ODURO VRS KAAH (A1/17/2022) [2023] GHADC 839 (27 October 2023)

Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah IN THE DISTRICT COURT HELD ON FRIDAY THE 27TH DAY OF OCTOBER, 2023 BEFORE HER WORSHIP VICTORIA VERA AKONU DISTRICT MAGISTRATE MARGARET ODURO Suing for herself and on behalf Of her Siblings Bibiani VRS. SUIT NO: A1/17/2022 PLAINTIFF AUNTIE AMA KAAH …………… DEFENDANT PARTIES: present _____________________________________________________________________________________ _____________________________________________________________________________________ J U D G M E N T The Plaintiff sued the Defendant on 29th April, 2022, for declaration of title and recovery of possession of a building plot situate, lying and being at Ohiammpenika a suburb of Bibiani, General damages and perpetual injunction restraining the Defendant, her agents, servants, assigns etc. from having anything to do with the disputed building plot after the final determination of the suit. The Defendant pleaded not liable to the Plaintiff’s claims and on 6th May, 2022, filed a counterclaim for the disputed building plot, general damages, e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah perpetual injunction and any further order(s) as the Court may deem just, fit and appropriate. Even though the Parties filed pleadings, evidence was orally taken in Court. THE CASE OF THE PLAINTIFF The case of the Plaintiff in summary as captured in her writ, statement of claim and evidence in chief is that her late father during his life time acquired the disputed land and built one room on it and lived in it before his demise. She avers that the Defendant was married to her father’s younger brother one Kwame Amoah and they were divorced two/three years before he also died. She testified that after the demise of her father, the family asked the Defendant’s former late husband to live in that room built on a portion of the disputed land. After the death of the Defendant’s former late husband, the family met and told her and her siblings that their uncle was no more. She avers that one day when she had gone to clear the weed from the disputed land then realized that the Defendant had deposited sand on the land. She then went to inform the customary successor of the Defendant’s former late husband who later informed her that he had asked the Defendant to stop whatever she was doing on the land as the land did not belong to her. Another time when she went to the land she saw that the Defendant had engaged the services of a mason who had dug foundation and so she also deposited sand on the land and the next day the Defendant had the foundation footings and it was filled with sand. Hence this action. e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah Evidence of PW1 She testified that she knows both parties; the Plaintiff’s father was her uncle and the Defendant was married to her uncle Kwame Amoah who was a brother to the Plaintiff’s father. Her evidence is that the Plaintiff’s late father acquired the disputed land before the Defendant married her former late husband and when the Defendant’s former late husband (Kwame Amoah) returned from his travel, he had no accommodation and so her mother asked the said Kwame Amoah to occupy the room built by the Plaintiff’s father on the disputed land. She said the Defendant’s father died about 7 years ago. Evidence of PW2 Her evidence is that one day her late mother was approached by the father of the Plaintiff who was living in another village and any time he comes to town he lives with her mother; that he needed land. So her mother informed one Papa Yaw Frimpong who was the Odikro at the time, to demarcate/grant land to the Plaintiff’s father. Eventually the land was granted to the Plaintiff’s father who offered one bottle of Kasapreko drink and an amount of now GHS20.00 of which she was even given GHS0.05. It is her evidence that the land that was granted to the Plaintiff’s late father was about one plot of land and the Plaintiff father could not build on the entire land that was granted to him as he only built one room on a portion of the land and lived in it until he fell sick and died. She stated that after the demise of the Plaintiff’s father, his younger brother (the Defendant’s former husband) came to live in the one room with his two e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah wives including the Defendant. She states that she shares boundary with the disputed land. THE CASE OF THE DEFENDANT The Defendant denied that the disputed land belonged to the Plaintiff’s late father. It is her case that the disputed land initially belonged to her father Opanin Yaw Frimpong, who gifted same to her and one of her children called Maa Adwoa also known as Elizabeth Amoah and they have been in peaceful possession where they exercised rights of ownership for the past 17 years at the time the writ was issued and that they have planted plantain on the land. In further denial, the Defendant states that the disputed land forms