Kokroko & 2 Others Vrs Adzaprah & Another [2023] GHACC 121 (4 April 2023)

IN THE CIRCUIT COURT OF JUSTICE HELD IN HO, VOLTA REGION ON TUESDAY, THE 4TH DAY OF APRIL 2023 BEFORE HIS HONOUR MR. FELIX DATSOMOR, ESQUIRE, CIRCUIT COURT JUDGE SUIT NO. C1/12/2023 BETWEEN 1. JOHN KOKROKO 2. GIDEON ASAMOAH PLAINTIFFS 3. MINIKU ALFRED @ YAO ALFRED AND 1. PETER BUAKA ADZAPRAH 2. GIDEON BUAKA ADZAPRAH DEFENDANTS J U D G M E N T The plaintiffs herein approached the civil altar of this court by a writ of summons issued against the defendants on 4 July 2022 claiming the following reliefs: a) Declaration of title to all that piece or parcel of land known and called Voyi Land which is situate, lying and being at Sokode Gbogame and bounded as follows: On one side by the property of Sunu family On one other side by the property of Tugum family 1 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h On yet another side by the property of Dzomeku family On the last side by the property of Dzomeku/Akuvi family. b) An order that any land transaction made by the defendants or their father or any family member(s) is null and void and has no legal effect. c) An order directed at the Lands Commission, Ho to expunge from its records any registered transaction in respect of portions of the land illegally sold by the defendants or their father or any family member(s). d) Recovery of possession. e) An order of perpetual injunction restraining the defendants, their assigns, privies, workmen, servants, agents or any person claiming title through them from entering or carrying out a new form of development or projects on the disputed land. f) General damages for trespass. g) Costs. The writ of summons was accompanied by a statement of claim issued together with it in which the plaintiff spelt out the factual situation that led to the instant suit. Upon service of the writ of summons, the second defendant entered appearance and proceeded thereafter to file his statement of defence on 28 July 2022 and joined issues with the plaintiffs on their plaint. Since the instant suit is a civil case and carries with it the same evidential burden as every other civil case, the plaintiff is required by section 11(1) of the Evidence Act, 1975 (NRCD 323) to adduce admissible, cogent and credible evidence in support of the reliefs sought. See: First Eye Ltd v. Jehovah God See Me Herbal Shop & Others [2013-2015] 1 GLR 101. 2 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h Suffice it to say that the defendants in the instant suit did not file any counterclaim, and therefore did not assume any such burden of proof. From the pleadings filed by the parties, the plaintiff set out a couple of issues for the determination of the court. The said issues were adopted by the court as issues set down for trial. They were: a) Whether or not plaintiffs are the legitimate owners of the land in dispute. b) Whether or not plaintiffs are entitled to their claim. c) Whether or not the second defendant is entitled to his defence. d) Any other issues raised and arising out of the pleadings. The parties were thereafter made to exhaust all the pre-trial protocols regarding the suit by filing their witness statements, pretrial checklists and all documents they intend to rely on at the trial. The plaintiffs prosecuted their case through the first plaintiff and thus filed witness statement for the first plaintiff as well as one witness. The second defendant also filed witness statements for himself and a witness but eventually failed to call the said witness to testify at the trial. In effect, whereas the plaintiffs called one witness to testify in support of their case, the second defendant testified in person but called no witness. I must however observe at this point that the mere fact that the plaintiffs called a witness but the 2nd defendant called none does not imply that the plaintiffs must automatically have victory in this case. In law, witnesses are weighed and not counted and a whole host of witnesses are not needed to prove a particular point. See: Ghana Ports & Harbours Authority & Captain Zein v. Nova Complex Ltd. [2007-2008] SCGLR 806 (holding 2). Before I venture into resolving the main issue(s) between the parties herein, I need to observe at this juncture that this is an action inter parties and the law is that in an action 3 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h inter parties, the duty of the court is limited to defining the rights and obligations of only the adverse parties in the light of the claim, the evidence presented and the existing law. See: Grumah v. Iddrisu [2013-2014] 1 SCGLR 413 at 427 per Georgina Wood, CJ (as she then was). I recall that in Owusu v. Tabiri & Another [1987-88] 1 GLR 287 (holding 2), the point was made that he who asserts must prove and must win his case on the strength of his own case and not on the weakness of the defence. This implies that the plaintiff who made assertions in proof of the reliefs sought assumed the burden of proof. The burden would be discharged if the plaintiff led evidence to persuade the tribunal of fact that what he asserts is more probable than not. In other words, the plaintiff was obliged to prove his case by