BOABAE VRS YALLEH (E1/4/2020) [2023] GHAHC 429 (30 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, WESTERN REGION, SEKONDI HELD IN SEKONDI ON THURSDAY THE 30TH DAY OF NOVEMBER, 2023 CORAM: G. K GYAN-KONTOH ‘J’ JUSTICE OF THE HIGH COURT BETWEEN: MAAME BOABAE AKWIDAA vs SUIT NO. E1/4/20 ::: PLAINTIFF NKETSIAH YALLEH AGONA JUNCTION ::: DEFENDANT JUDGMENT: THE PLAINTIFF issued out of the Registry of this court, a civil writ of summons against the Defendant for the following reliefs: i. Declaration of title to plot of land measuring 0.17 acres situate and lying at Domeabra near Agona; ii. Perpetual injunction restraining the Defendant herein either by himself, his servants, agents, workmen, assigns, etc. from having anything to do with Plaintiff’s said plot of land; iii. An order declaring any purported grant of writ of possession to the Defendant in respect of the said plot of land as null and void; iv. Costs inclusive of legal costs. The writ of summons was accompanied with a 14 paragraphed statement of claim. The Defendant entered appearance and filed a 10 paragraphed statement of Defence. After a reply and the time limited for pleadings had closed, an application for direction was filed on 09/11/2020; and on 12/2/2020, the following issues were adopted as issues for the determination of the matter thus: a. Whether or not a judgment properly so-called has been pronounced in respect of the disputed land? b. Whether or not the disputed land was properly acquired and has been effectively occupied till date? c. Whether or not the Defendants has any claim to the disputed land? d. Whether or not the Plaintiff is entitled to her claim? e. Any other relevant issue(s) arising out of the pleadings. Additional issued were filed thus: a. Whether or not the subject land has been a subject of previous litigation; b. Whether or not judgment was given in favour of the Defendant; c. Whether or not the Plaintiff is estopped from relitigating same. Further to the above, parties were directed to file their respective witness statements and the matter adjourned to 12/3/2020 for Case Management Conference. PLAINTIFF’S CASE: The Plaintiff who testified through her attorney stated that in 1987, his principal relative Kwansere Yaaba acquired a plot of land from the stool of Agona at a place known as Domeabra, a suburb of Agona Nkwanta then an undemarcated area which then measured 0.17 acres and shared boundaries with Gyambia, Maame Yaaba, Auntie Ama, Ayeibu, Kwame, Auntie Nketiaba and which eventually was numbered as Plot No. 298. Upon going into possession, the late Kwansere Yaaba put up an eight rooms of swish thereon. The 2 rooms collapsed in the course of time. Later, Kweku Donkor, Kwansere Yaaba’s child also put up two additional buildings on a portion of the land and he still lives there up to the present. In 2013, when the Defendant who had succeeded his uncle Adjovia Kwame in the process of setting up a school on the uncle’s portion, sued two of Kwansere Yaaba’s children and won same. The Plaintiff states that the Kwansere Yaaba’s land is different from the Defendant’s land. The Plaintiff stated that the Defendant never sued the customary successor to Kwansere Yaaba and that the disputed land is the property of Kwansere Yaaba. The Plaintiff’s case was supported by the evidence of Ebusuapanyin Nana Odoom (PW1), he being a member of the Royal Anona family of Agona Ahanta. PW1’s evidence who testified as having, on behalf of the stool been the grantor to both parties in the case actually corroborated the evidence of the Plaintiff to the effect that the land in dispute is for Kwansere Yaaba and that the Defendant land’s is different. DEFENDANT’S CASE: The Defendant stated that he acquired plot no. 298 at Agona Nkwanta from Nana Tayena in 1985 and later put on a dwelling house. The Defendant states that his land was trespassed upon and the chief of Agona later gave the Plaintiff a replacement but they later on failed to move out and so the Plaintiff instituted a civil action against them in a suit titled: Nketsia Yalley vs. Madam Mokoa & anor. The Defendant states that the initial suit was not determined conclusively and so a different suit was filed against him with the title thus: Opanyin Mikraba & anor vs. Nketsia Yalley. The Defendant states that the suit was struck out and an appeal against the said decision was also dismissed by the High court. The Defendant states that all this while, the present Plaintiff sat and stood by for the suits to proceed and so cannot relitigate the matter as same amounts to an abuse of the court process. The Defendant prayed for the suit to be dismissed. SUBMISSION