OBIANI VRS. OBENG AND OTHERS (C1/60/2016) [2023] GHAHC 609 (10 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘6’ – GENERAL JURISDICTION – HELD IN KUMASI IN THE ASHANTI REGION BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON FRIDAY THE 10TH OF NOVEMBER 2023. ________________________________________________________________ CASE NO. C1/60/2016 AKUA OBIANI (DECEASED) SUBSTITUTED BY AKWASI ASAMOAH PLAINTIFF H/NO. PLOT 10 BLOCK ‘D’ AFRANCHO – ASHANTI VRS 1. DIANA OBENG 2. FELICIA POKUAH 3. AKWASI YEBOAH H/NO. PLOT 12 BLOCK ‘B’ AFRANCHO, KUMASI DEFENDANTS ________________________________________________________________ PLAINTIFF PRESENT 3RD DEFENDANT PRESENT, REPRESENTING THE 1ST AND 2ND DEFENDANTS ________________________________________________________________ JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 1 JUDGMENT I. INTRODUCTION [1] The original Plaintiff, Akua Obiani, instituted this action against the Defendants herein but during the pendency of the suit, Akua Obiani passed away. She was thus substituted by the present Plaintiff, who used to be the lawful attorney of the deceased Plaintiff, Akua Obiani. The Plaintiff thus sought the following reliefs jointly and severally against the Defendants: II. RELIEFS SOUGHT BY THE PLAINTIFF i. A declaration of title and recovery of possession of the all that piece and parcel of land and the building contained thereon thus plot no. 12 Block D Afrancho-Kumasi of which currently the Defendants are making adverse claims to same. (sic) ii. An order of perpetual injunction restraining the Defendants, their assigns, privies, agents, workmen and all manner of persons acting by them from interfering with Plaintiff’s ownership, enjoy and possessory rights. From the accompanying statement of claim, it appears the parties are related and belong to the same family, at Afrancho in the Ashanti Region and they all reside at Afrancho. Indeed, the Plaintiff confirmed that the Plaintiff and the Defendants are all members of the Afrancho Royal family. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 2 II. FACTS OF THE PLAINTIFF’S CASE [2] The case of the Plaintiff is quite simple. She contends that some time in 1968 the then Chief of Afrancho gifted a plot of land, plot no. 12 block D, Afrancho, which used to house the parties’ fetish shrine by name Kankamia, absolutely to the Plaintiff by virtue of the Plaintiff being a principal member of the Royal family of Afrancho. In confirmation of the said gift, the Plaintiff stated that the Chief issued an allocation note and site plan covering the disputed land in the Plaintiff’s favour. The Plaintiff then performed the requisite customary aseda ceremony to seal the gift. According to the Plaintiff, the adjoining land, where libation used to be poured for the Kankamia shrine was also gifted absolutely to the Defendants herein and the members of their family. [3] The Defendants are however now laying adverse claim to the Plaintiff’s plot of land, and all entreaties made to the Defendants to cause them to desist from pursuing their unlawful claims have proved futile. It is on account of these false claims that the Plaintiff stated she was compelled to institute the present action for an order of declaration of title and recovery of possession of the disputed land in the Plaintiff’s favour and against the Defendants. The Plaintiff thus duly listed the reliefs she sought against the Plaintiff on the writ of summons and as enunciated above. III. DEFENCE & COUNTERCLAIM PUT FORTH BY THE DEFENDANTS [4] In their defence and as is usually the case, the Defendants denied the Plaintiff’s assertions of ownership of the disputed plot. The Defendants however admitted that the parties all belonged to one extended family at Afrancho; but it was not a Royal family. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 3 The Defendants proceeded to describe the relationship between the parties by asserting that the Plaintiff is not from the Defendants’ immediate family but rather from the extended lineage of Abena Kwabena whiles the Defendants are from the lineage of Akua Aboraa. The Abrafi lineage makes up the third lineage in the unit, representing the extended family of the parties with its three distinct lineages. [5] The Defendants further contended that the disputed plot was originally acquired by the granduncle of 1st and 2nd Defendants, one Nana Yaw Barima sometime in the 1930’s. According to the Defendants, the said Yaw Barima was the one who brought the Kankamia fetish to Afrancho and settled same on the land in dispute. Another fetish by name Asoeye was settled on the land presently occupied by the Defendants. After the death intestate of the said Yaw Barima, the disputed plot became the property of the immediate maternal family of Nana Yaw Barima. The Defendants thus stated that their mother was the last surviving female sibling of Nana Yaw Barima and as a result became the sole and absolute owner of the disputed property in line with their family custom and practice, as Akans who are matrilineal. [6] The Defendants continued to state that their mother’s ownership of the disputed land had never been challenged by any of the family members as same is common knowledge. [7] The Plaintiff was however originally resident at Hemang and later came to Afrancho to stay with the Defendants’ mother. It was then that the Plaintiff JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 4 hurriedly constructed a house on a portion of the disputed land, amid vehement protests from the Defendant’s mother. The matter thus went before the Manhyia Palace but the head of family brought the matter to the Odikro of Afrancho for settlement. Whereupon it was agreed that the disputed plot belonged to the Defendants’ family and the Plaintiff was resettled on another plot of land by the Odikro of Afrancho, Nana Asumadu Poku. The Plaintiff however sold that plot and kept the proceeds, and is now claiming the Defendants’ property [8] The Defendants thus contended that the disputed property was plot no. 10 block D, Afrancho; and continued to contend that the disputed land had never been gifted to the Plaintiff as alleged and that the Defendants are the rightful owners of the land in dispute. The Plaintiff herein had no interest in the disputed plot of land and the present action is a desperate attempt by the Plaintiff to claim what does not belong to her. The Defendants thus counterclaimed for the following reliefs: IV. COUNTERCLAIMS a. A declaration that the land in dispute, plot 10 Block ‘D’ forms part of the estate of the mother of the 1st and 2nd Defendant who is also the grandmother of the 3rd Defendant which property the 1st and 2nd Defendants are beneficial owners as children their said mother, Afia Mansah. b. Recovery of possession. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 5 c. An order of injunction restraining the Plaintiff, her agents, assigns, workmen, privies and all persons taking instructions from her from interfering with the Defendants’ use and enjoyment of the disputed plot of land. And for any further order as the Court may deem fit including cost. V. PLAINTIFF’S REPLY & DEFENCE TO THE COUNTERCLAIM [9] The Plaintiff, in her Reply joined issues generally with the Defendants in their Statement of Defence; but denied all the material averments of the Defendants. The Plaintiff further affirmed that the disputed property was her bona fide property, adding that she has constructed thereon, a four-bedroom modern house. The Plaintiff and her family have thus been in peaceful occupation of the said house without let or hindrance and the The Afigya – Kwabre District Assembly had even granted the Plaintiff a building permit, and she has solely been paying the property rates on the disputed plot. Among others, the Plaintiff prayed the Court to dismiss the Defendants’ defence and counterclaims as a complete sham and an afterthought and prayed instead for her reliefs to be granted. VI. APPLICATION FOR DIRECTIONS [10] Pleadings came to a close and the following issues were set down for trial: 1. Whether or not at all material times and since the year 1968 when the disputed land was gifted to the Plaintiff same has since then retained absolute control, ownership, possession and enjoyment rights of the JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 6 disputed land without any slightest form of interference, let or hindrance. 2. Whether or not the Plaintiff started the construction of her said modern four-bedroom material times during the said construction; the Defendants and members of the family saw the Plaintiff’s said constructional works but no one protested nor even challenged Plaintiff’s title. 3. Whether or not the plot in dispute was originally acquired by the 1st and 2nd Defendant’s uncle Nana Yaw Barima sometime in the year 1930s. 4. Whether or not the Odikro of Afancho Nana Asumadu Poku ruled against the Plaintiff but gave the Plaintiff a plot of land at Afrancho Nfantoame upon the plea of the Plaintiff and Yaw Owusu in the interest of peace which land the Plaintiff has sold and pocketed the proceeds. 5. Whether or not the Defendant have molded quantities of Building blocks on the land in dispute but the Plaintiff is unlawfully preventing them from developing same 6. Whether or not the Plaintiff is entitled to her claim. 7. Whether or not the Defendants are entitled to their counterclaims. 8. Any other issues raised in the pleadings. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 7 9. Cost of the matter to be cost in cause. VII. WITNESS STATEMENT OF THE PLAINTIFF’S LAWFUL ATTORNEY [11] The Plaintiff’s lawful attorney, Akwasi Asamoah testified for and on behalf of the Plaintiff, because according to the Plaintiff’s Counsel, the Plaintiff was over a hundred years old and could not appear before the Court. As a result, the Plaintiff’s earlier witness statement which she had filed on record was expunged and the witness statement of the lawful attorney was relied upon instead. The Plaintiff’s lawful attorney tendered in evidence a copy of a power of attorney granted to him by the Plaintiff as Exhibit A and contended that both the Plaintiff and the Defendants were members of the Afrancho Royal family contrary to the Defendants’ assertions. The lawful attorney further repeated the Plaintiff’s assertions in the statement of claim, that the disputed plot was no. 12 block D, Afrancho, adding that in 1968 the then chief of Afrancho gifted the disputed land, containing the Defendants’ shrine by name Kankamia absolutely to the Plaintiff because she was principal member of the Royal family of Afrancho. [12] An allocation note and site plan were then