part of a larger track of land belonging to his father and upon humanitarian grounds her father carved a portion for the Plaintiff’s father who built one room on it and that land which her father gave to the Plaintiff’s father is different and separate from the disputed land. She states that her former husband succeeded the Plaintiff’s father after his demise and so they went to live in the room built by the Plaintiff’s late father until she was divorced from her husband and so she left the house. She states further that she did not build on the land that was gifted to her and her daughter because it is now that she has gotten money to do so. She avers that the Plaintiff is not entitled to the disputed land and so her case should be dismissed. e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah EVIDENCE OF DW1 The evidence of DW1 is that the disputed land belongs to the Defendant’s late father Opanin Yaw Frimpong who was the odikro of their town and that Opanin Kwadwo Ampensam (the Plaintiff’s father) went to the odikro that because he is old he should give him land for him to build and live in anytime he comes to town. He avers that the said odikro demarcated 6 pegs land to the Plaintiff’s father who built one room on that land. According to him the odikro then told him that he has given the front of the Plaintiff’s father’s land to his granddaughter, Maa Adwoa who was 8 years at the time and so Maa Adwoa planted cashew on the land when she heard that her grandfather had granted that portion of land to her. He states again that after the funeral of the Plaintiff’s father, it was agreed that his younger brother, Mr. Amoah lived in the one room built by the Plaintiff’s father. The late Mr. Amoah married the Defendant and the two of them moved to live in that room. It is his further evidence that it was after the death of the Plaintiff’s father that Mr. Amoah married the Defendant. That the odikro then told Mr. Amoah that he had given the space (land) in front of the room built by the Plaintiff’s father to his granddaughter Maa Adwoa and so he should look for money and build on it. Unfortunately, he could not build on the land before he also passed on. e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah APPLICABLE LAW/BURDEN OF PROOF From the reliefs endorsed on the writ of summons, the Plaintiff is seeking for a declaration of title to the disputed land, recovery of possession and perpetual injunction among other things. The Plaintiff has the burden to prove her case to the standard of probabilities according to law without relying on the weakness in the other party’s case. She has the burden to identify positively the boundaries of the land in dispute, isolated acts of ownership to show she has been in peaceful possession and when that burden is discharged, a declaration will be made in her favour. The Defendant also has a counter-claim. A counter claim is a different action in which the Defendant counter claimant is the Plaintiff and the Plaintiff in the action becomes a Defendant, in the instant case, where both parties were seeking declaration of title, recovery of possession and perpetual injunction in respect of the disputed piece of the land, each of them bear the burden of proof and persuasion to prove conclusively on a balance of probabilities, that she is entitled to the reliefs claimed. Thus section 11(1) of the evidence Act, 1975 (NRCD323) enjoins the defendant in her capacity as a plaintiff in the counter claim to introduce sufficient evidence to avoid a ruling on the issue against him. See SASU BAMFO VRS. SINTIM (2012) 1 SCGLR 136 AT 155 per ROSE OWUSU JSC The Plaintiff, by law has a burden to prove his case to the standard required in all civil actions, that is on a balance of probabilities. – Evidence Act, 1975 (NRCD 323) e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah Section 11 (1) and (4) provide as follows: - “for the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue” “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more Section 14 – Allocation of burden of persuasion “Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. The Plaintiff must adduce 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. The burden of persuasion in civil matters was explained by the Supreme Court in the case of GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD VRS. HANNAH ASSI [2005-2006] SCGLR 458 as follows: “(1) since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah the fact in issue (ODAMETEY VRS. CLOUCH [1989-90] 1 GLR 14; ODONKOR VRS. AMARTEI [1992-93] GBR 59, TUAKWA V. BOSOM [2001-2002] SCGLR 61). Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgment might be given in favour of a party on the preponderance of the probabilities ‘rather than on an archaic principle which might not accord with reason or common sense “. In the case of SAKORDIE VRS. F. K. A. CO. LTD [2009] SCGLR 65 @ 69 where it was held as follows: “It is also provided in the Evidence Act, 1975 (NRCD) Sections 11(4) and 12 as follows: “11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence.” Both parties in this suit have the burden to prove their cases on the above standard and principles Issues for determination: 1. Whether or not the disputed land forms part of the land granted to the Plaintiff’s late father? 