OF ADDRESS BY COUNSEL FOR THE PLAINTIFF: In FATTAL v. WOOLEY [2017-2018] 2 GLR 1070, the Supreme Court speaking through Wood CJ stated as follows: “It is sound learning that the courts are not tied down to only the issue identified and agreed upon by the parties at pre-trial. Thus if in the course of hearing, an agreed issue is clearly found to be irrelevant, moot or not germane to the action under trial, there is no duty cast on the court to review evidence and adjudicate upon it. The reverse is equally true, if a crucial issue is left out but it emanates from the pleadings or the evidence led at the trial, the court cannot refuse to address it simply because it was not included in the agreed issue.” The Apex Court had earlier in the case of SMITH v. BLANSON [2007-2008] SCGLR 374 stated that it is indeed the duty of the court to admit ONLY issues which are central to the determination of the matter. Fortified with the above, I shall attempt to handle only the germane issues for the determination of the matter as there are also additional issues raised by the Defendant in the case. In civil matters and by our law of evidence, the position is that the burden of proof is on the person asserting the fact in issue with the evidential burden shifting as the justice of the case requires. See: POKU v. POKU [2008] MCRG 1. See also S.11 (1) and S. 12 (2) of the Evidence Act (NRCD 323) on which there is a plethora of cases including the following: a. GIHOC v. HANNA ASSI [2005-2006] SCGLR 458 b. ODONKOR v. AMARTEY [1992-1993] 1 GBR 59 c. TUAKWA v. BOSOM [2001-2002] SCGLR 61. In the instant suit, both parties have a common grantor, the Royal Anona family stool of Agona. The Plaintiff in this case traces his root of title to his predecessor, Kwansere Yaaba who obtained a parcel of land from the Agona stool in 1987. See paragraph 2 of the Plaintiff’s witness statement filed on 07/7/2020 thus: “2. Sometime in 1987, the late Kwansere Yaaba acquired a plot of land from the stool of Agona at a place popularly called Domeabra, a suburb of Agona Nkwanta.” From the evidence, the Plaintiff did not state that he ever shared boundary with the Defendant. All that the Plaintiff stated was that in 2013 the Defendant who had succeeded his uncle Adjovia Kwame was constructing a school on his uncle’s plot and so sued two of the children of Kwansere Yaaba in respect of Yaaba’s land aforementioned. From the evidence of the Plaintiff who is an attorney to the Plaintiff, one would quickly conclude that the Defendant is a busy body and a pure trespasser seeking to cause trouble to the Plaintiff’s relatives by taking away their land. It is PW1, Ebusuapanyin Nana Odoom from the Royal Anona family of Agona who testified and added meat to the terse evidence of the Plaintiff. PW1 evidence proved that the Agona stool was a common grantor to both parties and that whereas Kwansere Yaaba was granted a parcel of land by the stool, the stool in 1987 also granted an adjacent land to the Defendant herein through the Defendant’s elder called Adjovia Kwame, at a time the place had not been demarcated. Paragraph 3 of the Plaintiff’s witness statement stated the Defendant (Adjovia Kwame) is not a boundary owner. (See Exhibit B too); “3. The part acquired which measures approximately 0.17 acres share boundaries with the properties of Gyaniba, Maame Yaaba, Auntie Ama, Agyeibu Kwame and Auntie Nketsia.” The original Kwansere Yaaba is deceased so it is quite difficult whether by the description of “Agyeibu Kwame”, it is referable to “Adjovia Kwame”. Thus, if the above description means the same person, then it means that the Defendant who is related to Ajovia Kwame is a boundary owner of the Plaintiff. For the sake of this case, Agyeibu Kwame is referable to the Defendant’s elder brother. The evidence clearly supports the above position by the court particularly the evidence of the common grantor, PW1 and also the case of the Defendant. Paragraph 9 of the Defendant’s witness statement stated thus: “9. When the matter got to Nana Tayena, he granted the Plaintiff a plot of land so to enable them move out to enable me have the quite enjoyment of the subject land.” Indeed, it is the Defendant’s case that the predecessors of the Plaintiff at a point in time instituted civil actions at different times in respect of the very subject matter now before this court (See paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Defendant’s witness statement). The Plaintiff could not state the plot number contending that the area has not been demarcated as at then. This position was contradicted by PW1 with the following cross- examination thus: Q: When the land was first given to the Defendant, it had been already demarcated into plots? A: True. The evidence is that the Plaintiff is related to Madam Morkwa, Papa Donkor as his niece and nephew. The Plaintiff admitted that Morkwa and Donkor instituted a civil action against the Defendant in this case in the District court in respect of this land thus: Q: Do you know Madam Morkwa? A: I know her. She is my niece. Q: Do you know Papa Donkor? A: Yes, he is my nephew. Q: Are you aware that Madam Morkwa and Papa Donkor were sued by the Defendant at the District court Agona Nkwanta in respect of this land? A: Yes, I am aware. Q: And in that case, judgment was given in favour of the Defendant. Are you aware? A: It is true the judgment went in favour of the Defendant but it was because the documents to our land was not in our custody. It was with an uncle of ours. The above clearly is an admission that the subject matter has been litigated upon by a court of competent jurisdiction. The law is that when a party makes an averment and the averment was not denied, no issue is joined and no further evidence needs to be led in that averment. See: a. APPIA v. ASARE [2019-2020] 2 SCGLR 828 b. LINDA AKOTO v. BRIGHT KWASI MANU [2022]175 GMJ 457, S. C The above clearly proves that indeed the matter has been adjudicated upon by a court of law. The above admission corroborates the Defendant’s case that the subject land has its title determined by a court of law. The law also is settled that where the evidence of a party on an issue is corroborated by the evidence of his opponent’s witness, while that of his opponent on that issue stands uncorroborated, the court is to prefer the evidence of the party whose evidence has been corroborated by his opponent’s witness; unless for some good reason, the court find the corroborated evidence impossible, incredible or unequitable. See: a. ADOMSON v. TETTEH [2013] 59 GMJ 62, C. A. B. MANU V. NSIAH [2005 – 2006] SCGLR 25 c. TONADO ENTERPRISES LTD v. CHOU SEN LIN [2007-2008] 1 SCGLR 135. Besides the above, the trump card of the Defendant is that this litigation has been the subject of litigation in two previous suits (see: paragraphs 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the witness statement of the Defendant. (See also Exhibits 1,2 &3). In those suits one of which ended at the High Court on appeal, same was dismissed and thus went in favour of the Defendant. This explains the reason why the Defendant filed additional issues contending that the subject land has been a subject of previous litigation and judgment given in favour of the Defendant and thus the Plaintiffs are estopped from relitigating same. One may wonder why the Defendant did not raise the issue of res judicata. The Defendant preferred to raise as a defence of estoppel. In my view, estoppel relates to a conduct or declaration by a party on which people have denied and as a result have changed their position. Estoppel tells a party to keep his mouth shut as a result of his previous acts or declarations. Thus, estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who relying upon them has altered his position. It thus shuts the mouth of a party. See: BASSIL v. HONGER [1954] 14 WACA 569 at 572. One important feature of estoppel by conduct is that the person invoking it must plead and further lead evidence to prove same. This is what the Defendant sought to do successfully. And I am convinced by the evidence adduced that the Defendant pleaded estoppel copiously and proved same with Exhibits and by the standard of proof in our civil procedure on evidence, which is by a preponderance of the probabilities the Defendant has successfully been able to discharge that burden. What is more, the Defendant’s Exhibit 1& 2 show that the plot in dispute is Plot No. 298 which the Plaintiff’s predecessors used to describe the subject in the previous suits. The Plaintiff was not able to state the plot number. The Plaintiff stated that the land has not been demarcated, yet his witness (PW1) maintains that the area has been demarcated. (See cross-examination of PW1 in the records of proceedings). Again, the court takes note of the inconsistencies and contradictions in the Plaintiff’s case in general which cumulatively become fatal to the Plaintiff’s case. For instance, the Plaintiff pleaded (see paragraph 3 of the statement of claim) that Kwansere Yaaba acquired the land in 1987. Yet in cross-examination at page 3 of the records of proceedings, the witness stated thus: Q: You stated your successor acquired her plot of land in 1987? A: I cannot recall the year. It has been a while. She acquired it