ADU VRS BOAFO [2024] GHACC 246 (22 August 2024)

IN THE CIRCUIT COURT HELD AT KUMAWU-ASHANTI ON THURSDAY THE 22ND DAY OF AUGUST, 2024 BEFORE HIS HONOUR JONATHAN ODARTEY, CIRCUIT COURT JUDGE. SUIT NO. A1/14/2021 KWASI ADU, Head of family suing for and On behalf of Aduana Clan TEMATE - KUMAWU V. KOFI BOAFO TEMATE -KUMAWU JUDGMENT The Plaintiff sued the defendant as the Head of family for and On behalf of Aduana Clan of Temate Kumawu in an amended Writ of summons and statement of claim on 21st June, 2021 seeking the following reliefs as endorsed on the said amended statement of claim: 1. A declaration that all that parcel of land situate and lying at the place known as kesekyen and sharing boundaries with Madam Amma Ataa, Madam Afia Akomah, Madam Yaa Brekuah and the main road from Drobonso to Temate is the family property of the Aduana clan of Temate, Kumawu. 2. Recovery of possession of the piece and parcel of land as described in the paragraph above. Page 1 of 12 3. An order for perpetual injunction against the defendant, his agents, privies, assigns, workmen and any person claiming through or under the Defendant from interfering with the plaintiff’s family peaceful enjoyment of the land as described in paragraph (a) above. 4. Cost of legal fees. 5. Any other relief as the court may deem appropriate. In response to these claims by the Plaintiff, the Defendant informed this court that he shares common boundary with the plaintiff and per previous Writs of Summons filed in 2009 and 2013 by the plaintiff’s uncle, Kwame Kumah which was later abandoned, the uncle of the Plaintiff Kwame Kumah indicated on those Writs that they share a common place called Bourkorkor and another Nketehoma. The Defendant further informed the court that the Plaintiff cannot recognise the clan he belongs to which is the Aduana clan of Kumawu instead of Aduana clan of Temate and that the disputed land is his family property. The case was subsequently referred to the Court Connected Alternative Dispute Resolution Mechanism on the 11th day of November, 2021 which proved futile. The court therefore set down the following issues for trial Issues for trial 1. Whether or not the plaintiff’s land is at Kesekyen? 2. Whether or not the plaintiff also has a family land at Buokorkor? 3. Whether or not the boundaries of the disputed land has ever been set by some elders in the town without objection by the Defendant? 4. Whether or not the defendant agreed before the pastor and the people present that the disputed land is not his property? Page 2 of 12 5. Whether or not the plaintiff’s family is Aduana clan of Temate? 6. Whether or not the disputed property shares boundary with (1) nana Amma Atta (2) papa Kwadwo Mensah and (3) Maame Yaabi of Apebeakyere? 7. Whether or not the plaintiff has ever planted orange plantation on the disputed land till a time that the orange plantation got burnt without any objection and interference from the defendant? 8. Whether or not the defendant pleaded through one plaintiff’s brother for the family to allow him a care taker job for the family on the disputed land? 9. Whether or not the defendant has ever cultivated on the disputed farm land till it caught up with development? The aforementioned issues were adopted by this Court as the issues for determination of the matter. After the application for directions, the parties were directed to file their witness statements. The Plaintiff and the Defendant called other witnesses to testify on the basis of their respective witness statements. The Case of the Plaintiff The case of the plaintiff on the endorsed Writ of summons and statement of Claim is to the effect that he is the head of the Aduana clan at Temate and Kumawu which has given him the capacity to institute this instant action for and on behalf of the Aduana Clan. The plaintiff informs the court that one Opanin Kwame Dapaah from Kumawu cultivated on the disputed land without any hindrance when the disputed land was in its virgin state. In other words, the said Opanin Kwame Dapaah was the first to cultivate on the disputed land. After the demise of Opanin Kwame Dapaah, the disputed land became a family property. Subsequent to this the Defendant has trespassed on the disputed land through one Yakubu Acheampong and further allocated some portions to people without the consent of the Plaintiff or his family. Page 3 of 12 The Case of the Defendant The Defendant according to his Statement of Defence also informed the court that the disputed land is his family property and that the plaintiff’s land is rather at Buorkorkor. The Defendant went further to state that the plaintiff’s uncle Opanion Kwame Dapaah instituted two different actions in the year 2009 and 2013 against one Akosua Taa who is presently cultivating on the land but he was counselled to discontinue the actions which he agreed. He again made a case that part of the disputed land has even been used as cemetery for some of his deceased family members and the family has