FLOXY P. VENTURES LTD. VRS NANA ADROBI I & 2 OTHERS (E1/52/2021) [2023] GHAHC 568 (26 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON WEDNESDAY THE 26TH DAY OF JULY, 2023 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE FLOXY P. VENTURES LTD VRS SUIT NO: E1/52/2021 - PLAINTIFF 1. NANA ADROBI I (FETTEH HENEMAA) 2. NANA KWESI QUANSAH (OMANKRADO FETTEH) - DEFENDANTS aka MR. CHARLES GRAHAM 3. NANA ABEKA SEKA (MANFAM ODIKRO) JUDGMENT The Plaintiff has instituted this action against the Defendants claiming against them, jointly and severally, for the following reliefs: 1. An order for declaration of title to all that land situate lying and being at Awutu Bereku in the Awutu Senya District and more particularly described in paragraph 12 of the Statement of Claim. 2. An order for recovery of possession. 3. An order of damages for trespass. 4. An order of damages for restitution. 5. Perpetual injunction to restrain the Defendants whether directly by themselves, or indirectly through their servants, agents, workmen, assigns or otherwise howsoever described from interfering with the Plaintiff’s ownership, occupation and possession of the land thereto. 6. Any further order or other costs inclusive of legal fees that reflects the GBA current scale of fees that this Court may deem fit. Events leading up to the institution of this present action, from the Plaintiff’s perspective, are that, sometime in 2007, the Plaintiff negotiated and leased the disputed land situate at Awutu Bereku within the jurisdiction of this Court from its original owners, Nai Abokuadi Agyemang Wyettey Otabil III, Omanhene of the Awutu Traditional Area. The Plaintiff says that after the said transaction was completed, same was reduced into writing by way of a lease executed by the Parties thereto. (The description of the land is as stated in paragraph 12 of the Plaintiff’s Statement of Claim). The lease was dated 18th December, 2009. Thereafter, the Plaintiff proceeded to the Lands Commission, Cape Coast, and registered the land in dispute. The Plaintiff avers that he acquired the disputed land for the construction of a business. By virtue of this, it proceeded to construct a block factory, offices for the factory and accommodation structures for its workers on a portion of the land. The Plaintiff states that, its attention was drawn by the workers to the fact that a group of land guards numbering about fifty-one (51) and led by the Defendants with a surveyor had come to the land with a bulldozer, payloaders carrying cement blocks, water, cement and about 10 tripper trucks carrying sand and stones. The Plaintiff avers that he went unto the land to stop the Defendant from the brazen takeover of the property but they threatened to kill him. He quickly alerted the Kasoa Police about the actions of the Defendants and they went to the site with the patrol team. However, because the Police were outnumbered, they were unable to stop the Defendants and any attempts to make an arrest would have resulted in bloodshed. The Plaintiff’s case is that the Defendants are bent on developing the disputed land and they do so both day and night. The Plaintiff states that it has been in possession of the property since 2007 thus, unless this Honourable Court restrains the Defendants, they would forcefully change the character of the land and thus deprive the Plaintiff of its lawful property. The Defendants, being opposed to the Plaintiff’s claims, filed an eleven (11) paragraph Statement of Defence on 6th May, 2021. This was subsequently amended pursuant to leave of court. In the Amended Statement of Defence and Counterclaim filed by the Defendants on 7th July, 2022, the Defendants generally denied the claims of the Plaintiff. The Defendants’ side of the story as contained in their Amended Statement of Defence is that the disputed land forms part of the Gomoa Fetteh Stool lands particularly in the area known as Gomoa Mamfam and same is under their control and management as Divisional Chiefs and Stool Elders of Gomoa Fetteh. The Defendants state that boundaries between Gomoa Fetteh and Awutu have long been determined by the judgment of the Stool Lands Boundaries Settlement Commission before Justice F. T. C. Amorin dated 9th October, 1984. It is thus the case of the Defendants that since the disputed land falls within the Gomoa Fetteh Stool lands, the Chief of Awutu lacked capacity to grant same to the Plaintiff and therefore whatever transaction that transpired between the Plaintiff and its lessor is void. The Defendants further stated that the Plaintiff and his lessor clandestinely described the disputed land as falling in Awutu Bereku in their purported Deed of Lease to deceive the Lands Commission into registering same (if same was registered) when they clearly knew that the land does not fall in Awutu Bereku. The Defendants aver that since the discovery of Gomoa Fetteh lands by their predecessors, the Gomoa Fetteh Stool and its subjects have been in long undisputed possession and protected the land from being