ACHEAMPONG ,SUBSTITUTED AFRIFA VRS. SARPONG AND OTHERS (A1/11/2022) [2024] GHADC 560 (12 September 2024)

IN THE DISTRICT COURT, PRESTEA, HELD ON THE 12TH DAY OF SEPTEMBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA ESQ SITTING AS DISTRICT MAGISTRATE SUIT NO. A1/11/2022 BETWEEN: PETER BOAKYI ACHEAMPONG (DECEASED) SUBSTITUTED BY AKWASI AMANKWAH AFRIFA OF KUNSU - WIOSO - PLAINTIFF VRS: 1. W. O. SARPONG 2. KOFI BERNARD BOTH OF PETEPOM - BOGOSO - DEFENDANTS JUDGEMENT This matter was commenced on the 25/3/2022 by the Plaintiff herein for the following reliefs. (a) Declaration of title to all that 63.16 acres farmstead situate and lying at Petepom on Huni Valley Stool land which shares common boundaries with the following properties: P. K Danso, Mr. Boakye, Ama Dapaa, Bosomtwi Forest, Yaw Frimpong, Mr. Acheampong, Kweku Mpan and Kwasi Sannie which Defendants have unlawfully encroached upon without any justification. (b) An Order for recovery of possession of the said farmstead. [1] (c) Perpetual injunction restraining the Defendants, their assigns, privies and all persons claiming interest through them from engaging in any conduct that will interfere with the Plaintiff’s rights or interest on the said land. A brief of the matter is that, Plaintiff claims to be a farmer and head of family of the Asene family of Kunso-Wioso in of the Ahafo Ano South District of the Ashanti Region and that he acquired a land as referred to in relief 1 which was a virgin state for farming in the year 1970. Plaintiff further states that he reduced portion of the land for cocoa farming. It is the case of the Plaintiff that in 2015, he discovered that the Defendants had encroached on portions of his land. That the matter was reported to the Petepom palace for settlement but the Defendants remained adamant and thus the present action. The Plaintiff sued per his lawful Attorney Akwasi Amankwa Afrifa but before hearing commenced the donor passed on. An application for substitution filed on 3/11/2022 by Plaintiff’s lawful Attorney was moved and granted on the 24/11/2022. An amended writ was subsequently filed on the 6/2/2023. An application for interlocutory injunction filed on the 6/2/2023 was also granted by the court on the 7/3/2023. All by a court differently constituted. The Plaintiff in his witness statement filed on the 22/4/2023 states that the land was originally acquired by his late Uncle, Peter Boakyi Acheampong from the late chief of Petepom Nana Ameyaw in the year 1970 of which 11.96 acres was secondary forest and 51.20 acres virgin forest. That a site plan was issued and endorsed by Nana Gyan Korkora II, the then Omanhene of Wassa Fiase. The site plan was attached and marked as Exhibit ‘A’. It is the case of the Plaintiff that a portion of the acquired land was used for the cultivation of cocoa and the Defendants without the consent of the Plaintiff encroached onto the land in 2015 and started the cultivation of cocoa. This trespassory act was reported to the Petepomhene Nana Kwaku Appiah II for settlement to which the 1st Defendant claimed he purchased the land [2] from one Kojo Boakye but was unable to produce the said Kojo Boakye before the chief of Petepom. 1st Defendant on the other hand, giving evidence for himself and on behalf of the 2nd Defendant per his witness statement filed on the 10/5/2023 indicates that, he is a retired military officer and affirmed that the late Peter Boakye Acheampong acquired the land some years back but granted a portion to his wife Maame Abena Fremah. That the said Maame Abena Fremah subsequently granted part of her land to Opanyin Kojo Boakyi for consideration. It is the statement of 1st Defendant that Opanyin Kojo Boakyi cultivated a portion of the land acquired leaving some portion in a virgin state. 1st Defendant claims that in and around 2011, Opanyin Kojo Boakye sold his interest in the land to him. This the 1st Defendant states that it consist of 20 acres of virgin forest and 5 poles of cocoa farm which shares boundaries with Maame Abena Dapaa, Agya Donkor, Opanyin Sekyere and a virgin forest. 