TIBINIEN VRS ISSAH (A1/14/2022) [2023] GHADC 1231 (1 September 2023)

IN THE DISTRICT COURT KINTAMPO – A. D. 2023 SUIT NO. A1/14/2022 UBASABOR TIBINIEN OF JEMA - PLAINTIFF VRS KWABENA ISSAH OF JEMA 1st September, 2023 - DEFENDANT JUDGMENT 1. Introduction 1.1. Unlike many suits which do not lend themselves to simplicity, this suit is rather straightforward. Plaintiff claimed against Defendant herein as follows: “a. Declaration of title and recovery of possession of all that unnumbered plot situate at Jema which was sold to plaintiff by the late Madam Adwoa Pokuaa for a valuable consideration and after the death of Madam Adwoa Pokuaa defendant and his family members are laying adverse claim to the plot. b. General damages for trespass. c. An order of perpetual injunction restraining the defendant, his agents, assigns etc. from having anything to do with the plot in dispute described in relief (a) supra.” 1.2. Plaintiff based his claims in this suit on these facts, that on 10th December 2020 the late Madam Adwoa Pokuaa who was bonafide owner of the unnumbered plot situate at Jema sold her self-acquired property to Plaintiff for a valuable consideration. The plaintiff has legally and lawfully been in effective possession of the plot without hindrance from anybody or family member until the death of Adwoa Pokuaa. Page 1 of 5 1.3. After the death of Madam Adwoa Pokuaa. Defendant and some of his family members are laying adverse claim to the plot by preventing Plaintiff from developing the plot for residential purposes and all efforts made by Plaintiff for Defendant and his family members to stop their adverse claim have proven futile. Burden and standard of proof 1.4. In Adwubeng v. Domfe [1996-97] SCGLR 660, 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.” 1.5. The burden and standard of proof in civil matters is a path so well beaten that any extensive discussion of it would only amount to a needless addition to a rather ubiquitous body of knowledge. 2. Admitted facts 2.1. Parties in this suit admit that there was a sale of the disputed land to Plaintiff, but where they differ is that Defendant alleges the sale to be void since the disputed land is family land. An admission as defined by the 7th edition of the Black’s Law Dictionary is a voluntary acknowledgment of the existence of facts relevant to an adversary’s case. 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. 2.2. Again, 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.” 2.3. Defendant’s defence in this suit is really that Plaintiff’s alleged grantor had no capacity to make a grant of the land to him since same is the joint property of he and his siblings, which includes Plaintiff’s alleged grantor. If I find this to be the case, then Plaintiff’s action fails. If I find that Plaintiff’s grantor had the capacity to alienate the disputed land to Plaintiff then naturally his claims must succeed. 2.4. It is clear from the evidence on record that Plaintiff’s grantor while she was alive dealt with the disputed land to the exclusion of Defendant, especially throughout Page 2 of 5 the life of DW1 as admitted by him. This is admitted also by Defendant himself. Neither Defendant nor any of his witnesses mentioned any of the other children to whom the disputed land was allegedly gifted. Again, no evidence was led on the witnesses to the alleged gift of the disputed land to Defendant and his siblings. For these reasons I cannot accept that the disputed land was the joint property of Defendant and his siblings, the children of his deceased mother. 2.5. I have also come to this conclusion because in the cases of Akufo-Addo v. Catheline [1992] 1 GLR 377 and Rukayatu Usumanu v. Zongo Naa Kun-Gari & 16 Ors (2021) JELR 107957 (SC) the Courts cautioned that in evaluating the evidence led against dead persons, the law enjoins the Court to exercise great care and examine the evidence with suspicion. The principle in evaluating assertions made against dead persons is stated in the case of Garnett, In re; Gandy v. Macauly (1885) 31 Ch D 1 at 9, CA by Brett MR as follows: “The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive, he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be, first of all in a state of suspicion.” 