BOATENG VRS FRIMPONG (C11/23/22) [2023] GHAHC 405 (12 October 2023)

IN THE HIGH COURT OF JUSTICE HELD IN KUMASI ASHANTI REGION ON THURSDAY THE 12TH DAY OF OCTOBER 2023 BEFORE HER LADYSHIP HANNAH TAYLOR (MRS) J. SUIT NO. C11/23/22 NANA KWASI BOATENG SUING IN HIS CAPACITY AS THE KRONTIHENE OF SAKORA WONOO AND PLAINTIFF/ BRINGS THIS ACTION FOR HIMSELF AND ON RESPONDENT BEHALF OF SAKORA WONOO STOOL OF SAKORA WONOO V. NANA ASANTE FRIMPONG (DECEASED) OF AHODWO NYEASE DEENDANT/ SUBSTITUTED BY DANIEL YAW GYAMFI APPELLANT ____________________________________________________ JUDGMENT The bone of contention between the parties is the ownership of the Craft Centre at Sankora Wonoo. The plaintiff/respondent (hereinafter referred to as the plaintiff) contending that the ownership of the disputed property vests in the Wonoo Sankora community, caused a writ of summons to be issued out of the registry of the District Court, Mamponteng against the defendant/appellant (hereinafter referred to as the defendant) for a determination of the issue of ownership per the reliefs stated as follows; - 1. 2. 3. 4. A declaration that the Craft Centre at Sankora Wonoo is the property of the Sakora Wonoo Community. Recovery of possession. Damages for trespass. Perpetual injunction restraining the defendant his agents, assigns, servants, employees, workmen and all those claiming through him from interfering with the plaintiff’s ownership possession and control of the Craft Centre at Sankora Wonoo. The defendant had filed a statement of defence and also counterclaimed for the following reliefs against the plaintiff; - a. Title to and the recovery of possession of all the property designated the Craft Centre at Sakora Wonoo including the vacant plot surrounding the Centre. b. c. Damages for trespass. Perpetual injunction restraining the plaintiff their agents, assigns, employees, workmen and all those claiming title and or interest through them from interfering with the defendant’s ownership, possession and control of the Craft Centre at Sankora Wonoo. THE FACTS OF THE CASE. The plaintiff’s case is that the Craft Centre was constructed in 1975 by the Department of Housing and Planning Research Unit under Technology Consultancy Center (TCC) of the Kwame Nkrumah University of Science and Technology (KNUST) for the Wonoo Community with a grant of twenty-five thousand, one hundred and eighty-seven cedis and twenty-seven pesewas (old cedis) from Oxfam, UK with the community providing the labour. The purpose for the setting up of the Centre, the plaintiff stated, was to demonstrate the making of craft products and sales to tourists. Upon the completion of the project, the Centre was handed over to the people of Wonoo and the defendant as the chairman of the Town Development Committee took possession and control of the Centre without accounting to anybody. The plaintiff testified per PW1 and called two other witnesses. The defendant on the hand, denied the claims of ownership by the Wonoo Community and made a claim of ownership of the Centre for himself. The defendant contended that the TCC of KNUST constructed the Centre at his request from a grant from Oxfam transferred to TCC account, out of which a loan was granted to Wonoo Venture as a loan. Therefore, the money expended on the construction of the Centre was a loan facility given to him. Further, he has run the Centre for over forty years without any adverse claim and keeping the proceeds from running the Centre. Thus, the plaintiff is estopped by laches and acquiescence from laying a claim of title granted that they have a valid and a legal claim. It is pertinent to state at this stage that the defendant Nana Kwasi Frimpong died in the course of the hearing. This was at a time, PW3 was testifying and he was substituted by Daniel Yaw Gyamfi. JUDGMENT OF THE TRIAL COURT The trial Court after taking evidence and weighing same, came to the conclusion that the plaintiff has positively proved his claim therefore, on the balance of probabilities, he was entitled to the reliefs he sought. Judgment was accordingly entered for the plaintiff and the defendant’s counterclaim dismissed on the 13th of May 2019. NOTICE OF APPEAL The defendant in an apparent expression of his dissatisfaction with the judgment of the trial court on the very day of the judgment, filed the present appeal. GROUNDS OF APPEAL The grounds of appeal as set out in the notice of appeal are hereafter stated as follows; - 1. That the judgment was against the weight of the evidence. 2. 