ANTWIWAA VRS. ATTA AND ANOTHER (A1/09/22) [2023] GHADC 1315 (10 October 2023)

IN THE DISTRICT COURT KIBI, EASTERN REGION, HELD ON TUESDAY 10TH OCTOBER, 2023 BEFORE HER WORSHIP MRS. JULIET OSEI – DUEDU SITTING AS THE MAGISTRATE BEATRICE ANTWIWAA SUING PER HER LAWFUL ATTORNEY JOSEPH BAAH OF NSUTAM PLAINTIFF SUIT NUMBER: A1/09/22 VRS ADWOA ASOR A. K. A. ADWOA ATAA FIRST DEFENDANT ALHASSAN ADAM SECOND DEFENDANT JUDGMENT Plaintiff in this case per her amended writ of summons filed on 16th May 2022, prays the court for the following reliefs; “a. Declaration of title and recovery of possession to all that parcel of land, about two plots in size, situated and being at a place commonly known and called Dortoase at Akyem Nsutam and bounded by the property of, Teacher Asuman on one side, Yaa Doe, and Akua Anima on the other sides. b. GHC 5,000.00 damages for trespass. c. Perpetual injunction restraining the defendants, their agents and assigns from having anything to do with the said land. d. Costs.” The facts of this case as gleaned from plaintiff’s pleadings are that, she is the owner of the disputed land described above, and has been in undisturbed possession of same for about sixty (60) years now. As her act of ownership of the land also, she granted it to a customary tenant about twenty years (20) ago under a customary law tenancy, to cultivate food crops for sharing. The said tenant has equally farmed the land and has been sharing the produce with the plaintiff without any let or hinderance from anybody for the past 20 years. In recent times however, defendants have trespassed onto her land, laying adverse claim to it. They have refused to vacate the land despite plaintiff’s persistent demand for them to do so. Defendants disputed the facts as pleaded by the plaintiff and 2 counter alleged that the disputed land belongs to Maame Abena Danyame, first defendant’s (D1’S) mother, and second defendant’s (D2’S) grandmother. It is notable that; in civil matters as in the instant one, the burden of proof, that is the duty of producing evidence in support of averments necessary for the court’s decision is upon the party who makes the averment. Which party is usually the plaintiff because he makes the primary averments when he institutes an action against the defendant. Where a plaintiff adduces sufficient evidence in the discharge of the primary burden, the onus shifts onto the defendant who is required to adduce sufficient evidence in rebuttal, to avoid a ruling being made against him on the particular issue, sections 14, 10 (1) and 11 (1) of the Evidence Act 1975 (NRCD 323,) referred. And according to sections 11(4) and 12 of the same Act, the said burden of persuasion in a civil matter, requires proof by the preponderance of probabilities. This is the required standard of proof in all civil matters without any exception to land matters, Adwubeng V Domfeh [1996 – 97] SCGLR 660, equally referred. Additionally, since plaintiff’s action is for declaration of title to land among others, the burden of proof is on her to prove positively by a balance of probabilities that, the identity of her land is certain and there is no doubt about it, Bedu V Agbi [1972] 2 GLR 238 CA, applied. The principle is however settled that, the said identity of the land in contention need not be established to mathematical accuracy. In the present case, plaintiff pleaded that, her land shares boundary with, the properties of; Yaa Doe, Teacher Asumang, (PW3 and PW4 in this case respectively,) and Akua Anima. This assertion was not denied by the defendants in their defence. In fact, in paragraph 7 of their defence, defendants admitted plaintiff’s paragraph 5 of her pleadings that, the boundary owner Yaa Doe, has sold out her land to small scale miners. There being no issue joined on the identity of the land therefore, plaintiff is not required to strictly prove same, the above authority notwithstanding, Agbosu and others V Kotey and others [2003 – 2004] 1 GLR 685, applied. Furthermore, as a land litigation, plaintiff who is asserting title and on whom the burden of persuasion falls, is required to prove her root of title, mode of acquisition and various acts of possession exercised over the land, it is only when plaintiff has been able to so establish these facts successfully on the balance of probabilities that, she would be entitled to her claim, Mondial Veneer Ghana Ltd 3 V Amuah Gyebi XV [2011] 1 SCGLR 466, referred. The question then is, whether plaintiff herein has been able to discharge this burden she assumed under the law. This question would be considered among others, shortly. At the hearing before this court, plaintiff’s attorney testified personally and also called four witnesses, two of whom are plaintiff’s boundary owners. Defendants elected that D1 testifies on their joint behalf and called