issued to the Plaintiff and same were admitted in evidence and marked as Exhibits B and B1. According to the Attorney, after the gift was made, the Plaintiff performed the requisite aseda ceremony was duly performed to seal the gift. It was then that the chief gifted the adjoining land where libation used to be poured for the Kankamia shrine also to the Defendants herein and members of their family. Subsequently, since the Plaintiff is the bona fide owner of the disputed land, she has constructed a JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 8 four-bedroom modern structure thereon and has even been granted a building permit by the Afigya Kwabre District. The building permit was thus tendered in evidence as Exhibit C. [13] According to the Plaintiff’s attorney, even when the Plaintiff was constructing her house, it was within the full glare of the Defendants and members of their family but no one objected to same. The Plaintiff had thus been solely paying for property rates on the land in dispute and Exhibit D series were tendered in evidence as confirmation. The attorney sought to tender in evidence a document said to be the cadastral plan of the disputed plot, but the Court found as a matter of fact that the said cadastral plan was a duplication of Exhibit B1, the site plan, and so that cadastral plan, marked Exhibit 6 by the Plaintiff was expunged from the records. [14] The entirety of the Attorney’s testimony was hinged on the statement of claim of the Plaintiff, that the disputed land belonged to the Plaintiff, simpliciter and the Defendants were unlawfully claiming same. This Court thus ought to grant the Plaintiff the reliefs sought; the Attorney concluded. Sometime during the trial however, the Plaintiff passed away and so she was substituted by her Attorney, Akwasi Asamoah as the present Plaintiff. The Plaintiff called no other witness and closed her case. VIII. WITNESS STATEMENTS OF THE DEFENDANTS AND THEIR WITNESSES [15] The 2nd Defendant first testified for and on behalf of the Defendants and she informed the Court that it was Yaw Barima, the Defendants’ uncle who JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 9 originally acquired two plots of land, namely plot no. 10 block D (the disputed land) and no. 12 block B, all at Afrancho. Yaw Barima was said to have brought some deities to the town and settled the Asoeye deity on plot 12 block ‘B’ and the Kankamia deity on plot 10 block ‘D’, the plot in dispute. Yaw Barima however died intestate sometime in 1939 and these two lands came under the control and possession of his customary successor, Yaa Amankwaa. The Defendants’ mother succeeded Yaa Amankwaa and the two plots; and so these plots have been in the Defendants’ family since their acquisition. [16] As stated in their defence, the 2nd Defendant reiterated that the Plaintiff herein has no interest in the disputed land; but is only making attempts to intimidate and unlawfully claim the disputed land. It was thus never correct that the Plaintiff was ever gifted the land in dispute, because the Defendants’ mother had always challenged the Plaintiff when the Plaintiff trespassed on the disputed plot. The Plaintiff also unlawfully constructed her building thereon despite protests and challenges, and apart from the Plaintiff’s structure, the 2nd Defendant asserted that the greater portion of the disputed land was in the possession and control of the Defendants and the Defendants even had structures and building materials on the land. The 2nd Defendant thus tendered in evidence pictures evidencing their occupation of a portion of the disputed land as Exhibits 1 and 1A. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 10 [17] DW1 was then produced to testify in Court and he stated he used to be the Odikro of Kronum Afrancho, enstooled in 1989. According to DW1, sometime in 1993 or 1994, the head of family of both sides, Opanin Yaw Owusu reported to DW1, as the Odikro of the town that, there was an issue with the ownership of some plot of land among the parties. Opanin Yaw Owusu thus sought the intervention of DW1 to assist and resolve the problem between the Plaintiff and the Defendants by granting the Plaintiff another plot of land. DW1 stated that he accepted to assist the family and the Plaintiff was brought to DW1’s house, where the Plaintiff was granted a plot of land at Kronum Afrancho, in an area called “Nfrantoame”. DW1 stated that he subsequently was informed that the Plaintiff had sold the land granted her to one Agyekum. [18] One Yaa Mansa was called as DW2, and she said she was a sister to the 1st and 2nd Defendants. She reiterated the fact that the disputed land never belonged to the Plaintiff herein. At some point in her life, the Plaintiff was said to have lived with the Defendants’ mother, and that was when the Plaintiff trespassed onto the disputed plot, belonging to the Defendants’ mother and her family, under the pretext that one Adwoa Serwaa gave the Plaintiff the permission to construct thereon when the Plaintiff was challenged. A dispute arose between the Plaintiff and the Defendants’ mother, challenging the Plaintiff’s right to build on the land, and the matter ended up at Manhyia. The head of family, Yaw Owusu, however pleaded that the matter be brought home to settle; and it was during the settlement that the