Asare Vrs Boli [2023] GHADC 233 (16 June 2023)

IN THE DISTRICT COURT HELD AT SEFWI JUABOSO ON FRIDAY, THE 16th DAY OF JUNE, 2023 BEFORE HIS WORSHIP SAMUEL ENTEE JNR ESQ. THE MAGISTRATE SUIT. NO:. A8/03/23 KWAKU ASARE VS YAW BOLI JUDGEMENT Plaintiff, Present Defendant, Present The plaintiff issued the writ of summons on the 8th October, 2021 against Kofi Amponsah for a declaration of title and recovery of possession of land at Memenda Kokoo at Sefwi Asawinso and an order of perpetual Injunction On 15th November, 2021 the plaintiff filed a notice for joinder of Yaw Boli, Grace Awuku and Kwasi Fuakye as the 2nd, 3rd and 4th defendant respectively and the court granted the application on 16th February, 2022. Subsequently the 2nd defendant filed a counter claim on 27th May, 2022 for a declaration of title to and recovery of possession of the disputed land and an order of perpetual injunction against the plaintiff. Subsequently the defendant Kofi Amponsah applied to have his name struck off the suit as not the proper person to be sued and the 3rd and 4th defendant also applied to have their name struck off as misjoined, and the court granted their application and struck off their names from the suit. It was left with Yaw Boli as the 2nd defendant, but since the names of the defendants had been struck off, Yaw Boli became the only defendant in the case. It is the case of the plaintiff that the disputed land was granted to him by the defendant, Yaw Boli, sometime in 1999 to cultivate cocoa on abunu tenancy basis. That after he cultivated it they shared the cocoa farm on the abunu tenancy agreement. That the plaintiff said he defendant gave his part of the cocoa farm to Kofi Amponsah the defendant’s son in-law (the original defendant whose name had been struck out). The defendant later instructed Kofi Amponsah to carve out a portion of his (plaintiff) share of the cocoa farm into a building plot and Kofi Amponsah carved it and sold it to Grace Awuku (who was the 2nd co-defendant but her name was strucked out) for GH₵2,000.00 after which Kofi Amponsah gave him (plaintiff) GH₵ 100.00 . The plaintiff said he reported the matter to the police of Asawinso and the police invited the defendant but he denied carving out a portion of the land which belonged to him (plaintiff). That the defendant instructed Kofi Amponsah to carve another portion of the plaintiff’s share of the cocoa farm and Kofi Amponsah carved and sold it to Kwasi Fuakye (the 3rd Co-defendant whose name was strucked out of the suit) for GH₵ 8,000.00 and gave the plaintiff GH₵500.00. So he took this action and was claiming as per his writ of summons. It is the case of the defendant that he was the landlord or the owner the disputed land which he granted to the plaintiff to cultivate cocoa farm on abunu tenancy basis. That a greater portion of the plaintiff’s share of the cocoa farm had withered. That plaintiff demarcated the land into building plots and sold to people without his (defendant) knowledge and consent. The defendant said the plaintiff sold portions of the land to one Babien and Ibrahim of Sefwi Asawinso but he (defendant) took the said plot of land back and resold it to Babien and Ibrahim. That he (defendant) was the landlord and had the right to re-enter the land after the cocoa tree had withered, and that the plaintiff had no right to replant cocoa seedlings without prior notice to him the landlord, or demarcate the land into building plots and sell them. So the court should give judgement in his favour on his counter claim against the plaintiff. On the facts before the court there is no dispute that the disputed land belonged to the defendant. The issues which are in dispute and which the court will therefore determine are; 1. Whether or not the cocoa trees on the plaintiff’s land had withered or had been cut down by the defendant 2. Whether or not the plaintiff sold portions of the land on which his share of the cocoa farm was situated 3. Whether or not the plaintiff’s is entitled to his claim. 4. Whether or not the defendant is entitled to his counter claims. On the first issue, to a question by the defendant that plaintiff felled the cocoa trees and sold portions of the land to Ibrahim, the plaintiff replied that it was not true. To a follow up question that the plaintiff had no cocoa trees on the land except a small portion, the plaintiff replied that it was not true because he, the defendant had sold part of the land to Grace Awuku who felled the cocoa trees on the land. The plaintiff told him that Kofi Amponsah had invited him (plaintiff) home for his share of the proceeds from the sale of the land. That he accompanied him to Kofi Amponsah’s house and enquired about the land which had been sold and Kofi Amponsah told them that he and Yaw Boli had sold part of the plaintiff’s land and had decided to give Plaintiff GH₵ 500.00. But when defendant put it to him that if he was granted