BAFFOWAA VRS OPOKU & ANOTHER (A1/34/2021) [2023] GHADC 1229 (3 August 2023)

IN THE DISTRICT COURT KINTAMPO – A. D. 2023 SUIT NO. A1/34/2021 COMFORT BAFFOWAA (SUING FOR HERSELF AND ON BEHALF OF HER SIBLINGS OF KINTAMPO) - PLAINTIFF VRS 1. YAW OPOKU (OF NTANKORO) 2. HADI SUALAH (OF KINTAMPO) 3rd August, 2023 - DEFENDANTS JUDGMENT 1. Introduction 1.1. This dispute concerns land situate at Ntankoro which parties admit forms part of lands belonging to the Nkoranza Paramount stool. Plaintiff’s claims against Defendants as contained in her writ of summons are as follow: “(a)Declaration of title and recovery of possession of all that piece and parcel of farmland lying, situate and being at "NTANKORO" on Nkoranza Stool lands and bounded by the properties of the late Kwasi Asante, late Bob Annor, late Kwaku Adu and Atta Kwadwo. (b) General damages for trespass. Page 1 of 15 (c)An order for Perpetual Injunction restraining the Defendant, his agents, assigns labourers, workmen, relatives, descendants and all those who claim through the defendant from entering the said Farmland.” Plaintiff’s case 1.2. The case of Plaintiff who self describes as a farmer residing at Kintampo, as disclosed in her statement of claim, instituting this suit with the consent and approval of her siblings, is that the disputed land was acquired by her mother Adwoa Fie in its virgin state a very long time ago and she worked on it till she became weak. Her mother gave portions of her land to Kwame Nabaare, Santo, Yaw Richard and Mebo “11" who are farming on the disputed farmland. 1.3. Plaintiff’s mother according to Plaintiff gifted the disputed farmland her siblings and her, and their mother Adwoa Fie died in the year 2013. According to Plaintiff in 2014, documents were prepared to cover the said land duly signed by Nana Asumasiah Effah Guakro IV, and the Acting President for Nkoranza Traditional Council. This farmland she says covers eighteen (18) acres and she describes it as sharing common boundaries with the properties of the late Kwasi Asante, the late Bob Annor, the late Kwaku Adu and Atta Kwadwo. She has been paying rent to the Administrator of Stool lands since 2014, and she has she has been on the disputed farmland for years planting teak, cashew, plantain, banana and oil palm on it. 1.4. According to Plaintiff, 1st Defendant sold a portion of the disputed farmland to 2nd Defendant who went and destroyed her cash crops on the land and she reported him to Kintampo Police. The issue was brought home after pleas for it to be settled at home which she agreed to and demanded GHS1,500.00 but 2nd Defendant pleaded to give her GHS 700 to which she agreed. 2nd Defendant and Abudu Page 2 of 15 brought GHS 400.00 to her and pleaded to bring the balance of GHS 300.00 to her but failed. 1.5. According to Plaintiff, two and half acres of the disputed land have been ploughed by Defendants which she reported to the Kintampo Police where Defendants admitted destroying her properties on the land. The Police advised her to send the matter to Court for redress and she engaged the services of an Agric Extension Officer who valued the destroyed cash crops at GHS60,000.00. 1.6. According to Plaintiff because the value of damage caused by Defendants to her is beyond the jurisdiction of the Court, she decided to drop that aspect, but has sued Defendants for her reliefs since all efforts to convince Defendants to refrain from their trespass have failed. 1st Defendant’s case 1.7. 1st Defendant is the only Defendant who filed a Statement of Defence and he denies in effect all of Plaintiff’s claims. 1st Defendant’s case is that that all lands lying within Nkoranza locality are Nkoranza stool lands and that subjects of Nkoranza have the right to farm on those lands for their survival, but when the farmland becomes an outskirt land, it is demarcated into building plots for developmental purposes and a portion of the building plots carved out of the farmland shared among the substool, the paramount stool, the members of family in occupation of the land and for the cost of demarcation of the farmland into building plots. 1.8. According to 1st Defendant, a dispute between the Kyeremankoma stool and the Kintampo Nwoase stool was settled by the paramount chief of Nkoranza and all lands lying on the right hand side from Kintampo to Ntankoro was declared as part of Kintampo, the part on the left was declared as the Nwoase stool land, Kyeremankoma stool land, and in view of the fact that Nana Owusu Pinkrah had Page 3 of 15 been appointed to take charge of all Kintampo Nwoase stool lands, the paramount chief directed him to take charge of customary land transactions on the right side lands. 