2. Whether or not the disputed land was gifted to the Defendant and her daughter Elizabeth Amoah a.ka Maa Adwoa? ANALYSIS OF THE EVIDENCE TO THE LAW In resolving the above issues, I will analyse the evidence on the following:  The acquisition of the land by the Parties, e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah  Prove of boundary and which of the parties have been in peaceful possession of the disputed land. The Plaintiff herself did not lead any evidence on how her father acquired the disputed land however, she told the Court that it was her mother who told the then Odikro to grant land to the Plaintiff’s late father who lived in a village so the he could build and live in it anytime he comes from the village since it was a good idea that the Plaintiff’s father who stayed with her mother in the same room. Accordingly, one plot was then given to the Plaintiff’s late father gave one bottle of Kasapreko drink and paid now GHS20.00 and also built one room on a portion of the land and that she was even given GHS0.20 out of the money paid by the Plaintiff’s late father. This evidence of the PW2 was not challenged by the Defendant and under cross examination she told the Defendant that she has no land in the area. This is what transpired on 24th March, 2023 between the Defendant and PW2 Q: Do you remember that you have told me that opanin Papa Yaw Frimpong has sold the disputed land to your daughter Georgina? A: Georgina’s land is different and separate from the disputed land. Q: When one Yaa Mansah was about to place a container on the disputed land, didn’t you tell her that the place is for your daughter Georgina? A: That place is not closer to the disputed land. e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah Q: I am putting it to you that all that you have said is not true? A: I am telling the truth. Q: And that because I did not give you the disputed land, that is why you have come to testify against me? A: That is not correct. You have no land in the area. From this line of cross examination, if the disputed land was for the Defendant, she would have even confronted the PW2 when she alleged that the disputed land had been sold to her and she would have also given permission to the said Yaa Mansah to place her container on the disputed land as her way of controlling and being in possession of the disputed land. There is no evidence before this Court the size of land that was gifted to the Defendant as neither the Defendant nor her witness gave evidence to that effect. PROOF OF BOUNDARIES Both parties by their claim must prove the identity of the land they claim from each other. In the case NYIKLORKPO VRS. AGBEDETO [1987-88] 1 GLR it was held that: “To succeed in an action for declaration of title to land, recovery of possession and for an injunction, the Plaintiff must establish by positive evidence, the identity and the limits of the land which he claimed…” 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah The identity of the land, which the Parties claim from each other must be clearly defined. Whereas the Plaintiff describes the disputed land as lying, situate at Ohiampenika and bounded by the properties of Madam Akua, Mr. Cat, Attakrom-Aboabo main road and a street the Defendant also describes her land situate, lying and being at Ohiampenika and bounded by the properties of Mr. Cat, Nana Ase, Kwadwo Amponsem and Attakrom – Aboabo main road. It is trite that in an action for declaration of title, one must call a boundary owner to testify for her. The Plaintiff’s witness (PW2) who testified on 24th March, 2023, stated that “that the land that was granted to the said Kofi Ammpensam was about one plot. I share boundary with the disputed land” and this evidence was not disputed by the Defendant and she also failed to call any of the boundary owners to support her claim since she has a counter-claim. ACTS OF POSSESSION The evidence on record is that the Plaintiff’s late father built one room and lived in it before he died and the family of the Plaintiff’s late father allowed the Defendant and his late husband to live in that room until the said husband died and since then the Plaintiff had been weeding or clearing off weed and it was on one of such occasions that she saw that the Defendant deposited a trip sand on the land. 