1st Defendant attached a deed of conveyance and marked as Exhibit ‘1’ in support of his claim. The Defendants’ witness, DW1, one Edward Nyame in his witness statement filed on the 10/5/2023 stated that he know the Defendants and had been on the disputed land as he was taken there by the 1st Defendant who happens to be his brother. DW1 indicates that 1st Defendant purchased the disputed land from Opanyin Kojo Boakyi somewhere in 2011 and was present when 1st Defendant and Opanyin Kojo Boakyi went together with him to a letter writer at Bogoso lorry station. According to DW1, that was when he was informed of the mission of the meeting. That based on the instructions given to him, he prepared the agreement of which both parties signed and was witnessed by DW1 for 1st Defendant and one Augustine Adum, the late Opanyin Kojo Boakyi’s nephew also witnessed for him. During cross examination Plaintiff indicated to the court that when he realised the alleged trespassory act in 2015, he drew the attention of 1st Defendant to inform him [3] as to who the land belongs to and this is what transpired and I quote on page 20 of record of proceedings; “Q. Are you aware in 2015 you called me on phone when I was in Tamale and said I should speak with your Uncle who is the owner of the land in dispute? A. It is true I want you to be aware that the land belongs to my uncle, Peter Boakye Acheampong.” The above interaction lends to the fact that the late Peter Boakye Acheampong’s attention was drawn to the acts of the 1st Defendant. There are several other instances in which there was attempt to get the matter settled between the parties including sending it before the chief of Petepom. This was to the effect that neither the late Peter Boakye Acheampong nor his wife ever sold the disputed land to the 1st Defendant. Further to this, the Plaintiff was able to identify the portion of land allegedly trespassed upon by the 1st Defendant. This is found on page 23 of record of proceedings; “Q. Which of these boundaries did you apply to court for an injunction to placed on? A. Boundary four or the 4th boundary comprising of Zakari, Kwabena Nsiah, Egya Donkor and Mr. Ben.” This demonstrate that the Plaintiff has full knowledge of the land allegedly trespassed upon by the 1st Defendant. When suggested to the Plaintiff that he know the said Kwadwo Boakye @ Chan the Plaintiff denied same. Further to this, Plaintiff indicated that he got to know of Chan when he reported the matter to the chief of Petepom as the one who sold the land to 1st Defendant. [4] The suggestion by 1st Defendant is to the effect that the said land in dispute was for Maame Frema and her son Agyei Sei and that they sold it to Chan was categorically denied by the Plaintiff. These interactions give credence to the fact that it was Kwadwo Boakye @ Chan who alienated the said land in dispute to the 1st Defendant. This is on page 31 of record of proceedings. During cross examination of 1st Defendant by Plaintiff, it came to the fore that 1st Defendant has no documentary proof of his allegation to the effect that Abena Frema sold the disputed land to Chan who intend sold it to him as stated on page 32 of record of proceedings and I quote; “Q. You claim the land was sold to your grantor Chan by Abena Frema, where are the documents in respect of the (alleged) transaction between Abena Frema and Chan? A. Maame Frema has not sold any land to me so I cannot get any document from her.” The response from the 1st Defendant is evasive and it being so cannot be relied upon as asserted to by the 1st Defendant. 1st Defendant also indicated to the Court that the said Kojo Boakye is deceased without offering any further prove to same. The presence of Kojo Boakye was however critical in many regard. But this was not explored and more so his death should have proven by the defence. 1st Defendant admitted during cross examination that the land in dispute forms part of the site plan of the Plaintiff and this belongs to the Plaintiff. On page 35 of records of proceedings and I quote “Q. I put it to you that the land you claim has been sold to you on which you are farming is part of the land on my site plan. A. That is correct.” [5] Though uncontroverted 1st Defendant in his witness statement and during cross examination stated that it was Chan who sold the land to him. 1st Defendant stood his position indicating his grantor is dead when it was suggested to him that his grantor’s son indicates otherwise though no further prove as to same was made available in Court. DW1, Edward Nyarko who happens to be the brother of 1st Defendant states that, he knew 1st Defendant bought the land and that it was one Chan who