1.9. After the declaration by the paramount chief, Nana Owusu Pinkrah caused an announcement to be made for all persons Who have acquired lands without his notice or consent to consult him with their documents for ratification, which many people did. The lands at the area having become an outskirt land the services of a surveyor was engaged to demarcate the lands into building plots and in respect of the disputed land which according to him is an outskirt land, it was also demarcated into building plots with the consent of the person in possession, and some of the building plots were granted to the persons in possession as their share of the land. 1.10. According to 1st Defendant, Plaintiff is a trespasser and does not have the power or capacity to alienate the building plots to prospective developers, which she is doing. To him, the land in dispute is no more a farmland but a building plot with registration number 6 Block D Sector 1. 2. Burden and standard of proof 2.1. In Memuna Moudy and Others v Antwi [2003-2004] 2 SCGLR 967 at pages 974- 975, the Supreme Court speaking through Wood JSC (as she then was) reiterated that where a fact alleged by a party pleading it is denied by the opponent, an issue arises for determination and the party who has introduced the denied fact has the burden of proving same. The Court stated as follows: “A cardinal principle of law on proof as enunciated in the age-old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases, including Zabrama v Segbedzi (1991) 2 GLR 221 at 246, is that, a person who Page 4 of 15 makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred." 2.2. In Ackah v. Pergah Transport Ltd. & ORS (2010) SCGLR 728, the Supreme Court explained this evidential burden on Plaintiff herein in the following words; “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim will fail. The method of producing evidence is varied and it includes the testimonies of parties and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non- existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the Evidence Act, 1975 (NRCD 323)” 2.3. Parties in this suit are lay persons who were not represented by counsel and conducted their own cases, so I am compelled to extended all indulgences to them as recommended in the case of Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G. L. R. 314, S. C. I have reminded myself of the duty owed to them as lay court users. The need to indulge lay litigants has been recognized by the courts in cases such as Edun v. Koledoye (1954) 14 W. A. C. A. 642. as relied on in Wiafe v. Kom [1973] 1 GLR 240. Page 5 of 15 2.4. The requisite evidence to prove a declaration of title to land as is claimed in this suit was clarified in Benyak Company Ltd v. Paytell ltd & 3 ors [2014] 76 GMJ 1, where the Supreme court stated thus: “Certainly, this court has held that the plaintiff apart from pleading his root of title, mode of acquisition and overt acts of membership, if any, must prove that he is entitled to the declaration sought” 2.5. The Plaintiff in such a case, puts his title in issue and must prove his root of title, the boundaries of the land in dispute and acts of ownership exercised over same. This position of the law is sufficiently clarified in Ebusuapanyin Yaa Kwesi v. Arhin Davis & Anor (2005) JELR 92075 (SC). 3. The evidence and the issues 3.1. Neither Defendant called a single witness nor gave any evidence themselves to contradict Plaintiff’s case. 1st Defendant in particular refused to do so notwithstanding several prompts, reminders and indulgences by the Court. Plaintiff however called three (3) witnesses. In Adjei and Ors. v. Nmai Boi and Ors. [2013-2014] 2 SCGLR 1474 Adinyira JSC stated thus: “... It is trite law that pleadings would not constitute evidence. To hold otherwise would negate the requirements of proof as provided in the Evidence Act, 1975 (NRCD 323).” 3.2. Again, the Supreme Court in Ofori Agyekum v. Madam Akua Bio (2016) JELR 66782 (SC), held per Benin JSC thus: Page 6 of 15 “... Where no evidence is adduced on a fact that has been pleaded, it is treated as having been abandoned by the pleader, the court does not call it into question in its judgment. The court’s only duty is to consider the evidence the party has profferred in determining whether or not he has met the right standard of proof”. The effect of these statements of the law is that this court which must determine the issues raised in the suit must do so on legal evidence given at the trial and not mere allegations or assertions in the pleadings. Defendants gave no evidence for the Court to consider, and in respect of 1st Defendant his pleadings are deemed abandoned, so he joined no issues with Plaintiff on her claims. 