Torku and Another v Apetsi (A1/13/20) [2023] GHADC 1320 (21 August 2023)

IN THE DISTRICT COURT HELD AT DZODZE ON MONDAY THE 21ST OF AUGUST,2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU, DISTRICT MAGISTRATE. Suit No. A1/13/20 DAVID KWAME TORKU & ANOTHER PLAINTIFFS VRS JOSEPH APETSI DEFENDANT JUDGMENT PARTIES PLAINTIFFS - PRESENT DEFENDANT PRESENT INTRODUCTION/BACKGROUND: Per a Writ of Summons filed on the 25th of February, 2020, the Plaintiffs prayed for the following reliefs; a. Declaration of title, ownership and recovery of possession of all that parcel of land situate, lying and being at Penyi-Hata in the Ketu North Municipality and bounded as follows; i. On one side by the property of Alakpa; ii. On one side by the property of Avunakeji; iii. On one side by the property of Torku and iv. On the last side by the property of Amemashjor. 1 | P a g e b. Perpetual injunction restraining the defendant, his agents, workmen, servants, assigns and privies from entering the disputed land. c. General Damages for trespass and d. Cost. CASE OF THE PLAINTIFFS In the statement of claim filed on 22nd April,2021 the plaintiffs stated that the land in dispute is a family land which forms part of a large tract of land founded by their grandfather Torgbui Adetor. The plaintiffs stated that Torgbui Adetor gave birth to five children namely Torku, Alakpa, Avunakaji, Amemashor and Sonyayede. The plaintiffs stated that their great grandfather Adetor and his two brothers, Torho and Etui founded the Penyi-Pedo Shiame lands and after that left to settle at Penyi-Hata. The plaintiffs stated that when their grandfather was leaving Penyi – Pedo Shiame to settle at Penyi-Hata, he left his properties in the care of Gborta and Apetsi which properties included all his lands, and mud building. The plaintiffs stated that Gborta gave birth to Apetsi and Apetsi also gave birth to the father of the defendant herein as well as the late Kwame Apetsi. The plaintiffs stated that the Apetsi family lived on their grandfather’s land and occupied his mud building now reconstructed with cement blocks as caretakers. The plaintiffs stated that, sometime ago when they were in search of their great grandfather’s lands at Penyi-Pedo Shiame, it was Apetsi the defendant’s father and 2 | P a g e caretaker of their grandfather’s lands who took them round to show them all the lands belonging to their grandfather. The plaintiffs stated that, after the death of Apetsi the care taker and father of the defendant, the Torku family went again to Penyi-Pedo Shiame in further search of their great grandfather’s lands and it was the late Kwame Apetsi and Joseph Apetsi, the defendant herein, who took them round to show them some of the lands that belong to their great grandfather. The plaintiffs stated that the late Kwame Apetsi and Joseph Apetsi on some occasions witnessed and signed for the Torku family when they sold out portions of their Torku family lands. The plaintiffs stated that their great grandfather in his lifetime shared all his lands among his four children Torku, Alakpa, Avunakaji and Amemashor. The plaintiffs stated that they inherited the land in dispute from Torku their grandfather through inheritance and have been in possession of same without hindrance. The plaintiffs stated that their grandfather Torku got married to Korsunshie and gave birth to six children comprising two males and four females. The plaintiffs stated that their grandfather Torku married another woman Minawo Apetsi who was pregnant for another man at the time of her marriage to their grandfather. 3 | P a g e The plaintiffs stated that Minawo Apetsi gave birth to Kwabla Dzakpasu and after the death of their grandfather Torku, she was given part of Torku’s land by Alakpa Torku’s brother to put up a building where she lived with her son. The plaintiffs stated that Alakpa their grandfather’s brother revealed to the Torku family that Kwabla Dzakpasu was not the biological son of their grandfather so does not have a right of inheritance to the properties of Torku. The plaintiffs stated that on the 11th of November, 2018, the grandson of Kwabla Dzakpasu, Lucas Dzakpasu and the defendant who is the grandson of Gborta decided to renovate the building put up by Kwabla Dzakpasu on Torku’s land. The plaintiffs stated that the Torku family summoned them before the elders of Penyi- Hata and they were informed that the land in dispute belongs to the Torku family, which verdict was accepted by them and they thanked the elders with two bottles of drinks. The plaintiffs stated that on the 24th of February, 2020 the defendant together with Lucas Dzakpasu again trespassed on the land in dispute and quickly started renovating the mud house with cement blocks without permission from the head of the Torku family and its elders. The plaintiffs stated that the land in dispute belongs to the Torku family who have been in possession of same for several years without hindrance until recently when the defendant trespassed on it and is claiming ownership. The plaintiffs stated that the defendant together with Lucas Dzakpasu were hurriedly renovating the mud building and all attempts to stop them proved futile. Hence the instant action. 