ADITORDOE VRS SESI (A1/12/2021) [2023] GHADC 1107 (19 May 2023)

1 IN THE DISTRICT MAGISTRATE COURT HELD AT ADIDOME ON FRIDAY THE 19TH DAY OF MAY, 2023 BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) SUIT NO. A1/12/2021 DANIEL ADITORDOE OF MEPE-AFEGAME............ PLAINTIFF VERSUS DZINYADO SESI OF MEPE................................... DEFENDANT J U D G M E N T The Plaintiff instituted the present action against the Defendant for the following reliefs; A) A Declaration to title to all that piece or parcel of land situate and lying being at Mepe, measuring 100 x 88 feet more or less and bounded by follows: On 1st side by road; On 2nd side by Agba; On 3rd side by Degbe; and On 4th side by Adanya Forest. B) Recovery of Possession C) Special damages for trespass being demolition of foundation, D) General damages for trespass E) Costs. The Plaintiff filed Statement Claim and relevant paragraphs are as follows: 1. Plaintiff says that he acquired this land as a gift from his late grandmother Tsigbe Aditor Doe in 1985, 2. Plaintiff further says the subject matter of this suit formed part of a larger tract of land granted to his late grandmother Tsigbe Aditor Doe by her late father Togbe Asikekpo, 3. Plaintiff states that after the land had been given to him, he took possession of the land and commenced a building project and managed to complete the foundation wall, 4. Plaintiff says he has been in effective possession and occupation from the time of acquisition without let or hindrance from any quarter, 5. Plaintiff says that he later travelled to Afram Plains and upon his returned he noticed that the Defendant herein caused or destroyed a portion of his foundation wall and placed a container thereon, 6. Plaintiff further says that the land previously belonged to Togbe Aditor Doe of Adzigo Dapafeme, 7. Plaintiff says that the genealogy of the family is as follows: Togbe Aditor Doe begot Asikekpo, Asikekpo begot Tsigbe AditorDoe, Tsigbe Aditor Doe begot Awuku Seda and Awuku Seda begot Aditor Doe begot Daniel Aditor Doe (Plaintiff) 8. Plaintff repeats that he is the owner of that parcel of land measuring 100 x 88, located at Mepe Adrivu. The Defendant pleaded NOT LIABLE to Plaintiff’s reliefs. She filed her Statement of Defence and the relevant paragraphs are as follows; 1) Paragraph 2 of statement of claim is vehemently denied and Defendant avers that she is the bona fide owner of the subject matter, the land, 2) Defendant says that any document of Plaintiff is self-serving and recently manufactured, as when the matter came to be heard 3 and the parties appeared before the police at Aveyime and Sogakope, Plaintiff did not have any document to show, 3) The Defendant says that the subject matter was granted to her by one Etsigbe Aditordoe of Mepe, 4) Defendant further says that she paid six bottles of schnapps and six bottles of local drinks to the said Tsigbe and this was evidenced by receipt dated 20th May, 1986 in the presence of F. R. K. Kpogo, Togbe Dapaah II (Clan Chief of Mepe) and Avi Darko also of Mepe, 5) Defendant denies paragraphs 3, 5, and 6 of Plaintiff’s statement of claim and will put Plaintiff to strict proof, 6) Defendant says that she is the owner of the subject matter and that Plaintiff is rather a trespasser on her land, 7) Wherefore, Defendant say that Plaintiff is not entitled to his claims at all, COUNTER CLAIM Defendant repeats all averments contained supra and counterclaim against Plaintiff as follows: A declaration of title to all the piece or parcel of land measuring 100 x 100 feet situate lying and being at Mepe Adrivu and bounded as follows: On the North by Moses Torvikey; On the West by Aditordoe farm land; On the East by Aditor doe farm land and On the South by Togbe Korto Dadzi Ngorgbe Aditordoe farm to Mr. Ernest Adanya 1) Recovery of Possession, 2) General damages for trespass 3) Costs The legal proposition in civil cases is proof by preponderance of the probabilities. This principle is enshrined in the Evidence Act, 1975 (NRCD 323) and other case laws. Section 11 (1) provides as follows. “For the purposes 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”. Section 10 (1) may also be stated as follows: ....................... The burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court”. Section 10 (2() states: “The burden of persuasion may require a party to raise a reasonable concerning the existence or non-existence of a fact by a preponderance of the probabilities. And “preponderance of the probabilities” according to section 12 (2) of NRCD 323 means the degree of certainty of belief in the mind of the tribunal of fact or the court which it is convinced that the existence of a fact is more probable than its