELD ON FRIDAY 19TH JULY 2024 BEFORE HIS WORSHIP KWAME ADJEI MANU ESQ. VIELO PAUL - PLAINTIFF SUIT NO: A1/13/2024 VRS 1. OP. YAW FOSU 2. KWAME KYEREH - DEFENDANTS JUDGMENT 1. INTRODUCTION 1.1. Plaintiff in this suit sued Defendants jointly and severally for the following reliefs: “(a)Declaration of title to land, ownership and possession of all that farm land with adjoining Cashew plantation situates and lying at a place called “Pena” on Nkoranza stool land bounded on all sides by the landed properties of Kwaku Moses, Kwaku Tanya and Pena stream. (b)Declaration that the purported transfer of portion of the disputed land described in claim A “Supra” by the 1st Defendant to the 2nd Defendant be declared null and void. (c) General damages for unlawful trespass. Page 1 of 20 (d)An order to compel the 2nd Defendant to render accounts on the Cashew nuts realized from the disputed Cashew farm from 2022 season up to date. (d)An order for perpetual injunction restraining the Defendants, their agents, assigns, labourers, workmen, relatives, descendants and all those who claim through the Defendants from dealing with the said cashew plantation.” Plaintiff’s case 1.2. Plaintiff’s case is that 1st Defendant transferred the disputed land to him in the year 2016 at a price of GHS 7,100.00 in the presence of witnesses and he subsequently planted cashew on the land. Plaintiff says he fell ill, and 1st Defendant unlawfully carved a portion of the disputed land and sold it to 2nd Defendant, hence his suit for redress. 1.3. Plaintiff alleges that he purchased an initial 10 acres measured with a rope, a document was executed in proof thereof, and afterwards, it was realized that this land had an excess of three (3) acres which was sold to Plaintiff at an additional cost. An additional document was executed to evidence the second transaction, and he entered possession of the land cultivating it. 1st Defendant according to Plaintiff destroyed his crops on a portion of the land cultivated with food crops without his knowledge and consent in 2020 and 2021, leading to a Page 2 of 20 complaint to the chief of Tamfiano who said he could not settle the matter. 1.4. Plaintiff lodged a complaint at the Jema police station where it was arranged for a surveyor to measure the land contrary to the initial rope measurement. So, after the measurement Plaintiff was told by the surveyor that the initial 13 acres measured with the rope had an excess of three (3) acres. This was carved out and restituted to 1st Defendant, who still was not content and continued to encroach on Plaintiff’s land, selling a portion of Plaintiff’s cashew farm to 2nd Defendant. All attempts to stop this conduct by Defendants according to Plaintiff have failed. Defendants’ cases 1.5. 2nd Defendant did not set a case for the court to consider. He did not lead any evidence at all in the suit. He is bound by the outcome of this suit especially where it is as result of his failings as explained by Mensah-Homiah (Mrs.) J. (As she then was) in Sinapi Aba Savings & Loans Ltd. v. Dubapharma Co. Limited & 2 Ors. (2015) JELR 67139 (HC) relying on Hammond v. Odoi (1982-83) GLR 1215. It is noteworthy that the Court did not order pleadings. 1.6. 1st Defendant who gave evidence and from which evidence his case was gleaned, made the case that he sold his land to Plaintiff in the presence of witnesses and measured it with a Page 3 of 20 rope measuring an initial 10 acres and travelled for two (2) years. On his return to the disputed area where he still owned some parcel of land, he noticed that this land had been trespassed unto by Plaintiff who removed the banana plants used to mark the initial boundary. This land was subsequently sold to Plaintiff who admitted that it did not form part of the 10 acres sold initially to him. 1.7. Plaintiff still trespassed and cultivated a marshy portion of 1st Defendant’s land according to him, so after several boundary disputes, Plaintiff invited 1st Defendant to the palace of the queenmother of Tamfiano which he honoured. He was subsequently arrested by the police and parties proceeded to determine the boundaries after which a surveyor was engaged by the Police commander of Jema, the service charge of whom Plaintiff paid. The surveyor measured 13 acres of land after determining the size of the entire land as 16 acres with his device. This surveyor’s work according to 1st Defendant was accepted by all parties, so they proceeded to plant Nkrandodua to mark their boundaries. 