Francis Vrs Gariba [2023] GHADC 52 (12 July 2023)

IN THE DISTRICT COURT, KADJEBI IN THE OTI REGION OF THE REPUBLIC OF GHANA HELD ON WEDNESDAY, THE 12TH DAY OF JULY, 2023, BEFORE H/W ERIC K. FIAMORDZI ESQ. (MAGISTRATE) SUIT NO. A1/26/2021 AFENYA FRANCIS SUING FOR AND ON BEHALF OF HIS SIBLINGS OF PEKI WUDOME PLAINTIFF V FATI HAJIA GARIBA PER HER LAWFUL ATTORNEY GARIBA MEMUNATU DEFENDANT JUDGMENT This judgment originates from the civil suit filed by the Plaintiff against the defendant as required by the District Court Rules, 2009, CI 59 Order 2 rule 3 (6) for the following reliefs:- 1. Declaration of title and ownership and recovery of possession of all that piece or parcel of land situate and being at Poase Cement and bounded as follows: On one side by C. M. B I On the second side by Global Church, Poase Cement. On the third side by Kadjebi –Nkwanta Main road, and on the last side by CM. B 2 which land was gifted to Plaintiff’s father Gilbert Yao Afenya by the then paramount chief of Dodi Traditional Area, Nana Kwasi Nyarko I in the year 1941, and the necessary rites were performed. 2. Perpetual injunction restraining the Defendant, her workers, agents or any close relations of the Defendant from doing anything with the land until the final determination of this action. 3. Cost. SUMMARY OF THE SUBJECT MATTER OF CLAIM Plaintiff is a farmer resident at Poase Cement whilst the Defendant is a trader staying at Koto Nkwanta. Plaintiff brings this action against the Defendant for and on behalf of his other siblings of Peki Wudome. Plaintiff states that before the death of their father (Gilbert Yao Afenya) he acquired a piece or parcel of land from the then paramount chief of Dodi Papase Traditional Area, (Nana Kwasi Nyarko I) by means of gift. Plaintiff avers that after the said transaction, Plaintiff’s father provided one ram and drinks to acknowledge receipt of the gift of the said land to him (Plaintiff’s father). After that he (plaintiff’s father) went into peaceful possession of same until his death in the year 1992, when he (Plaintiff) and his siblings customarily succeeded him (their father) and one of them (i.e. Plaintiff’s siblings) has put up a building on a portion of their father’s land. About twelve (12) years ago, the defendant entered the land and the Plaintiff drove her away. In January; 2021, the defendant again encroached on a portion of Plaintiff’s land and had heaped sand on same, and is seriously getting ready to start a building project on the Plaintiff’s land. Wherefore the Plaintiff claims as per the endorsement on his writ of summons. The Plaintiff filed a motion on notice with an accompanying affidavit for interim injunction on the subject matter before the court. The motion was however not moved by the Plaintiff. But, the court injuncted all the parties from doing anything on the now disputed land. The parties were ordered to file their witness’s statements and any relevant documents in their possession in relation to the subject matter and they did. When the plea of the defendant was taken in court on the return date she pleaded not liable to the reliefs of the Plaintiff. The Plaintiff filed an exhibit AF 1& 2 which is the photograph /picture of the cement block molded by the defendant on the land. The Plaintiffs gave his evidence in chief on the 9th day of November, 2021. He relied on the witness statement and the exhibit he filed on oath. The witness statement and the exhibits were adopted by the court as his evidence in chief. The defendant was subsequently ordered to cross examine the Plaintiff on oath, and she did. Under cross examination by the defendant, the Plaintiff told the court that he has been there about fourteen (14) years ago, when the defendant was destroying the bamboo groves on the now disputed land. He added that he had planted mango trees on the now disputed portion of the land, but, they have all died /withered. The Plaintiff relied on a witness who also relied on the witness statement he filed. The witness statement of the PW1 was also adopted. Under cross examination by the defendant, the PW1 told the court that he was not present when the land in dispute was gifted to the Plaintiff’s father now deceased. He added that he is not in a position to state the measurements and the boundaries of the disputed portion of the land. The PW1 continued that there are buildings behind and in front of the plaintiff’s building which is on a different portion of the disputed land, but close to same. He also admitted that he was in the town when the bamboo grove on the disputed portion of the land was harvested and finally destroyed. He added that it was one Dzaka Kofi who cut the bamboo grove in order for him (Dzaka Kofi) to extend electricity to his house. The PW1 later described