Doamekpor Vrs Kudzo and Another [2023] GHADC 367 (14 April 2023)

IN THE DISTRICT COURT HELD AT DZODZE ON FRIDAY THE 14TH OF APRIL,2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU, DISTRICT MAGISTRATE. Suit No. A1/01/22 SETH KODZO DOAMEKPOR PLAINTIFF Suing as head and principal member for Himself and on behalf of the Doamekpor Family VRS DUTSO DZIDO KUDZO & FELICIA DUFE DEFENDANTS JUDGMENT PARTIES PLAINTIFF - PRESENT DEFENDANT - PRESENT INTRODUCTION/BACKGROUND: Per a Writ of Summons filed on the 5th of August, 2021 the Plaintiff prayed for the following reliefs; 1 | P a g e a. Declaration of title, recovery of possession and perpetual injunction restraining the defendants herein, their agents, workmen and assigns and those claiming through them from having anything to do with the land bounded as follows; i. On one side by the property of Dzotefe Morganu ii. On one side by the property of Tovor Morganu iii. On one side by the property of Michael Kofi Duvor iv. On one side by the Roman Catholic Primary School Fiagbedu. b. Cost. c. Damages. CASE OF THE PLAINTIFF In his statement of claim filed on 8th October, 2021 the plaintiff acting by his lawful attorney stated that his grandfather Torgbui Todzi founded a large tract of land at Dzodze of which the disputed land forms part of. The plaintiff averred that, Torgbui Todzi had two children Torgbui Anagbo and Torgbui Dade and shared his lands among the two before his demise. The plaintiff stated that he hails from the lineage of Torgbui Dade who gave birth to Vedome his great grandfather who also gave birth to Morganu Doamekpor his grandfather. The plaintiff stated that Morganu Doamekpor gave birth to Tsawodzi who also gave birth to Seth Doamekpor the plaintiff and others. 2 | P a g e The plaintiff stated that the land in dispute used to be a farm land for their fore fathers but with time has now become part of the Dzodze township and a site for building by members of the Doamekpor family. The plaintiff stated that the portion in dispute was part of the piece of land allocated to his late father Tsawodzi Doamekpor who after building left the area in dispute vacant. The plaintiff stated that he inherited Tsawodzi Doamekpor as the customary successor after his demise and has since been in possession and control of the land without any hindrance from any person or quarter. The plaintiff stated that sometime ago his elder brother Samuel Doamekpor with his consent gave a portion of the land in issue to the 1st defendant to place a shop for his barbering business with the intention that the shop would be removed anytime the plaintiff was ready to build on the land. The plaintiff stated that few years after the demise of his elder brother, he informed the 1st defendant through their head of family of his readiness to develop the land so he should remove his shop but the 1st defendant failed or refused to do so. The plaintiff stated that several attempts made to get the 1st defendant to move his shop from the land to allow him develop the place has yielded no positive results due to the conduct of the 1st defendant. The plaintiff stated that the defendant’s actions depict an intention to take over the land and that the defendant is unwilling to vacate the land. Hence his action. THE CASE OF DEFENDANTS 3 | P a g e The defendants filed a defence on 11th November, 2021 in which they denied that the plaintiff is the owner of the land in dispute. The defendants stated that the disputed portion of the land was allocated to the 2nd defendant who is the biological mother of the 1st defendant. The defendants stated that because the 2nd defendant did not have the financial means to develop the place, she placed a store on the land for the purposes of her business transactions which she later gave to her son after she became sick. The defendants stated that they have been on the land since 2006 and that it is not true that they were granted permission by the plaintiff’s brother but rather it was Torgbui Dzotefe the family head at the time who allocated the place to the 2nd defendant. The defendants counterclaimed against the plaintiff as follows; a. A declaration of title to the piece or parcel of land called Dade land and bounded as follows; i. ii. iii. iv. On one side by a private laterine On one side by the property of Tsawodzi Dormekpor On another side by the property of Tovor Morganu On the last side by the property of the RC Primary Community road. b. Recovery of possession c. General damages for trespass. PROCEDURAL HISTORY The writ in this suit was issued originally against the 1st defendant. Upon application the 2nd defendant who claimed ownership over the land was joined as the 2nd defendant. 4 | P a g e The case commenced before Her Worship Rejoyce Aseye Gadago. The proceedings were adopted before the court currently constituted and hearing continued with the plaintiff’s further evidence. ISSUES From the pleadings filed by both parties, the following issues were set down for determination; 1. Whether or not the portion of the land in dispute forms part of the plaintiff’s father’s land and later inherited by him as the customary successor? 2. Whether or not it is the plaintiff who granted the 1st defendant the permit to put the store on the land in dispute? 