1.8. On the cases set forth by parties the court raised three main issues for determination, being whether 1st Defendant transferred the entirety of his land at the disputed area to Plaintiff, whether Plaintiff is owner of the disputed land and whether Defendants have trespassed unto Plaintiff’s land. Page 4 of 20 2. BURDEN & STANDARD OF PROOF 2.1. Without pretending to chart a novel course in setting out what the evidential burden on parties herein is, I must say that this burden initially was on Plaintiff who at law is required to produce sufficient evidence and convince the court of its reliability and credibility at the end of his case, so that Defendant would be required to lead evidence to contradict that of Plaintiff. These requirements can be found at sections 10, 11, 14 and 17 of the Evidence Act, 1975 (NRCD 323). In Ackah v. Pergah Transport Ltd. & ORS (2010) SCGLR 728, the Supreme Court explained the evidential burden on parties in civil suits thus: “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 will fail. The method of producing evidence is varied and it includes the testimonies of parties and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that Page 5 of 20 on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non- existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the Evidence Act, 1975 (NRCD 323)” 2.2. What constitutes sufficient evidence was discussed in Yeboah vrs. Amofa (1997-1998) 1 GLR 674 at 682-684 at page 683 by Her Ladyship Mrs. Wood thus: “I notice from section 11 of NRCD 323 that the statute does not attempt any definition of “sufficient evidence”. In other words no attempt is made in disclosing what evidence will be deemed sufficient and what could be classified as insufficient. The reason is not difficult to find. It is definitely a question of fact determinable on the peculiar facts of each particular case. So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case B.............. I think when the two cases are read in the light of sections 11(1) and (4) and 12 of NRCD 323, all the law required of a person who seeks declaration of title is to lead such particular or sufficient evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude the probabilities of the existence rather than the non existence of the fact”. Page 6 of 20 2.3. It is not sufficient to simply deny an allegation without providing any evidence or explanation to support the denial and for this reason, in Hilodjie v. George (2005-2006) SCGLR 974 at 995 Georgina Woode JSC (as she then was) stated as follows: “In any action, cause or matter, a party who disputes an issue does not simply rest the case on formal denials either made in examination-in- chief or ‘put’ or ‘suggested’ to an opponent under cross-examination. If the opponent does not admit those suggestions, then he or she is deemed to have succeeded in establishing a prima facie case on the disputed fact, and the evidentiary burden shifts on to that party to prove contrary facts if he or she is desirous of avoiding a ruling against him or her on that issue.” 2.4. So as much as Defendant denied Plaintiff’s case, he was equally required if the burden shifted unto him at the end of Plaintiff’s case to lead his own evidence to contradict that of Plaintiff. If he failed to achieve this, then an issue may be resolved against him and an adverse ruling made thereon. 2.5. Additionally, Plaintiff’s reliefs in this suit include a declaration of title and recovery of possession. In respect of such a relief the Supreme Court in Rukayatu Usumanu v. Page 7 of 20 Zongo Naa Kun-Gari & 16 Ors (2021) JELR 107957 (SC) relied on Mondial Veneer (Gh) Ltd. v. Amuah Gyebu XV [2011] 1 SCGLR 466 where the Court per Georgina Wood CJ stated at page 474 that: “In land litigation even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls … to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation.” 2.6. So, Plaintiff was required to lead evidence of the root of his title to the land, the bounds of his land and the acts of possession exercised over the land claimed by him. Thankfully, much of these facts are settled in the formal and evidential admissions made by parties in this suit, so there will not be any further attempts by the court to make findings of fact thereon. 