non-existence”. The combined effect of Sections 11 (1) and 10 (1) and (2), 12 (1) and 12 (2) of the Evidence Act may simply be stated that the Plaintiff is under a strict statutory obligation to establish a requisite degree of belief on the preponderance of the probabilities. This the Plaintiff ought to prove that indeed and infact the land in dispute was a gift from his late grandfather, Tsigbe Aditor Doe in 1985. The same principle, thus the standard of proof as stated in the Evidence Act supra was held in the case of Agyemang Boateng & 28 Ors. v. S. K. Boateng (2009) 5 GMJ 58 of page 62-63 CA thus: “The law has always been that “a person who makes an averment or assertion which is denied by the opponent has the burden to establish that his averment or assertion is true. And he does not establish this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of such averment or assertion determines the degree and nature of that burden”. Continued that: “In a civil case such as the instant case the Plaintiff has the duty and or obligation to prove his case on a balance of probabilities and that no weakness in the Defendant’s case can avail him. In simple and unambiguous language, the rule is that the Plaintiff has the burden of proof and persuasion in the civil case. The nature of this burden has now been given statutory definition and expression in Ghana in Sections 10 (1) and (12) 11 (1) and (2) of the Evidence Act, 1975 (NRCD 323)”. Further that: “Thus by the provision of sections 10 (1) and (2) and 11 (1) of the Evidence Act, 1975 (NRCD 323), the obligation of a Plaintiff in a civil case to prove his case on a balance of probabilities and on a preponderance of evidence is now statutory. Before the enactment of NRCD 323 the obligation on the Plaintiff in the civil case was simply a rule of practice as propounded in the case like Majolagbe v. Larbi (1959) GLR 190 and further explained and expanded on in the recent case of Zabrama v. Segbedzi (1981) 2 GLR CA page 71 -72. A defendant is not bound to counterclaim against the Plaintiff. If a defendant puts in a counterclaim it must be proved to the satisfaction of the court as a counterclaim is an independent action, the case of Fosuhene v. Wusu [2011] 32 GMJ 383 SC. The Defendant in the present action, filed a counterclaim and by extension becomes a Plaintiff as a counterclaimant. This was clearly stated by Rose Owusu JSC (as she then was) in Sasu Bamfo v. Sintim [2012] 1 SC GLR 136 at 156 that: “A counterclaim is a different action in which the Defendant as a counter claimant is the Plaintiff and the Plaintiff in the action becomes a Defendant”. In the instant case, where both parties are seeking declaration of title, recovery of possession and damages, in respect of the disputed piece of land each of them have the burden of proof and persuasion to prove conclusively on a balance of probabilities that they were entitled to the reliefs claimed. Thus section 11 (1) of the Evidence Act, 1975 (NRCD 323) enjoins the Defendant in its capacity as a Plaintiff in a counterclaim to introduce sufficient evidence to avoid a ruling on the issue against him”. The Plaintiff assumed the burden to prove his case against the Defendant, filed his witness statement and that of Francis Kpogo his sole witness and some Exhibits. They include, Deed of Gift, photograph of site, building plan, Arbitration Report by the Dzagbaku Development Committee, Mepe Allocation Paper and Receipt to Defendant, Judgment from Sogakope Circuit Court. They were admitted and marked as Exhibits ‘A’ ‘B’ C, C1, C2, ‘D’ ‘E’ and ‘P’ respectively. The Defendant also filed her witness statement and that of Togbe Dapaah II as well an Exhibit, Exhibit ‘I’ the Allocation Paper. The issues to be determined: (i) Whether or not the parties satisfied the requirement to succeed for declaration of title to land. (ii) Whether or not parties are possessors of the land recognized by law, (iii)Whether or not the Plaintiff has trespassed onto Defendant’s land. (iv)whether or not the Defendant is entitle to her counterclaim, (v)whether or not the Plaintiff is entitle to his claim. Let me state that the Plaintiff and the Defendant are claiming ownership of the subject matter which has the following boundaries: On the North by 110 feet, On the South by 76 feet, On the West by 96 feet and On the East by 100 feet. Ownership generally to any immovable property embraces possession of and title to it. An owner therefore is a person who can show that he and those through whom he claims title have possessed the land for so long that there can be no reasonable probabilities of the existence of a superior adverse claim, page 103 of Land Law and Conveyancing by Da Rocha and Lodoh. The ownership of