sold the disputed land to 1st Defendant. Further to this DW1 state that he is aware that Chan gave a document covering the land to 1st Defendant and was unaware as to whether the disputed land forms part of Plaintiff’s land. When it was suggested to him that the document purported to be the land document of the disputed land was in actual fact an agreement paper, DW1 denied same and insisted it was document covering the disputed land. A careful observation of the said document attached to the witness statement of 1st Defendant and marked as Exhibit ‘1’ is a purported deed of conveyance titled “Deed of Conveyance of Twenty Five Acres Parcel of Farmland, which land Five Acres contains Cocoa thereon at Insu-Siding Bepoakyi;” this was dated 16th day of September 2011 and signed by the Transferor, Mr. Kojo Boakye, beneficiary W. O 1 George Sarpong witnessed by one Madam Cecilia Boakye witnessing for Kojo Boakye and Mr. Adum Augustine for George Sarpong. This leads us to the issues for determination. (1) The issue for determination is whether or not the Plaintiff is entitled to his claims. (2) Whether or not Defendant acquired the disputed land from its rightful owners. It is trite law that a Plaintiff who seeks in an action for the declaration of title must prove his root of title, mode of acquisition and act of possession. [6] In Adwoa Bokor v. Madam Agbo Addow (substituted by Philip Odoi) 2021 unreported SC 2021-12-08 (Civil Appeal No. J4/38/2021) Torkornoo JSC held; “As asserted in Mondial Veneer (Gh.) Ltd. v Amuah Gyedu xv (2011/1 SCGLR 466 and 475) the law requires that person asserting title and on whom the burden falls, must prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the standard of balance of probabilities that the party would be entitled to the claim” A look at the reliefs sought for by the Plaintiff among others is the declaration of title to land, recovery of possession and an order of perpetual injunction. It is crucial that party claiming as a relief the declaration of title must lead evidence tracing his root of title as earlier indicated by the preponderance of probabilities. The allocation of the burden required is as per Section 11 (1) of the Evidence Decree, 1975 (NRCD 323) as follows; “For the purpose 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” This is to state that the Plaintiff when the burden is upon him must adduce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existent as such the standard is proof on the preponderance of the probabilities. In the case of Gifty Aadzinu vs. Theresa Nyoona (2010) 26 MLRG 105 @ 108 CA held as follows; “The law relating to the standard of proof in all civil actions without exception was stated to be proof by preponderance of probabilities having regard to Section 11(4) and 12 of the Evidence Decree 1975 (NRCD) 323. This means that [7] the successful party must show that his claim is more probable than that of the others.” This is to the effect that the Plaintiff making a claim must lead such evidence that a reasonable mind based on all the evidence adduced could confidently say, the Plaintiff assertions are more probable than that of the defence. It must however be noted that such standard are not to be strict or inflexible, but maybe with an element of doubt but all the same more probable than that of his opponent. In Bisi vrs. Tabiri @ Asare [1987-1988] 1 GLR 360 @ 361 held and I quote; “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 pleading had however never been taken to be a 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 becomes the trier’s belief in the preponderance of probability. But “probability” denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected.” It should be noted that the defence will however fail if he fails to establish the converse of the issue in dispute. The Defendant must establish his assertion. It shall further be noted that if the Plaintiff fails to discharge the onus on him and thus completely fails to make a case for the claim which he seeks relief, then he cannot rely on the weakness in the Defendants’ case to ask for relief. If however he makes a case which would entitle him to relief if the Defendant offers no evidence, then if the case offered by the Defendant when he does give evidence discloses any weakness which tends to support the Plaintiff’s claim, then in such a situation, the Plaintiff