BOATEMAA AND ANOTHER VRS. ANNOR (A1/05/23) [2023] GHADC 1317 (21 November 2023)

IN THE DISTRICT COURT KIBI, EASTERN REGION HELD ON TUESDAY 21ST NOVEMBER, 2023 BEFORE HER WORSHIP MRS. JULIET OSEI – DUEDU SITTING AS THE MAGISTRATE SUIT NUMBER: A1/05/23 ADUANA FAMILY OF AKYEM ASAFO PER THE FAMILY HEAD HANNAH BOATEMAA FIRST PLAINTIFF NICHOLAS SARKODIE DARKO SECOND PLAINTIFF VRS SAMPSON KWAKU ANNOR DEFENDANT JUDGMENT First plaintiff herein suing in the representative capacity described above, mounted the instant action against the defendant in this case on the 5th January 2023, for the following reliefs; “1. Declaration of title and recovery of possession to all that piece and parcel of cocoa farm land, measuring more or less 7 acres being at a place commonly known and called Taaben Akyem Asafo and bounded by the properties of; (a) Stephen Koranteng, (b) Ataa Owiredua, (c) Florence Ama Aboagyewaa and (d) Awotse Kwao. 2. Interlocutory injunction restraining defendant his assigns, labourers, workmen, agents, privies and servants etc., from having anything to do with the land until the final determination of the suit. 3. Costs.” The court upon consideration of the facts of the case, subsequently, ordered the second plaintiff herein, Nicholas Sarkodie Darko, to be joined to the suit as such. This decision was informed by Order 9 rule 5 of the District Court Rules, 2009 (C. I. 59.) The second plaintiff in his witness statement claimed an interest in the subject matter as the son of defendant’s deceased land owner hence the joinder and its resultant change in the title of this suit accordingly. Second plaintiff upon the joinder, opted to rely on all processes filed by first plaintiff on the reason that, hos story is no different from hers. The brief facts of the case per plaintiffs’ statement of claim attached to their writ, suo moto but subsequently adopted by the court, are that defendant having extended his cocoa farm onto the Aduana family’s land situated at Taaben, has willfully refused to share the proceeds therefrom with the family for over 18 years now. Defendant who disputed the facts as stated by the plaintiffs alleged that the farmland given to him by his landowner was 5 acres but not seven (7), and it was for the cultivation of a cocoa farm, by his own efforts 16 years ago. The farm was to be shared on Abunu basis after six (6) years. Upon the demise of his landowner therefore, he shared the first proceeds after the agreed period with his daughter, one Dora who is currently outside the jurisdiction. Defendant duly filed his statement of defence on these facts on the 18th April, 2023, after the parties failed attempt at settlement. He counterclaimed for his agreed share as covenanted with his deceased landowner or, a compensation in the sum of, One Hundred and Fifty Thousand Ghana Cedis (150,000.00), in the alternative. Generally, the onus of proof in civil trials as in the instant case, depends on the pleadings of the parties. As such; the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof, Faibi V State Hotels Corporation [1968] GLR 471, applied. And the standard burden of proof in all civil matters without any exception to land matters, is proof by the preponderance of the probabilities only, Serwah V Kesse [1960] 227 SC, referred. This is provided in sections 11(4) and 12(1) of the Evidence Act 1975 (NRCD 323.) Section 12(2) of the Act also, defines proof by a preponderance of probabilities to mean the degree of certainty of belief in the mind of the court by which it is convinced that the existence of a fact is more probable than its non – existence. The Supreme Court in the case of Bonsu V Kusi [2010] 16 GMJ 20 SC @ page 70, equally explained this civil proof as the conviction that evidence of certain facts carries in the mind of the judge or jury. It is not pre – ordained and has no objective existence, capable of discovery either by logic or analysis. What suffices in each case vary depending on the nature of the case and the person to whom the evidence is addressed. It should be noted that this same standard burden of proof is borne by a defendant who makes a counterclaim against the plaintiff in a cross – action as in the present case. Thus, the parties herein are required by law to prove their respective claims on the balance of probabilities within the meaning explained above. It should be noted that, first plaintiff after personally initiating this action, gave a power of attorney to one Collins Appiah to prosecute same on her behalf which he did together with second plaintiff (P2). At the trial of this case, first plaintiff’s attorney did not testify on her behalf but called a witness to do so. P2 testified on his own behalf and called no witness, and so did the defendant. At the end of the trial the following facts became undisputed as between the parties; 1. That the farmland, the subject matter of this dispute is a 5 – acre cocoa farm. The testimonies of all the parties clearly, state so in their respective witness statements. 