land to cultivate cocoa on abunu terms he did not have the right to cut down the cocoa trees on his portion and sell the land because that had belonged to the grantor, PW1 said he did not know that the plaintiff had cut down cocoa trees on his plaintiff’s portion of the cocoa farm. From the cross examination above it is the view of the court that the PW1 did not know whether indeed the plaintiff had cut down some cocoa tress on his portion of the cocoa farm he shared with the defendant or that a portion of the plaintiff’s cocoa farm had withered. Richard Osei Kwabena (DW1) @ Babien told the court that the plaintiff sold a plot of land to him with cocoa trees on a portion of the land so he cut down the cocoa trees and built a house to the window level. However, the defendant came in and stopped him from working on the land and told him that he granted the land to plaintiff to cultivate cocoa on abunu basis so the plaintiff had no right to sell the land to him as the land belonged to him, defendant. The plaintiff did not deny the evidence of DW1. Failure to cross examine or deny or dispute a material fact in evidence amounts to admission of that evidence. (FORI V. AYIREBI [1966] GLR 627, SC) cited. Accordingly the plaintiff is deemed to have admitted that he sold land with cocoa trees on a portion of the land to DW1 who cut down the cocoa tress to build his house. The evidence of DW1 indicated that the land plaintiff sold to him, the cocoa tress on a portion of the land had been cut down because DW1 said only a portion of the land had cocoa trees on it. The plaintiff did not cross examine DW1 to establish that at the time he sold the land to DW1 the portion without the cocoa trees, it was the defendant who cut down the cocoa trees at the portion. It is therefore presumed by the court that the plaintiff cut down some cocoa trees on his share of the cocoa farm and left some of the cocoa tress on the portion of the land he sold to DW1 who also cut down the remaining cocoa tress and built his house on the land and when the defendant saw that plaintiff had cut down most of the cocoa trees on the land, defendant sold part of that land to Grace Awuku with the belief that since plaintiff had cut down the cocoa trees then he could take the land back from the plaintiff. Although the presumption of the court is rebuttable the plaintiff could not lead sufficient evidence based on which the court could come to a conclusion that the plaintiff had rebutted the presumption that he cut down the cocoa trees. In view of this the court is inclined to believe the defendant evidence that the plaintiff cut down the cocoa tree on the land and sold a plot of land each to Babien and Ibrahim. Based on the evidence before the court therefore the court is of the considered view that the plaintiff cut most of the cocoa tress on his share of the cocoa farm. I therefore find that it was not the defendant who cut down the cocoa trees on plaintiff’s share of the coca farm but the plaintiff rather cut down the cocoa trees. On the second issue, the plaintiff denied under cross examination by the defendant that he sold part of the land on which his share of the cocoa farm was situated. But the plaintiff did not dispute the evidence of Richard Osei Kwabena (DW1) @ Babien that he sold a plot of the land to him and he (DW1) built a house on it to the window level. The evidence before the court also showed that the plaintiff sold a portion of land which was part of land on which his cocoa farm was situated to Babien and Ibrahim. However defendant took away each plot of land from DW1, @ Babien and Ibrahim respectively and resold DW’s land and Babien’s land to them but refused to sell that of Ibrahim back to him. On the evidence before the court therefore I find that the plaintiff sold portions of the land on which his share of the cocoa farm was situated. On the third issue the plaintiff told the court that the disputed land was granted to him by the defendant to cultivate cocoa on abunu terms sometime in the year 1999. The defendant said he was the landlord or the owner of the disputed land and granted it to plaintiff to cultivate cocoa. The evidence showed that the plaintiff cultivated the cocoa on the land the defendant granted to him and the parties had already shared the cocoa farm equally between them. The bone of contention however was that the plaintiff alleged that the defendant had cut down portions of his (plaintiff) cocoa tress and sold the land as building plots to other people. The defendant also contended that those cocoa trees withered and died or the plaintiff cut down the cocoa trees and sold the land to other people. But he took back the land plaintiff sold to other people and resold the land to some of those people, because since the cocoa tress were no longer on the land he could take his land back. Based on the evidence before the court, the court has found that the