the disputed land the court has to decide. The Plaintiff is seeking declaration of title to land and other reliefs, he will succeed only if he is able to establish the identity of the land in question satisfactorily according to law so as to entitle him to the reliefs. The onus of proof required by law regards the identify of land would be discharged by meeting the conditions clearly stated in the case of Tetteh v. Hayford [2012] SC GLR 417 citing the case of Kwabena v. Atuahene [1981] GLR 136 thus: (1) the Plaintiff has to establish positively the identity of the land to which he claimed title subject matter of the suit (11) Plaintiff has to establish all his boundaries (iii) where there is no properly oriented plan drawn to scale, which made compass bearings vague and uncertain the court could hold that the Plaintiff had not discharged the onus of proof of his title. In an action for declaration of title to land, the Plaintiff must prove with certainty the boundaries of the land claimed, the positive evidence of identity and limits of the land he claims, Nyikplorkpo v. Agbedotor [1987-88] 1 GLR 65 at page 171. See also: Osae v. Adjeifio [2008] 4 GMJ 149 SC; [ at 157-100]; [2007- 2008] SC GLR 499. The reasons why the disputed land subject of the claim must be clearly identified as well stated by Ollennu JSC (as he then was) in Anane v. Donkor (1965) GLR 188 at page 192 as follows: where a court grants declaration of title to land or makes an order for in respect of land, the land subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty and also if the order for injunction is violated, the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgment for declaration of title to land operate as res judicata to prevent the parties re-litigating the same issues in respect of the identical subject matter, but it cannot so operate unless the subject matter thereof is clearly identified”. This matter before this court tend to turn to ownership and the right to alienation in immovable property law in Ghana. It is the Plaintiff’s case that, his late grandmother, one Tsigbe Aditordoe who was granted same by his late father Togbe Aditordoe and gifted the subject matter in 1985 and Exhibit ‘A’, a deed of gift executed in his favour. He immediately took possession and commenced construction of a building project and managed to complete the foundation wall. Later, he went to Afram Plains and on his return noticed that the Defendant had destroyed portion of the project and placed a container thereon, which he exhibited in his evidence, as Exhibit ‘B, ‘C’, ‘C1’ and ‘C2’ respectively. He gave the dimension of the subject matter as 100 x 88 located at Mepe Adrivu and bounded as follows: On one side by road; On 2nd side by Agba; On 3rd side by Degbe and On 4th side by Adanya Ernest And therefore claimed ownership. His sole witness, Francis Kpogo corroborated Plaintiff’s evidence and that he was instructed by Plaintiff’s grandmother, Tsigbe to measure 72 x 72 feet to Ernest Adanya which he complied and pillared it for Ernest Adanya, Defendant’s son. This was in 1986. He exhibited the transaction as Exhibit ‘E’. Defendant also claimed ownership of the subject matter and stated its dimension measured to be 100 x 100 feet and bounded as follows: On the North by Moses Torvikey; On the West by Aditordoe family land; On the East by Aditordoe family land and On the South by Torgbe Korto Ngorgbe Aditordoe farm. That the disputed land was granted to her by one Etsigbe Aditordoe of Mepe and a receipt dated 20th May, 1986 executed in her favour as Exhibit ‘I’. This was after she paid six bottles of schnapps and six bottles of local drinks to Tsigbe in the presence of F. R. K. Kpogo, Togbe Dapaah II (Chief of Mepe) and Avi Darko. According to her about six years ago, Plaintiff reported the matter to Aveyime and Sogakope police and were advised to file civil suit since only the court could enforce their rights. Defendant claimed ownership of the subject matter. Togbe Kwabla Dapaah II, the sole witness of Defendant stated that, one Ernest Adanya purchased a piece or land from his aunt late Etsigbe Aditordo and Defendant was a witness to the transaction. which same was executed on the 30th of May 1986. That the land measured 72 x 72 feet with the boundaries stated in the Exhibit as follows: On the North by Moses Torvikey; On the West by Aditordoe farm land; On the East by Aditordoe farm land; and On the South by Torgbe Korto. Further, he stated that the land belongs to Etsigbe Aditordoe, the Plaintiff’s grandmother and Ernest Adanya purchased same from her. Surprisingly, he tendered a receipt which measured the plot of land purchased by Ernest Adanya as 72 x72 feet but not 100 x 100 feet as