2. That the said farmland was granted to defendant by his land owner, Opanin Mireku, now deceased. 3. Defendant’s landowner died around 2013. 4. That the farmland again, was an uncultivated land granted to defendant by his late landlord. 5. That defendant single – handedly cultivated same into the 5 – acre cocoa farm by his own strength and bore all other associated costs. 6. That defendant was therefore to use the proceeds from the farm for the first six (6) years to defray his expenses and thereafter, a sharing between him and his land owner in accordance with their terms of agreement. 7. That apart from the defendant, all the other witnesses to the exact agricultural tenancy agreement between defendant and his landlord are deceased. 8. That defendant does not claim ownership of the 5 – acre farmland, neither does he challenge the limits of the land in question as described by the plaintiffs in their statement of claim. The above facts apart, the issues to be determined by the court are; 1. Whether or not defendant has been in possession of the land for nineteen years without rendering accounts to anyone. 2. Whether or not the 5 – acre farmland granted defendant by his landlord is part of the Aduana family land. 3. Whether or not defendant’s counterclaim is maintainable against the plaintiffs. Now, to the first issue of how long defendant has been in possession of the land without rendering accounts to plaintiffs’ family. Plaintiffs in paragraph 7 of their statement of claim pleaded that defendant has been on the disputed land over 18 years, while defendant denied same and pleaded his duration on the land as, about 16 years. Plaintiffs’ witness (PW1), testified that defendant has been in possession of the land for 19 years without accounting on his work to anyone. Thus, the land was granted to defendant by his land owner in 2004. In fact, plaintiff’s attorney in cross – examination of the defendant suggested this very date to him but defendant disagreed, and stated 2008 as the year of the said grant. This is all that was said by PW1 by way of evidence in establishing the duration of defendant’s possession of the disputed land. The evidence of the second plaintiff (P2), however, states two different periods. It is noteworthy that P2 introduced himself as the biological son of defendant’s land owner. Though he was not privy to the tenancy agreement, between his deceased father and the defendant, he testified that his father subsequent to the said agreement, informed him about it. Hence, in paragraph 3 of his witness statement, he states definitely that the grant was made by his father about 18 years ago. He however, confuses his story when he testifies further in paragraph 9 of the same statement that, to the best of his knowledge and from the family, defendant has been on the family land for 19 years. The question then is, which of these two different years does P2 want the court to believe? The difference of a year may seem infinitesimal but relevant to this case in view of the accepted terms by the parties that, defendant was to cultivate and maintain the cocoa farm for the first six years for the sharing to be done thereafter. It is the defendant’s story to the contrary that, his land owner granted him the land in 2008 and that was when the whole agreement was made. No specific day and month were stated by him and he testified that he has been on the land for about 16 years now. Upon the demise of his land owner also, he has been rendering accounts to his daughter, Dora. He was sharing both foodstuffs and the proceeds from the sale with her before she travelled outside the jurisdiction. On her return to the jurisdiction in 2022 they agreed that her father’s equal share of the proceeds should be given to her. He therefore has her share of GHC 2,000.00, out of the GHC 4,000.00, realized in that year, still with him to be given to her on her next visit. According to plaintiffs however, the said Dora has denied any such meeting and the agreement therefrom with the defendant. Defendant tendered exhibit 1, a copy of the Ghana Cocoa Board, Cocoa Farmers’ Passbook was in support of his case. Per exhibit 1, though the year of issuance is not stated, the date of the first sale is, 22/10/12. Thus, as at 2012, defendant had started harvesting the cocoa. The weight of cocoa beans sold on that date is also stated as 60 kg. With the farm being at Akyem Asafo, with the less likelihood of the harvested cocoa being smuggled outside the jurisdiction, the above facts appear to accord with matters of