3.3. PW1, Fobiri Yaw Richard, who testified that Plaintiff is his paternal aunt, gave evidence, much like all of Plaintiff’s witnesses who were in agreement in their testimonies about the disputed land being owned and cultivated by Plaintiff’s family. He corroborated the original ownership of the disputed land by Adwoa Fofie, Plaintiff's mother. He continued that his father, Plaintiff and himself have all farmed on the disputed land on which he was still farming when 1st Defendant trespassed thereon, destroyed his crops and drove him therefrom. 3.4. He corroborated Plaintiff’s ownership of the disputed land which to him she holds in trust for herself and the rest of the family having inherited it from her mother Adwoa Fofie, and also the boundaries of the land claimed by Plaintiff. He concluded that 1st Defendant is not a member of their family and hence has no share in their family property which includes the disputed land, and that 1st Defendant has no right to sell the disputed land to 2nd Defendant or any other person. Page 7 of 15 Whether Plaintiff and her siblings are owners of the disputed land 3.5. I am mindful of the case of Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah and 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S. C. (Unreported), where Appau JSC stated thus: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975 [NRCD 323]”. I consider relevant as well Adwubeng v. Domfe [1996-97] SCGLR 660, where the Supreme Court held at holding (3) thus: “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323)... have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities – no exceptions were made. In the light of the provisions of the Evidence Decree, 1975, cases which had held that proof in titles to land required proof beyond reasonable doubt no longer represented the present state of the law...” 3.6. The appropriate test of satisfactoriness or sufficiency of the evidence is the degree of belief that the evidence or its proponent creates in the mind of the trial court concerning the fact or facts in issue. For evidence to pass this test and be deemed satisfactory, after having assessed the facts on all the evidence adduced, a reasonable mind should come to a conclusion that the existence of some fact in issue is more probable and reasonable than its non-existence. This was the position of the Courts in the cases of Ackah v. Pergah Transport Ltd [2010] SCGLR 728, 731 and Faibi v. State Hotels Corp. [1968] 471 (holding 1). Page 8 of 15 3.7. Considering all the evidence on record, the substance of which has not been discredited under cross-examination, nor controverted by credible contradictory evidence, I find rather conveniently that Plaintiff and her siblings are the usufructuary owners of the disputed land. 3.8. The nature of usufructuary ownership was explained by Appau JSC (As he then was) in Togbe Lugu Awadali IV v. Togbe Gbadawu IV (2018) JELR 68854 (SC) in these words: “The word ‘Usufruct’ comes from the Latin phrase ‘usus et fructus’, which means; ‘use and enjoyment’, with ‘fructus’ used in a figurative sense to mean fruits enjoyed from the use, which include; the right to convey, transfer, lease, assign or tax during the pendency of the use of the property concerned. The term stands for a limited real right (or in rem right) found in civil law and mixed jurisdictions that unite the two property interests of ‘usus’ and ‘fructus’; i.e. the right to use and enjoy a thing possessed, directly and without altering it. It connotes the right of enjoying all the advantages derivable from the use of something (not only land) that belongs to another, as far as is compatible with the substance of the thing not being destroyed or injured. The Cambridge English Dictionary describes it as; “the legal right to use someone else’s property temporarily and to keep any profit made”. Black’s Law Dictionary, in its ninth edition, defined it as; “the right of using and enjoying property belonging to another provided the substance of the property remained unimpaired. More exactly, was the right granted to a man personally to use and enjoy, usually for his life...the property of another which, when the usufruct ended, was to revert intact to the dominus or his heir”. The Shorter Oxford English Dictionary; Deluxe Edition, describes it as; “The right of enjoying the use of and income from another’s property without destroying, damaging, or diminishing the property”. In customary law, usufruct means land is owned in common by the people, but families and individuals have the right to use certain Page 9 of 15 plots or portions of the land. While people can take fruits of the land, they may not sell or abuse it in ways that stop future use of the land by the community.” 