is entitled to rely on the weakness of the Defendants’ case to strengthen his [8] case. See Mrs. Christian Edith Agyakwa Aboa and Okyeame Yima & Anor vs. Major Keelson (RTD) C. A Suit No. JA/11/2010, 16/3/2011. The standards of proof as enumerated supra must therefore be fulfilled if the Plaintiff is to succeed in this matter. As a reminder, the Plaintiff sued for declaration of title, Defendants disapproves same with regard to the disputed land. The parties therefore have the same burden of proof since the law is that he who asserts must prove that assertion. See Kpakpo Brown v Bosomtwi & Co. [2001 – 2002] SCGLR 876. Plaintiff seeks for the declaration of title, the law requires that he produce persuasive evidence establishing his root of title, his mode of acquisition and overt act of possession. See the case of Mondial Veneer (Gh.) Ltd. v Amuah Gyedu xv supra. However the Defendant who has not counterclaim for declaration of title has no onus upon him to established anything but must prove his assertion. See Kureinor Tei Kwabla Forzei v. Nene Kwaku Darpo, Lands Commission, Nene Awuley Kwao (2016) unreported SC, (No. J4/38/2015] 17th February, 2016, Yaw Appau JSC. In the Declaration of title, the Plaintiff must also prove the identity of the land and limits of the land which he claims to succeed in such action. See Nene Narh Metti & 2 ors. V. Osei Godwin Teye and Samuel Lamm Ayertey & 2 ors v. Osei Godwin Teye (consolidated) [2017] unreported SC JA/13/2017, 22/11/2017 Dotse JSC. It therefore holds that after the Plaintiff has establish by positive evidence the identity of the disputed land, Plaintiff must lead evidence to establish his acquisition. In Agyei Osae & ors v Adjeifio (2007/08) SCGLR @ 499 the SC held; “The principle is that in an action for declaration of title to land, injunction and recovery of possession the Plaintiff must establish by positive evidence the identity and limits of the land he claims.” [9] Subsequent to the Plaintiff establishing by positive evidence his acquisition and boundaries of the land claimed, he must go on to prove acts of possession or exercise overt acts of ownership over the land. In Majolegbe v Larbi & ors. [1959] 1 WACA 253 at 516, Sir George Deane CJ held; “For my part the admitted fact that the Kickam people were first on the land, coupled with the evidence that they have been and still are in possession, raises a strong presumption in their favour as being owners of the Agona lands.” Possession may be actual or constructive. It is actual when the Plaintiff is in physical possession of the subject land. It is constructive when the Plaintiff has right to possession or in exercising right of ownership over the land. See Ago Sai & ors v Kpobi Tetteh Tsuru III [2010] SCGLR 762. Also in Wills in law of Evidence (3rd edition page 62) and I quote; “The acts of enjoyment from which the ownership of real property may be inferred are various as for instance the cutting of timber, the repairing of fences or banks, the perambulation of boundaries of a manor or parish, the taking of wreck on the foreshore, and the granting to others of licenses or leases under which possession is taken and held also the receipt of rent from tenants of the property; for all these acts are fractions of that sum total of enjoyment which characterises dominion.” As such all these overt acts of ownership operates in favour of the party exercising same and invariably leads to evidence of possession and as such as proof of title. In instances where the Defendant is in possession as in this present action, the task of the Plaintiff becomes more daunting since Defendant may use possession to claim title. It is trite law that occupation alone is not sufficient to proof of title where another person can prove a better title. In Yartey at Oko v. Construction at Furniture West Africa Ltd. & 2 ors. (1962) GLR 86, the Court held: [10] “The admitted fact that members of the community have been farming on the area in dispute since 1980’s is not sufficient to create any interest in the community or in any farmer. Mere occupation for a time however long raises no equity; there must be evidence that the original owner has so acted so as to induce the occupier to alter his position in the reasonable belief that he has released or abandoned his claim.” It must however be noted that in declaration of title prove of identity or