common notoriety, in the cocoa farming industry. This is because, the facts above indicate that the first sale of the cocoa beans took place in October, 2012, about four years from 2008, the year of cultivation of the farm, per defendant’s evidence. For a 5 – acre cocoa farm, the quantity per the facts is more probable than the 8 years plaintiffs’ evidence seem to suggest in the light of exhibit 1. On the issue of accounts however, this court is convinced that defendant has indeed not rendered any accounts of his stewardship to either his landowner during his lifetime or any of his relations upon his demise after the 6 years, agreed by the parties. How could defendant leave P2 who is equally his landowner’s son and resident in the jurisdiction, to deal with his sister who is not available as a witness to verify his story? Besides, per defendant’s own testimony, the said Dora called him from overseas and instructed him to share the proceeds henceforth, with her siblings in Ghana which definitely includes P2, but he has blatantly refused to do so. Again, it is the unchallenged evidence of P2 that when his father fell ill midway into the agreement, defendant had not rendered any accounts to him as at that time. He was asked by his father to demand from defendant, the family’s portion of the proceeds realized from the harvested cocoa then, but defendant instead of the money brought to his father, a sack of foodstuffs. This court believes P2’S story because, the parties in the course of the trial, agreed that plaintiffs’ claim for interlocutory injunction be waived to avoid the cocoa farm being left uncared for. Consequently, the court ordered that defendant together with plaintiffs’ attorney, should harvest the ripe cocoa sell same for transparency, but defendant ignored the said order and did everything alone. So, defendant by his own showing has demonstrated that, he has never been, nor is willing to go into accounts with his deceased landowner’s relations. This is the impression created by the conduct of the defendant in this trial, despite his first 6 years ‘accounts free’, period. On the available evidence therefore, it is my finding that defendant has been in possession of the disputed land for about fifteen (15) years now, without rendering any account whatsoever to anybody. I now turn my attention to the issue of whether or not the 5 – acre farmland granted to defendant forms part of the Aduana family land. Plaintiffs herein are claiming declaration of title to and recovery of possession of a 7 – acre family land. In the case of Abbey and Others V Antwi [2010] SCGLR, 17, the court held that: “In an action for a declaration of title to land, the plaintiff must prove, on the preponderance of probabilities, acquisition either by purchase, or traditional evidence, or clear and positive acts of unchallenged and sustained possession, or substantial user of the disputed land…” Relating this to the case under consideration, plaintiffs in the instant case must establish these relevant factors, to succeed in their claim. As earlier observed in this judgment also, in spite of plaintiffs’ claim, the undisputed evidence of P2 and PW1 confirm that of the defendant to the extent that, the size of the farmland in contention is 5, but not seven acres. Again, all the parties accept that the 5 – acre farmland was granted to defendant to cultivate same into the cocoa farm, not by any of the plaintiffs herein but the late Opanin Mireku. It is further accepted by all parties that, the late Opanin Mireku made the said grant not in his capacity as a family head of the plaintiffs’ family at the time. Actually, plaintiffs averred in paragraph 3 of their pleadings that the family land was divided into two parts, one for defendant’s landowner, a member of the Aduana family for the cocoa cultivation for the family’s benefit. According to the evidence of P2, the land so granted to the defendant is a family land. This evidence was simply repeated by PW1 without any further clarifications or details on how the family came by the said land. And since, Opanin Mireku did not also place defendant in possession of the said land in his capacity as the then family head, there is no evidence of any clear and positive acts of unchallenged and sustained possession, or substantial user of the disputed land by the plaintiffs’ family. Plaintiffs’ evidence for this reason, remain a mere recitation on oath without more, of their averment of the family character of the disputed land, Majolagbe V Larbi [1959] GLR, 190, applied. It is defendant’s case however that, his deceased landlord gave him his personal farmland he had inherited from his mother, which is the 5 – acre land to farm on same. He was initially extending the farm beyond the 5 acres but first plaintiff