ODUGBE & ANOTHER VRS CHORKOSI (A1/12/2023) [2023] GHADC 1141 (29 August 2023)

IN THE DISTRICT COURT HELD AT DAMBAI BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. ON THE 29TH AUGUST, 2023 SUIT NO. A1/12/2023 1. SOPHIA YAA ODUGBE PLAINTIFFS 2. NANA ABIENU II a.k.a THERESA ODUGBE (Suing as beneficiaries and on behalf of the Odugbe and Kwame Panyin families of Dormabin) VRS GYAGYANTIA CHORKOSI DEFENDANT OF DORMABIN-KPELIMA PLAINTIFFS PRESENT DEFENDANT PRESENT JUDGEMENT The Plaintiff per his Writ of Summons issued dated 20/02/2023 claims against the Defendants the following reliefs: i. Declaration of title to all that piece or parcel of land situate, lying and being at Kpelema-Odumasi bounded on the East by property of Okyeame Obuor, on the West by property of Kwabena Owusu, on the South by property of Dormabin Stool land and on the North by property of Dormabin stool land. ii. Perpetual injunction restraining the Defendant whether by himself, his servants, agents, workmen, assigns from interfering with the Plaintiffs’ ownership/occupation and possession of the said piece of land. iii. iv. Recovery of possession. Cost. SUMMARY OF PLEADINGS AND EVIDENCE The substance of Plaintiffs claim is that they are the grandchildren of Pawpaw Obonya Odugbe who discovered the disputed land in its virgin state. The plaintiffs stated that after the death of their grandfather he was succeeded by their father Kwame Odugbe. According to plaintiffs their father granted the land to defendant’s father Chorkorsi Npeloo to do food cultivation and the proceeds were shared on “abunu or abusa” basis depending on the type of crops cultivated in each season. Plaintiffs further stated that after the death of their father he was succeeded by their paternal uncle Stephen Diako Kramo who also allowed the defendant’s father to continue to stay on the disputed land. Plaintiffs said after the death of defendant’s father the defendant succeeded his father but refused to respect the covenants on the land. Plaintiffs stated that following defendant misbehavior their uncle sued defendant but defendant pleaded through one Umaru Sanda of GPRTU, Dambai and the matter was withdrawn for amicable settlement. Plaintiff said after the death of their uncle in 2020 the defendant begun laying claims over the disputed land and granting same to other settler farmers for cultivation of teak trees and other crops. According to plaintiffs anytime they visit the disputed land they are assaulted and threatened with death by defendant. According to plaintiffs in one of such instances, a complaint was lodged with the Tokoraono Police for investigation. The plaintiffs tendered in evidence two exhibits 1. A photograph of the defendant working on the disputed land marked Exhibit “A” 2. Photograph of trees fell on the disputed land marked Exhibit “B” The plaintiff’s called three witnesses in support of their case as PW1, PW2 and PW3. PW1 was Tinador Brukum, he told the court that he and defendant’s father are Chorkorsis by tribe. According to PW1, many years ago his father and defendant’s grandfather were granted separate lands by plaintiffs’ father to farm on, as tenant farmers. PW1 said even though their parents and plaintiffs’ parent are now deceased he and defendant inherited their respective fathers and continue to atone tenancy to plaintiffs’ family till recently when the defendant rebelled and refused to recognised the plaintiff’s family as the owners of the land. PW1 said he has cautioned defendant against his conduct since they are only settler farmers and thus have no ownership right over the land but defendant have refused to heed to his caution and continue to disregard the plaintiffs as his land lords. PW2 was Okyeame Obuor, according to PW2 he shares boundary with plaintiffs’ father on the East of the disputed land. PW2 stated that he is aware that the disputed land which forms part of the plaintiffs’ family land was given to defendant’s father by plaintiffs’ family to farm on as a tenant farmer. PW2 said defendant was a little boy or was not born at all when the subject matter of the dispute was handed over to his father and he is surprised that defendant is now claiming ownership of the disputed land. PW2 concluded that the land was not sold to defendant’s father. PW3, Adjei Gabriel, testified per his witness statement filed on 15/06/2023, that, his family (Kwabena Owusu family) land, share boundary with plaintiffs’ family land on the West. According to PW3 he is aware that plaintiff’s family granted the disputed land to defendant’s father (Npeloo) who was a settler farmer for farming. According to PW3 after the death of Npeloo the plaintiffs’ family still allowed defendant and his family to farm on the disputed land. PW3 said the disputed land is not a Stool land but rather belongs to the plaintiffs’ family. Thereafter, the plaintiffs brought their case to a