3. THE EVIDENCE 3.1. One fact that is clear in the evidence is that the entirety of 1st Defendant’s land was divested by him to Plaintiff. He clearly transferred more land than what was sold to Plaintiff as is in admission. The chronology of events leading to the sale of the Page 8 of 20 land entirely to Plaintiff is irrelevant except to say that there were two separate transactions that resulted in the transfer of the entirety of the land to Plaintiff, when viewed in addition to a gift of land made to Plaintiff. While PW2 was under cross- examination by 1st Defendant, this is what transpired, and was not the subject of any further challenge or reliable contradictory evidence on the part of Defendants. Q: Would you agree that it is not the land I sold to Plaintiff alone that he has cultivated cashew on? A: After 1st Defendant sold the land to Plaintiff, he gifted him an additional one acre to cultivate and feed from. Q: Do you know that Plaintiff has cultivated the entire land including the one I gave him to feed from with cashew? A: I do not know. After we had surveyed the land, I have not been there. 3.2. The written agreements between parties put in evidence by Plaintiff leave much to be desired, so the Court must entertain parole evidence to explain the context of these documents, since the terms therein do not have that quality of specificity that would ordinarily preclude the Court from accepting oral Page 9 of 20 evidence to explain them. The contents of the agreements clearly prepared by a person who lacks command of the language in which it was written, that is the English language is almost illegible. I must evaluate this oral evidence as well, oath against oath. In Jacobs v. Batavia and General Plantations Trust Ltd. (1924) 2 Ch 287 the parole evidence rule was explained as follows: “It is firmly established as a rule of law that parole evidence cannot be admitted to add to, vary or contradict a deed or other written instrument. Accordingly, it has been held that (except in cases of fraud or rectification, and except in certain circumstances, as a defence to an action for specific performance) parole evidence will not be admitted to prove that some particular term, which had been verbally agreed upon, had been omitted (by design or otherwise) from a written instrument constituting a valid and operative contract between the parties.” 3.3. I am also mindful of the point of law as explained in Agyei Osae v Agyeifio [2007-2008] SCGLR 499 that Whenever there was in existence a written document and conflicting oral evidence, the practice of the court was to lean favourably Page 10 of 20 towards the documentary evidence especially if it was authentic and the oral evidence was conflicting. 3.4. After considering all the evidence on record and the events of cross-examination and guided by Oxyair Ltd & Darko v. Wood [2005-2006] SCGLR 1057, where it was held that in an oath against oath situation, it is the duty of the trial court, or any court to consider the evidence adduced to form a judgment as to what version of events was more credible, I have concluded that the determination of crucial facts demands judicial choice of belief based on the comparative credibility of opposing parties and their witnesses. 3.5. In Lutterodt v. Commissioner of Police [1963] 2 GLR 429, SC, it was held that in an oath against oath situation, it is incumbent upon the trial court to examine the evidence before preferring one to the other and give reasons for the preference. The trial judge cannot be faulted on his decision once it is based on the evidence on record. Her Ladyship Afia Serwaa Asare-Botwe (Mrs.) relied on these rules in Lydia Tetteh v. Madam Akweley & Anor (2019) JELR 107108 (HC). 3.6. Plaintiff testified and called witnesses to corroborate his testimony largely, but Defendant though he filed a witness statement for a proposed witness, failed to call this witness to corroborate his evidence. In Majolagbe v. Larbi [1959] GLR Page 11 of 20 190 which though dated is good law, the settled point of law that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, the averment cannot be sufficiently proved by just mounting the witness-box and reciting the averment on oath without adducing some corroborative evidence was explained, which I apply. The Court received no corroborating evidence from 1st Defendant on the actual size of land transferred by him to Plaintiff, and will rely on Faibi v State Hotels Corporation [1968] GLR 471 where it was held that “Where a party would not produce evidence which evidence is available and within his peculiar knowledge, it could be inferred in law that that evidence is against him". 