3. Whether or not the portion of the land in dispute was allocated to the 2nd defendant as a family member? BURDEN OF PROOF The law is trite and same supported by statute that for a court to decide on a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. The plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities according to section 12(2) of the Evidence Act (NRCD 323) means; “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 a fact is more probable than its non-existence” 5 | P a g e Where the plaintiff has been able to lead sufficient evidence in support of his case, then the burden is upon the defendant to lead sufficient evidence in rebuttal or risk being ruled against on the issues. Under section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces 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-existence. In Okudzeto Ablakwa (No. 2) v. Attorney General & Obetsebi Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held as follows; “he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a)…What this rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”. Similarly, a defendant who files a counterclaim in a civil action assumes the same burden as the plaintiff in a substantive action if he is to succeed. See Nortey (No. 2) v. African Institute of Journalism and Communication & Others (No. 2) [2013-2014] 1 SCGLR 703 and Gregory v Tandoh IV & Hanson [2010] SCGLR 971. SUMMARY OF EVIDENCE The plaintiff testified through his lawful attorney Felix Doamekpor and called other witness namely Awusa Francis Kwasi (PW1) and Paul Kwashie (PW2). 6 | P a g e The plaintiff also tendered in evidence Exhibit A which is a copy of the notice of relocation served on the 1st defendant to vacate the land. The 1st defendant testified for the defendants and David Morganu (DW1) also gave evidence in support of their case. The witness statement earlier filed by Forster Dufe who the defendant intended to call as a second witness was withdrawn on grounds of ill health. ANALYSIS Issue One (1) and two (2): Whether or not the land in issue forms part of the allocation to the plaintiff’s father and later inherited by him as customary successor and whether it is the plaintiff who granted the 1st defendant license to be on the land? It is the case of the plaintiff that the land devolved onto him by way of inheritance from his father Tsawodzi and he has for many years been in possession and control of the land without hindrance. The plaintiff traced his root of inheritance from Torgbui Todzi the founder of the land and stated that Torgbui Todzi gave birth to Anagbo and Dade. He stated further that his great grandfather Dade who was allocated lands gave birth to Vedome and Vedome gave birth to his grandfather Morganu Doamekpor. According to the plaintiff Morganu Doamekpor gave birth to Tsawodzi his father whose allocated land he inherited and a portion of which is what is currently in dispute. The defendants admitted that the land was founded by Torgbui Todzi who gave birth to Dade and Anagbo. 7 | P a g e The defendants stated that Dade gave birth to Morganu and Vedome and Vedome also gave birth to Dufe and Wuashi while Morganu gave birth to Setsoafia Morganu, Bokor Morganu, Tovor Morganu and Dzotefe Morganu. The defendants stated that both Torgbui Morganu and Torgbui Dufe were from the lineage of Torgbui Dade and that when Torgbui Dzotefe Morganu succeeded the land he became responsible for allocating lands and he shared portions to Tsawodzi the plaintiff’s father, Seth Kwadzo, Akosiwa Doamekpor (plaintiff’s sister), Kwasi Awusa, Duvor, Zogli Dufe, Kwakuvi Dufe, Emmanuel Dufe, Yao Xoxo Awusa, Agbovor Dufe, Tovor Morganu, Sammy Yao Dufe, Richard Dufe, Felicia Dufe (2nd defendant) etc. In sum, the defendants denied the claim that the land in dispute forms part of the portion allocated to Tsawodzi the plaintiff’s father and that the portion was actually allocated to the 2nd defendant by Torgbui Dzotepe. The claim that it was the plaintiff’s brother Samuel Doamekpor who granted the 1st defendant the permission with the consent of the plaintiff to put the store on the land was also completely denied. The effect of their averments and denials put the plaintiff under a burden to prove that the portion of land was part of the allocation to Tsawodzi his father and that it was Samuel Doamekpor who with his consent granted the 1st defendant the permission to operate on the land. In his evidence to the court, PW1 who described himself as a brother of the plaintiff and an Uncle to the 1st defendant stated that the land in dispute was granted to Tswaodzi who had three sons Clement Doamekpor, Samuel Doamekpor and Seth Doamakpor the plaintiff herein. 8 | P a g e The other siblings of the plaintiff mentioned by his witness raises concerns about how the land which is alleged to be part of their late father’s estates devolved exclusively to the plaintiff when there are other children of Tsawodzi. How the plaintiff also became the sole successor to the estates of his father in the midst of other children is also not made clear. Was it by virtue of the fact that he was the oldest child of Tsawodzi or that he was nominated to be the sole beneficiary or customary successor of the estates by the other siblings or the elders of the family. However, having described himself as head of the Doamekpor family and stating his capacity to be suing for himself and on behalf of the family, it could be understood that he initiated this action in protection of the interest of his other siblings but that understanding is challenged by the fact that the dispute over the piece of land arises from the plaintiff’s personal desire to put up a building on the land. The evidence of PW1 sought to suggest that the head of family of the parties is of the knowledge and admission that the land in dispute belong to the plaintiff. The following according to the evidence of PW1 transpired when the parties met with their head of family; “20. Three days later I was invited by our head of family to come to his house and upon my arrival I saw the defendant and his mother and some members of our family in the house of the head of family. 