been cultivation of the land since time immemorial. Analysis of issues From the forgoing, this court will look at the issues set down for trial one after the other, merge some and apply the fact to the law in determining the dispute before it. Let me lay the foundation for the determination of this suit. To start with, the plaintiff per his first relief is asking this court for a declaration of title to the disputed land. It is a sound proposition of law that a party seeking declaration of title to land in a suit is required by law to establish his or her root of title. This principle of law has received judicial assertion in a good number of authorities. In the case of Mrs. Vincentia Mensah v Numo Adjei Kwanko II Civil Appeal No. J4/17/2016, delivered on 14th June, 2017, the court stated: “In land suits in which title is in issue, the party claiming title must always plead and prove his root of title to enable him succeed.” Again in the case of Mondial Veneer (Gh) Ltd v. Amuah Gyebu XV (2011) SCGLR 466 at page 468 (holding 4), Georgina Wood CJ elucidated on the requirements laid down by law in proving title to land and opined "In land litigation, even where living witnesses involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on who bore the burden of persuasion... to prove the root of title, mode of acquisition and various acts of possession exercised over the Page 4 of 12 disputed land. It is only where the party had succeeded in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim". The onus is therefore on the plaintiff to prove that indeed he is entitled to the disputed land. Let me begin by merging the first and the second issues together and determine them for the basic reason that these two issues are at the core of this dispute. These issues are Whether or not the plaintiff’s land is at Kesekyen? Whether or not the plaintiff also has a family land at Buorkorkor? On the first and second issues of Whether or not the plaintiff’s land is at Kesekyen and Whether or not the plaintiff also has a family land at Buorkorkor, the court from evidence on record and the various testimonies through cross examinations came to the following conclusion. The evidence on oath provided by plaintiff indicated that the disputed land is at Kesekyen and this was corroborated by two witnesses of the plaintiff. Per the Crosse examination by counsel for the defendant on 29th August 2023 before this court it was confirmed that the disputed land is at Kesekyen. Further to this it became evidently clear to this court on the 29th August 2023 as per the evidence provided by the plaintiff that there is another farm land at Bourkorkor and Nketehoma. The bone of contention however was the ownership which was refuted by the Defendant. This court will deal with the ownership later in this judgment. In law, it is also trite that the burden of proving a fact by a preponderance of the probabilities is the standard burden imposed in civil actions. Proof beyond a reasonable doubt is the degree of proof generally required of the prosecution in criminal actions. The matter is put beyond controversy when one compares the wording of subsections (3) and (4) of section 11. Section 11(3) of NRCD 323 provides that: "In a criminal action" the burden of producing evidence by the accused is discharged when he produces "sufficient evidence so that on all the evidence a reasonable mind could have a Page 5 of 12 reasonable doubt as to guilt." In contrast, section 11(4) provides that "In other circumstances (which must patently be construed as in civil actions) the burden of producing evidence requires the production of sufficient evidence "so that on all the evidence a reasonable jury could conclude that the existence of the fact was more probable than its non-existence." This meant that the responsibility of proven ownership of the disputed land falls squarely on the plaintiff. The third and the fourth issues will also be addressed together since they seek to achieve the same results. These are Whether or not the boundaries of the disputed land has ever been set by some elders in the town without objection by the Defendant and Whether or not the defendant agreed before the pastor and the people present that the disputed land is not his property? Again from the evidence on record, there was no substantial prove that indeed the boundaries of the said disputed land has ever been settled by some elder and that the defendant had agreed before a pastor and witnesses that the disputed land is not the property of the defendant. In the production of evidence, he who makes claims on a fact and the law, the person is responsible for discharging that duty with evidential proof, in this case the evidence on record was on the contrary. Evidence by the witness in the box wasn’t corroborated neither was there any terms of settlement on record to that effect. Progressing further to the other issues set down for trial, the court then looked at the issue of Whether or not the disputed property shares boundary with (1) nana Amma Atta (2) papa Kwadwo Mensah and (3) Maame Yaabi of Apebeakyere? Here again plaintiff failed to adduce enough evidence to this claim. A quick reference to the report submitted by the licensed surveyor was to the effect that the disputed land shares boundary with Maame Abena Achiaa towards the south and with Maame Yaa Brukuwa to the west and one side been a road. Page 6 of 12 Under section11(1) of the Evidence Decree now Act, (N. R. C. D.) 323 of 1975, “for the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. 