3.7. If 1st Defendant’s own evidence is anything to go by, the entirety of his land at the area was 16 acres after its measurement by a surveyor with a device, after which 13 acres was demarcated out of this to be given to Plaintiff. This was after parties had the land measured afresh with a device and it was discovered that the estimated size of the land as measured with the rope known as pole to pole exceeded the numbers that parties had in mind when first contracting. I find this entirely disingenuous. What is clear to my mind that ought to have been done, was for Plaintiff’s land as claimed by him to have been measured and the size determined and compared with the land claimed by 1st Defendant. This would Page 12 of 20 have been the proper procedure of any survey necessitated by a dispute and save for its confirmation of the size of the disputed land, I do not consider it proper or remotely fair to bind myself by any other outcome of that survey. 3.8. It defeats plain sense that 1st Defendant would expect the accuracy of what I surmise was a digital electronic device, and the crude measurement of a measuring rope to be equal or even approximately close, so that the alleged “excess” land should be returned to him. This was not simply unfair, but outright cheating. I find this position of mine justified by the fact that when parties visited the farm and measured the land on the ground with the rope, the actual portion of land purchased by Plaintiff was identified on the ground and the boundaries of that land known to the parties. 3.9. I have also viewed 1st Defendant’s evidence dimly because the entirety of his evidence-in-chief was silent on the fact that after the initial sale of the land to Plaintiff, he had made a gift of additional land to Plaintiff to cultivate for his sustenance. He did not also address the issue of sale of land to 2nd Defendant or how many acres were included in this sale, especially when Plaintiff alleged that the land he had intended to cede to 1st Defendant out of what appears to me to be clear magnanimity, was less than what 1st Defendant sold to 2nd Defendant. I deem Plaintiff’s case concerning the size of land sold to 2nd Page 13 of 20 Defendant admitted, since neither Defendant challenged it nor contradicted it by credible evidence. 3.10. 1st Defendant never identified the land he claimed to own after the sale to Plaintiff either in his own evidence or at any point under cross-examination. He also leaves the impression on the mind of the Court that he is not a credible witness because under cross-examination, he denied this fact that was already clearly in admission, that he had already made a gift of remaining land to Plaintiff. This was what transpired while 1st Defendant was under cross-examination to Plaintiff: Q: Do you remember that after measuring the entire land, the only remaining land was half an acre which you gifted to me? A: I did not gift Plaintiff land. What he bought from me is what he owns. 3.11. I am of the considered opinion that 1st Defendant realizing the disparity that the measurements with the rope and the surveyor's device created in his favour sought to seek refuge thereunder, abandoning all precious arrangements. The inconsistencies in 1st Defendant’s case are such that I cannot gloss over them since they touch on a fundamental issue in contention, that is the ownership of the disputed land. Page 14 of 20 Concerning inconsistencies of such nature, Lamptey JA. (As he then was) Obeng v. Bempomaa [1992-93] 3 GBR p 1029 had this to say: “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim.” 3.12. Notably, it is not every inconsistency that makes a witness a stranger to truth as held in Apaloo v. The Republic (1975) 1 GLR 156 at 173. Conflicts and inconsistencies in evidence should they matter to the judgment, should relate to material evidence, that is evidence related to the issues in contention. In The Republic v. Adekura [1984-86] 2 GLR 345, CA, it was stated inter alia, that evidence offered to prove a matter not in issue or not probative of a matter in issue is immaterial and conflicts in such evidence can have no relevant bearing on the judgment. The contradictory evidence in this suit concerns issues in contention, so inconsistencies therein ought to matter to the judgment. 3.13. By that principle known as equitable estoppel explained by Denning, J. (as he then was) in Central London Property Trust Ltd. v. High Trees House Ltd. (1947) KB. 130 and applied in Page 15 of 20 Hasnem Enterprises Limited V. IBM World Trade Corporation (2001) JELR 68302 (SC), I am of the view that 1st Defendant ought not to be permitted to resile from what was always the understanding between parties, when Plaintiff has given consideration. In the High Trees case, this is what was said: "Where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the court will take the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by considerations in the strict sense..." 