prove of boundaries the role of maps, charts, survey and plans are presumed authentic in determining the issues at state. In Nii Kofi La Family v AG (J4/37/2014) [2015] unreported SC (25/5/2015) Ansah JSC. “Thus in action for declaration of title to land, charts, maps, survey and plans play pivotal roles in determining issues at stake for they are presumed to be authentic and Section 153 of the Evidence Act provided that: “153 all maps or charts made under the authority of a public entity and not made for the purpose of any litigated questions are presumed to be authentic and correct” This is to the effect that site plans, charts among others drawn must not be purposely for litigation such documents must pre-exist litigation to render authentic. It must however be noted that such document does not confer title on their holders per se, but are nonetheless strong acts of ownership. It does not on its own transfer title to land. A site plan merely depicts a piece of land on paper. It does not transfer title to land. See the case of Kotey v Koletey (2005 – 2006) SCGLR 368. It is to this end important to note that the principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title of what he owns at the material time of the conveyance devoid of which such transactions are null and void and of no effect. See Saabaye Baside Kangbera v Alhaji Seidu Mohammed (J4/44/2012) [2012] unreported SC 4/7/2012. [11] It is clear to me by the facts as analysed and the legal analysis as indicated that, the Plaintiff acquired the land in which the disputed land forms part in the 1970 in a virgin state from Nana Ameyaw measuring about 11.96 acres of secondary forest and 51.20 acres virgin forest. This was endorsed my Nana Gyan Korkora II Omanhene of Wassa Fiase. The original Plaintiff the late Peter Boakye Acheampong then prepared a site plan in his name and it is headed “Peter Boakye Acheampong’s cocoa farm and forest on Huni Valley Lands in Bosomtwe Division” upon careful scrutiny. Further appraisal of the site plan depose to the fact that is was bounded variously as indicated in relief 1 on the writ and signed by a licensed surveyor on the 28/5/1970 as such not made for the purpose of this litigation as held in Nii Kofi La Family v. AG (supra) and Section 153 of Evidence Decree. Though a site plan represents a piece of land on paper but it invariably deposes to the fact that, the Plaintiff has been able to identify the land and to prove root of title. It is further clear to the Court that when the Plaintiff discovered the 1st Defendant’s trespassory act in 2015 he took steps by reporting to Nana Kweku Appiah II, the chief of Petepom for settlement. This exhibit a constructive act of ownership as Plaintiff has demonstrated right to possession and in exercising rights to ownership. It is at this juncture worthy of comment that the 1st Defendant claimed he purchased the disputed land from Kojo Boakye per paragraph 7 of his witness statement but failed to produce the said Kojo Boakye before the chief of Petepom when the issue initially came up neither so before this Court, but affirms that the late Peter Boakye Acheampong owns the land but granted portions to his wife Maame Fremah who intend granted it to Opanyin Kojo Boakyi. This is stated at paragraphs 4, 5 and 6 of 1st Defendant’s witness statement. There were no records to indicate or evidence led to indicate that the late Peter Boakyi Acheampong granted portions of his land to his wife Maame Fremah neither was there prove as to title held by Opanyin Kojo Boakyi. [12] The sale according to the 1st Defendant of the disputed land to him by Kojo Boakyi was according to the 1st Defendant a deed of conveyance attached as Exhibit ‘1’. A careful evaluation of Exhibit ‘1’ depose to the sale of 25 acres of land to 1st Defendant of which the disputed land is bounded by lands of Maame Abena Dapaah, Agya Donkor, Opanyin Sekyere and a virgin forest. This was dated 16/9/2011. The transferor was one Kojo Boakyi and the transferee being George Sarpong the 1st Defendant in this present suit. This was witnessed by Madam Cecilia Boakye and Adum Augustine. When DW1, Edward Nyame who happens to be the brother of 1st Defendant according to his witness filed on the 10/5/2023 stated that in and around 2011 the 1st Defendant took him to Bogoso to meet Kojo Boakyi and at that meeting he and 1st Defendant together with