taken by the people of Awutu by virtue of the Amorin judgment. It is thus the case of the Defendants that the Plaintiff is mistaken as to the identity of the disputed land and thus unlawfully laying claim to same as that which they purportedly acquired from their lessor, if any. Since the Defendants discontinued their counterclaim against the Plaintiff, I see no reason to reproduce same in this judgment. Counsel for the Plaintiff thereafter filed an Amended Reply and Defence to Counterclaim on 30th November, 2022 wherein he joined issues with the Defendants. The Plaintiff in its reply emphasised that the land in dispute does not form part of the Gomoa Fetteh lands but rather the Awutu Stool lands for which reason the Plaintiff has since acquiring the land has been paying stool rents to the appropriate stool at the Office of the Administrator of Stool Lands and the Defendants are not the owners of the land in dispute. In respect of the Amorin judgment referred to by the Defendants, the Plaintiff says that the judgment did not grant the land in dispute to the Defendants. Even if it did, the Plaintiff avers that the said boundaries were relitigated in 2013 where the Gomoa Fetteh Stool featured as the 4th Claimant and whose claims were dismissed by a judgment dated 12th June, 2018. The Plaintiff subsequently pleaded res judicata and the particulars are reproduced below: a. That the judgment of the High Court dated June 12, 2018 was given by a Court of competent jurisdiction and still subsisting. b. That the subject matter in the present suit was among the issues that were determined in the suit number TSOLO3/2013. c. That the Plaintiff derives his title from the Awutu Stool (5th Claimant) and the Defendants interest (if any) was presented by the Gomoa Fetteh Stool (4th Claimant) in that suit. d. That both the Defendants and counsel have knowledge of the facts pleaded above since the same law firm represented the Gomoa Fetteh Stool in suit number TSOLO3/2013. The Plaintiff states that the land in dispute was not clandestinely described by the Plaintiff’s grantor since the law required the Lands Commission to manage and register lands in Ghana and that the Lands Commission registered the Plaintiff’s interest as derived from the Awutu Stool who is the rightful and appropriate Stool owner of the lands in Awutu Breku. The Plaintiff further avers that it is not mistaken of the identity of the land since the Plaintiff has been active on the land and the Defendants know or ought to know of the Plaintiff’s presence on the land. At the close of pleadings, the following issues were set down for trial: 1. Whether or not the disputed land belongs to the Awutu Bereku Stool – Plaintiff’s grantor or the Gomoa Fetteh Stool. 2. Whether or not the boundaries between the Gomoa Fetteh Stool and the Awutu Bereku Stool had been settled long ago. 3. Whether or not the Defendants have trespassed unto the Plaintiff’s land. It is trite that the onus lies on the person who asserts or makes a claim to prove same by adducing sufficient evidence, on the totality of which a reasonable mind such as this Court would be satisfied of the veracity of the claims or assertions. To put differently, this Honourable Court should, on the evaluation of the evidence adduced, be satisfied that the claims or assertions of the Plaintiff is more probable than that of the Defendants. The Plaintiff is to prove its case on the preponderance of probabilities which has been defined as the degree of certainty of belief in the mind of the court by which it is convinced that the existence of the fact is more probable than its non- existence. See Section 12 of the Evidence Act, 1975 (N. R. C. D. 323); BISI V TABIRI [1987-1988] 1 GLR 360 In the light of the above expounded law, the onus is clearly on the Plaintiff since its claims are bound to fail if no evidence is led to prove its case. See FAIBI V STATE HOTELS CORPORATION [1968] GLR 471. The burden only shifts to the Defendants to adduce evidence to tip the scale in their favour when the Plaintiff has established a prima facie case or when a rebuttable presumption of law arises. See Section 14 of the Evidence Act; ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS V KOTEY AND OTHERS [2003-2004] SCGLR 420; and ABABIO V AKWASI III (1994-1995) 2 GLR 774. The Courts have severally held that a person seeking for a declaration of title to land or recovery of possession must prove his root of title, mode of acquisition and various acts of possession exercised over the land. See YEHANS INTERNATIONAL LTD V MARTEY TSURU FAMILY AND ANOTHER (J4/34/2018) DATED 24TH OCTOBER, 2018 (DELIVERED BY THE SUPREME COURT). It is only where the Party has succeeded in establishing these facts on the balance of probabilities that the Party would be entitled to the claim. This was emphasised by the Supreme Court in the case of MONDIAL VENEER (GH) LTD V AMUAH GYEBI XV [2011] 1 SCGLR 466 AT PAGE 476. The law also requires such a Party to adduce sufficient evidence to prove or establish the