two witnesses including their alleged landowner. Also, the parties alleged that, in a related matter which was earlier presented before the Amankrado of Nsutam for arbitration, the ownership of the disputed land came up. They however gave conflicting outcome of the said proceedings. With the consent of the parties the court subpoenaed the Amankrado or his representative as its witness, and the linguist attended court and testified as such. At the end of the trial, the following issues came up for determination; 1. Whether or not plaintiff has been in possession of the disputed land for about 60 years now. 2. Whether or not the disputed land is owned by first and second defendants’ mother and grandmother, respectively. I will now address the first issue, whether plaintiff has been in possession of the disputed land for 60 years. As indicated in the title of this suit, plaintiff mounted this action via her son and lawful attorney, who tendered his warrant of attorney in evidence as exhibit A. Plaintiff’s attorney, (hereafter, attorney simply,) testified that the disputed land belongs to his mother and plaintiff in this case. According to his testimony, the land was originally owned by his grandmother, Bertha Tenkoramaa who worked on same with his mother and plaintiff in this case for a long time before her demise. Thereafter, plaintiff continued to work on the said land, personally. Hence, plaintiff’s undisturbed possession of the disputed land for the 60 years. Plaintiff equally gave the land to one Adamu Braimah, PW2 in this case to cultivate food crops for sharing by them about 20 years ago, which agreement is still subsisting. A couple of months ago, plaintiff again asked PW1, attorney’s younger brother to fell some trees on the land which he did without any interference from the defendants. It is pertinent to state here that, PW2’S unchallenged evidence of his presence on the land for over 20 years, supports the attorney’s evidence above. He was 4 however quick to add that for all this period that he has been on the land, he has neither seen the defendants nor their mother they claim owns the land on same. Also, PW1 testified without any challenge to same that, he actually, with the permission of plaintiff her mother, felled some trees on her land without any confrontation whatsoever from the defendants or their alleged land owner. Thus, until defendants’ conduct, resulting in the present action, nobody had disturbed plaintiff’s occupation of the land nor challenged her overt acts of ownership of granting same to PW2 and PW1 for farming and lumbering purposes respectively. Moreover, it is the undisputed evidence of PW3 and plaintiff’s relative that, the disputed land was part of a large tract of land initially owned by the Aduana family of Nsutam. The individual family members, years back developed undeveloped and unpossessed portions, thereby acquiring their respective interest in same. This was exactly what plaintiff’s mother did to acquire her land and has remained on same for about 60 years now. That also explains how he came to share a common boundary with the plaintiff herein. He also stated further that, he was given his land to work on by one Victoria Dartele one of the daughters of plaintiff’s mother, Bertha Tenkoramaa. Victoria is the daughter of his mother’s elder sister, Maame Tenkoramaa. PW3 therefore, described the attorney as his nephew, the son of his eldest sister, in the family, now. He has been working on the land for the past 22 years, but has never seen defendants or their mother on the disputed land. The only person he has seen working on the disputed land whom he always greets on his way to his farm, is PW2, plaintiff’s tenant under customary law. It is interesting, to observe how DW2’S evidence seems to support the testimony of plaintiff’s possession of the land for at least 30 years without any let or hinderance. Having stated in paragraph 4 of his witness statement that, the disputed land belongs to D1’S mother, DW2, had a different story to tell in subsequent paragraphs of the same statement. He stated in paragraphs; 5, 6 and 10 as follows; “…It was one Mr. Adusei who led me to the land of Bertha Tenkoramaa in 1980. The family of Madam Tenkoramaa gave me her land to farm on it. I have been on Madam Tenkoramaa’s land for more than 30 years now. Ever since I worked on the land, I have never seen anybody claim ownership of the land.” This is what DW2 also said in cross – examination by the attorney; Q. Who is Maame Tenkoramaa to me? A. She is your grandmother. 