Kojo Boakyi went to the lorry station and it was then that he was informed about the reason they were there, to see a letter writer to draft an agreement upon the instructions of 1st Defendant and Kojo Boakyi. DW1 indicated that he witnessed the said agreement for the 1st Defendant together with one Augustine Adum and the late Boakyi’s nephew witnessed for him. A careful scrutiny of the said agreement being the deed of conveyance attached to the 1st Defendant’s witness statement and marked as Exhibit ‘1’ indicates that it was witnessed by Augustine Adum and one Madam Cecilia Boakyi and not Edward Nyame as he claimed. The statements of DW1 are inconsistent with the facts as indicated. More so, DW1 insisting that the 1st Defendant has document covering the land when it was suggested that it was rather an agreement paper lays credence to discredit DW1 and I quote from page 39 of records of proceedings; “Q. I want to put it to you that the only document the 1st Defendant is having is an agreement paper and he has not got any document covering the land? A. It is not true the 1st Defendant has document covering the land.” [13] It is the law that when determining the credibility of a witness there is the need to test the story of the witness as to its consistency with the probabilities that surround the currently existing conditions. In short, the test is whether the story of the witness is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognise as reasonable in good conditions. See Chantel v. Koi [2011] 29 GMJ at page 51 per H/L. Kusi Appiah JA, C. A, I am afraid that in this case it is a NO. It is noted that inconsistencies in the testimony of a witness though individually colourless may cumulatively discredit the claim of the proponent of the evidence. See Obeng v. Bempoma [1992/93] GBR 1027. It is therefore a fact that the statement of DW1 is so inconsistent that he is discredited as a witness as such his statement would be taken with a pinch of salt as to its credibility. This is coupled with the fact that 1st Defendant could not offer any prove or evidence as to the fact that Peter Boakye Acheampong granted portions of his land to his wife Maame Fremah who intend granted same to Kojo Boakye who as well granted it to 1st Defendant. Even if there was a grant of he disputed land by Peter Boakyi Acheampong to his wife who intend allegedly sold it to Kojo Boakyi, how on earth did Peter Boakyi Acheampong turn around and sue W. O Sarpong before his unfortunate demise. 1st Defendant could not prove the grant of the disputed land to his grantor and as such a subsequent grant to him. The principle nemo dat quod non habet (meaning one cannot give what he does not have) operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance devoid of which such transactions are null and void and of no effect. See Saabaye Baside Kangbere v Alhaji Seidu Mohammed supra. This is to the effect that 1st Defendant who stated in his evidence that he purchased the land from a grantor whose title to the land could not be proven, has no title as per the evidence and as such cannot transfer what he does not have. [14] Having examined the evidence on record I hold that the Plaintiff has made his case on the balance of probabilities and I hereby uphold all the reliefs sought for by the Plaintiff. For the avoidance of doubt it is hereby ordered and order is hereby issued for the Declaration of title to all that 63.16 acres farmstead situate and lying at a place commonly known and called Petepom, bounded by the following properties Kweku Ampam @ Agya Donkor, P. K. Danso, Mr. Boakye, Ama Dapaa, Bosomtwe Forest, Yaw Frimpong, Mr. Acheampong, Kweku Mpam and Akwasi Sanie on Huni Valley Stool lands which Defendants has encroached upon without lawful authority be vested in the Plaintiff as head of family of Asene Family of Kunso-Wioso in the Ahafo Ano South West District. 2. An Order for the recovery of possession of the said farm measuring about 25 acres. 3. Order is hereby granted for Perpetual Injunction restraining the Defendants, their assigns, privies and all persons claiming interest through them from engaging in any conduct that will interfere with the Plaintiff’s right or interest in the said disputed land measuring about 25 acres. No order as to cost. Defendants have right of appeal to the High court. (SGD) H/W. IDDI ADAMA ESQ. (DISTRICT MAGISTRATE) [15]