from Nana Agona. Q: Per Exhibit B, Kwansere Yaaba acquired the plot in 1987? A: I cannot tell that was the year she acquired it. She acquired the land long time ago. Very sadly, Exhibit B is the main stay of the Plaintiff’s case as the basis of her case against the Defendant which the Plaintiff relied on and used same as an Exhibit to prosecute his case against the Defendant. Yet, he maintained the same position when more opportunities were availed to him to have a look at Exhibit B to answer. And he was evasive and unconnected to the answer. It is settled on inconsistencies, contradiction and others in the case of OBENG v. BEMPOMAA [1992-1993] GBR 1027, per Lamptey JA in holding thus: “Inconsistencies, though individually colourless may cumulatively discredit the claim of the proponent of the evidence. The conflicts in the evidence of the Plaintiff and his witness breached the merit of his case and proved fatal of his claim.” Aside the above which dealt a blow to the Plaintiff’s case, he also admitted in cross- examination thus: Q: You were aware of the suit at the District court and did nothing about it, you cannot now institute this action? A: I did not have documents to that land yet, so could not have defended the action. So I decided to do so when I got my documents. Q: When did you acquire documents to the land? A: I got them when I instituted this action. Even though the last answer seems to bring a positive quality of the Plaintiff out as an honest person, it still weakens the Plaintiff’s case because per Exhibits 1, 2 and 3 which are all court records relating to the very land in dispute and involving the relatives of the Plaintiff and the Defendant in earlier courts, the matter actually commenced in the District Court as far back as 2013 up to 17/10/2019, before the Plaintiff had documents to commence another civil suit involving the same subject. This shows that all along, the Plaintiff’s predecessors were just beating about the bush and disturbing the Defendant for nothing. From the evidence above the parties and the subject matter in dispute, this instant action is about the third. Kwansere Yaaba herself never instituted any action against the Defendant in her life time. Her biological children never mounted any action against the Defendant on the subject, at least from the records, even though there is no evidence indicating that the children of Kwansere Yaaba, who according to the evidence are alive and occupying two rooms on the alleged part of the disputed land. All the cases have been representatives of Kwansere Yaaba – either niece, nephew or cousins, and it involves the same subject matter and the same Defendant. The courts abhore piecemeal litigation. See: (a) Naos Holding v. Ghana Commercial Bank [2011] 1 SCGLR 492, Holding 1 (b) Sasu v. Amua Sekyi [2003 – 2004] 2 SCGLR 742, Holding 3 @ 746. On estoppel from mounting fresh action, see the case of In Re Sekyi Dumase Stool; Nyame v. Kesse [1998 – 1999] SCGLR 476. Order 1 r 1(2) of the High Court (Civil Procedure) Rules, 2004, (C. I. 47) provides as follows: “(2) These rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matter in dispute between parties maybe completely, effectively and finally determine and multiplicity of proceedings concerning any such matters avoided.” Applying the above provision, I am of the humble opinion that the Plaintiffs, and for that matter the relatives of Kwansere Yaaba ought to be guilty of same. I am humbly of the opinion that clearly this amounts to an abuse of the process which must not be condoned at all. Therefore, on the preponderance of probabilities and in the case of Avadzinu v. Njona [2010] MGLR 105 – 119, CA, the following is what was stated: “In answering the balance of probabilities, all the evidence be it that of the Plaintiff or Defendant, must be considered and the party on whose favour the balance tilts is the person whose case is more probable of the rival person and is of the favourable verdict”. Therefore, from the evidence I find that there were judgments so-called and pronounced upon in respect of the disputed land as per Exhibit 1, 2 and 3. I find also that the disputed land is for the Defendant. The Plaintiff is therefore estopped by the above from re-litigating the matter. The Plaintiff’s action therefore fails on all the reliefs as endorsed on the writ of summons including, for the sake of avoidance of any doubts, reliefs (a), (b), (c) and (d). Costs of Gh¢10,000.00 to the Defendant as against the Plaintiff. SGD G. K GYAN-KONTOH (JUSTICE OF THE HIGH COURT) COUNSEL: 1. F. F FAIDOO FOR THE PLAINTIFF PRESENT. 2. S. K KESSE FOR THE DEFENDANT PRESENT. 14