Defendant laid claim to. That he gave same to Defendant but she forged it, hence same was rejected. Flowing from above, the issue of gift and sale come to play as how the parties acquired their land and possess same. In Ghana, there are two main ways a person could become a lawful possessor of title over land. One of the ways, is to have that title registered and the other to have such title formally transferred by customary law. In the instant case, the Plaintiff mode of acquisition is by gift from his late grandmother and an aunt to DW1, Etsigbe Aditordoe and a deed of gift, Exhibit ‘A’ executed in his favour on the 11th of May, 1985. Defendant also stated that she acquired the land by sale and how much she paid to Etsigbe Aditordoe for the grant of the land, six bottles of schnapps and six bottles of local drink. The evidence on record does not show that the land has been registered. Since the issue of legal registration has not been contended in this but it is based on customary law, I will move to the customary issues that affect this matter. First of all, in order to become rightfully possessor of land at customary law. It must have been transferred to the party claiming lawful possession by certain means. In Bruce v. Quaynor and Others [1957] GLR 282, 289 it is the principle established that conveyance of land made in customary is effective from the moment is made. What occasions such conveyance? One of the ways such conveyance is effected is through sale or gift. A gift is akin to a sale in which the vendor asks for no form of consideration to be given and expects none. Thus a gift is a voluntary transfer of title same way a sale is effected. When perfecting a gift, the donor must be the owner of the land, must have the competence to transfer it and must fully intend and purport to give same. In Yoguo and Anor v. Agyekum and Others [1966] GLR 482-520, the Supreme Court laid out essential requirements for valid gifting of Customary Law Land: 1. there must be ceremony of transfer, 2. publication of living and the dead from the donor to the done, 3. pouring of libation, 4. Aseda (in some places it is ram, some bottles of schnapps and some money). In selling land, one party agrees to part with their parcel of land and showed part with the same land for consideration agreed upon and given. It therefore means that in the sale of land, there is an evident agreement to sell the land. Such agreement must involve compliance of certain requirements. The Defendant was issued with Receipt as evidence of purchase of land. This was confirmed by PW1 and DW1 and same exhibited as Exhibit ‘E’ and ‘I’ respectively. A Receipt would suffice to show consideration has been given. Thus, it follows that the Plaintiff and Defendant are both possessors at customary law. Since, Etsigbe Aditordoe the vendor and donor is not alive the witnesses who were directly involved in the transactions have testified, the court can conclude on how the parties became possessors. As stated in Mondial Veneer (GH) Ltd v. Amuah Gyebi XV [2011] 1 SC GLR 466 at 475, that; “In land litigation, even where living witnesses who were directly involved in the transaction, under reference are produced in court as witnesses, the law requires the person asserting title and on whom the burden of persuasion falls, as in the instant case, to prove the title of his root, mode of acquisition and various acts of possession exercised over the subject matter of litigation”. On the strength of the case law above, the court is satisfied that the parties have successfully proved their case as to ownership and acts of possession. Now I want to look at the issue of trespass as stated by the Defendant that, Plaintiff has trespassed onto her land and vice versa. Trespass is actionable perse without proof of injury before damages would be awarded to compensate the injured party. The Defendant has stated that she owned a 100 x 100 which includes the plaintiff’s claim of 100 x 88. This the defendant could not prove with any documentary evidence. The receipt she laid claim to as having been issued by DW1, Togbe Kwabla Dapaah II was fraudulently acquired and which was subsequently rejected after, the witness proved in court with the authenticate or valid exhibit which Defendant could not say anything contrary. Besides, how can a suppose vendor’s evidence be contrary to that of the vendee or the Defendant. At locus, both lands were measured with the Defendant’s place where she claimed ownership measured as 72 x 72 feet with an uncompleted building constructed on it. Though, she resisted but witnesses who evidenced the sale were there, Mr. Francis Kpogo who was a signatory to Exhibit ‘E’ and ‘I’, the Receipt, Mr. Avi Darko an elder in