the boundary owners as CMB1 and CMB2, and added that there are mango trees and a coconut tree on the disputed portion of the land. The PW1 continued that it was one Torgbe Aggrey Kwame from Peki who was not a member of Plaintiff’s family who authorized the Global church building in front of Plaintiff’s house to be built there. He added that he is not in a position to tell the court who permitted one Nelson’s grandmother to also put up her building because that portion of the land does not belong to the Plaintiff’s family. The PW1 concluded by denying that the CMB 1 and CMB 2 buildings were there before the Plaintiff came to put up his building close to the now disputed portion of the land. After the close of the case of the Plaintiff, the defendant was called upon to open her defence per her attorney. She filed a land purchase receipt dated 15/6/2007. The attorney of the Defendant relied on the witness’s statement and exhibit filed and which were adopted by the court. Under cross examination by the Plaintiff, the defendant’s attorney told the court that it was the chief of Poase Cement who sold the now disputed portion of the land to the defendant. According to her, she cannot tell whether Nana Kwesi Nyarko indeed gifted the now disputed portion of the land to Plaintiff’s father. She said it is not true that she went and sought the consent of the Plaintiff to go and clear weed/bush on the land. She added that nobody has ever warned her to desist from going onto the disputed portion of the land. The defendant admitted that she tipped a tip of sand on the land on the 10th day of January, 2021, but nobody warned her against doing same. She admitted that the Plaintiff came and warned her not to work on the land on two occasions but maintained that she has acquired the land legally. She again maintained that she destroyed the bamboo grove and not the Plaintiff as he is making the court to believe. According to her, she used concrete corner pillars and palm trees to demarcate the boundaries of her land in the year 2007. She concluded that she has since molded cement blocks on the land for her use in the construction of a building. The defendant also relied on a witness who happens to be the chief of Poase Cement. The Defendant’s witness admitted that he sold the disputed portion to the defendant. He denied that some elders from the community came to him over the matter before this court. He explained that the fact that the now disputed portion is close to the Plaintiff’s house, does not mean it belong to him. He also denied that the disputed portion was gifted to Plaintiff’s father in the year 1941. The DW1 denied that he ever went to the Plaintiff to seek his consent to enable him (DW1) to put up a building on the disputed portion of the land. He again denied that he has sold the same portion of the land to someone else. The DW1 noted that, the land was overgrown with bamboo groves and no one was maintaining it. So he disposed of a portion of the land to the Global Church, and the remaining portion he has sold to the Defendant. He denied that he threatened to eject some fitters who were working on the land. He concluded that the portion of land in issue belongs to the Nana Kwesi Nyarko family of Dodi Papase, but has not been gifted to Gilbert Yao Afenya as far as he is concerned. The issues for the determination of the court are whether or not: - 1. A declaration of title and recovery of the disputed land described by both parties should be made in favor of the Plaintiff or the defendant; 2. The defendant, her workers, agents or close relatives are to be injuncted by the court from interfering with the subject matter in issue; 3. Cost should be awarded in favor of the Plaintiff. In the case of Fofie V Wusu [1992-93] GBR, 877, per the court of Appeal, corom, Lamptey, Adjabeng and Brobbey, J. J,A ( as they were then), speaking with one voice through Lamptey J. A, held as follows:- “ To succeed in an action for a declaration of title to land, a party must adduce evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title.” The learned Judge continued that, “ It is the Plaintiff who bears the burden of establishing the identity of the land he/she is laying claim to. Failure to prove this identity is fatal to a claim for declaration of title” Also ,in the case of Tetteh V Hayford [2013] 43 MLRG, 86 per Jones Dotse and Sasu V Amua Sakyi [1987 – 88]2 GLR, 221 Holden 7 at 241 per Wuaku J. A (as he then was ) :- “By native custom grant of land implies an undertaking by the grantor to ensure good title to the grantee. It is therefore the responsibility of the grantor where the title of the grantee to the land is challenged, or where the grantee to the land is challenged, or where the grantee’s possession is challenged/disturbed