3.14. In all, I find that 1st Defendant divested himself of the entirety of his land measuring a total of sixteen (16) acres, in part by sale to Plaintiff and in another part by gift to Plaintiff and Plaintiff is the owner thereof. I find Plaintiff’s ownership to be that of the usufruct, which it appears to be from the cases of both parties as made in this suit, and the evidence led by them. 3.15. Accordingly, 1st Defendant had no land to sell to 2nd Defendant and any such purported transfer would be void. The principle of law is that “nemo dat quod non habet” that is Page 16 of 20 to say that no one can give what he does not have. In Saanbaye Basilde Kangberee v. Alhaji Seidu Mohammed (2012) JELR 66777 (SC), the Supreme Court explained that this principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance. 3.16. I have not received any evidence justifying the compulsion of 2nd Defendant to account to Plaintiff for the proceeds of any cashew farm as claimed, so that relief ought to fail. It is however found in addition that Defendants have dealt with Plaintiff’s land contrary to his rights. 3.17. On the final issue, that is whether Defendants have trespassed unto Plaintiff’s land, the Court in Yaw Sefa v. Osei Kwame and Kwasi Afriyie (2021) JELR 109009 (CA) speaking unanimously through Poku-Acheampong, J. A. relied on Prof. Stephen Ofei’s book, “The Law of Torts in Ghana Text Cases and Material” [2014] at page 330 where the learned author explained trespass thus: “Trespass to land is a wrong to possession not ownership. Therefore only a person who is entitled to immediate possession can sue. Possession connotes occupation or physical control of land. Mere use without Page 17 of 20 possession or mere ownership without possession is not sufficient.” 3.18. As explained in Ballmoos v. Mensah [1984-86] 1 GLR, trespass is actionable per se, meaning that a party need not prove actual damage before he can succeed on a relief for damage for trespass. From the foregone, any interference with a person’s right to quiet possession of their property amounts to trespass and damages may follow. However, as outlined by Wiredu J in Chegu v. Dagomba [1977] 1 GLR 412, once a court has found trespass it is bound to award damages but in awarding such damages there must be a basis for awarding more than a nominal sum. The purpose of this award is to place the injured in the same position as if the breach had not occurred or as near thereto as possible, as explained in Cornelius Ogbu v. Access Bank (Gh) Ltd (2015) JELR 69870 (CA). 3.19. Defendants’ conduct, especially that of 1st Defendant is of such an undesirable nature that it, has now been entirely criminalized and punishable under the Land Act 2020 (Act 1036) on conviction by a fine or a term of imprisonment or to both. Plaintiff’s claim of ownership was know specifically to them since 1st Defendant was the same person who sold the disputed land to Plaintiff. Defendant’s entry unto the land after its sale was not denied by either Defendant. 1st Defendant Page 18 of 20 who testified alleged in his evidence that he sold a portion of the land to 2nd Defendant who proceeded to cultivate this land. These facts are in admission and on the strength of this, I find that Defendants have trespassed unto Plaintiff’s land. 3.20. Applying Rules 2 and 4 of the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C. I. 52), the reasoning of the Supreme Court in Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC) and the non-existence of some other statutorily or contractually applicable rate of interest, interest shall be computed on all sums awarded in this suit at the statutory rate of 24.79 %, which I have taken notice of as the Bank of Ghana 91-day treasury bill interest rate as at judgment. CONCLUSION In conclusion, Plaintiff’s action succeeds in part and the Court makes the following orders in his favour: a. Declaration of Plaintiff’s usufructuary ownership of all that sixteen (16) acre farmland with adjoining cashew plantation situate at “Pena” on Nkoranza Stool Land bounded on all sides by the landed properties of Kwaku Moses, Kwaku Tanya and Pena stream. b. Recovery of possession of all that land described in order a above. Page 19 of 20 c. General damages for trespass against Defendants in the sum of GHS 1000.00. d. Perpetual injunction restraining Defendants and all those claiming through them from dealing with the land described in order a above. e. I assess costs in favour of Plaintiff at GHS 1500.00. f. Interest on reliefs c and e at the statutory rate of 24.79 % per annum. SGD. H. W. KWAME ADJEI MANU ESQ. MAGISTRATE. Parties present (unrepresented). Page 20 of 20