close. THE CASE OF DEFENDANT The defendant’s case is that the disputed land was granted to his late father by the Dormabin Stool with the consent and concurrence of the chief and principal elders of the Stool in the persons of; Nana Denkyiwura (chief of Dormabin), Abusuapanyin Adu, Amankrado Mensah, Okyeame Yaw Obuor, Asafoakye Kojo and Nana Kojo Boakye. Defendant said his father atoned tenancy to the Dormabin stool and not to any individual or family. According to defendant the agreement between his father and the Dormabin Stool was that, he will give food stuffs to the occupant of the Dormabin Stool every year, but this practice has since stop. However, in recent times where a member of the Stool dies the settler farmers contribute food stuff animals and cash to the bereaved family. Defendant denied plaintiff’s claim that his father acquired the disputed land from plaintiffs’ family. Defendant said plaintiffs’ family have been harassing him with court suits even though he is not occupying their land. Defendant tendered in evidence a Writ of Summons entitle ABUSUAPANYIN BAFOUR JOSEPH AND ANOTHER VRS KILLIAN AND TWO OTHERS and marked Exhibit GC 1 In support of his case the defendant called three witnesses as DW1 and DW2 DW1, Jayem Takpah testified that following the construction of the Volta Lake in 1964 he and the defendant’s father were disposed of their farmlands, so they migrated to Kpelema near Dormabin to acquire new farmlands for their farming activities. According to DW1 he together with the defendant’s father, Madah Npeloo were granted farmlands by the Dormabin Stool and the agreement between them was that they will give to the Stool food stuffs and money any time the Dormabin Stool was to celebrate their Festival or when the Royal family had a funeral. DW1 stated that the disputed land does not belong to the plaintiffs’ family but rather the Dormabin Stool. DW1 further said whilst he and defendant’s father were occupying the land, government officials came to asked them to pay rent but they resisted and were sued by the government, whereupon this Honourable Court ordered to pay the rent to government and since then they have been paying rent to government for the use of the land. As such they have even stopped making any payment to the Dormabin Stool. DW 2, was Nana Npeloo Tawiah II who is a brother of defendant. He told the court that the disputed land is the property of the Dormabin stool. According to DW2, the disputed land was given to their late father by the Dormabin Stool as settler farmers. DW2 therefore denied plaintiffs claim entirely. In every civil case, the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of his case. In the case of Lamptey alias Nkpa v. Fanyie & Others [1989-90] 1 GLR pgs 286, the Supreme Court held that: “On general principles, it was the duty of a plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the defendant to lead sufficient evidence to tip the scale in his favour”. This is clearly covered in section 14 of the Evidence Act, 1975 (ACT 323). In the case of In Re: Ashalley Botwe lands; Adjetey Agbosu and Others v. Kotey and Others (2003-04) SCGLR 420, Brobbey JSC interpreted section 11(1) of the Evidence Decree 1975 (N. R. C. D 323) at pages 464 to 465 and held that: “A litigant who is a defendant in a civil case does not need to prove anything, the Plaintiff who took the Defendant to Court has to prove what he claims he is entitled to from the Defendant. At the same time, if the Court has to make a determination of a fact or of an issue, and the determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the Court such facts or evidence that will induce the determination to be made in his favour….”. The legal issues to be determined by this court are: (i) Whether the disputed land is the property of the Plaintiffs family (ii) Whether the plaintiffs’ father granted the disputed land to the defendant’s father for his farming activities. ANALYSIS OF THE EVIDENCE Considering the nature of the above stated issues and the evidence adduced by the parties, the issues supra will be dealt with simultaneously. In Nyikplorkpo v. Agbedotor [1987-88] 1 GLR 165 at page 171, CA. It was held that to succeed in action for the declaration of title to land, injunction and recovery of possession, the Plaintiff must establish by positive evidence the identity and limits of the land he claims. In the instant case, the plaintiffs’ case was that the disputed land forms part of a vast track of land at Kpelema which belongs to their grandfather Opanyin Odugbe. The plaintiffs mentioned Okyeame Obuor and the Nana Kwabena Owusu family as persons they share boundary with on the disputed land. Plaintiffs’ assertion on his adjoining boundary owners was corroborated by Okyeame Obuor and Gabriel Adjei a member of the Nana Owusu family who testified as PW2 and PW3 respectively. The defendant did not challenge, cross