herein stopped him on the reason that, the said extension was not part of his landowner’s land. The only landlord he has and has known in respect of the disputed land, is the late Opanain Mireku, hence his decision to deal with his surviving child, Dora upon his demise. He reported first plaintiff’s conduct to his landlord who then asked him to cultivate the five acres and no more. This is what defendant said in cross – examination by first plaintiff’s attorney; Q. When Opanin Mireku gave you the land and you started farming same, I came to warn you that you were trespassing into first plaintiff’s land but you said it was only Opanin Mireku you acknowledged as your landowner, is that not so? A. That is not true. Q. I suggest to you that, after working on the land from 2004 till date, you have not rendered accounts to anyone not even Dora as you allege because I called her for a confirmation and she denied any such accounts. A. I don’t know you nor the first plaintiff in respect of the disputed cocoa farm, because when Mr. Mireku gave me the land and I started weeding same, first plaintiff came to warn me that, I had exceeded the land of Mr. Mireku so I should stop which I did by limiting the farming to the 5 acres. I however reported the matter to Mr. Mireku and he had asked me keep to the 5 acres. Mr. Mireku then explained the situation to me that, though the land was initially a general family land, it has now been shared among the individual family members according to how far each person’s mother by her independent efforts and her own individual means, could farm. Each member now farms along; “ne Maame sekan ano”, to use the exact Twi expression used by defendant in his testimony. What this means is that, each member now farms the portion hitherto owned by their respective mothers who so reduced same to their self-acquired properties, through their own individual efforts. According to defendant again, his landowner then advised that he sticks to only his mother’s portion which is the 5 acres he had already weeded. Plaintiff subsequently gave the said portion he was extending the farm to, to another person who has since cultivated same into a cocoa farm for her. It is interesting to hear the attorney questions the defendant further, not in challenge of his answer but in confirmation of same. This is what transpired; Q. Where you said first plaintiff, Hannah Boatemaa gave to another person to farm does not belong to her but to another family member who asked her to work on it for him, I suggest that to you. A. I know nothing about that. From the above, it is obviously, true that, the otherwise family land has been shared as defendant is saying. P2’S evidence in cross – examination equally supports defendant’s evidence of the land being the bona fide property of his landlord, contrary to his own evidence – in – chief and that of PW1. This is what P2 said; Q. What specific land did your father inform you that he has given to me to farm? A. My father informed me that, it was his mother’s land which has been given to him that he was giving to you to farm. These were his exact words but I don’t remember the year he said this to me. However, when my father asked me to come for his share of the produce from the you, it was around, 2011 /2012. Per P2’S evidence above, the farmland given to defendant by his landlord was the latter’s bona fide property he inherited from his mother, just as defendant testified. The law is settled 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 , reiterated by the Supreme Court in; FKA Company Ltd. V Effah Sarkodie [2009] 7 G. M. J. 185 @ 190, referred. Since defendant’s case is accordingly corroborated by P2, with no recorded reason to the contrary, this court also accepts defendant’s version of the facts on this issue, and holds that the farmland given to defendant does not form part of plaintiffs’ family land. It is pertinent to state here also that, first plaintiff’s assertion that defendant extended his farming activities beyond the land of Opanin Mireku remains bare facts in her pleadings, since there is not an iota of evidence proffered by her witnesses in proof of same. Now to the final issue of whether defendant can maintain his counterclaim against plaintiffs herein. Defendant per his counterclaim is asking for a strict adherence by the parties to his original agreement with P2’S father or be compensated in the sum of GHC 150,000.00, in lieu of same. An interesting request indeed. After defendant has failed to account to his landlord’s children does it even lie in his mouth to ask for compensation? Anyway, since it has been held in this judgment that, the 5 - acre farmland is not a family land, first plaintiff as a family head, lacks the needed capacity to mount the present