3. That the Magistrate erred when she believed and relied solely on the contradictory uncollaborated evidence of the witnesses of the plaintiff. Additional grounds to be filed on receipt of the copy of the judgment. The defendant per this appeal prays the Court to set aside the judgment of the District Court, Mamponteng and further set aside orders made thereunder. No additional grounds of appeal were filed so the appeal proceeded on the grounds (1) and (2). DETERMINATION OF THE APPEAL Order 51 of the High Court (Civil Procedure) Rules 2004, CI 47 provides that an appeal from a decision or order of a District Court to the High Court shall be by way of rehearing. What connotes rehearing has been explained in a plethora of Supreme Court decisions. In the case of PRAKA V KETEWA [1964] GLR 423, Ollennu JSC explained that; - “it is true that an appeal is by way of rehearing, and therefore the appellate Court is entitled to make up its own mind on the facts and to draw inferences from them to the same extent as the trial Court; but where the decision on the facts depends on the credibility of witnesses, the appeal court ought not to interfere with the findings of fact except where they are clearly shown to be wrong, or where those facts are wrong inferences drawn from admitted facts or facts found by the trial Court. Therefore, if in the exercise of its powers, an appeal Court feels itself obliged to reverse findings of fact made by the trial Court, it is incumbent to show clearly in its judgment where it thinks the trial court went wrong.’’ Further, on the ground that the judgment is against the weight of evidence, it is imperative that that the appellate court study the entire record of appeal, consider the entire testimonies and all documentary evidence adduced at the trial before arriving at its decision. See the cases of TUAKWA V BOSOM [2001-2002] SCGLR 61, ACKAH V PERGAH TRANSPORT LTD [2010] SCGLR 891, AYEH & AKAKPO V AYAA IDDRISU [2010] SCGLR 891. On the part of the appellant, when heard saying that the judgment is against the weight of evidence, he implies that there were certain pieces of evidence on the record which if applied could have changed the decision in his favour or that there are certain pieces of evidence that had been wrongly applied against him. A duty thus, is placed on the appellant to demonstrate the lapses clearly in the judgment appealed against and further demonstrate that the trial court failed to consider adequately the evidence placed before it and that the lapses complained of if corrected would cause the scale of justice to tilt in his favour. See the case of DJIN V MUSAH BAAKO [2007-2008] SCGLR 686. It must be further stated that, there is a burden on a person who alleges a fact to lead cogent and credible evidence to establish same. For it is provided under the Evidence Act, 1975 (NRCD 323) that a person who alleges a fact assumes both the evidential burden and the burden of persuasion. In this case, where both parties sought specific reliefs from the Court, each party is required to discharge the same statutory burden. In order to discharge their respective burden, the parties in the suit have a duty to prove their respective positions taken on the preponderance of probabilities to satisfy the Court that they are entitled to the reliefs spelt out in their claims. See the case of GLADYS OBENEWAA V NANA DONKOR MANIANOR II & OTHERS [2022] 179 GMJ 253. In this case, it is submitted by learned Counsel for the defendant that, there are credible evidence that supports defendant’s claim of laches, acquiescence and limitation but the court held otherwise under the illusion that respondent did not go to sleep for over forty years while the appellant assumed absolute and undisturbed ownership. The plaintiff admits that the defendant has been in possession of the Craft Centre but did so in his position as the Chairman of the Town Development Committee and the Assemblyman of the Wonoo community. From the evidence, the parties are ad idem that the disputed property was built in 1975 and has since been in the possession of the defendant even at the time of his death when this suit was pending. Learned counsel for the defendant has submitted that with this forty years of possession, yet the trial court delivered its judgment on the issue of estoppel as follows:- “The defendant’s control and possession of the Craft Centre has not been peaceful and without an adverse claim by the community. The community is thus not estopped from laying claim to the Craft Center due to the accretion of time and their conduct”. This claim and finding are contested as not supported by the evidence because, granted that twenty (20) years ago, an adverse claim was made, same will be caught by section 10 of the Limitation Act, 1972 NRCD 54 and the court needed to have ended the matter there as there is no need to go into the merit. However, PW1 has testified that when he also became secretary, he had gone to see the defendant with his predecessor. They had gone to defendant to render account but they could not reach an agreement. Under cross examination, PW1, Andrews Obeng Agyemang testified as follows; - Q. Since the defendant left office about 1992or thereabout, have you ever called him to account