3.9. In the case of Mansu v. Abboye and Another [1982-83] GLR 1313-1323 the Court of Appeal per Francois JA (as he then was) spoke of the usufructuary interest thus: “... Some of the cardinal incidence of the usufructuary interest were that the usufructuary had exclusive possession of the portion of land and he could not capriciously be divested of that interest by the stool neither could the stool alienate that portion of land to any other person without the prior consent and concurrence of the usufructuary. Thus, the usufructuary interest was potentially perpetual the interest of the usufructuary could be determined only by his consent, his abandonment or upon failure of his successors”. (emphasis mine) 3.10. Additionally, the Supreme Court in the recent case of Ebusuapanyin Kweku Asema v. Nana Akwa III & ORS. (2021) JELR 109677 (SC), confirmed that the relationship between the allodial title which is paramount, and the usufructuary interest has not changed and at law and custom between the usufruct and the allodial, usufructuary owners in possession can only be dispossessed of their usufruct in land with their consent or on proven and unrectified breaches of customary tenure, or upon abandonment as held in Asseh v. Anto [1961] G. L. R. 103, S. C., Amoabimaa v. Okyir (Consolidated) [1965] G. L. R. 59, S. C. and Kotei v. Asare Stool [1961] G. L. R. 492, P. C. 3.11. If this is the case, and even the allodial owner of the disputed land cannot dispossess Plaintiff and her siblings without their consent, then it follows nimbly, that it does not lie in the bossom of any substool, caretaker chief or individual to Page 10 of 15 capriciously enter the land of their own accord and purport to demarcate it into building plots or make grants of it to other persons. Whether Defendants have trespassed unto Plaintiff’s land 3.12. Any entry unto land without the permission of the true owner including his agents, servants, or one in possession thereof amounts to trespass. It is a wrong against possession as stated in Chegu v. Dagomba [1977] 1 GLR 412, and as stated by Wiredu J, once a court has found trespass it is bound to award damages but in awarding such damages there must be a basis for awarding more than a nominal sum. 3.13. 1st Defendant claims that Nana Owusu Pinkrah has purportedly demarcated the disputed land into plots and allocated it to third parties. 2nd Defendant did not file a defence to the statement of claim. He did not deny any allegation in Plaintiff’s pleadings and he is deemed at law to have admitted all those facts. This being the case, there is no doubt that they have entered the disputed land, the definition of an admission I have adopted being as in the 7th edition of the Black’s Law Dictionary, that is “a voluntary acknowledgment of the existence of facts relevant to an adversary’s case.” 3.14. As held in Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, where a matter is admitted proof is dispensed with. In the case of in re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III (substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656, the court laid down the rule of law on admissions thus: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.” Page 11 of 15 3.15. I conclude on this point therefore, with a finding that Defendants have trespassed unto Plaintiff and her siblings’ land. 4. Damages 4.1. This Court has determined that an award of damages is appropriate in this suit for a determined breach of rights, that is the trespass to Plaintiff and her siblings’ land. The purpose of such an award is to compensate Plaintiff and her siblings in fulfillment of the general rule that the award of damages is meant to place the injured in the same position as if the breach had not occurred. As held in Cornelius Ogbu v. Access Bank (Gh) Ltd (2015) JELR 69870 (CA) the object of an award of damages is to give Plaintiff compensation for the damage, loss or injury he has suffered. The Court may also award compensatory damages the purpose of which is to make Plaintiff and her siblings whole financially. 