5 Q. Did you work on my grandfather Adusei’s land? A. I did not work on Opanyin Adusei’s land. I came to work on Bertha Tenkoramaa’s land, on which there is no problem. The problem is with Maame Danyame’s land. Q. Do you know that the land belonging to Maame Danyame’s family has been sold? A. No, I don’t. Q. Opanyin Nkansah, has Maame Danyame ever farmed on the disputed land? A. No, I have never seen Maame Danyame on the disputed land. But it was one Kwadwo Boateng I conversed with on one occasion, who informed me that, the land on to the right of your mother’s land belongs to Maame Abena Danyame. Q. Do you remember ever tapping palm wine in our farm? A. Yes, I ever tapped palm wine in your farm so I know your land. The land in which your mother sold the palm trees to me to tap for palm wine, is on the left with Maame Danyame’s own on my right. Q. Then I want you to know that the disputed land belongs to my mother. A. As for that, it belongs to your mother and that is why I said I don’t know your boundaries. The boundaries described in my witness statement, belongs to Maame Danyame’s land, which I said shares boundary with the properties of, Maame Yaa Tanowaa, Maame Afia Mansa, and Akua Anima. It is ‘V’ shaped at the top and different from the land of Bertha Tenkoramaa’s which I worked on. Very fascinating evidence indeed. DW2 not only worked on plaintiff’s mother’s land for over 30 years, but also tapped palm wine at the portion of the said land that came to plaintiff upon her mother’s demise. For all the years that DW2 was on the disputed land, he never saw defendants or their alleged landowner on the land. He however, knows the boundaries of defendants’ ‘land’, perfectly, but has no knowledge of plaintiff’s boundaries and her adjoining owners. DW2’S testimony intended to support defendants’ case only turned out to be nothing but a coached and or a well-rehearsed fable, intended to throw dust in the eyes of the court. Nonetheless, one fact that cannot be disputed in all these inconsistencies, is the long undisturbed and exclusive presence of plaintiff on the 6 disputed land. Per DW2’S testimony for almost 43 years of being on plaintiff’s family land, which the disputed land formed part initially, he has never witnessed the presence of defendants, or the numerous persons they alleged to have occupied the land through on plaintiff’s land. Also, the said land per his unequivocal assertion, is completely different from the defendants’ alleged land. The law is very certain that, where the evidence of one party on an issue is corroborated by the evidence of the opponent or the opponent’s witness, whiles that of the opponent on the same issue stands uncorroborated, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some reason, patent on the face of the record, the court finds the corroborated one incredible or impossible, Asante V Bogyabi [1966] GLR 418, SC and Augustine Yaw Manu V Elizabeth Ama Nsiah [2006] 3 MLR, SC, applied. In the instant case also, since the evidence of plaintiff’s witnesses above on her long and undisturbed presence on the disputed land, is duly corroborated by that of DW2, without any reason on record to reject same, this court prefers plaintiff’s version of the story to that of the defendants’. On the available evidence therefore, it is my finding that plaintiff has been in an undisturbed possession of the land for 60 years now. It is noteworthy that, the evidence above establishes plaintiff’s mode of acquisition of the disputed land, to wit, by developing unpossessed and undeveloped portion of the Aduana family land thereby acquiring the usufructuary interest in same. It further demonstrates that, plaintiff is and has always been in physical possession of the disputed land having so placed a tenant on it, as well as permitted defendants own witness to tap palm trees thereon, Wuta – Offei V Danquah [1961] GLR, 487, referred. Again, it is trite learning that, possession under land law is given a broader meaning than it exists in other disciplines of law. Its usage is thus, not limited to physical possession of the land but includes all the afore stated acts of the plaintiff. These acts of dominion over the land exercised by plaintiff raise a rebuttable presumption of ownership in her favour which defendants must disprove. I now turn my attention to the issue of whether or not the disputed land belongs to the defendants’ mother and grandmother, Maame Abena Danyame. It is the case of the defendants that the disputed land belongs to D1’S mother. It should be stated here that D1 is D2’S mother. According to D1’S evidence, they were permitted to farm on the land by her mother, the land owner. The first person to 7 farm on the land however, was Opanyin Kwadwo Boateng, her mother’s husband in 1980. He worked on the land until his demise in 1999 and the land was given to Opanyin Sakyi. He also farmed the land till 2006 when he passed away. D1’S late brother Kwadwo Baah thereafter, farmed on the land until his demise in 2021. The land in contention shares boundaries with the properties of Madam Akua Anima, Teacher Janet, Afia Mansa and