Amegadzie and Another v Ahator and Another (No. A1/03/20) [2023] GHADC 1321 (14 August 2023)

IN THE DISTRICT COURT HELD AT DZODZE ON MONDAY THE 14TH OF AUGUST,2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU, DISTRICT MAGISTRATE. Suit No. A1/03/20 GABRIEL AMEGADZIE SUBSTITUTED BY PLAINTIFF JOHN AHATOR VRS BEATRICE AHATOR & ANOTHER DEFENDANTS JUDGMENT PARTIES PLAINTIFF - PRESENT DEFENDANTS – PRESENT LEGAL REPRESENTATION SENANU AFAGBE FOR PLAINTIFF PRESENT INTRODUCTION/BACKGROUND: Per a Writ of Summons filed on the 1st October, 2019 the Plaintiff prayed for the following reliefs; 1 | P a g e a. Declaration of title and recovery of possession of all that piece or parcel of land situate, lying and being at Dekporyia and bounded as follows; i. On the East by the property of Kordze, ii. On the West by the property of Kodzi iii. On the south by the property of Banitsi and Kordze and iv. On the North by the property of Baniba and Wegba. b. Perpetual injunction. c. Damages for trespass and d. Cost. CASE OF THE PLAINTIFF In an amended statement of claim filed by the plaintiff pursuant to the leave of court, the plaintiff stated that he and the 1st defendant are first cousins whilst 2nd defendant is the son of the 1st defendant. It is the case of the plaintiff that, their great grandfather Ahator, founded a parcel of land at Logove, Dekpor upon which he exercised overt acts of ownership by way of farming. The plaintiff stated that, the land is bounded as follows; a) On the North by the property of Baniba and Wegba families b) On the South by Banitsi and Kordze family c) On the East by the property of Kordze family and d) On the West by the property of Torgbui Kodzi and Ayra families. The plaintiff stated that Ahator gave birth to Kpesese and others and Kpesese gave birth to Hugbedzi, Nyorgborshie and Vivordi. 2 | P a g e The plaintiff stated that, Hugbedzi gave birth to the plaintiff and others while Vivordi gave birth to the 1st defendant and others. The plaintiff stated that the 1st defendant also gave birth to Tsoenamawu Ade, the 2nd defendant and others. The plaintiff stated that portions of the land cultivated by Kpesese automatically became their inheritance and that he knows where the 1st defendant’s father Vivordi also inherited by way of cultivation, likewise the portion of the 1st defendant’s step mother Kokui Tsormadzoh which is presently also being cultivated by the 1st defendant. The plaintiff stated that the portion of the land in dispute was inherited by his late mother Hugbedzi Ahator who worked on it till her death. The plaintiff stated that during his mother’s lifetime and at a point when she could no longer work due to old age, he took over the land in dispute and was farming on same before the demise of his mother at the age of Eighty-four (84) years. The plaintiff stated that because of his work, he did not stay at home but pays occasional visits and that upon one of such visits, he realized that the 1st defendant had trespassed unto the disputed land and leased same to another family member. The plaintiff stated that he immediately confronted that family member about the development but because he was also a family member, he permitted him to work. The plaintiff stated that although he is a maternal descendant, he played a vital role in the family affairs, contributed family levies and helped to redeem family lands sold by the 1st defendant’s father. 3 | P a g e The plaintiff stated that recently when he cleared the land in dispute and was about to cultivate maize, he was restrained by the 1st defendant who summoned him before the elders of Dekporyia but due to the conduct of the 1st defendant, the matter could not be settled. The plaintiff stated that on the 24th of September, 2019 he sprayed the land with weedicides with the intention to cultivate same but the defendants caused a tractor to plough the same land and cultivated it. The plaintiff stated that unless the defendants are restrained by the court they will not refrain from their actions on the land. Hence this action. THE CASE OF DEFENDANTS In their statement of defence filed on 21st November, 2019 the defendants admitted that the plaintiff is a cousin to the 1st defendant but denied the claim that the land in dispute was founded by their grandfather Ahator and stated rather that the land formed part of a larger land given to Ahator by Torgbui Banitsi I. The Defendants admitted the boundaries of the land as described by the plaintiff except the Northern side of the property which they stated shares boundary with the Adevi family. The Defendants admitted the claim by the plaintiff that Ahator gave birth to Kpesese and that Kpesese was the father of Hugbedzi, Nyorgborshie and Vivordi. The Defendants also admitted that Hugbedzi gave birth to the plaintiff and others whilst Vivordi gave birth to the 1st Defendant and others. 