4 | P a g e THE CASE OF DEFENDANT By a statement of defence and counterclaim filed on 6th May, 2021, the defendant admitted that the plaintiffs are members of the Torku family but stated that he is unable to confirm the 1st plaintiff’s status as the head of family because there are other older siblings of him to his knowledge. The defendant however abandoned his challenge of the 1st plaintiff’s capacity as the family head as claimed by him. The defendant denied the claim that they lived on the land in dispute as caretakers and stated the boundaries of the land as follows; i. ii. iii. iv. On one side by the property of Torku On one side by the property of Korwu On one side by the Akanu Road On one side by the property of Amemashor. The defendant denied the claim that the land in dispute was founded by Adetor and stated that the land was founded by Kasu their great grandfather. The defendant denied the claim that Torho is a brother of Adetor and stated further that Torho is rather a paternal nephew of Adetor. The defendant stated in addition that, the disputed land was not founded by Adetor, Torho and Etui. The defendant stated that although the plaintiffs’ grandfather and his brothers came to settle at Penyi-Hata, they were not the founders of the Penyi-Hata land. 5 | P a g e The defendant denied the claim that Adetor handed over his properties to Gborta to maintain as a care taker and stated that Gborta gave birth to Apetsi and Apetsi gave birth to Sediso who is his father. The defendant stated that the Apetsi family have lived on the land in dispute and occupied the mud building put up by their grandfather Gborta for several years as owners and not care takers. The defendant denied the claim that his father or himself ever took the plaintiffs round to show them their grandfather’s land and also stated that it is not true they witnessed for the plaintiffs in a transaction involving the sale of any lands. The defendant admitted that Adetor shared his property to his children Torku, Alakpa, Avunakaji and Amemashor but stated further that the land in dispute is the property of Kasu, their great grandfather. The defendant denied the claim that the plaintiffs have been on the land without hindrance and further stated that, he was not the one renovating the mud house but rather Lucas Dzakpasu who was summoned before the chiefs by the plaintiffs. The defendant stated that it was not the Torku family who drove away his brother from building on the land but rather it was the elders of shiame who stopped him because the building extended into the path way leading to the family’s funeral ground. The defendant stated that the land in dispute does not belong to the plaintiffs so there was no need to secure their approval before commencing renovation of the mud building situated on the land. 6 | P a g e The defendant stated further that, the plaintiffs are not entitled to any of their claims and counterclaimed as follows; 1. A declaration of title, recovery of possession and perpetual injunction against the plaintiffs, their assigns, privies, workmen and all persons claiming through them over the piece of land situate and lying at Penyi and bounded as follows; i. On one side by the property of Torku ii. On one side by the property of Korwu iii. On one side by the Akanu road iv. On one side by the property of Amemashor 2. General Damages 3. Cost PROCEDURAL HISTORY The writ in this suit was issued by the plaintiffs against the 1st defendant and one Lucas Dzakpasu on 25th February,2020. Upon his own application declaring his lack of interest in the subject matter, the 2nd defendant was struck out as a party to the suit. The case commenced before His Worship Derrick Pardon Eshun and later taken over by Her Worship Rejoyce Aseye Gadagoe. The proceedings were adopted before me on 4th March, 2022 and hearing continued with the further cross examination of the plaintiffs first witness by the defendant. ISSUES 7 | P a g e From the pleadings filed by both parties, the following issues were set down for determination; 1. Whether or not the land in dispute was founded by Torgbui Adetor, the great grandfather of the plaintiffs? 2. Whether or not the land in dispute is the property of the Torku family? 3. Whether or not the defendant’s great grandfather Gborta was put on the land as a caretaker by the plaintiffs’ grandfather Adetor? 4. Whether or not the land in dispute was founded by Kasu, the great grandfather of the defendant? 5. Whether or not the land in dispute is the property of the defendant’s family? 6. Whether the plaintiffs or defendant’s family have been in possession of the disputed land? 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” 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; 8 | P a g e “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”. 