examine the plaintiff and/or his witnesses on this crucial piece of evidence or even produced any contrary evidence to contradict the assertion of the plaintiffs that they share boundary with the above stated persons. In the case of Mante & Anor vrs. Botwe [1989-90] 1 GLR 479-497, it was held that: ….”where a party’s testimony of a material fact was not challenged under cross examination, the rule of implied admission for failure to deny by cross examination would be applicable and the party need not call further evidence on that fact.” Again in the case of Takoradi Flour Mills vrs. Samir Farris (2005-2006) SCGLR 882, the Supreme Court held that where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender in evidence to the contrary, the facts deposed in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court. From the evidence adduced, I find that the witnesses (PW2 and PW3) share boundary with plaintiffs on the disputed land as described in plaintiffs’ endorsement. Even though the defendant stated in his evidence that the disputed land belongs to and was granted to him by the Dormabin Stool, he did not call any member of the Stool to support this assertion, despite the fact that he stated at paragraph 9 of his statement of defence that “some of the elders of the stool are still alive and are ever ready to testify in court”. He rather called his brothers DW1 and DW2 to repeat his averments without more in court. In fact, one of the persons defendant mentioned as part of the elders of the Dormabin Stool is PW2 who in this case rather testify for plaintiff. In T. K. Serbeh Company Ltd vrs. Mensah (2005-2006) SCGLR 341 It was held inter alia as follows: “For, however credible a witness may be, his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute proof.” In Fordjour vrs. Kaayire (2015) 85 G-M. J 61, Ayebi J. A at page 93 enunciated that: “It has to be noted that the court determines the merit of every case base on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without adducing evidence in support of that assertion is not evidence to require denial in cross examination by the opponent. From the evidence adduced in this court, the defendant’s assertion that the disputed land was given to his father is left without any supporting evidence hence leaving the claim at large. Instructively DW1 indicated in his evidence that the disputed land belongs to the Dormabin Stool. However, under cross examination by plaintiff he admitted that the disputed land belongs to plaintiffs’ grandfather. The following ensued when DW1 came under cross examination by plaintiff on the 21/06/2023. Q. Do you know my father. A. Of course, your late father was popularly called Kramo. I even know your Uncle Mensah. In fact, Mensah was the senior brother of your father. When defendant’s father and I first arrived at Dormabin over 80 years ago it was your uncle, Mensah who led us to acquire the land. Q. What was the relationship between you and Mensah My Uncle. A. As I indicated earlier when I and defendant’s father first arrived at Dormabin it was your uncle who hosted us. Later we told him we needed a piece of land to settle on. He suggested that we live with him in his house but because we had cattle we thought it would not be convenient to live with him so we asked him to get us a separate land to settle on so he took us to the chief. Q. Who was the chief at the time A. It was Opanyin Odugbe. Q. Do you know that the person you just mentioned, Odugbe was my grandfather. A. Yes Q. Before my grandfather, Odugbe gave you the land did he tell you it was a Stool land. A. No. Q. So why are you saying that the land does not belong to us, his grandchildren. A. I never said so, even when your father Kramo, died we presented to your family cattle, tubas of yam and an amount of GH¢600.00 as custom demands. So I never said you are not the owners of the land. From the above encounter DW1 has simply confirmed plaintiffs ‘assertion that the disputed land belongs to their family, the Odugbe family. In Re Asere Stool: Nikoi Olai Amontia IV (Substituted by Tafo Amon II vrs Akotia Oworsika III Substituted by Laryea Ayiku III (2005-2006) SCGLR 637 It was held that “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.” Section 26 of the evidence Act, 1975 (ACT 323) provides as follows: “Excerpt as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such believe, the truth of that thing shall be conclusively presumed against that party or his successors in interest and such relying person or his successor in interest. From the evidence adduced, I find that the disputed land is the property of the plaintiff’s family and not the property of the Dormabin Stool. I further find that the disputed land was given to defendant’s father by plaintiffs’ family for farming. The defendant and DW1 have also made several contradictory accounts in their evidence before