21. At the time of the said meeting the defendant had completed his block foundation and placed his wooden structure on top of it. 9 | P a g e 22. The head of family questioned the defendant and asked him who granted him the permission to erect the foundation and the defendant told him that no one gave him the permission. 23. The head of family then asked the defendant if what he has done was right and he said no. 24. The head of family further asked the defendant if the owners of the land in dispute express their readiness to develop that portion of land what will he do and the defendant said anytime the owners of the land are ready to develop he will find a new place to relocate his shop. 25. Several months after this incident the head of family called me to inform me that the Doamekpor family have written a letter through him to the defendant to vacate that portion of the land in dispute for them to develop it”. Under cross examination by the 1st defendant on 17th June, 2022 PW1 also stated as follows; Q. Who was the witness at the time Samuel Doamekpor the brother of the plaintiff was granting me the permission to put my kiosk on the land as you claim? A. His brother Seth told me he witnessed it. Q. Is there any documentary evidence? A. I can’t tell Q. Do you remember Torgbui Anagbo VII called us in respect of this land? A. No. It is not true 10 | P a g e Q. Which family does Torgbui Anagbo VII come from? A. From the Dade family Q. So you as one of the Elders of the family did you approach Torgbui Anagbo VII over the issue? A. I did Q. What did he tell you? A. Before I approached Torgbui Anagbo a notice was served on you through the head of family the late Michael Dufe but you failed to leave. When the plaintiffs were ready to build the head of family Michael Dufe who was not well by then asked myself and Forster to come and move you out. I then told Forster that we should go to Torgbui Anagbo and we went and told him and he ordered us to come and drive you out. When Torgbui Anagbo gave us the order we decided to call the whole family together including your mother. The family met on 3rd April, 2021 and you were given up to the end of April, 2021 to leave……… You consulted Forster Dufe and afterwards came to tell us the April ending was too close so you needed more time to leave. Because the plaintiff agreed on the proposal they provided one bottle of drink for the family. Since the family head Michael Dufe who is alleged to have authorized the removal of the 1st defendant from the land is deceased, the material witnesses who could have spoken to the issues were Forster Dufe who PW1 mentioned as being present when the family head gave the authorization and Torgbui Anagbo who is also stated to have asked PW1 and Forster Dufe to go and drive out the 1st defendant from the land. 11 | P a g e PW1 himself admitted also under cross examination by the 2nd defendant on 22nd July, 2022 that he is not the one who does the allocation of lands in the family and that it is the family elders who did the allocation at the time. Q. Are there clear demarcations showing everybody’s ownership of specific portions? A. Where you are located when you ask is where belongs to you. The same portion is not given to multiple parties. Q. Are you the one who does the allocation in the family? A. No. The family Elders at the time did the allocation so it is the responsibility of the family Elders. The responses given by PW1 to the effect that he was not present when the 1st defendant was allegedly granted the permission by plaintiff’s brother to place his kiosk on the land and the admission that he is not responsible for allocation of lands in the family places doubts on the substance of his testimony since a witness ordinarily is required to testify on matters which he has knowledge of and not what he heard others say. The claim that the then head of family, Michael Dufe and Torgbui Anagbo VII authorized him and Forster Dufe to go and drive the 1st defendant away from the land are also matters that call for further proof. The issues were capable of proof by calling material witnesses in persons who witnessed Samuel Doamekpor granting the 1st defendant permission to place her shop on the said land, the family head or other principal members of the family who witnessed and were privy to the broader issues concerning the treatment and allocation of lands in the family. 