cocoa trees on the plaintiff share of the cocoa farm either withered or were cut down by the plaintiff. The court has further found that the plaintiff sold portions of the land on which his share of the cocoa farm was situated to other people. But the defendant took the land from those people, for instance, DW1, and resold the land to some of those people including DW1. In his book Principles of Customary Land Law in Ghana, the author Justice Ollennu, stated at page 82 that “an abusa or abunu tenant’s interest is the right to cultivate the land and to enjoy the proceeds, he does not acquire title or estate in any portion of the land.” Also in the case of MANU V. AINOO AND ANOTHER [1976] GLR 457, the court held that an abusa and abunu tenancies were created in respect of the share of the proceeds only. The ownership of the land remained always in the land lord. During the cross examination of plaintiff by the defendant the following ensued Question: Does the land in dispute belong to you or me Answer: It is yours but I have cocoa on it. Question: It is the cocoa on the land which belongs to you Answer: Not true Question: The land is mine Answer: Because we have shared the land my portion remains mine Question: In abunu tenancy it is the crops which is yours but not the land Answer: Not true Question: You have no right to sell the land Answer: That is correct. From the cross examination above the plaintiff had conceived the notion that the land on which his share of abunu cocoa farm was situated also belonged to him in addition to the cocoa farm. However the position of customary law relating to customary tenancies is clear that the ownership of the land remained always in the landlord, and that abunu tenant farmer does not acquire title in any portion of the land. If the plaintiff had established or led sufficient evidence to prove that indeed the defendant cut down the cocoa trees on his (plaintiff) share of the cocoa farm that would have been a different story. Because the defendant had no right to recover the land until, the cocoa tress had withered and died. But the plaintiff could not prove that it was the defendant who cut down the cocoa trees and sold the land as building plots to other people. The evidence showed and the court has found that the plaintiff rather cut down some of the cocoa trees and sold the land to others which and the defendant took back. Since the land is not part of the plaintiff share of the abunu cocoa farm, the plaintiff had no right to sell a portion of the land to others. And since the plaintiff is not the owner of the land his claim for a declaration of title, and recovery of possession to the land as well as an order of perpetual injunction to restrain the defendant and his agents from further entering the land or working on the land must fail. Accordingly I find that the plaintiff is not entitled to his claim. On the fourth issue, the evidence before the court showed that the plaintiff had denied or disputed or challenged the title of his landlord, the defendant to the disputed land. The evidence showed that the plaintiff sold portions of the land on which his share of the abunu cocoa farm was situated to other people including DW1, Richard Osei Kwabena @ Babien. The position of customary law is that if a tenant denies, disputes or challenges the title of his landlord to land the tenant forfeits his tenancy. In Principles of Customary Land Law in Ghana at page 90 the author Justice Ollennu, stated that “by customary law the tenants forfeits his tenancy to the landlord when he disputes the title of his landlord. Based on this customary law principle in the case of Ameoda V. podier , Ameoda V. Forzi (consolidated [1967] 1 GLR 479 CA, the court held that since the defendant had denied the plaintiff’s title the plaintiff was entitled not only to an order for recovery of possession, but also an injunction restraining them from committing trespass after given up possession In the instant case therefore since the plaintiff had denied the defendant’s title to the disputed land, I find that the defendant is entitled to his claim. Accordingly I hereby enter judgement for the defendant on his counter-claim against the plaintiff. Consequently, it is hereby declared that the land on which the plaintiff’s share of the abunu cocoa farm is situated at Memenda Kokoo at Sefwi Asawinso, on Asawinso stool land and bounded by the properties of Kwaku Awuai and Yaw Bole belongs to the defendant. An order of recovery of the said land is hereby made in favour of the defendant. An order of perpetual injunction is hereby made restraining the plaintiff, his agents, labourers, representatives, assigns, privies and all those claiming through the plaintiff from further entering the said land and or working on the land. Cost of GH₵ 1,000.00 is hereby awarded against the plaintiff in favour of the defendant. SGD::: SAMUEL ENTEE JNR ESQ THE MAGISTRATE