for the ownership of the Craft Centre. A. That is so. Q. When did you call on him for such a communal meeting. A. When he became a member of parliament and leaving office, he accounted to some of the committee members. Q. A. And he was not asked to hand over the stewardship of the Craft Centre. No. Because as an MP he was a key stakeholder in the town and was assisting the town in many ways hence the decision not to render accounts. Q. And per your writ you are now calling on him to account to account for his A. Q. stewardship. Yes. And you want the court to believe that after all these years, you and your predecessor’s have not asked him to account but for this year. A. Not correct. My predecessor and I went to him (I was the Committee secretary) went to the defendant’s house and asked him to render accounts but we could not come to an agreement. Q. You know that the defendant owns the Craft Centre but you are out to embarrass him. A. Not correct. All document(s) that we have exhibited indicates that the Craft Centre belongs to the town and it was constructed by Technology Consultancy Centre via a grant from Oxfam United Kingdom and defendant is aware of this.’’ Is the plaintiff estopped from making a claim of title for the community of the Craft Centre?. On elements necessary to be proved to establish acquiescence was stated in the case of KORLEY v BRUCE [1962] 1 GLR 7 as follows;- a. the person who enters upon the others person’s land did so upon the honest, though erroneous belief that he had right to it; b. he must have expended some considerable sum of money on or in respect of the land upon the faith of his mistaken belief; c. the owner of land must know all the time that he had right in the land which is inconsistent with the erroneous right claimed by the other; d. e. the owner must know of the mistaken belief of the other person of his right; the owner must by his silence or have fraudulently encouraged the other party to spend his money to develop the land and had not called his attention to the error” Also, in the case of NII BOI V. ADU [1964] GLR 410 cited by counsel for the plaintiff, the conditions for finding estoppel by acquiescence was stated as follows:- “To establish acquiescence, under equity and customary law, five conditions must be satisfied, the person who enters upon another’s land must have done so in the honest but enormous belief that he has the right to do so; he should have spent money in developing the land, the actual owner must be aware of this person’s entry upon the land and his mistaken belief which is inconsistent with his ownership, and finally he should have fraudulently encouraged his development of the land by not calling his attention to the error”. In this case the plaintiff testified that the Craft Centre was built by the Department of Housing and Planning Research of the Kwame Nkrumah University of Science and Technology through a grant from Oxfam, UK for the Wonoo Community. This was at a time the defendant was the Chairman of the Town Development Committee. Further, with this position taken by the plaintiff, the evidence of DW1, disclosed that the defendant was also involved in other projects in the community when he answered as follows; - In all other projects that you mentioned, was Nana Asante involved? He was in charge. Q. A. On claims made on behalf of the community for the Craft Centre, DW1, Mensah Boateng, did testify about twenty years ago having heard about a claim of the centre for the community as testified under paragraph 11 of his witness statement and under cross examination, at page 276, testified as follows:- “Later, after the Craft Centre had been constructed, a native of the town went to the university and came back with information that he had found some documents in the library stating that the Craft Centre belonged to the community as Tech had built it”. This evidence before the court presupposes that apart from the adverse claim made 20 years ago, there had been yet another request to account but defendant failed to do so. Then followed by the claims made after the report was found at the university on the subject. As a result, DW1 stated a durbar was held for which the subject of ownership was discussed by Dr. Powell, brought by Nana Asante Frimpong. This, durbar held was necessary to explain the challenge to the ownership by the defendant. Therefore, there is evidence per the record to support the trial court’s finding that the defendant’s possession has not been peaceful and without an adverse claim to the community. Furthermore, that funds for the construction was from Oxfam is not disputed. It cannot be said that defendant has been encouraged to develop the land by spending money on same. The record abounds that, the defendant at the time of the development was the chairman of the Wonoo’s Town Development Committee and acted in the interest of the