12 | P a g e The evidence from such material witnesses matched against recent acts in relation to the land will assist in establishing which of the positions of the parties is probably more correct. See the case of Kwesi Yaw v Kwaw Atta [1961] GLR 513. The admission by PW1 that he did not witness the granting of permission to 1st defendant but that Seth Doamekpor informed him that he was present when Samuel Doamekpor granted the permission makes Seth Doamekpor rather the material witness to speak to that issue. Unfortunately, Seth Doamekpor who was the original plaintiff gave power of attorney to his son Felix Doamekpor to conduct this case and he did not also elect to give evidence on the issues. The effect is that since Samuel Doamekpor who is reported to have granted the permit is deceased and the only witness Seth Doamekpor who is alive did not also give evidence that claim remains unproven and the court cannot make any positive determination in favour of the plaintiff since there is also no documentary evidence. Since Michael Dufe who was mentioned as the head of family at the time is deceased, the plaintiff could have called other principal Elders who sat with the family head in the said meeting when the authorization was given for the 1st defendant to be ejected from the land but no such elder was called to give evidence. Forster Dufe who PW1 stated was asked to go with him by Torgbui Anagbo VII to eject the 1st defendant from the land was not called to confirm the story and Torgbui Anagbo who testified in Court as the Court’s witness also denied giving such orders. 13 | P a g e Excerpts of the evidence given by Torgbui Anagbo VII, the Chief of Dzodze Apetepe on 17th February, 2023 who also stated that he was one of the principal elders of the family prior to his installation are reproduced below; Q. Do you know Seth Doamekpor? A. Yes Q. Out of the names you mentioned which of them gave birth to Seth Doamekpor? A. Tsawodzi who was born by Doamekpor, one of the five children of Vedome. Q. Do you know the particular land in dispute? A. Yes Q. Does the land form part of the family land? A. Yes. The land originally belonged to Torgbui Todzi and it devolved to Anagbo and Dade his two sons. It then devolved to Vedome and later to his five children Doamekpor, Dufe, Doashie, Morganu and Asetsi. Q. Does it mean the land was allocated or divided among the five children of Vedome? A. It was not shared Q. So how did individual members come to own portions of the land in the family? 14 | P a g e A. Morganu’s son is Dzotepe. Our fore fathers used to live at a place called Agbome. Those who did not get a place at Agbome came to settle on the land in dispute. The first person to settle on the land was Dzotepe. Dzotepe stated that any family member who gets money and is ready to build should come to him for allocation. Both men and women from the family benefited. If you want to build you only have to give him a bottle of drink to pour libation before you could build. Because of that several members of the family built at the area….”. Q. Was Seth Doamekpor allocated a place to build? A. Yes. That is where his building is currently. The plaintiff’s attorney was of the opinion that everything the witness said to the court was not true. That position cannot be accepted because the plaintiff failed to provide the basis for that assertion and was not forthright about which aspects of the evidence were not true. The witnesses position as a principal member of the family was not challenged. He demonstrated sufficient knowledge about the family, its land and related issues. The plaintiff could simply not have sought to challenge his evidence without basis and more particularly when he failed to lead up to the burden of providing material witnesses to confirm his side of the narration. The facts revealed that the witness is revered by the members of the family and it is in the recognition of his status that the parties sought to have him settle the issues between them concerning this land earlier. This was confirmed under cross examination of Torgbui Anagbo VII by the plaintiff’s attorney on the same 17th of February, 2023 as follows; Q. Did I ever come to you to help resolve this matter together with my brothers? 15 | P a g e A. Yes. Two of you came home Q. Did we not say that I wanted to build on my father’s land and that the 1st defendant should relocate his kiosk and you rebuked me? A. That is not true. You are my grandson I cannot drive you away. You were rather recalcitrant. Q. Did Francis Awusa(PW1) and Forster Dufe also not come to you on the same issue? A. Only PW1 came Q. Did you not ask them to go and drive away 1st defendant from the land? A. I did not ask them to do that. PW1 came to me that he was working in the house and 1st defendant refused to assist him in the preparations towards their Auntie’s funeral so I should cause him to move away his kiosk. I told him that cannot be possible because they are all members of the family and his mother was permitted to put the kiosk there by the elders. You also came with a request for him to be moved for you to build and I refused. You went to the police and they asked you to come to court. In land litigation 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. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim. See the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466. 16 | P a g e The nature of this case is such that both parties in the absence of any documentation relied on various narrations which they and their respective witnesses repeated in the court to establish their case. Although the facts admit that the plaintiff built on a portion of the land, in an issue bordering on a family land as in this situation, it is not to be assumed that his ownership automatically extends beyond where his building is situated without prove of allocation and express acts of possession over the disputed area over the period. The plaintiff was unable to provide the needed evidence or call witnesses to satisfy that requirement. Issue three (3): Whether or not the portion of the land in dispute was allocated to the 2nd defendant as a family member? Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true. See the case of Klah v. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139 To prove the claim by the defendants, their witness, David Morganu testified and stated that his father Dzotepe Morganu granted the 2nd defendant the permission to put her kiosk on the land. He stated further that, with the agreement of the entire family his father Dzotepe allocated land to the following beneficiaries, Tsawodzi Doamekpor (Plaintiff’s father), Seth Kwadzo, Akosiwa Dormekpor (plaintiff’s sister), Kwasi Awusa, Duvor Zogli Dufe, 17 | P a g e Kwakuvi Dufe, Emmanuel Dufe, Agbovor Dufe, Tovor Morganu, Sammy Yao Dufe, Richard Duvor and others. Below are extracts of the responses by the witness for the defendants under cross examination by the plaintiff’s attorney; Q. Are you saying it was your father Dzotepe who gave the land to the 2nd defendant? A. Yes Q. The 2nd defendant herself stated in her evidence that the land was given to her by the plaintiff, Seth Dormekpor. What do you say about that? A. It is not true Q. Are you away I served a notice on the 1st defendant to vacate the land through the head of family Michael Korbla Dufe? A. Yes it is true. But the family head Michael Dufe does not know much about the land. Torgbui Anagbo is the one who has more knowledge about the land and even allocated a portion to the current family head. The family head now was outside the jurisdiction for a very long time and was only made the head upon his return because of his age. Q. I am putting it to you that it was my Uncle Samuel Dormekpor who granted the permission for the 1st defendant to put his shop on the land? A. It is not true 18 | P a g e Q. What is the size of the land you are alleging was granted to the 2nd defendant and what are the boundaries? A. The land is a large family land. It has not been measured and it is also not divided into boundaries. Q. Are you saying that Dormekpor land on which he has his building is the same land which was given to the 2nd defendant? A. No Q. When was the land allegedly given to the 2nd defendant? A. I cannot tell but I was present. Q. I am putting it to you that all that you have told the court are false? A. I am rather speaking the truth. Although the defendants’ witness could not recollect the exact date when the permission was granted to the 2nd defendant, his evidence was largely corroborated by what Torgbui Anagbo VII later told the court as a witness on 17th February, 2023. Q. Was Seth Dormekpor allocated a place to build on the family land? A. Yes. That is where his building currently is. Q. Has Felicia Dufe (2nd defendant) built on any portion of the land? 19 | P a g e A. She took a drink to Dzotepe and Dzotepe gave her a place to put her shop. Q. Is the area where the shop is situated part of where Seth Dormekpor was granted to build? A. No. Seth was only given where he has put up his building. Dormekpor himself built a mud house and his son Seth put up a building in front of the mud house. It is behind that building that the 2nd defendant placed her shop upon permission. Q. Were there witnesses to the grant of the permission for the 2nd defendant to put her shop at that area? A. I witnessed it myself together with others including Samuel Dormekpor the plaintiff’s Uncle and David Morganu who are all deceased. Q. Did you witness the allocation of the space to Seth Dormekpor’s father by Dzotepe? A. No I did not but other people did. I rather witnessed Seth Dormekpor’s presentation of a drink to Dzotepe and he being allowed to build on the land. One Zogli Dufe, Sotorxoe Morganu and David Morganu all witnessed it. Others are dead. Q. Who is David Morganu? A. He is also an Elder of the family. Q. Currently who is the head of family? A. Samuel Dufe and Tovor Kudzo 20 | P a g e Q. Who is Samuel Dormekpor? A. He is also an elder. He was present when Dzotepe permitted the 2nd defendant to put her shop on the land. Dzotepe always invites all of us elders before he allocates space to anyone. The satisfactory method to adopt in testing traditional evidence was held in the case of Adjeibi- Kojo v. Bonsie [1957] 3 WALR 257, PC that; “ The most satisfactory method of testing the traditional history is by examining it in the light of such more recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more probably correct”. However, in the case of In re Taahyen & Asaago Stools; Kumanin II v Anin [1998-99] SCGLR 399, it was held that the principles in Adjeibi Kojo applies where the court is in doubt as to which of the rival stories to prefer. It does not apply where the court prefers one history to the other. In the considered opinion of this court, taking the evidence as a whole, that the defendants case that the land was granted to the 2nd defendant to put her shop on was more probable than not as corroborated by the evidence given by the Court’s witness. CONCLUSION Consequently, the court therefore grants a declaration of title to the 2nd defendant in respect of the land described in relief (a) of the counterclaim. 21 | P a g e The defendant’s relief (d) in terms of perpetual injunction against the plaintiff, his agents and assigns from interfering with the use of the land granted to 2nd defendant is accordingly granted. Cost of GH₵500.00 is awarded against the plaintiff. NELSON DELASI AWUKU MAGISTRATE 22 | P a g e