2.6. In the case of Mondial Veneer (Gh) Ltd. v. Amuah Gyebu XV [2011] 1 SCGLR 466, the Supreme court stated this principle citing Garnett with approval and explained its importance per Georgina Wood CJ (as she then was) thus: “Our jurisprudence has examined the approach courts must adopt when evaluating charges and assertions made against dead persons. We have firmly established the principle that real danger lies in accepting without questioning or close scrutiny, claims against a dead person. The caution that such claims must be weighed carefully is based on plain good sense and has consistently been applied in a number of cases including Fosua & Adu Poku v. Dufie (Decd) Adu Poku Mensah [2009] SCGLR 310, In Re Krah (Decd); Yankyeraah v. Osei- Tutu [1989-90] 1 GLR 638, SC and Tabiri [1987-88] 1 GLR 360, SC.” 2.7. Although as held in Conca Engineering (Ghana) Ltd. v. Moses (1985) JELR 67087 (CA) as legal concepts, ownership and possession are not one and the same thing, in Papa Gyimah Genfi v. Dr. J. K. Acquaye (2014) JELR 64717 (CA) the correct position of the law was stated that acts of possession and enjoyment of a piece of land may be evidence of ownership of that land. 2.8. The law is that where the admission of one party establishes that the other party has been in long undisturbed possession and occupation of the disputed land, the party making the admission assumes the onus to prove that such possession is inconsistent with ownership. In Daniel Ramsey Adjei Okoe & Anor v. Nii Page 3 of 5 Akwetey Lawani & Anor (2021) JELR 109776 (SC) the court applied the case of In Re Adjancote Acquisition; Klu v. Agyemang II [1982-83] 2 GLR 852 at 857 in which the Court stated that where the admission of one party establishes that the other party has been in long undisturbed possession and occupation of the disputed land, the party making the admission assumes the onus to prove that such possession is inconsistent with ownership. 2.9. The law is that such a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who can prove a better title. The onus therefore lies on Defendant in this circumstance to produce evidence to rebut the ownership of the Plaintiff’s grantor. This burden was not discharged by Defendant by his own evidence, and surely not by DW1 who admitted brazenly his own bias for Defendant’s cause because according to him, Defendant is the one who takes care of he, his wife and his children. In terms of section 80 of the Evidence Act. 1975 (NRCD 323), I find him to be a witness lacking in credibility. Accordingly, I find that the property in dispute was the sole property of Plaintiff’s grantor and that Plaintiff’s grantor made a valid transfer of all her interest in the disputed land to him. 2.10. In Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 Ansah JSC at page 890 referred with approval to the case of Tutu v Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, where Ollenu JA said that: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” 2.11. Plaintiff in my view did not surmount the burden of proof concerning any actual damage occasioned by Defendant, in prosecuting his claim for damages for trespass to land, and accordingly, damages must be nominal. 2.12. In Hanna Assi (No 2) v Gihoc (No 2) [2007-2008] 1 SCGLR 16 the Supreme Court held that the Courts have power to grant all reliefs that flow logically from the established claims of the party. This point of law has guided me in my conclusions herein. 2.13. A. M. DORDZIE JA (as she then was) in George Lamptey v. Meklloyds Co. Ltd and Theophilus Ohene Poku (2017) JELR 63977 (CA) said of the manner in which a Court should go about determining reliefs as follows: Page 4 of 5 “… I must say that case law in recent times has demonstrated that the courts have turned away from strict adherence to considering only reliefs endorsed on writs of Summons. The courts now look at the totality of the endorsement on the writ of summons, the pleadings and the evidence adduced before the court to grant the appropriate reliefs the circumstance of each case demands.” 2.14. The conclusion of this judgment is to my mind a logical, coherent and come-hither culmination of all the forgone. Conclusion In conclusion, Plaintiff’s action succeeds and the Court makes the following orders in favour of Plaintiff: a. Declaration of Plaintiff’s ownership of all that land lying at Jema, sharing boundary with the old kyerehin-Dumso road, and properties of Agya Yaw Baffoe, Yaa Boahen and Kwame Abisa. b. Recovery of possession of the all that land lying at Jema, sharing boundary with the old kyerehin-Dumso road, and properties of Agya Yaw Baffoe, Yaa Boahen and Kwame Abisa. c. An order of Perpetual Injunction restraining Defendant and all those claiming through him from entering or dealing in whatever manner with the land mentioned in the foregone. d. I award nominal damages of GHS 200 in favour of Plaintiff. e. I assess Plaintiff’s costs at GHS 2000.00 SGD. KWAME ADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present (Unrepresented) Page 5 of 5