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah The Defendant in her counter-claim stated that she has been in possession of the disputed land ever since it was gifted to her and her daughter Elizabeth Amoah as they have planted plantain on the land since 17 years ago. Her witness the DW1 also stated on 9th May, 2023 when he testified that the Defendant’s daughter Maa Adwoa who was 8 years planted cashew on the disputed land when she heard that her grandfather father had given her the land. He also stated it was after the death of the Plaintiff’s father that Mr. Kwame Amoah married the Defendant and they moved to live in the room built by the Plaintiff’s father. This means that the Plaintiff’s father had already built on this land and had died. This is what transpired when DW1 was crossed examined by the Plaintiff. Q: You are saying the Defendant was not married to my uncle when my father built on the land. How can a child who has not been born be given a land? A: If a child is not born, her grandfather or mother who has any gift for him/her can still give it before his/her birth. This same witness not long ago testified that the said Maa Adwoa was 8 years when the land was gifted to her and now he is saying she was not born at the time. Whereas the Defendant says that she planted plantain on the disputed land, her witness also states that Maa Adwoa planted cashew on the land and under cross examination the Plaintiff suggested to him that it was not Maa Adwoa who planted the cashew. 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah On 4th April, 2023 when the Defendant testified she shifted from the land being gifted to her and her daughter Maa Adwoa to the land being given to her late former husband Kwame Amoah. This is what she said; “I later met and got married to Kwame Amoah which marriage was blessed with one child. So my father Yaw Frimpong gave this disputed land to Kwame Amoah and told him to build on it for that child and himself. Kwame Amoah did not do anything on the on the land before he died. Later Kwadwo Ampensem came to my father Yaw Frimpong and requested for land so that he can build and construct one room on it. So, my father granted him a place which is different from the disputed land. Kwadwo Ampensem built on the land which my father granted to him. The land which my father gave to my husband Kwame Amoah for our child, he did not build on it and that is the one I have started building on it”. The above evidence is inconsistent with the Plaintiff’s claim that the disputed land was gifted to her and her daughter Maa Adwoa and she planted plantain on the land gifted to them. Also under cross examination of the Defendant by the Plaintiff on 4th April, 2023 this is what transpired: Q: Your husband was in Cote D’Ivoire so when did your father give him the land? A: I cannot recollect when my father gave him the land but when I met him. 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah Q: In your evidence you stated your father gave your husband the land before my father built on the land? A: It was after I had given birth before my father gave my husband the land. It is my considered opinion that the Defendant has never been in possession nor exercise any act of ownership over the disputed land as she continue to be inconsistent with her case. I therefore find and hold that the disputed land forms part of the land that was granted to the Plaintiff’s late father. Whether or not the disputed land was gifted to the Defendant and her daughter Elizabeth Amoah a.ka Maa Adwoa Generally, a gift could be made of anything to anyone provided the subject matter is a self-acquired property of the donor. The Black’s Law dictionary defines gift as “the voluntary transfer of property to another without compensation”. Gift is also explained by Kwamena Bentsi-Enchill in his book titled GHANA LAND LAW – An Exposition, Critique and Analysis at page 360 as follows: “a gift is like a sale in which the vendor expects no price to be paid and asks for none. That is to say it is a voluntary transfer of title to another for no consideration. As in a sale, the donor must be the owner of the thing given, have the competence to transfer it and fully intend so to do, and purport to do so. If these conditions are satisfied, but the intended done refuses to accept the proffered gift, 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah then there is no gift. For a donee willing to accept the gift is needed for the making a gift; and an acceptance of some sort by the donee is necessary to complete the gift”. From the above the property given out must the self-acquired property of the donor, he must have capacity to give out the property (he must be of sound mind and must not be a minor) and the donee must accept the gift and under our customary law the donee accepts the gift by providing ‘aseda’ to the donor. The Defendant just stated in her claim that the disputed land was the self- acquired of his father without leading evidence. Granted without admitting that the land was gifted to the Defendant and her daughter, does this gift meet the established standard of gift as stated in the case of ABDUL RAHMAN VRS BABA LADI; CIVIL APPEAL NO. J4/36/2013, 29TH JULY, 2013 where it was held as follows: “on proof of gift inter vivos, counsel for the appellant cited three relevant decisions of this Court. ‘These are Mahama Hausa