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”. Similarly, a defendant who files a counterclaim in a civil action assumes the same burden as the plaintiff in a substantive action if he is to succeed. See Nortey (No. 2) v. African Institute of Journalism and Communication & Others (No. 2) [2013-2014] 1 SCGLR 703 and Gregory v Tandoh IV & Hanson [2010] SCGLR 971. 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. The Court in this case is also mindful of its cardinal duties 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 9 | P a g e Adwubeng v. Domfeh [1996-97] SCGLR 660 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882. SUMMARY OF EVIDENCE The 1st plaintiff testified by himself for the case of the plaintiffs in addition to two other witness namely Logosu Vitor (PW1) and Kwashie Vitor (PW2). The defendant also testified by himself and called one other witnesses Daniel Agboada Simon. ANALYSES In an action for declaration of title and recovery of possession, one of the essential requirements is that, the party seeking declaration must be able to prove the identity of the land. See the case of Agyei Osae & Others v. Adjeifio & Others [2007-2008] SCGLR 499. In his writ of summons, the plaintiffs described the land as bounded as follows; i. ii. iii. iv. On one side by the property of Alakpa; On one side by the property of Avunakeji; On one side by the property of Torku and On the last side by the property of Amemashor. Having described the boundaries of the land to which they are seeking ownership, the next task of the plaintiffs was to prove their mode of acquisition which borders on their claim that the land was founded by Torgbui Adetor their great grandfather and later devolved onto the Torku family. 10 | P a g e The plaintiffs also had an additional burden of proving that the defendant’s great grandfather Gborta was actually put in possession of the land as a care taker by their grandfather. Issues one (1), two (2) and three (3): Whether or not the land in dispute was founded by Torgbui Adetor and inherited by the Torku family and whether the defendant’s great grandfather Gborta was put on the land as a caretaker by the plaintiffs’ grandfather? It is the case of the plaintiffs that the land was founded by their great grandfather Torgbui Adetor and that their Torku family have been in possession of same for several years without hindrance from anyone. The plaintiffs also claimed that their great grandfather put the defendant’s great grandfather Gborta on the land as a caretaker. The defendant denied that assertion by the plaintiff and stated that the land in dispute was founded by Kasu who is the great grandfather of both himself and the plaintiffs and that his Apetsi family have been in possession of the land for years without hindrance as owners and not caretakers. 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”. 11 | P a g e On the question of who actually founded the land in dispute, the 1st plaintiff under cross examination on 10th May, 2022 admitted under cross examination by the defendant that Torgbui Kasu actually founded the land earlier. The responses by the 1st plaintiff under cross examination by the defendant are reproduced below; Q. Which of your grandfathers founded that land before your grandfather Adetor and the others? A. I was informed by my mother that Kasu Kable earlier founded the land. Q. So if Torgbui Kasu founded the land is he not supposed to be the beneficiary if the land is to be shared? A. Yes Torgbui Kasu’s children should benefit. Q. Is your grandfather Adetor the only child of Torgbui Kasu? A. No Q. Can you mention the names of four of Kasu’s children? A. I only know Treba Q. I am putting it to you that Treba was a grandchild of Torgbui Kasu? 12 | P a g e A. That is accepted Q. Is it not because you do not know the family history and lineage that you are litigating with me over the land? A. I know the lineage and history. The witness for the plaintiffs, PW2 also corroborated the defendant’s position that it was Torgbui Kasu who earlier founded the land. Below are the responses of PW2 under cross examination by the defendant; Q. Are there not different grandfathers in the house? A. Yes there are Q. Was the land founded by Torku the plaintiff’s grandfather? A. I can’t tell Q. I am putting it to you that the house does not belong to Torku? A. I cannot agree to that. Q. Does the house not belong to Torgbui Kasu? A. That is so 13 | P a g e Q. Did Torgbui Kasu give allocations to some of his children and left others out? A. I don’t know Torgbui Kasu and cannot tell how he distributed his estates. I only heard about him. Q. The place where you are currently, is it not Torgbui Kasu who allocated it to your fathers? A. Yes. Kasu owns all the lands in that area Q. Did you witness the allocation from Kasu to your fathers? A. No Q. Then why are you disputing our right to inherit from Torgbui Kasu’s estates? A. I am not disputing that right. I am only here to testify to what transpired at the settlement. In the case of Met Capital Group Limited vs Guaranty Trust