4 | P a g e The Defendants further admitted the plaintiff’s assertion that portions of lands cultivated by the children of Kpesese automatically became their inheritance respectively but stated in addition that the portion of the land in dispute was rather in the possession of the 1st defendant’s father Vivordi, who cultivated same during his lifetime. The Defendants admitted to the claims of the plaintiff that they had leased the disputed land to another family member but denied being confronted by the plaintiff over the lease. The Defendants denied the plaintiff’s claim to have played vital roles in the family including payment of family levies and redeeming family lands sold by the 1st defendant’s father and put the plaintiff to strict proof of same. The Defendants admitted the claim that maternal descendants also have right to inheritance but stated that such inheritance is subject to good conduct and humility to the family. The defendants stated that, it was rather the 1st defendant who cleared the disputed land on which she has been farming after the death of her father about twenty-seven (27) years ago with the intention to cultivate same and the plaintiff went to spray weedicides on the land without the knowledge and consent of the defendants. The defendants stated that the 1st defendant summoned the plaintiff before the elders of the community but stated that it was rather the conduct of the plaintiff that made it impossible for the issue to be resolved. 5 | P a g e The defendants stated that the 1st defendant subsequently took the matter to Torgbui Banitsi for resolution but the plaintiff failed to co-operate with the settlement process. The defendants denied ploughing the plaintiff’s land and stated that the 1st defendant has been cultivating the land which she inherited from her late father for the past 27 years. The Defendants stated that the plaintiff’s action against them is misconceived and without merit and that the plaintiff is not entitled to his reliefs. PROCEDURAL HISTORY The writ in this suit was issued on 1st October,2019 by the deceased Plaintiff Gabriel Amegadzie against the defendants. Following his demise, John Ahator was substituted with him per the court’s order. The case commenced before His Worship Derrick Pardon Eshun and was taken over Her Worship Rejoyce Aseye Gadagoe. Proceedings were adopted before me and hearing continued with the commencement of the defence of the defendants. ISSUES From the pleadings filed by the parties the following issues were set down for determination; 1. Whether or not the plaintiff has a right of claim over the disputed land? 2. Whether the disputed land was under the control and possession of the 1st defendant’s father Vivordi? 3. Whether the disputed land has been under the control and possession of the 1st defendant after the demise of her father for over twenty-seven years? 6 | P a g e BURDEN OF PROOF The plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities according to section 12(2) of the Evidence Act (NRCD 323) means; “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence” Where the plaintiff has been able to lead sufficient evidence in support of his case, then the burden is upon the defendant to lead sufficient evidence in rebuttal or risk being ruled against on the issues. Under section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. In Okudzeto Ablakwa (No. 2) v. Attorney General & Obetsebi Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held as follows; “he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a)…What this rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”. 7 | P a g e The Court is also mindful of one of the cardinal duties of a Court in evaluating evidence led during trial which is for the Court to assess all the evidence on record in order to determine in whose favour the balance of probabilities should lie. See the cases of Adwubeng v. Domfeh [1996-97] SCGLR 660 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882. SUMMARY OF EVIDENCE The deceased plaintiff testified by himself in addition to two other witnesses namely John Ahator (PW1) and Adzo Awonor Ahator (PW2). The 1st defendant also testified by herself for the case of the defendants in addition to two other witness Kwame Larvoe Ahiatsi (DW1) and Henry Alavi (DW2). ANALYSIS Issue One (1): Whether or not the plaintiff has a right of claim to the land in dispute? In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, the Supreme Court in dealing with the burden of proof in respect of declaration of title stated through Georgina Wood C. J as follows; “In land litigation….the law requires the person asserting title and on whom the burden of persuasion falls to prove the root of title, mode of acquisition and various acts of possession, exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim”. See also the case of Yehans International Ltd Martey Tsuru Family and another [2018] Unreported Civil Appeal No. J4/34/2018 dated 24th October,2018 per Adinyra JSC. 8 | P a g e It is the case of the plaintiff that the land in dispute was inherited by his late mother Hugbedzi Ahator who cultivated same till her demise at Eighty-four (84) years, but same has been trespassed upon by the defendants who leased it to another family member and are claiming ownership. This assertion is denied by the defendants who also claim that the land was the inheritance of their late father Vivordi who inherited and cultivated same for so many years till his death after which the 1st defendant took over and has been cultivating the land for over twenty-seven (27) years. In Klah v. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139 it is held that, “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true”. The onus therefore was on the plaintiff who avers that the land was inherited by her mother and subsequently to him and that they have together been in possession for several years to adduce evidence in substantiating same. From the nature of his case, the plaintiff seeks to rely on possession as his right of claim to the disputed land. This can be deduced from his averments in paragraphs 9 and 10 of the amended statement of claim that portions of the land cultivated by the children of Kpesese automatically became their inheritance and that his mother cultivated the land in dispute. 9 | P a g e The significance of the principle of possession at customary law is espoused in the case of Seraphim v Amua-Sekyi (1962) 1 GLR 328, where it was held that; “a person in possession of land can successfully maintain an action in trespass against the whole world, except the true owner”. The claim to ownership and the nature of evidence given by both parties were mainly oral and traditional in nature. In the case Hilodjie v. George (2005-2006) SCGLR 974 per Wood JSC, it was held that “ where a court is bent on choosing one of two conflicting traditional evidence, it must opt for the version of the party who additionally leads evidence of undisputed acts of possession or ownership over the subject matter”. See also the cases of Pitiko-Kwahu Stool v, Abetifi Kwahu Stool, Civil Appeal No. J8/95/2019 dated 10th June, 2020, SC (Unreported) and Mensah v. Komfo [2015] 91 G. M. J 39 at page 75. The might behind possession of property in a claim of ownership of land is backed by section 48 (2) of the Evidence Act, 1975 (Act 323) which provides that, a person in possession of property is presumed to be the owner of it. A rebuttable presumption is therefore established in favour of that person. In support of the claim of possession, PW1 in his evidence-in-chief in support of the plaintiff stated that the land now in dispute is the place his Auntie Hugbedzie Ahator, the plaintiff’s mother used to cultivate during her lifetime and that during her old age, the plaintiff continued to farm on the land to take care of her. The testimony of PW1 was corroborated by PW2 who stated in addition that the area cultivated and handed over by the father of the 1st defendant to the defendants is bigger than where the plaintiff’s mother cultivated. 10 | P a g e The defendants’ claim that their father is the one who cultivated the land in dispute after whom it devolved onto them was also corroborated by their witness Kwame Lavoe Ahiatsi who stated in paragraph 6 of his evidence-in-chief that he knows the land in dispute and that it is the 1st defendant’s father who used to cultivate same. Paragraphs 6 and 7 of the witness statement of DW1 are reproduced below; “6. I know the portion of the land now in dispute, it is part of Torgbui Banitsi I land he gave to Ahator long ago. It was the place where Vivordi 1st defendant’s father used to cultivate. 7. After the death of Vivordi the 1st defendant continued to cultivate the land” The assertions by DW1 was also corroborated by DW2 Henry Alavi. Although the boundaries as described by DW1 was different from the boundaries mentioned by the defendants which placed his knowledge about the subject matter in doubt, the boundaries stated by DW2 under cross examination by counsel for plaintiff was largely consistent with the description given to the land by the defendants and affirmed his knowledge about the subject matter. The evidence given by both DW1 and DW2 were however consistent with each other on the fact that Ahator’s lands were not shared and so also was Kpesese’s lands not shared to any of his children, but that the descendants had allocations on which they farm which did not mean they had right to exclusive ownership. These assertions were in contrast with the claim by the defendants that the land in dispute was the shared portion of the father of the 1st defendant and also amounted to a 11 | P a g e denial of the claim in paragraph 9 of the plaintiff’s statement of claim that portions of the land cultivated by children of Kpesese automatically became their inheritance. The effect of the evidence of DW1 and DW2 in confirming that it was the 1st defendant’s father who cultivated the disputed land after whom the 1st defendant also took over and has since been in possession is in rivalry with the evidence of the