this court. At paragraph 1 of his statement of defence filed on 21/03/2023 the defendant stated as follows: Defendant’s father requested and was granted a portion of land by Nana Denkyiwura the Chief of Dormabin and his elders. Notable among the elders were Abusuapanyin Adu, Amankrado Mensah, Okyeame Yaw Obuor, Asafoakye Kojo Obuor and Nana Kojo Bako. However, when DW1 came under cross examination on 21/06/2023 below were excerpts of what transpired: Q. Do you know the defendant told this court that the disputed land was given to his father by Denkyiwura contrary to your evidence that the land was given to defendant’s father by the Dormabin Stool. A. I know it was Denkyiwura who gave the defendant’s father the land. Q. So Denkyiwura was the chief of Dormabin when he gave the land to defendant’s father right. A. Yes. Q. Do you know the year Denkyiwura was enstooled as a chief. A. I do not know. Q. I put it to you that Denkyiwura was enstooled in the year 1986 and was destooled in 1995. A. I don’t know. Q. I further put it to you that you and defendant’s father were granted the land in 1964 after you were displaced, following the construction of the Akosombo Damp and Denkyiwura was not the chief of Dormabin at the time and could not have given you any land in his authority as a chief. A. That is true at the time the land was given to us Denkyiwura was not the chief of Dormabin. It is significant to state that DW1 in his witness statement stated that he and defendant’s late father came to Dormabin over 80 years ago and the disputed land was given to defendant’s father by the Dormabin stool. However, in the cross examination supra, DW1 said the land was given to defendant’s father by Denkyiwura who was the chief at the time. He consequently agreed with plaintiff that Denkyiwura was not a chief in 1964 when the land was given to the defendant’s father. This clearly shows lack of consistency in his testimony. On lack of consistency in evidence, the Court of Appeal held in the case of Obeng v. Bempomaa [1992-93] GBR 1027 per holding 1 as follows: “Inconsistencies, though individually colorless, may cumulatively discredit the claim of the proponent of the evidence. The conflicts in the evidence of the plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim”. It is also significant to state that at paragraphs 6 & 7 of his witness statement, DW1 stated as follows. “Whilst I and defendant’s father were occupying the land, we paid rent to the chiefs but government officials also came to asked us to pay rent but we resisted and were sued by the government, whereupon this Honourable Court ordered us to pay the rent to government and since then we have been paying rent to government for the use of the land...” I have critically examined the evidence, but have not found any evidence suggesting that the government or any government agency has ever sued the defendant’s father or DW1 for that matter as he claim. There is also no evidence before this court supporting the claim that the defendant and/or DW1 have paid or is paying any form of rent to government or the local assembly as rent for usage of the disputed land. This court therefore cannot agree with DW1 that the disputed land is a government property. In his pleadings the defendant stated that the plaintiffs and their family have been harassing him with court suits over the disputed land and that he was first sued at the District Court Jasikan and later again in this Honourable Court over the disputed subject. However, there is no scintilla of evidence on record to support this assertion. Any evidence supporting this fact would have rendered this matter res judicata. But unfortunately, having considered the whole evidence on record there is nothing supporting defendant’s claim that this matter has ever been heard by any court. After a careful evaluation of the entire evidence adduced during the trial, I hold that the plaintiff have proved her case against the defendant and judgment is hereby entered in favour of the plaintiff follows: i. Title to all that piece or parcel of land situate, lying and being at Kpelema- Odumasi bounded on the East by property of Okyeame Obuor, on the West by property of Kwabena Owusu, on the South by property of Dormabin Stool land and on the North by property of Dormabin stool land is hereby declared in favour of the plaintiffs. ii. The Defendant his servants, agents, workmen, assigns, privies and all persons claiming through him are hereby perpetually restrained from interfering with the Plaintiffs’ ownership/occupation, quiet enjoyment and possession of the said piece of land. iii. The plaintiff is to recover possession of any portion of the disputed land trespassed on or under the control or possession of defendant. iv. I assess cost of this suit at GH¢5,000.00 against defendant. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 29TH AUGUST, 2023.