Yaa Tanoa respectively. Maame Abena Danyame, an octogenarian, also testified in support of D1’s evidence, materially that the said land belongs to her. She nonetheless stated that, she has farmed the disputed land with her husband, since time immemorial. It is equally notable that, though DW2 stated in his witness statement that, the disputed land belongs to DW1, he explained further in the statement that, he came by that fact not through personal knowledge but through a conversation he had with DW1’S husband. He testified further that, contrary to the evidence above, he has never seen D1 and her mother, DW1 on the disputed land. That is, the land he described as situated to the right of plaintiff’s land and allegedly belonging to DW1. Considering the evidence of D1 and her mother, and their chronological tracing of their root of title, one is likely to be tempted to conclude that the disputed land indeed belongs to DW1, who has possessed same through the various people so named in their evidence. The said evidence is however, saddled with inconsistencies, half-truths and outright falsehood which raise serious issues of credibility. First of all, whereas, D1 testifies that they started working on the disputed land in 1980 via her mother’s husband, Kwadwo Boateng, her said mother testifying as DW1 told a different tale. She said she has been farming on the land with her husband since time immemorial. Their alleged presence on the disputed land, nevertheless contradicts the evidence of their own witness, DW2. DW2 testified that, none of the defendants or their alleged privies and or assigns, was ever seen by him on the disputed land for all the 43 years that he worked on plaintiff’s mother’s land. Of crucial importance is DW2’S evidence that, the disputed land unquestionably belongs to plaintiff and this is totally different from that of DW1. Actually, this evidence is clearly confirmed by the boundaries given by the defendants and their witnesses on the identity of DW1’S land. DW1 herself testified that she shares boundary with plaintiff’s mother, Bertha Tenkoramaa. This has been the story of the attorney all along but with the said boundary owner being Yaa Doe and his 8 fourth witness in this case, but not DW1. Thus, DW2 in essence, asserts that, there is no question about the disputed land belonging to the plaintiff. The problem is with the adjoining land, the boundaries of which have been duly described in his statement. Per his hearsay evidence from DW1’S late husband also, the said land belongs to DW1, whom he has never seen all these years on the land. The testimony of PW4, Yaa Doe, in very insightful. She described herself as a sister to D1 because her mother Akua Addai was Maame Danyame’s sister. DW1 is thus, her mother but not biological. They all belong to the Ayoko family of Nsutam. According to PW4 the land so described by the defendants belong to her mother Akua Addai, who as a member of the Ayoko family farmed an undeveloped portion of the family land and so acquired interest in same. In actual fact, it was her mother who permitted Maame Danyame’s ex – husband, Opanyin Kwadwo Boateng to farm her land but not Maame Danyame. At the time of securing her mother’s permission to plant food crops on the land, Opanyin Boateng had already divorced Maame Danyame and vacated their matrimonial home. The crops upon maturity were to be shared by them per their agreement. They accordingly shared the food crops and upon her mother’s demise, Opanyin Boateng continued to share the produce with her and her other siblings. Again, the late Kwadwo Baah defendants are claiming their title through, was rather her biological brother, but not that of D1 as she wants this court to believe. He farmed the land for their exclusive enjoyment because it belongs to their biological mother. D1 and the deceased were only cousins having come from two uterine sisters. Maame Danyame has never farmed on the land in question which shares boundary with that of plaintiff. She farmed on a different portion of the Ayoko family land, portions of which she has sold to small scale miners and solely kept the proceeds therefrom. DW1 decided to contest the ownership of her mother’s land with her when she, PW4 equally sold out the land to some miners and refused to give her some of the money. This was the complaint Maame Danyame lodged with the Amankrado of Nsutam against her. After the chief and his elders have gone into the matter, they gave judgment in her favour. The land allegedly belonging to DW1 is the same land belonging to her late mother, Akua Addai, which she has sold. There is therefore no other land at Dotoase that defendants can claim through D1’S mother. PW4 strongly maintained in cross – examination that, whatever land defendants her relatives, claim to own at Dotoase, is what she has sold