plaintiff’s witnesses. In the case of Ago Sai and Others v. Kpobi Tettey Tsuru III [2010] SCGLR 762 at 825, the Supreme reiterated the long standing principle that where title to land is premised on traditional history that is disputed, the testimony has to be weighed in the light of more recent facts as can be confirmed from evidence before the court. See also the case of Adwoa Bokor v. Madam Agbo Addoye (Substituted by Philip Odoi) [2021] Unreported SC 8th December, 2021 (Civil Appeal No. J4/38/2021) per Torkonoo JSC. The plaintiff’s case was largely premised on possession and to prove ownership by possession, the principle is that, the possession must be long, peaceful and uninterrupted. See the case of Akoto v. Avege [1984-86] 2 GLR 365. Beyond the claim that her late mother was cultivating the land, and that he also did same when her mother became aged to take care of her prior to her demise, the plaintiff’s evidence did not prove the fact that the portion of the family land had been exclusively allocated to his mother and the exact period of the alleged uninterrupted occupation. Despite the significance of possession in an action over declaration of title, the position of the law is that, mere possession however long cannot confer title. See Davies v. Randall and Another [1964] GLR 671. On the 12th of March, 2021, when PW1 was asked under cross examination by D1 which year the plaintiff cultivated the land, she simply stated that she could not recollect. 12 | P a g e In a trial involving title to land like any other civil trial, it is the duty of the court to measure the evidence of the plaintiff’s case against that of the defendant and if the plaintiff’s is found more probable accept his claim. The evidence led by the plaintiff on its entirety in this case is without sufficient details and as such, renders it incapable for the court to pronounce in his favour. Issues two (2) and three (3): Whether the disputed land was under the control and possession of the 1st defendant’s father or whether the disputed land has been under the control and possession of the 1st defendant after the demise of her father for over twenty-seven years? The defendants aver that the 1st defendant took over the cultivation of the land from her father and since her father’s demise has been in possession of the land and cultivated same for over 27 years. The plaintiff denied that averment, but both he and his witness PW2 admitted that the defendants at some point leased portions of the land to people. The evidence of the plaintiff shows that the land in dispute as he alleged was only used for farming purposes by his late mother and he also did same when the mother became old till her death. His evidence that because of the nature of his work he had not been home presupposes that, the land after the death of his mother has not been under cultivation by him or any other person on his behalf and that it is the period when the land was abandoned or was not under cultivation that the defendants who are also members of the family took over and have been using same. 13 | P a g e The allegation is that the 1st defendant has leased portions of the land but the issue of the lawfulness of any actual or attempted conveyance of the family land without recourse to the procedure for alienating such lands is not the matter before the court. CONCLUSION Per the holding in the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (supra), a plaintiff who seeks declaration of title is under an obligation to prove the root of title, mode of acquisition and various acts of possession, exercised over the subject matter of litigation on a balance of probabilities. The plaintiff failed to prove that the land was an exclusive allocation to his mother even if it is the case that she once cultivated same. He did not also adduce sufficient evidence on the acts of possession exercised over the land to deserve a declaration in his favour. Consequently, his action fails. A defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he is to succeed but the defendants in this case did not file a counterclaim and the evidence led by them was not sufficient either for the court to declare title in their favour. Their mere occupation of the land even if that is the case will not confer ownership on them in the absence of any evidence of an exclusive allocation by the family. A family land remains a family land and it is only where there is evidence that it had been shared or partitioned, that its nature changes from communal or family ownership to individual control or ownership. 14 | P a g e The evidence given by their own witnesses were contrary to their case that the land of Kpesese was shared. The effect of that contradiction rendered the evidence of the defendants uncorroborated by their own witnesses. Consequently, it is the opinion of this court that the defendants are also not entitled to a declaration as exclusive owners of the land. NELSON DELASI AWUKU MAGISTRATE 15 | P a g e