the community as well as Peter Humade were signatories. Again Exhibit ‘F’ , the Criminal Judgment delivered by the Circuit Court, Sogakope in 2012 also stated categorically the Defendant’s land to be 72 x 72 feet. In that proceeding, the Defendant gave evidence as DW1 in defence of his son Alormenyo Famous Zaforyi who was the accused person and consequently convicted for causing damage to Plaintiff’s property and threat of death. The Plaintiff was the complainant. The Defendant cannot therefore claim that the land is 100 x 100 feet. The court relies on the locus report, CE ‘I’ given by the court witness as well as the witnesses, PW1 and DW1 evidence in court and say that the Defendant has failed to convince the court for ruling on her counterclaim. Nothing authenticate to support her case. She had an Exhibit to prove the 72 x 72 feet but not the 100 x 100 feet very essential. The court could have relied on any documentary evidence tendered by Defendant in respect of her 100 x 100 claim vis a vis that of the Plaintiff to see who has a better title, although same should not deny a party justice. Documentary evidence is presented to court where there is a dispute surrounding such a grant or surrounding ownership of the land. In the 21st century therefore, documentary evidence in a suit as this has become necessary although the absence of same should not deny any party justice. They make the work of the court easier. In Amuah v. Adututu & Anor [1987-88] 2 GLR 191, documents which are prepared after a grant according to custom like the present, serve merely a documentary evidence of the grant and they do not alter the customary nature of the transaction. In that case, notwithstanding the fact that such documents would purport to the nature of the transaction at customary law will be referred to in ascertaining the validity of the said transaction”. From the documentary evidence provided by the Defendant, the plot acquired and allocated to Ernest Adanya as evident in Exhibit ‘E’ and ‘I’ is 72 x 72 feet and not 100 x 100 feet. On damages, it is trite learning that a person who has bought land and has been given possession may sue for damages and injunction when the land is interfered with be it by the act of his vendor or a third person, his remedy is damages for trespass and injunction to prevent further act of trespass, the case of Dankwa v. Kwabena (1965) GLR 299. Damages are usually awarded as an alternative to specific performance mostly in land matters. The essence of damages is to put the injured person in the position in which he was before the injury. Damages is neither awarded to punish the offender nor to confer a windful on the victorious party. At locus, the two (2) containers placed on the portion of Plaintiff’s land and as a result of damage to the foundation building of the Plaintiff but the Defendant vehemently denied any knowledge of same. The owners of the containers are not parties to the suit, therefore it will be very difficult if not impossible to order for any damages to be paid by them, though the court saw the injury caused as a result of their acts of trespass. It seems to me that this is a case where the Plaintiff successfully proved the title of his 100 x 88 feet land which was customarily gifted to him by his late grandmother, Tsigbe Aditordoe, by the strength of the evidence adduced and thereby discharged the onus as required by law. However, the Defendant could not convince the court as her evidence was not credible and worth considering, her counterclaim fails in parts the 100 x 100 feet claim deserves dismissal and accordingly dismissed. It is important that I state that, the land measured 72 x 72 feet as exhibited in Exhibit ‘E’ and ‘I’ belongs to Ernest Adanya and not Defendant as she was only a witness to the sale and cannot hold title to the 72 x 72 feet as stated in her witness statement as the bona fide owner of same. She stated earlier in court that, the property belongs to Ernest Adanya, his son who has travelled to a galamsay site and could not be reached even on phone. There were several adjournments at his instance but was never successful and eventually proceedings had to commence. From the totality of the evidence adduced, I find as a fact that the Plaintiff has satisfactorily proved ownership of the 100 x 88 and he is entitle to his claim. Meanwhile, the two (2) containers be removed forthwith to enable Plaintiff to recover the full compliment of his land. Judgment is hereby entered for the Plaintiff against the Defendant. I award costs of Five Thousand Ghana Cedis (GH₵5,000.00) against the Defendant. (SGD) H/W MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE) PARTIES 1 . PLAINTIFF PRESENT. 2 . DEFENDANT PRESENT.