Bank Ghana Ltd. and Linksfield Ridge Reality Ltd [2021] DLSC10763 at page 6 per Owusu (Ms), JSC it was held that; “where the evidence of one party on an issue in a suit was corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stood uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reasons which must appear on the face of the judgment, the court found the corroborated version incredible or impossible”. See also the case of Asante v. Bogyabi [1966] GLR. 14 | P a g e By the effect of the 1st plaintiff and his own witness’s corroboration of the evidence of PW2, the court is inclined to accept the version of the narration of the defendant that the original founder of the land was Torgbui Kasu. Consequently, the issues left for determination are whether the portion in dispute was allocated to Torku and whether it was Torku who put Gborta in possession of the place including the mud building as his caretaker. The plaintiffs claim that when their great grandfather was leaving Penyi-Pedo Shiame to settle at Penyi Hata he left his properties in the care of Gborta and Apetsi which included all his lands and the mud building. The defendant contested that claim and stated that his Apetsi family have lived on the land in dispute and occupied the mud building put up by their grandfather Gborta for several years as owners and not caretakers. The first witness for the plaintiffs, Logosu Vitor who described himself as the assistant elder of the elders at Penyi-Hata testified that he knows the land in dispute and that the dispute involving ownership of the land between the parties was earlier resolved by the elders in favour of the plaintiffs. The witness did not attach any document in prove of the settlement and stated that the process was not documented. The evidence given by both PW1 and PW2 who stated that the dispute involving the land had been settled were tainted by their own admission that they did not know the boundaries of the subject matter. 15 | P a g e The responses of PW1 under cross examination by the defendant on 26th August, 2022 are reproduced below; Q. What are the boundaries of the land in dispute? A. I don’t know Q. Are you not the head of family? A. Yes Q. As the head of family if you claim you don’t know the boundaries then why are you here to give evidence? A. I have done my duty. When the issue came up I gathered the elders of the family and we settled it. Q. How did you settle it if you did not know the boundaries? A. In the house everybody have their allocation so there are no boundaries. Q. Did you not say the land has not been shared but everybody have their building places? A. That is so. But the one now in dispute belongs to Torku. The responses of PW2 also in relation to his knowledge about the land is as follows; 16 | P a g e Q. Are you saying you know something about the land in dispute? A. I don’t know anything about the land. I only know about the building because when there was an issue about it, I served as the linguist for the Elders. Q. Is the building not situated on the land? A. Yes The evidence given by both witnesses did not resolve the concern about whether the land in dispute was allocated to Adetor through whom it devolved onto Torku and whether Torku actually placed Gborta on the land as a caretaker. The details of how the issue was settled was not given by any of the witnesses. Whether evidence was taken from persons who witnessed the allocation from Kasu to Adetor or whether the determination by the panel was based on acts of possession proven by the plaintiffs were not addressed by the witnesses. On the question of who actually built the house on the disputed land, the evidence given by the plaintiffs and PW1 was to the effect that, it was Kwabla Dzakpasu who put up the building. Based on the failure by the witnesses of plaintiffs to adduce evidence on the fact of the allocation of the land from Adetor to Torku, evidence of the alleged settlement and grounds for the resolution by the panel, the court is unable to make a declaration in favour of the plaintiffs on the issues. 17 | P a g e Issues five (5) and six (6): Whether or not the land in dispute is the property of the defendant’s family and whether the plaintiffs or defendant’s family have been in possession of the disputed land? With the issue of whether or not the land in dispute was founded by Torgbui Kasu or Togbui Adetor as set out under issue four (4) resolved as part of the determination of the previous issues by the court, the focus will now be shifted to the decision as to whether the land belong to the defendant’s family. The defendant’s claim to ownership of the disputed land is premised on the averment in paragraph 10 of the statement of defence to the effect that the Apetsi family have lived on the land in dispute and been in occupation of the mud building put up by their grandfather Gborta for several years as owners and not caretakers. The defendant’s witness Agboada Simon who described himself as a cousin to the parties and claimed to have sufficient knowledge about the land in dispute stated that the land was originally founded by Torgbui Kasu, the great grandfather of the parties. The witness stated that Torgbui Kasu gave birth to Agordo and Helu, and Agordo also gave birth to Komashi who later gave birth to Treba, Adetor and Gborta. The witness also stated that after the death of Torgbui Kasu, his grandson Gborta, the grandfather of the defendant settled on the disputed land and was the first to put up a mud building on the land in dispute which was later inherited by his son Apetsi and further devolved onto the Defendant’s Apetsi family. 