identity and the limits of the land in respect of which he seeks a declaration of title. This is particularly so when the identity of the land is in dispute as in this instant case. In cases where the Parties are ad idem as to the identity of the land, proof is dispensed with. This is because, facts which are admitted by a Party need not be proved by the other Party. See DR ERIC GRAHAM & ANOTHER V VIVIAN AKU BROWN-DANQUAH & 3 ORS (CIVIL APPEAL NO. H1/93/2017) DATED 31ST JANUARY, 2019 (DELIVERED BY THE HIGH COURT); BENJAMIN QUARCOPOME SACKEY V ISSAKA A. MUSA (CIVIL APPEAL NO. H1/93/2010) DATED 20TH MAY 2010 (DELIVERED BY THE COURT OF APPEAL). A thorough examination of the pleadings clearly shows that the real bone of contention between the Parties herein is which of the Stools (that is, Gomoa Fetteh Stool or the Awutu) own the disputed land. In other words, the real issue between the Parties is whether or not the disputed land falls within the Gomoa Fetteh Stool lands or the Awutu Stool lands. This fact is also borne out in the evidence adduced by the Parties. In the Witness Statement of Patrick Odoom, the Director of Floxy P. Ventures Ltd, he states that the Company negotiated and obtained a lease on the disputed land from its allodial owners represented by Nai Abokuade Agyemang Wyettey Otabil III, the Omanhene of Awutu Traditional Area. EXHIBIT D (a copy of the indenture) was annexed to his witness statement as proof of this fact. It is discernible from EXHIBIT D that the Plaintiff Company traces its root of title to the Awutu Stool and the mode of acquisition is via a lease. It is further stated in his Witness Statement that after the acquisition of the land, the Company proceeded to the Lands Commission to register the land in dispute and paid all necessary fees. (See EXHIBIT E). The Plaintiff has also been paying stool rent at the Office of the Administrator of Stool Lands (See Exhibit F). The Witness Statement further states that, the Plaintiff after acquiring the land immediately went into full possession and constructed a fence wall on a portion of the land. Also, in the Witness Statement of Okyeame Kojo Ashalley, a farmer by profession as well as a local linguist to the late Omanhene of Awutu Traditional Area, Nana Agyemang Wyettey Larbi II, he states that the Amorin judgment (relied on by the Defendants) did not in fact grant the disputed land to the Defendants. He attached the said judgment as EXHIBIT A. He further states that, the Gomoa Fetteh Stool (through which the Defendants derive their title) relitigated the boundaries in 2013. However, its claims were again dismissed by the High Court in its judgment dated 12th June, 2018 (EXHIBIT B). On the other hand, the 2nd Defendant in his Witness Statement stated that the boundaries of the two stools referred to herein have long been determined by Justice F. T. C. Amorin in his judgment dated 9th October, 1984 (EXHIBIT 1) and that this judgment together with the judgment plan (EXHIBIT 2) put in finality the boundaries between the two stools herein. He further stated that the subsequent judgment dated 12th June, 2018 did not re-determine the boundaries between the said stools. He adds that EXHIBIT B that does not indicate in the slightest idea that the disputed land has been ruled in favour of the Awutu Stool. He also reiterated the fact that the said land in dispute falls within the Gomoa Fetteh Stool lands and it is the only Stool with capacity to alienate the disputed land. In view of the above conflicting evidence as to where the land falls, I am convinced that the composite plan is useful or relevant in determining this issue. Although it is trite that expert evidence, like any other evidence, is not binding on the court and same ought to be evaluated like any other evidence, it is also trite learning that a judge must reach conclusions based on based on evidence on record. A composite plan is just as relevant or useful as a judge’s physical presence on a disputed land. I therefore lean favourably towards the Composite plan by the Survey Department. The composite plan was drawn by the Survey Department using the survey instructions filed by the Parties and based on the respective judgment plans submitted by the Parties. Whiles the Plaintiff relied on EXHIBIT C Series (which he terms as the authenticated Amorin judgment and judgment plan) the Defendant relied EXHIBIT 2 supra. From the survey report filed on 30th May, 2022 it is clear that the Parties are claiming the same piece of land and the total land in dispute is 16.89 acres. Also, the report unequivocally states that, based on Amorin Judgment Plan of (Enquiry NOS.14/75 & 10/76) (i.e., Exhibit C series), out of the 16.89 acres of land in dispute, only 0.10 acres fall within Awutu Bereku Stool and a majority of 16.79 acres fall within the Gomoa Fetteh lands. The Report further states that based on the Amorin Judgment Plan of (Enquiry NOS.4/75 & 10/76) (Exhibit 2), out of the total of 16.89 acres of the disputed land, only 1.80 acres fall in Awutu Bereku