4.2. I note that damages as described in the foregone is separate from the power of the Court to award punitive damages, the purpose which is to reform and deter the person against whom it is awarded and others from engaging in the reprovable conduct forming the basis of the award. These damages are awarded in excess of actual or substantial damages just to make an example of the Defendant as held in Ayisi v. Asibey III & Others [1964] GLR 695 SC; Mahama v. Kotia & Others [1989-90] 2 GLR 24. 4.3. There is sufficient evidence that Defendants, especially 1st Defendant, have always had knowledge of Plaintiff and her siblings’ interest in the disputed land. This was no impediment to them in the destruction of Plaintiff’s crops on the disputed land, which 1st Defendant especially from the case he appeared to advance while cross- examining Plaintiff and her witnesses, was laying claim to it as his own “stool land”. Page 12 of 15 4.4. litigation with facts almost identical to the present suit are rife in the geographical jurisdiction of this court, and the revulsion felt in the Ghanaian society for such conduct must reflect in the punitive quantum of damages in this suit, and also subject to the appropriate interest. It is noteworthy that Defendants’ conduct, especially that of 1st Defendant, aside its repulsiveness, has now been criminalized under Section 277(2) of the Land Act 2020 (Act 1036), punishable on summary conviction by a fine of not less than seven thousand five hundred penalty units and not more than fifteen thousand penalty units or to a term of imprisonment of not less than seven years and not more than fifteen years or to both. 4.5. By the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C. I. 52) it is provided at Rule 1 that if the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated (a) at the bank rate prevailing at the time the order is made, and (b) at simple interest, but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner. Rule 2(1) of C. I. 52 provides that Subject to subrule (2) each judgment debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment. 4.6. The prevailing bank rate as provided under Rule 4(1) is the bank rate prevailing at the time the judgement or order is made by the court and where there is doubt as to the prevailing bank rate, the 91 days Treasury Bill rate as determined by the Bank of Ghana shall be the prevailing bank rate as provided by rule 4(2). Applying the reasoning of the Supreme Court in Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC), with a view to the numerous prevailing Bank of Ghana rates, I deem it uncertain as to which specific bank rate to apply in this suit since there is no formal agreement between the parties or any other statutory rate Page 13 of 15 applicable in my view to the facts of this suit, and I apply rule 4(2) of C. I. 52 in computing damages in this suit, at the statutory rate of 24.92%, which I have taken notice of as the Bank of Ghana 91-day treasury bill rate as at judgment. 4.7. I conclude, that the time is apposite, for the Courts to take a position against unjustified incursions into the properties of persons without lawful reason, especially when it involves grants to third parties by persons whom the evidence shows as clearly having no right to those properties. This conduct has been a reliable source of incessant land litigation which must as far as possible be reduced by punitive judgment. Conclusion In conclusion, Plaintiff’s action succeeds entirely and the Court makes the following orders in favour of Plaintiff: a. Declaration of Plaintiff and her siblings’ usufructuary title to all that farmland lying, situate and being at "NTANKORO" on Nkoranza Stool lands bounded by the properties of the late Kwasi Asante, late Bob Annor, late Kwaku Adu and Atta Kwadwo. b. Recovery of possession of the all that farmland lying, situate and being at "NTANKORO" on Nkoranza Stool lands bounded by the properties of the late Kwasi Asante, late Bob Annor, late Kwaku Adu and Atta Kwadwo. c. An order of Perpetual Injunction restraining Defendants and all those claiming through them from entering or dealing in whatever manner with Plaintiff and her siblings’ farmland lying. Page 14 of 15 d. Damages for trespass to land including punitive damages in the sum of GHS 25,000.00 each against Defendants with interest at a rate of 25.24% per annum till final payment in favour of Plaintiff and her siblings. e. Costs of GHS 5000.00 in favour of Plaintiff against Defendants. SGD. KWAME ADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present (unrepresented) Page 15 of 15