18 | P a g e The witnesses stated that Gborta, the grandfather of the defendant was the first person to put up a mud building on the land in dispute when he left the village Penyi-Pedo to Penyi-Hata. It was also his further evidence that after the death of Gborta, his son Apetsi lived in the building which was also later occupied by Kenyetsi and her husband as well as their children. The evidence that the mud house was built by Gborta and later devolved on to Kenyetsi through successive inheritance was contradicted by the defendant who admitted under cross examination that it was the grandfather of Lucas Dzakpasu who built the structure for his Auntie Kenyetsie after he got married her. Below was the response of the defendant under cross examination by the 1st plaintiff on 22nd February, 2023; Q. Do you know the grandfather of Lucas Korbla Dzakpasu is the owner of the mud house you want to remodel? A. It is not for him. He married my Auntie so built it for her. The admission by defendant that it was Dzakpasu who actually built the house but he did so for her Auntie Kenyetsi corroborated the claim by the plaintiffs and their witnesses that it was Dzakpasu who put up the building and not either Gborta or Adetor. Apart from the repeated claims that his family lived in the building, the defendant was not able to adduce evidence on the specific period of his father’s occupation of the building. 19 | P a g e Q. You said your father Husunu stayed in that mud building. For how long did he stay there? A. I don’t know. My father told me that was where in lived in his school days. Q. I am putting it to you that your grandfather Apetsi did not migrate to Penyi town with our grandfathers to own a land there. The building was put up by Dzakpasu? A. It does not belong to Korbla Dzakpasu. It belongs to my Auntie Kenyestsi Gborta. Q. It was Alakpa who gave the place to Korbla Dzakpasu to build. The place was not built by Kenyestsi. A. It is not true. That was where my Auntie and father lived before giving birth to us. Q. When your father and Auntie were staying there, where was Korbla Dzakpasu staying? A. He was staying there with them. Q. I am putting it to you that you were not born in the building in dispute? A. I did not say that I was born there. One thing that was certain in the defendant’s responses was that he himself did not witness his father staying in the mud building on the land. His responses also re- emphasized the claim that the building was put up for her Auntie Kenyetsi. 20 | P a g e In effect, the evidence confirms that, it was the Defendant’s Auntie Kenyetsi who lived in the building with Dzakpasu who put up the building. Any other person who lived in the building including the defendant’s father without any evidence cannot be claimed to be the owner. The defendant cannot claim ownership through his father merely because he alleges his father lived in the property without any clear evidence of ownership by his father or grandfather. CONCLUSION In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (supra), 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”. In this case, the plaintiffs and the defendant failed to prove their right of inheritance through either Adetor or Gborta since the evidence adduced by them does not support their respective claims. The evidence rather supports the case that Dzakpasu built on the portion of land and lived in it with Kenyetsi. Since the land was given to the mother of Dzakpasu who was married to Adetor as alleged by the plaintiff to build and stay in it with his son and that is where they have lived in all their lifetime, by virtue of that occupation by both Dzakpasu and his children acquired a usufructuary interest in the land. 21 | P a g e Consequently, the plaintiffs cannot seek to reclaim the portion in dispute from the descendants of Dzakpasu per their own evidence and the defendant can also not seek to claim ownership of the property in the name of the entire Apetsi family having failed to prove that it is owned by Gborta. The evidence adduced by both parties confirms that the building and the portion of land on which it is situated remains the inheritance of the descendants of Dzakpasu with their right of inheritance restricted to the portion on which the mud building is situated. The plaintiffs’ reliefs and the counterclaim of the defendant are accordingly dismissed for no cause of action. NELSON DELASI AWUKU MAGISTRATE 22 | P a g e