preponderance of probabilities as required by section 11(4) of the Evidence Act, 1975 (NRCD 323). A plaintiff however has no duty to prove his case with arithmetic exactness or beyond reasonable doubt. In explaining the standard of proof, it was held in Bisi v. Tabiri & Anor [1987-88] 1 GLR 360 (holding 2), SC, as follows: “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… had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle…” In Sagoe & Others v. Social Security And National Insurance Trust (SSNIT) [2012] 2 SCGLR 1093, it was stated that “proof by a preponderance of probabilities within the context of the burden of proof as stated in section 12(2) of the Evidence Act, 1975 (NRCD 323), simply means weightier or superior evidence”. In the case of the defendant, the law is that in a claim made by a plaintiff, there is no onus on the defendant to disprove the claim so that however unsatisfactory or conflicting the 4 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h defendant’s evidence may be, it cannot avail the plaintiff. The evidence of the defence only becomes important if it can upset the balance of probabilities which the plaintiff’s evidence might have created in the plaintiff’s favour or if it tends to corroborate the plaintiff’s evidence or tends to show that evidence led on behalf of the plaintiff was true. See: Barima Gyamfi & Anor v. Ama Badu [1963] 2 GLR 596. Moreover, in the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-2004] SCGLR 420 at 465, it was held thus: “A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant." EVALUATION OF EVIDENCE ADDUCED AT THE TRIAL AND DECISION OF THE COURT At the trial, the first plaintiff, I reiterate, testified for himself and on behalf of the second and third plaintiffs. The second defendant also testified at the trial but the first defendant 5 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h did not participate in the trial because he was deceased shortly after the suit was initiated. No steps were taken to substitute the first defendant because he was succeeded customarily upon his demise by the second defendant who was already a party to the suit so, in my view, there was no need for the substitution. Relying on his witness statement filed on 21 October 2022, the first plaintiff testified that he is the head of Xetsu family and that the said comprises of the Kokroko, Gbedugui and Agbezuge families of Sokode Gbogame. He also testified that he knows the defendants in the suit. According to him, the Xetsu family has a large tract of land situate at Sokode Gbogame which is bounded on one side by the property of Sunu family, on another side by the property of Tugum family, on the third side by the property of Dzomeku family and on the last side by the property of Dzomeku/Akuvi. He added that the said land is now known and called Daglama/Voyi land of which the three families aforementioned are the rightful owners. Testifying further, the first plaintiff stated in his witness statement that the Xetsu family's ancestors (which he described as “great great grandfathers”) were in peaceful occupation and possession of the disputed land without let or hindrance and that upon the demise of the said great grandfathers, it was one Togbe Patrick Kokroko who succeeded them through Daa Akorkor, a female child. The first plaintiff also recounted that it is he who succeeded Togbe Patrick Kokroko as the overall head of the Xetsu family. He also testified that the defendants’ family which was then headed by Killian Buaka Adzaprah II/Afawli trespassed onto the Xetsu family land and sold portions of the land to some individuals. The first plaintiff tendered into evidence a site plan on the disputed land and same was admitted and marked as exhibit "A". He stressed that the Xetsu family land does not share common boundaries with the defendants and that the defendants are customary successors of the late Killian Buaka Adzaprah II/Afawli. According to him, their predecessors made several attempts at stopping the unlawful sale or disposal of the land but same yielded no dividends. He 6 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h therefore concluded that the defendants have no legitimate right to sell their family property. The plaintiffs called a witness to testify in support of their case. The witness give her name to the court as Joyce Gbeh. I shall hereinafter refer to her simply as PW1 for the sake of convenience and simplicity of description. PW1, an 86-year-old woman and a native of Sokode Gbogame, also told the court via a witness statement filed on 30 August 2022 that the Xetsu family comprises three branches namely, Kokroko, Gbedugui and Agbezuge families. According to her, she hails from the Gbedugui family. She also told the court that the Xetsu family land was founded by their great great grandfathers who were in peaceful occupation of the said land without let or hindrance. There were obviously some successions along the line but PW1 says when Daa Akorkor became a successor, she handed over the headship of the family to Togbe Patrick Kokroko because she was a female child. Testifying further, PW1 said that upon the demise of Togbe Patrick Kokroko, the first plaintiff, John