Stool and a majority of 15.09 acres fall within the Gomoa Fetteh lands. It is clear from the above report that in both the judgment plan submitted by the Defendants (Exhibit 2) and the Plaintiff’s authenticated judgment plan (Exhibit C Series), the majority of the land in dispute indubitably falls within the lands described as the Gomoa Fetteh Stool lands. The composite plan clearly reveals that only a small portion of the disputed land falls within the Awutu Bereku Stool land. The logical inference that can be drawn from this is that the Plaintiff’s grantor has substantially encroached upon the lands of Gomoa Fetteh. Therefore, in resolving the first issue, I find that the land in dispute substantially belongs to the Gomoa Fetteh Stool. The Awutu Stool lacked the requisite capacity to alienate all that piece of land falling within the Gomoa Fetteh Stool as shown in the composite plan. To put differently, all that piece of land falling within the Gomoa Fetteh lands as shown in the composite plan belongs to the Gomoa Fetteh Stool whiles the minute portion of land falling within the Awutu Bereku Stool belong to the them. Following from the above, the Defendants cannot be said to be trespassers on the whole land in dispute. They could be liable for trespass in relation to the small portion of the disputed land which, according to the Composite Plan, falls within the Awutu Bereku Stool lands. However, there is not a scintilla of evidence before this court which suggests that the Defendants trespassed on the said portion of the disputed land which falls within the Awutu Bereku lands. Technically, it is rather the Plaintiff’s presence on the land which constitutes to trespass. The Defendants cannot be said to be trespassers on their own lands. From the totality evidence adduced, it is clear (and without any doubts) that the boundaries of the Gomoa Fetteh Stool and that of the Awutu Bereku Stool have long been settled by the Amorin judgment of 9th October 1984. This judgment was affirmed by the Court of Appeal in its judgment dated 7th July, 2022 in what the Court termed as a consolidated appeal against the Amorin Judgment and the Mensah-Datsa J (as she then was) judgment of 12th June, 2018 (EXHIBIT B). It is worth stating that the Court of Appeal set aside the judgment dated 12th June, 2018 which in effect overturned the Amorin judgment. This can be seen at page 29 of the said judgment where the Court of Appeal noted as follows: “For the reasons given, the judgment of Mensah-Datsa J (as she then was) of 12th June 2018 will be set aside as it failed to appreciate the scope of the matter remitted for retrial. It also made contradictory findings leading to conclusions which deprived some claimants of the lands that had been adjudicated in their favour.” The Court of Appeal, again, emphatically stated that Justice Amorin did a thorough evaluation of the evidence before him. At pages 41 and 42 of the judgment, the court held as follows: “As indicated, the boundaries of the nine claimants that appeared before the Stool Lands Boundaries Settlement Commissioner, resulting in the Amorin judgment of 9th October 1984, was arrived at after a meticulous evaluation of fall the evidence that was led before the Commissioner. The Commissioner from the evidence had found that Gomoa Fetteh had led evidence to prove its ownership of part of the land that was being litigated.” The Court of Appeal set aside the judgment dated 12th June, 2018 and also dismissed the Appeal of Awutu Paramount Stool. The Court of Appeal further maintained the boundaries of Gomoa Fetteh as found by the Amorin judgment to the extent that it does not include the area remitted for retrial, especially the 48 villages which the Court of Appeal found to belong to the James Town Stool. The judgment of the Court of Appeal has therefore brought finality to the disputes regarding the boundaries of the Awutu Paramount Stool and the Gomoa Fetteh Stool. On the balance of probabilities, the Plaintiff Company is successful in proving title only to the minute portion of the disputed land which falls within the Awutu Breku Stool lands. The Plaintiff traced its root of title to the said Awutu Breku Stool who, on the totality of the evidence, only owns the portion of the disputed land which falls within the Awutu Breku Stool lands as shown on the composite plan. In respect to the larger portion of the disputed land which falls under the Gomoa Fetteh Stool lands, the grantor of the Plaintiff lacked the requisite capacity to alienate same. The Awutu Bereku Stool have no interest whatsoever in the said land and cannot purport to vest any valid interest in the Plaintiff in respect of the said portion of land. This is in accordance with the maxim nemo dat quod non habet. Save for the above, the Plaintiff’s action fails and not thus, entitled to his reliefs. There will be no order as to cost. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL ROLAND A. K. HAMILTON ESQ. FOR THE PLAINTIFF. PHILIP M. YOUNG ESQ. FOR THE DEFENDANTS. 12