action against the defendant herein. P2 as the undisputed son of defendant’s late land owner and a beneficiary with an immediate interest in same, has the capacity to sue and be sued on behalf of his deceased father’s estate including the disputed land, in which the proceeds therefrom are obviously being dissipated by the defendant in this case. I say so irrespective of the fact that, P2 has not exhibited any letters of administration respecting his deceased father’s estate. The Supreme Court in the case of, Boya V Mohammed (substituted by) Mohammed and Mujeeb [2017- 2020] 1 SCGLR 997, held that, the beneficiaries of the estate and defendants in that matter had immediate interest in the property, the subject matter of the dispute and for that matter had capacity to defend and even sue for declaration of title, notwithstanding the fact that they had not obtained any letters of administration. This decision was subsequently concurred by the same court in the case of Bandoh V Apeagyei – Gyamfi and Another [2018 – 2019] 1 GLR 299, with a further clarification that, the above proposition of law is only fair and equitable in view of the interest created in the estate of beneficiary children, under the Intestate Succession Act, PNDC Law 111. On these authorities therefore, P2, can so sue for the reliefs endorsed on his writ of summons, as such, defendant’s counterclaim is equally maintainable against only him. The question however, is whether on the merits of this case, the said counterclaim should succeed? The unchallenged agreed term between defendant and his deceased land owner, was that he should farm the disputed land for 6 years and use the proceeds therefrom to offset, his cultivation cost. In actual fact, this has been the story of all the parties from the very inception of this case. There was no variation anywhere that the six years should start counting after the cultivation of the farm. The court will therefore not make any such consideration. Having already held in this judgment that the land was granted to the defendant with the said term of agreement in 2008, defendant’s 6 years expired in 2014. Hence, from 2015, defendant was to account to the children of his deceased land owner, since per his evidence, the said land owner died in 2013. They were to have gone into accounts for either the abunu or abusa sharing of the proceeds from the farm or the land itself as it would be agreed by them. I say so because, beyond the agreed term of the first 6 years, parties disagree on the other terms of the original agreement. While P2 maintains an abusa sharing of the proceeds from the sale of the harvest as what his father informed him about, defendant maintains an abunu sharing of the farm, that is the land itself. Defendant however failed to account to any of the beneficial children of the cocoa farm. His alleged accounts to Dora, is unsubstantiated as he failed to call her evidence in support of his allegation in the face of paintiffs’ vehement denial of same. Per exhibit 1 series also, the highest amount received from 2015 to February, 2023, is GHC 4, 414.80, dated, 14/08/16, with the lowest being, GHC 190.00, for 09/08/15. With these accounts, it will be unfair to grant defendant the GHC 150,000.00, compensation he is asking for in lieu of the sharing agreement. In the given circumstances, the only considered opinion of the court, reasonable enough to serve the justice of this case, is to grant P2 and his siblings the same length of time, defendant has so enjoyed the proceeds from the farm to their exclusion, and thereafter, a renegotiation for new terms of agreements between defendant and his new land owners. After all, per his own evidence, the sharing was to be on equal terms. Having solely enjoyed for the past nine years therefore, P2 is equally entitled to same. In sum, I enter judgment in this for the second plaintiff in accordance with the relief one endorsed on his writ of summons in respect of the 5 acre cocoa farm agreed by the parties. Second plaintiff is to so enjoy the proceeds from the afore stated farm for nine (9) years to the exclusion of the defendant, effective, December 1st, 2023. The second plaintiff after the said period should renegotiate with the defendant, any sharing arrangement thereto. The claim for interlocutory injunction is struck out, same having been waived by plaintiffs in the course of the trial. Let the amount of GHC 1,200.00 from the sale of cocoa deposited in this court by the defendant be released to second plaintiff accordingly. The case of first plaintiff is however dismissed for want of capacity. Defendant’s counterclaim, fails accordingly. Costs of GHC 10, 000.00, for second plaintiff and against the defendant. SGD H/W MRS JULIET OSEI – DUEDU ESQ DISTRICT MAGISTRATE 21/11/2023