Wonoo community. GROUND 2 That the Magistrate erred when she believed and relied on the contradictory and uncollaborated evidence of the witnesses of the plaintiff. In proving his claim, the plaintiff testified by three witnesses, namely Andrews Obeng Agyemang (PW1) Yaa Asantewaa PW2 and Dr. Michael (PW3). Firstly, on the ownership of the disputed property, the plaintiff’s evidence per PW1’s witness statement and supplementary witness statement as found at pages 5-8, 109-110. PW1, Andrews Obeng Agyemang tendered Exhibit “B” found at pages 98, 99 and 100 of the Record of Appeal (ROA), discloses that as part of the Ashanti Villages Craft Development project, the Craft Tourist Centre at Wonoo has been described in T. C. C’S Annual Review No. 3. 1974/75 and No. 75/76 as funded with grant from Oxfam – UK and estimated to Cost GH¢25,188.27, constructed by Department of Housing and Plaining Research of the University labour was recruited from Wonoo. The Exhibit “B” also discloses that the chairman of the Wonoo Development Committee, Mr. Edward Asante Frempong, and members offered various services to keep the project running and hoped that they will continue to manage the Centre to achieve its objectives. The Exhibit “B” also acknowledges that there has been no formal handing over of the project to the community. Further, PW1 testified that the land on which the project is situate was freely given by the community. PW3 the then Director of Technology Consultancy Centre, KNUST, corroborated PW1’s claims that the Craft Centre was built for the Wonoo community with a grant from Oxfam, UK. Under cross examination PW3 emphasized as follows:- Q. I put it to you that this project which resulted in the Sakaro Wonoo Craft Centre is a sole private project. A. Not correct. From the letter it appears to be a joint project between Asante Frimpong and Powell with Technology Consultancy Centre as the medium Technology Consultancy Centre is part of the University and by our operations, we support community-based projects. We sometimes identify a person who can lead in the implementation of the project but not solely for the person. That has been the practice so far as I have known Technology Centre for over 25 years. Q. If some monies are given to an individual to build in a community, does it deviate from the Policy of the Technology Consultancy Centre. A. From all the dealings of Technology Consultancy Centre, it has never been so. Projects are established in communities where necessary and an individual with entrepreneurial skills is identified and made to lead the implementation of the project”. PW3 in concluding his testimony under cross examination emphatically stated that it was a Technology Consultancy Centre project implemented in Sankara Wonoo. In the written submission of counsel for the defendant, he referred to email messages between PW3 and Dr. Powell and same tendered through PW3. The impression gathered from these emails are that the T. C. C and defendant where soliciting information from Dr. Powell on the ownership of the Wonoo Craft Centre. These emails are found at pages 175 to 122 of the ROA Dr. Powell gave responses on stating that, the client was not the Sankara Community, that was not a designation I could have recognized”. See page 175 of the ROA. At page 117, Dr. Powell expressed himself inter alia as follows:- “As I said before, when the Wonoo Craft Centre was built, in the mid- 1970’s, I dealt only with Nana Asante Frimpong. I do not know or remember how ownership was registered at the time and I trusted Nana to make best arrangement for the village (emphasis mine). If he registered the property in his own name, I can see no problem with that. The building remained in the village and was used to benefit the community, mainly through tourism and preserving craft industries. So, I would be happy if the Craft Centre remains in Nana’s hands because I fear that others might not protect the villager’s interest as Nana has done over the past 40 years” (emphasis mine). At page 118 the ROA Dr. Powell also stated among others as follows:- The documents show that the project was caried out jointly by the TCC and Wonoo Ventures Ltd. Nana Asante Frimpong’s company. There was substantial financial contribution from Wonoo Ventures Ltd and the funds from Oxfam were used by TCC to supplement this investment. The TCC and UST provided the technical input of planning, design and construction. I can now state with some authority that the Wonoo Craft Centre started life as the property of Wonoo Ventures Ltd. And I know of no later change in its status. However, I must state I have no knowledge of any steps taken to register the ownership of the property, either by customary law of national law, and I understand that since registration, if existing should be the deciding factor”. Also, at page 119 of ROA, Dr. Powell’s email dated March, 15, 