Kokroko, became the head of the family. Sometime later, according to PW1, her attention was drawn to the fact that Killian Buaka Adzaprah II/Afawli had sold portions of the Xetsu family land to some unknown individuals notwithstanding the fact that the family of Killian Buaka Adzaprah II/Afawli does not share any land boundary with the Xetsu family. PW1 confirmed that the land in dispute is known and called Daglama/Voyi land and it is bounded on the sides by the properties of the Sunu, Tugum, Dzomeku and Dzomeku/Akuvi families respectively. PW1 concluded her testimony by stating that the family of Killian Buaka Adzaprah II/Afawli has no right to sell the Xetsu family land and that any person from the Buaka family who had sold to any individual any portion of the Xetsu family land has “stolen” the Xetsu family land. The second defendant also filed a witness statement on 31 August 2022 embodying his defense to the suit. He described himself as a native of Sokode Gbogame and the 7 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h biological son as well as the customary successor of the late Killian Buakah Adzaprah II/Afawli of Sokode Gbogame. According to him, the Buakah family (consisting of Sendevu Xatsa, Madikpe, Klekpota branches) has a large tract of land situate, lying and being at Sokode Gbogame and that his late father was the accredited head of family before his demise. He confirmed that the plaintiffs are natives of Sokode Gbogame. The second defendant stated quite emphatically that the land in dispute belongs to the Xetsu family of Sokode Gbogame (comprising of the Kokroko, Gbedugui and Agbezuge families). He also said he knows all the boundaries of his family land and that his family land does not share boundaries with a plaintiffs'. Thus, any person who used his father's name to sell Xetsu family property is a fraudster. This admission by the second defendant goes a long way to bolster the case of the plaintiffs. I say so because the position of the law has been and still remains to be that "where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted. That type of proof is a salutary rule of evidence based on common sense and expediency." See the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III (substituted by Laryea Ayiku III) (2005-2006) SCGLR 637 holding (2) During his cross-examination by the first plaintiff, the second defendant disclosed that the Daglama/Voyi land does not belong to his family but rather the plaintiff family and that he used to hear that people used his father's name to sell portions of the said land save that he does not know the name of the persons who bought those portions of the land. 8 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h The nature and quality of the defence put up by the second defendant relieved the plaintiffs of any further evidence to prove their family’s ownership of the disputed land. I am therefore in no difficulty at all in coming to the conclusion that the Daglama/Voyi land contained in Exhibit “A” belongs to the Xetsu family of Sokode Gbogame. To that end, and without any hesitation, I hereby enter judgment for the plaintiffs on reliefs (a), (b) and (c), (d) and (e). As for reliefs (f) and (g), I am not inclined to grant them for the simple reason that the plaintiff did not adduce any shred of evidence to warrant that they be entitled to general damages and costs particularly against the second defendant. In the nutshell, judgment is entered in favour of the plaintiffs in the following terms: a) A declaration of title to all that piece or parcel of land known and called Daglama/Voyi land which is situate, lying and being at Sokode Gbogame and bounded on one side by the property of Sunu family, on another side by the property of Tugum family, on yet another side by the property of Dzomeku family and on the last side by the property of Dzomeku/Akuvi family is made in favour of the plaintiff’s Xetsu family. b) I issue an order that any land transaction made by the defendants or any of their family members to any person(s) whosoever in relation to any portion of the disputed land without the consent, permission and/or authority of the plaintiff’s Xetsu family is null and void and has no legal effect whatsoever. c) I further issue an order directed at the Lands Commission, Ho to expunge from its records any registered transaction in respect of any portion of the land sold by the defendants or any of their family members without the consent, permission and/or authority of the plaintiff’s Xetsu. 9 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h d) An order is also hereby issued in favour of the plaintiff’s Xetsu family to recover possession of the land in dispute. e) An order of perpetual injunction is also issued restraining the second defendant, his assigns, privies, workmen, servants, agents or any person claiming title through him or any of his family members from entering into or carrying out any form of development or projects on the disputed land. f) The parties shall bear their own costs. [SGD] H/H FELIX DATSOMOR (CIRCUIT COURT JUDGE) 04-04-2023 10 | P a g e S u i t N o . C 1 / 1 2 / 2 0 2 3 : J o h n K o k r o k o v . P e t e r B . A d z a p r a h