11 (4) states that: “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”. Applying the facts in the instant case to the ratio above, the evidence of the witness of the plaintiff wasn’t substantial to merit the confirmation of the boundary claim. Lastly, the court merged the last three issues together and dealt with them and the issues were a. Whether or not the plaintiff has ever planted orange plantation on the disputed land till a time that the orange plantation got burnt without any objection and interference from the defendant? b. Whether or not the defendant pleaded through one plaintiff’s brother for the family to allow him a care taker job for the family on the disputed land? c. Whether or not the defendant has ever cultivated on the disputed farm land till it caught up with development? In all the witness statements provided by the parties evidence were led to the fact that the plaintiff had ever cultivated oranges on the disputed land which got burnt, this testimony was not corroborated by the other witness the plaintiff called to support his claim. Again there was a testimony by the defendant’s witness that the dispute was brought before the elders of the church which was also not corroborated. Finally, a Page 7 of 12 defendant’s witness through her testimony informed the court that they have been cultivating on the disputed land in recent time. This was also not corroborated by the other witnesses. From the evidence on record, the plaintiff who is expected to prove ownership of the disputed land did not provide any documentary evidence to that effect. He rather informed the court through oral testimony that the disputed land is his family property and that it was Opanin Kwame Dapaa who was the first to cultivate on the said land. He went further in his evidence to inform the court that he planted oranges on the disputed land before same got burnt some time ago. Defendant also state that the disputed land is also a family land and gave a chronology of succession from Adwoa Nimoh who was his grandmother. He further told this court per paragraph 16 of his witness statement adopted by this court as his evidence in chief that some portions of the disputed land have even been carved out as cemetery for his deceased family members. Per these two conflicting testimonies the court direct its attention to some precedents as far as the law is concerned. per Lord Denning in Adjeibi-Kojo v Bosie and Another (3 W. A. L. R.) 257 at 260 (e.s.)” “The most satisfactory method of testing traditional history is by examining it in the light of much more recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more probably correct. Where there is a conflict of traditional history one side or other must be mistaken, yet both may be honest in their beliefs, for honest mistakes may occur in the course of transmission of the traditions down the generations. In such circumstances, and particularly where (Native) Courts below have differed, an Appeal Court must review the evidence and draw their own inferences from the Page 8 of 12 established facts: the demeanour of the witnesses before the trial court is of little guide to the truth,” This case was cited with approval in the case of Ago Sai Vrs. Kpobi Tetteh Tsuru III (2010) SCGLR 762, 764 where it was held in holding (1) as follows: “It was well-settled that where in a land suit, the evidence as to the title to the disputed land was traditional and conflicting (as in the instant case), the surest guide was to test such evidence in the light of recent acts to see which is preferable.” It therefore became necessary for the court to rely on traditional evidence as explained above. It has been admitted by parties that some portions of the disputed land have been carved out as cemetery for burying the deceased family of the defendant which is shown as exhibit before this court. Further to this it is clear to this court that one Maame Yaa Birikuwaa and other family members of the defendant were farming on the disputed land until it caught up with development. The plaintiff in this instant case has not been able to discharge the burden of proof and for that reason the court finds his evidence not weightier. The demeanour of parties were really not the main factors which were put into consideration by this court. It is also important to note that this court through the intervention of a survey report was expecting to see a clearer