2016 stated “I have had a chance to study some of the documents, written during the time of project and now have no doubt that the Wonoo project was for Wonoo Ventures Ltd. Nana Asante Frimpong’s company bore much of the cost both during and after the TCC project and Oxfam funds were used to assist the company in establishing the project for Sakora – Wonoo Village, since the original building was completed, Wonoo Ventures Ltd. have paid for extensions to the building providing, provision of services (water) and furniture (100 chairs) to support large meetings. I have no doubt that the moral owner of the Wonoo Craft Centre is Wonoo Ventures Ltd. I hope the legal ownership will now be established. At page 120 of the ROA, a request to Dr. Powell was made for provision of answers to specific questions, namely • When the Centre was built • By whom • Who are the stakeholders • For what purpose was the Centre built • Any change of ownership • The current owner by Michael Kwadwo Adjaloo. To this email, Dr. Powell answers are found in the email message at page 121 of the ROA as follows:- “Here are the answers to your question. The Wonoo Centre was built in the early 1970s, starting, I believe, in 1972. It was built by the Professor Abloh’s department of the faculty of Architecture, KNUST. The purpose of the Centre was to demonstrate the making of craft products and make sales to tourists. The client of the TCC was the Wonoo Development Committee of which Nana Asante-Frimpong was the chairman. I am not aware of any subsequent change of ownership but we were never informed of the legal status of the building. I am not in a position to say who the current owner might be. As I have said before, I was never informed of the precise legal ownership of the building. It seems to me that Nana and his company, Wonoo Ventures Ltd. were managing the Centre on behalf of the village. At that time Nana had one or two buses and was running tour of the Craft villages. It was and is the role of the TCC to provide technical support to projects, not to assign ownership which is a legal issue handled by the authorities. If Nana lays claim to the property, he should be able to show legal documents supporting that claim, and likewise the village. If no ownership was ever properly established, this is the fault of the parties concerned and not an issue for TCC. I feel you should disengage yourself from this matter and let the villagers sort it out in court. I cannot see how the TCC or the University can be blamed if clients fail to register ownership. If neither party has any documentary proof of ownership, presumably the property reverts to the stool, but I am no authority of customary law. Carefully, reading through the emails, as copiously set out, they are suggestive that the project was set for the benefit of the community, with defendant as chairman of Wonoo Development Committee. Dr. Powell’s statement of not dealing with the community at large does not constitute a denial of this fact but re-enforces PW3’s testimony of dealing with one focal person which in this case was the defendant who had a business Venture, Wonoo Ventures Dr. Powell stated as well that, defendant managed the Craft Centre with its company. Where the defendant contends otherwise, this is a question of proof. The evidence, emphasizes a grant made to TCC and the claim of loan to defendant and repayment. The trial court found that the receipts Exhibits 18 “C” 18”D” do not disclose the purpose of the payment. The court also observed that defendant had dealt with TCC and acquired bricks to build his house. Rightly so, to conclude that the receipts were for a loan payment would be highly speculative. I also noted that the trial court also considered defendant’s Exhibit “16”, found at page 171 of the ROA. In Exhibit “16” - a letter addressed to Dr. John Powell, there is an enquiry about whether the three committees received a grant of ¢3,500. The letter further stated Edward states that Wono Ventures was never financially involved with the project but that TCC handled it all. What caused this change from the original plan. As you know, Oxfam hopes to encourage responsible and collective decision making grants and loans directly to village groups. Further, on the issue of the land for the project, the land was provided by the village per a committee. Where the defendant claims a grant was made to him, it is for him to prove same. The settled principle of law as established where a person asserts title to land and on whom the burden falls, must 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 the standard of balance of probabilities that the party should be entitled to the claim. See the case of MONDIAL VENEER (GH) LTD. V. AMUAH GYEBU XV [2011] 1 SCGLR 466 at 475, ADWUBENG V. DOMFEH [1996 – 1997] SCGLR 667 at 669. What evidence did the defendant offer for the land on which the Craft