and kept the proceeds to herself because it belongs 9 to her mother. Her mother by her individual means and independent effort carved out same from the family land, as her self-acquired property. This explains why neither defendants nor their alleged land owner has ever farmed that land. It should be noted that, the evidence of the court witness, the Amankrado’s representative, confirms PW4’S evidence that, the arbitration panel decided the case in her favour. According to him, DW1 summoned PW4 before them on the ownership of the land at Dotoase sold by her. PW4 claimed ownership of the land through her mother. The chief also ordered a visit to the land and after their deliberations, the panel held in favour of PW4. Their visit to the land also indicated that, PW4’S land shares boundary with plaintiff’s land and it is this same land which she has sold out. Defendants therefore have no land at Dotoase. DW1 accepted the arbitration award and even thanked the panel on same. D1 cross – examined the court witness as follows; Q. Do you agree that when we visited the land, you asked that we show our boundaries and we did so. A. Yes, I agree. Q. Do you agree that you concluded that the whole land has not been mined so what is left is for my mother. A. No, I don’t. This is because, Maame Yaa Doe, whom your mother so summoned, informed the panel that she has sold the whole land she owns at Dotoase to the miners, leaving nothing. Q. Do you remember that, after the visit, you said both Yaa Doe and Danyame are from the same womb so the proceeds she got from the sale, she should give a portion to Danyame? A. That is not true. Maame Yaa Doe said Maame Danyame has already sold-out portions of their family land and enjoyed the proceeds alone so she does not deserve any share from her money. She has however given all the other elders who deserve part of the money their respective shares. It is obvious from the above that, defendants are fully aware that whatever land D 1’S mother allegedly had at Dotoase is the same land to which PW4 has successfully claimed ownership of and sold out to the miners. The evidence on record as evaluated above, puts all matters to rest that the disputed land does 10 not belong to Maame Danyame, D1’S mother as defendants want this court to believe. Perhaps, the fact that the attorney admitted before this court that he indeed showed the miners the common boundary between plaintiff’s land and that of PW4 is what has infuriated the defendants to trespass onto the plaintiff’s land, laying adverse claim to it. Defendants have been blaming the attorney for conniving with PW4 to sell DW1’S land. Granted without admitting that the attorney even so conducted himself, that does not warrant defendants attempts to take over his mother’s land. This is because, the said land does not in any way belongs to DW1 but PW4 per the evidence on record. Again, as the court witness rightly testified, the attorney’s assertion before the panel that, he could not contest the case with Maame Danyame because she was his mother, did not in any way amount to conceding her ownership of the disputed land. He only said that because, the land issue before the panel did not concern his mother’s land, but the land sold by PW4. Consequently, whatever activities of the defendants on the disputed land clearly amount to trespass onto plaintiff’s land. Since the land does not belong to D1’S mother, she had no right to permit defendants to farm on it. From the foregoing, it is obvious that, plaintiff herein on the balance of probabilities has succeeded in convincing the court that her claim for declaration of title, recovery of possession, injunction and general damages, is more probable than that of the defendant. She is thus, entitled to judgment in this case. I therefore enter judgment in this matter in favour of the plaintiff and against the defendants as follows; 1. Plaintiff is hereby declared as the usufructuary owner of the disputed land as so described in her particulars of claim. 2. Plaintiff is to recover possession of the disputed land from the defendants herein with an award of ten thousand Ghana Cedis (GHC 10,000.00) against defendants (and for the plaintiff,) as damages for trespassing unto plaintiff’s land. The quantum of the damages is so awarded even though it exceeds the amount plaintiff asked for because of defendants’ blatant refusal to leave plaintiff’s land being fully aware of the fact that the said land was never owned by DW1. 11 3. Defendants again, together with their agents, servants, successors in title and all others claiming through them are hereby restrained perpetually from interfering with, or laying adverse claim to the disputed land. Costs of GHC 10,000.00 for the plaintiff and against defendants. SGD H/W MRS JULIET OSEI – DUEDU ESQ DISTRICT MAGISTRATE 10/10/2023