v. Baako Hausa [1972] 2 GLR 469; Asare vrs. Kumoji [2000] SCGLR 298; Akumsah vrs. Botchway & Jei River Farm Ltd. [2011] 1 SCGLR 288. The most important element of a customary gift that runs through these authorities and several others is that the gift must be offered and accepted and must be witnessed by somebody else other than the donor and donee. ‘Thus when the fact that a gift has been made is challenged, it will not be sufficient to state barely that a gift was made; you have to go on to show the occasion, if any, on which the 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah gift was made; the date; the time, if possible; the venue and most importantly, in whose presence it was made” Generally, a gift could be made of anything to anyone provided the subject matter is a self-acquired property of the donor. The Black’s Law dictionary defines gift as “the voluntary transfer of property to another without compensation”. Gift is also explained by Kwamena Bentsi-Enchill in his book titled GHANA LAND LAW – An Exposition, Critique and Analysis at page 360 as follows: “a gift is like a sale in which the vendor expects no price to be paid and asks for none. That is to say it is a voluntary transfer of title to another for no consideration. As in a sale, the donor must be the owner of the thing given, have the competence to transfer it and fully intend so to do, and purport to do so. If these conditions are satisfied, but the intended done refuses to accept the proffered gift, then there is no gift. For a donee willing to accept the gift is needed for the making a gift; and an acceptance of some sort by the donee is necessary to complete the gift”. From the above explanation the property to be given out must the self- acquired property of the donor, he must have capacity to give out the property (he must be of sound mind and must not be a minor) and the donee must accept the gift and under our customary law the donee accepts the gift by providing ‘aseda’ to the donor. 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah The undisputed evidence before the Court is that the entire land belonged to the Plaintiff and 1st Defendant’s late mother and that it is a portion which the 1st Defendant alleged to have been given to him that is in dispute. What this means is that before the alleged gift to the 1st Defendant, the land was self-acquired property of their mother even though all the documents covering the entire land is in the name of the DW1. The explanation both gave for the document bearing the name of DW1 is that she is the only daughter or female among them. Once the property is her self-acquired, then she can give it to whoever she wants. There is also no evidence on record to indicate that she was not of sound mind. In the case of ABDUL RAHMAN VRS BABA LADI; CIVIL APPEAL NO. J4/36/2013, 29TH JULY, 2013 it was held as follows: “on proof of gift inter vivos, counsel for the appellant cited three relevant decisions of this Court. ‘These are Mahama Hausa v. Baako Hausa [1972] 2 GLR 469; Asare vrs. Kumoji [2000] SCGLR 298; Akumsah vrs. Botchway & Jei River Farm Ltd. [2011] 1 SCGLR 288. The most important element of a customary gift that runs through these authorities and several others is that the gift must be offered 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah and accepted and must be witnessed by somebody else other than the donor and donee. ‘Thus when the fact that a gift has been made is challenged, it will not be sufficient to state barely that a gift was made; you have to go on to show the occasion, if any, on which the gift was made; the date; the time, if possible; the venue and most importantly, in whose presence it was made” There is no evidence before the Court that indicated when the alleged gift was made, the occasion, the persons who were present, whether the Defendant was taken to the land gifted to her, whether there were independent witnesses apart from the Defendant and donor, whether she performed any aseda etc. I therefore find and hold that disputed land was never gifted to the Defendant and her daughter Maa Adwoa. On the totality of the evidence adduced by the parties and their witnesses I find the evidence of the Plaintiff and her witness more probable than its non- existence. It is for these reasons that I will dismiss the Defendant’s counter-claim and enter judgment for the Plaintiff on her claims as endorsed on her writ of summons excluding relief 2 as she did not lead any evidence on that relief. I hereby enter judgment for the Plaintiff as follows: 1. Declaration of title and recovery of possession of building plot situate, lying and being at Ohiampenika and bounded by the 1 e g a P Bibiani District Court – Margaret Oduro vrs. Auntie Ama Kaah properties of Madam Akua, Mr. Cat, Attakrom – Aboabo main road and a street. 2. I award cost of One Thousand Five Hundred Ghana Cedis (GHS1,000.00) in favour of the Plaintiff and against Defendant. SGD. VICTORIA VERA AKONU DISTRICT MAGISTRATE 1 e g a P