Centre was built? DW1, a member of the Wonoo Development Committee then answered under cross examination as follows:- “Yes, I was a member of the Town Committee of Wonoo about 40 years ago. At one of our meetings, Nana Frimpong came to inform us that he needed a piece of land to undertake a project by his company i.e. Wonoo Trading. We informed him that even though we are in charge of land alienations in the town, the open space that we had left in the town could not be used and so we should go and see the chief. We went into further discussions and Nana Frimpong told us that if we permit him to establish the business, he would give us 10% of the profits of the business. We all went to see the chief at his palace and explained”. DW2, David Benefo, acknowledging that defendant was the chairman of the Town Development Committee testified per paragraph 10 of his witness statement that “Nana Asante Frimpong (deceased) was the person who acquired the plot and began the construction”. DW2, under cross examination at page 293 of the ROA testified on the land as follows:- Q. Does the late defendant have any title document(s) in respect of the Wonoo Craft Centre. A. That is so. During that time, it was the Town Development Committee that was in charge of allocating lands. Any prospective purchaser, this had to apply to them and if the land was granted to him, payment would be paid and the chief’s portion would be handed to him. At the time, no allocation paper was executed for any purchaser, so all those who purchased lands at the time have no allocation paper. The deceased went through the same process. Danies Yaw Gyamfi substituted defendant, testified on the acquisition of land by the deceased as follows:- Q. Can you tell the court whether there is an allocation note in deceased defendant name or that of his company in respect of the Craft Centre. A. There is none. It is because at the time 90% of all those who acquired their land did it through the Town Development Committee and were not issued with an allocation paper. Q. I suggest to that way back in 1956, there was allocation note issued to purchasers A. Q. of land of Sakora Wonoo. Not correct. Take a look at this document, it is a receipt for a Sakora Wonoo Building Plot in respect of Kofi Brobbey in 1956. A. Q. That is so. If indeed the deceased purchased the plot, he would have had a document at least a receipt to show that he had purchased the plot. A. That is so. The defendant (deceased) has no document showing that he acquired. This is because at an Easter Convention, he had already informed the town of the project, that is why the town thought about it and decided not to take any money from him. This was in 1975”. From the evidence there is no documentation of a grant of land made to the deceased on land the Craft Centre is situate. Though DW3’s evidence is suggestive that defendant had document and also purchased the land. Infact, defendant per his relief (a) does not even state the size of land or its boundaries except land claim title to property designated the Craft Centre at Sakora Wonoo including the vacant plot surrounding the Center where there were documents on the land the description would be disclosed. Where there was a purchase, there would at least be a receipt. The claim of gift seems to be what the defendant seeks to now emphasize. Thus, no payment was made. The claim of the chief objecting to the project is unfounded as his reaction was a reasonable one as stated by the trial court where drinks were given as alleged by defendants to the chief, the enquiry on the project would not have been made. It is for the foregoing reasoning that I find the finding of the trial court that, the defendant did not acquire any land by way of a gift or purchase as borne by the evidence. The trial court had also reasoned that, the defendant at the time of the project was the chairman of the Town Development Committee, in order to avoid conflict of interest and claims of undue influence, it was necessary for him to have acquired this land by way of purchase or a clear gift. I must commend the effort of learned counsel for the defendant in this appeal for the industry put in seeking to set aside the judgment of the District Court Mamponteng. But I do not find them persuasive enough to come to a different conclusion so reached by the trial court. For all the foregoing reasons, I find that the trial court properly appreciated and evaluated evidence on record and ascribed to it, proper probative value, thus arriving at the conclusion reached. In the circumstance, I find that the judgment of the trial court need not be disturbed. Consequently, the appeal is dismissed. Cost of GH¢10,000.00 awarded against the Defendant/Appellant. [SGD] JUSTICE HANNAH TAYLOR (MRS) JUSTICE OF THE HIGH COURT LAWYERS KOFI BOATENG PEPPRAH PLAINTIFF/RESPONDENT MUJEEB RAHMAN FOR DEFENDANT/APPELLANT 18