picture on the matter in dispute. Conversely, the report was unable to establish ownership of the disputed property. The court also noted that in all, there were no documents from the parties for the claim of ownership of the disputed land. The evidence before this court were basically oral evidence. Page 9 of 12 I am bold to say that in the face of the challenge by the defendant on the title to the land in dispute, it was not enough for the plaintiff to have relied on only the viva voce evidence by the plaintiff no matter who or how many they were. Corroborative evidence that was likely to exist were their evidence to be believed as true; official documents from official or public sources could have been produced, see Majolagbe v Larbi [1959] GLR…But in this case nothing like that came from the plaintiffs. In the case of FRABINA LIMITED VRS SHELL GHANA LIMITED CIVIL APPEAL NO. J4/31/2009 The learned Justice (Dotse JSC) posited that in evaluating evidence in a judicial proceedings, a court has several sources to draw material evidence from: 1. First are the pleadings. Where the pleadings are not in contention, it is safe for the trial judge to draw from it and make his conclusions. 2. The second is the oral evidence that has been led in court. The credibility of oral evidence is normally tested through cross-examination and must be corroborated. 3. The third is the documentary evidence. This normally takes the form of documents that are tendered during the course of trial and upon which questions are asked during examination in chief and cross-examination. It can also take the form of reports submitted by court appointed expert witnesses such as Surveyors, Accountants, Medical Doctors, etc who testify and tender in reports prepared by them to help the judge in determining the case one way or the other. 4. The fourth are judicial decisions and authorities touching and dealing with principles of law in the subject matter of the case on trial. This is normally done during the closing addresses by Counsel of the parties to the court. Page 10 of 12 The court averted its mind to the circumstances which make it proper to introduce a person to an action for further clarification and in this circumstance and in reference to the case above this court adopted the third source of evidence to help unravel the issues at hand. The test was laid out by the Supreme Court in the case of SAM (No. 1) v ATTORNEY-GENERAL [2000] SCGLR 102 where the majority of the Supreme Court (per Ampiah JSC Atuguba dissenting) held as follows: “generally speaking, the court will make all such changes in respect of parties as may be necessary to enable an effectual adjudication to be made concerning all the matters in dispute. In other words, the court may add all persons whose presence before the court is necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter before it”. Per the above case cited this court then made attempt to rely on the testimony of an expert witness submitted to the court which was the survey report. The survey report on record which was not objected to by the defendant indicated that the land being claimed by the defendant wholly falls within the plaintiffs land and the three uncompleted buildings however the report failed to establish the ownership with respect to a valid title by either parties. Finally, it is important to note that the defendant did not file any counterclaim for the court to grant any reliefs in that respect or otherwise. Furthermore, it is to be noted that the law is firmly settled that for a family or stool to succeed in an action for declaration of title to properties, it must prove its method of acquisition beyond doubt either by traditional evidence, documents of title or by overt Page 11 of 12 acts of ownership exercised over the properties. See Odoi v Hammond [1971] 1 GLR 375 per Azu Crabbe J. A as he then was. In the instant case, the plaintiff has not been able to establish evidence by the facts before this court or overt acts and documentary evidence that the land in dispute was acquired by the family. Finally, once there is such abundant evidence on record to establish conclusively that the Plaintiff did not lead evidence to meet the standard of proof settled in the locus classicus of ODAMETEY v CLOCUH, the court would reject the Plaintiff’s story. Thus it has been established that the Plaintiff has not made out a case sufficient enough to entitle him to the reliefs, it is pointless to consider the Defendant’s case whether there are any weaknesses therein or not. It is only when the Plaintiff in a civil case has met the first part of the test in the ODAMETEY v CLOCUH case already referred to supra that a court will go forward to consider the Defendant’s case. Conclusion From the forgone examination of the facts on record and the law, this court hereby dismisses the plaintiff’s claims as not properly made out. There is no award as to cost. SGD H/H JONATHAN ODARTEY CIRCUIT COURT JUDGE Page 12 of 12