to litigate his (i.e. grantor’s) title to the land. In other words, to prove that the right, title or interest which he purported to grant was valid. See also Bruce V Quarnor & others [1959] GLR, 292 at 294”. In the instant suit, the plaintiff has alleged that his father, the late Gilbert Yao AFenya, was gifted the now disputed portion of the land together with the portion where the Global Church, Poase Cement current is, and his own residence lies in Poase Cement by the late Nana Kwesi Nyarko I of Dodi Papase. The court visited the land for an inspection to see things for itself. At the scene /site, the court saw the Plaintiff’s residence, which is a few meters from the road side (ie.) Kadjebi –Nkwanta road ;) the Global Church, the CMB1 and 2, the land in issue, and a Bamboo fenced land which has been cultivated by an alleged staff of the CMB. The CMB buildings, the Global Church, and the now disputed land are all closer to the main road than the residence of the Plaintiff herein. There are grown/matured mango trees on the compound of the Plaintiff’s residence which has not been fenced. On the disputed portion of the land are the molded cement blocks well parked which the Plaintiff confirmed as belonging to the Defendant. There is also a foot path close to a tall coconut tree, the wooden fenced wall which has been cultivated and which goes down to the neighboring houses behind the Plaintiff’s house/residence. In court under cross examination by the defendant/her attorney, the Plaintiff said, he has been there about fourteen (14) years ago, when the defendant was destroying the bamboo grove on the disputed portion of the land. Yet, he did little to protect the land which he claims, the late Nana Kwesi Nyarko I gifted to his (Plaintiff’s) father the late Gilbert Yao Afenya. The PW1 mentioned someone else as the one who destroyed that same bamboo grove The Plaintiff, who has initiated this action against the defendant has relied solely on a witness, who is an uncle to the Plaintiff. Although the fact remains that the court cannot choose any witness (s) for any of the parties, I wonder why the Plaintiff has been unable to rely on other witnesses particularly, the alleged fitters who were on the land, the members of the global church or even neighbors across the road, who might have been seeing the Plaintiff exercising overt acts of ownership of the land if indeed he owns that portion. The DW1, the chief of the town who should have been on the side of the Plaintiff, is now the one who has gone ahead to divest his interest in the land to the defendant. The plaintiff has not denied the fact that the DW1 is a descendant of Nana Kwesi Nyarko I. When the DW1 was claiming that nobody has been cultivating or maintaining the now disputed portion of the land, which had grown into bush with the bamboo groves on same, the Plaintiff asked why the DW1 did not call his (Plaintiff) attention to same. This is one area where I believe as a court that the Plaintiff might not have known the boundaries of the land allegedly gifted to his late father very well. Also, the disputed portion of the land is closer to the CMB structures/buildings by the road side. One could clearly notice that the Plaintiff might have slept over his right in protecting, maintaining and being in possession of the disputed portion of the land if indeed it belonged to him (Plaintiff). It is to be noted that in land law, especially in terms of declaration of title to land, a claimant (in this case the Plaintiff) cannot rely on the weakness of the case of the adverse party (in this, case the defendant) to succeed. Reference s are made to the case of Yorkwa V Duah [1982 – 83] GLR, 278, CA at p. 281 per Brobbey JA ( as he then was ) and Odamity V Clocuh [1989 -90] 1 GLR, 14, as well as Section 10 (1) of NRCD 323 (The evidence Act) 1975. From the evidence adduced before the court, the facts and the law, the Plaintiff has been unable to convince the court on the preponderance of probabilities that the land, the subject matter as described belongs to him and his siblings. This is largely due to the fact that he has failed to prove the identity of the land claimed. I therefore enter judgment in favor of the defendant against the Plaintiff. This court cannot recover the land for the Plaintiff. Consequently, the Plaintiff, his agents, workmen, families and indeed all those who claim through the Plaintiff are hereby restrained from interfering with the land, the subject matter in issue. As a court therefore, I vest the land, the subject matter in dispute to the authority and care of the defendant. I award a cost of four thousand eight hundred and fifty Ghana Cedis (GH₵4,850.00) against the Plaintiff in favor of the defendant. H/W ERIC K. FIAMORDZI ESQ. (MAGISTRATE) 9