Plaintiff was granted another plot of land by the Chief of Kronum Afrancho, but the Plaintiff sold off that land. DW2 continued to state that the four-bedroom house which the Plaintiff had constructed is on only a small portion of the disputed land; and that the Defendants indeed occupy a greater portion of the land. Furthermore, the JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 11 Plaintiff built that house amidst strong protests and challenge from the Defendants’ mother; and so the disputed property could not have been gifted to the Plaintiff as the Attorney sought to state. [19] The Defendants finally called DW3 because one of their witnesses was said to be bedridden. DW3 stated that it was never true that the disputed land was ever gifted to the Plaintiff by any chief as the land did not even belong to any chief, in the first place, for that chief to make a gift of same to the Plaintiff. Among others, DW3 concluded that the land in dispute was for the mother of the 1st and 2nd Defendants, who have been in possession for decades. [20] The 2nd Defendant was recalled by Counsel for the Defendants and the witness statement of Yaw Owusu, said to be bedridden at the time of the trial, was tendered in evidence as hearsay evidence in accordance with order 38 rule 3E (5) of the High Court (Civil Procedure) Rules, 2004, CI 47 (as amended). The Defendants thereafter closed their case and the trial came to a close. IX. BURDEN OF PROOF IN CIVIL CASES [21] The burden of proof on a party in a civil suit is on a balance of probabilities, as was held at sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323. Section 12 of NRCD 323 provides: (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 12 (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. The Supreme Court, further, by a majority decision in the case of BISI AND OTHERS v. TABIRI ALIAS ASARE [1987-88] 1 GLR 360-413 held that The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. In the case of AKUFFO-ADDO v CATHLINE [1992] 1 GLR 377 at 400, it was held as follows: “No court is permitted by the rules of evidence to speculate the existence of a state of fact or facts in favour of a party who has the burden to prove the same. If a court is to undertake such a benevolent venture on behalf of a party who has the burden of proof, then it must pause and reflect, as the likelihood is that the burden has not been discharged by the said party." It is also trite that a plaintiff bears the burden of establishing his claims, in civil trials, by adducing sufficient evidence to prove his assertions. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 13 In the case of Zabrama v Segbedzi [1991] 2 GLR 221 CA, reaffirmed in Continental Plastics Ltd. v IMC Industries [2009] SCGLR 289 at 306-307; it was held as follows: “The correct proposition is that a person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact he asserts can properly and safely be inferred”. [22] The Defendants have also counterclaimed and so they equally bear the burden of establishing that they are also entitled to their counterclaims. In the case of Sasu Bamfo v Sintim (Civil Appeal J4/26/2011) of 30th November 2011, the Supreme Court, per Rose Owusu JSC (as she then was) held at page 155 thus: "A counterclaim is a different action in which the defendant as a counter claimant is the plaintiff and the plaintiff in the action becomes a defendant. … Each of them bore the burden of proof and persuasion to prove conclusively, on the balance of probabilities that he was entitled to the reliefs claimed. Section 11(1) of the Evidence Act, 1975 (NRCD 323), enjoined the defendant in his capacity as a plaintiff in the counterclaim to introduce sufficient evidence to avoid a ruling on the issue against him." (Emphasis is mine) JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 14 Likewise, the case of Aryeh & Akakpo v. Aya Iddrisu [2010] SCGLR 891 at 901, in which the Supreme Court again reiterated the burden of proof on a counterclaimant as follows: "A party who counter-claims bears the burden of proving his counterclaim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent's case.” X. EVALUATION OF EVIDENCE ADDUCED AT THE TRIAL AND LEGAL ISSUES TO BE DETERMINED [23] There is no doubt that the parties herein are disputing over the same plot of land; and both the Plaintiff and the Defendants admit that they have their respective structures on the disputed plot. The Plaintiff contends that she has a modern four-bedroom house on the disputed plot; whilst the Defendants state that they also have dwelling houses and even cement blocks on the greater portion of the disputed plot. The Defendants thus tendered in evidence pictures to evidence their possession and occupation of the disputed land; and also confirmed that the Plaintiff had built a four-bedroom house on the plot amidst protests and challenge from the Defendants’ mother and even the Defendants themselves. Both parties also confirm that they are related and from the same family; but the Defendant drew a distinction, stating that the Plaintiff is a distant family member from another branch of the family, even though all the branches form the same unit. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 15 The 2nd Defendant had this to say at paragraph 4 of her witness statement in explanation: 4. The Plaintiff is a member of our extended family has three lineages. They are Abena Kwabena’s linage, Akua Aboraa’s lineage and Abrafi’s lineage. There is therefore no doubt in my mind that the parties may have come from the same ancestry, but there is now litigation among them as to who the ownership of the disputed land belongs. [24] Again, even though there is no doubt that both sides are claiming the same plot of land, the Plaintiff describes the land as plot no. 12 block D, Afrancho whilst the Defendants assert the disputed land is plot 10 block B, Afrancho. It is said that ‘a rose by any other name is still a rose’. Therefore, once there is no doubt that the parties have both constructed on the same plot of land and are claiming ownership of same, it behoves this Court to deal with the issues set down for trial, in order to determine which of the parties is entitled to their claims. I thus proceed to deal with the issues set down as follows: XI. ISSUES ONE (1) & THREE (3) 1. Whether or not at all material times and since the year 1968 when the disputed land was gifted to the Plaintiff, same has since then retained absolute control, ownership, possession and enjoyment rights of the disputed land without any slightest form of interference, let or hindrance. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 16 2. Whether or not the plot in dispute was originally acquired by the 1st and 2nd Defendants’ uncle Nana Yaw Barima sometime in the year 1930s. [25] All throughout her pleadings, the Plaintiff did not state the origin of the disputed plot. All she averred is at paragraphs 4 and 8 of the statement of claim as follows: 4. The Plaintiff states in the year 1968 the then Chief of Afrancho gifted the land containing the parties’ fetish shrine by name Kankama at Afrancho thus plot no. 12 Block D, Afrancho absolutely to the Plaintiff by virtue of the Plaintiff being a principal member of the Royal family of Afrancho. 8. That the Plaintiff states the said chief also gifted the adjoining land where libation used to pour (sic) for the Kankama shrine absolutely to the Defendants and members of their family. [26] It was whilst the Plaintiff’s attorney, now the substantive Plaintiff was under cross-examination that he sought to give the answers below in connection of the original acquisition of the disputed land: Q: Will you agree with me that the land in dispute originally belonged to Nana Yaw Barima, who settled his deity on it? A: That is not correct, my Lord. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 17 Q: Who first acquired or owned that land? A: The land was for the family. Some members of the family, Akwasi Offeh and Yaw Barima travelled to the North, acquired the deity and came to place it on the family land. Q: Nana Yaw Barima was the priest to the deity called Kankamia. A: That is not correct, my Lord. It was both Yaw Barima and Akwasi Offeh who were priests to the deity. Q: I am suggesting to you that Kwasi Offeh was the spokesperson to the priest of the deity. A: That is not correct, my Lord. Q: I am suggesting to you that the land in dispute was originally acquired by Yaw Barima, a native of Afrancho and a member of the royal family of Afrancho. A: That is not correct, my Lord. Q: Nana Yaw Barima was the one who settled his deities on the said land. A: That is not correct. The land belonged to the family and both Yaw Barima and Akwasi Offeh put their god on it. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 18 It is trite that family land or property is not acquired in a vacuum; and that there are a number of methods by which a family can acquire land. Section 281 of the new Land Act, 2020, Act 1036 defines family land as land, the allodial title, to which is held by a family for the benefit of members of the family in accordance with customary law. In his book, ‘A Concise Guide to the Study of Ghana Land Law’, K. Anokye Gyimah J. discussed the modes of acquisition of family land at page 102 following of his book and listed some of the authorities on the modes of acquisition of family land/property as follows: a. The self-acquired property of a member of a family who dies intestate becomes family property, but this is subject to the provisions of PNDCL 111 and any other enactment that may affect the land. b. A house built of family land becomes family property; among others. [27] In the instant case, the Plaintiff only asserted that the land was family land without detailing how the said family land was acquired. Moreover, the Plaintiff failed to disclose whether it was the matrilineal or patrilineal family of the Plaintiff that first acquired the disputed land. Indeed, the original Plaintiff, in her pleadings never stated that she acquired the disputed plot from her family. The entirety of her contention, as per the paragraphs 4 and 5 stated above was that the Chief of Afrancho at the time, granted the disputed land to the Plaintiff in 1968. This assertion unfortunately did not receive confirmation from the Plaintiff’s own attorney at the time, because the Attorney, now the substantive Plaintiff JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 19 gave, under cross-examination, answers that were contradictory to his own witness statement and the pleadings of the Plaintiff. In his own witness statement, at paragraphs 5 and 6, the Plaintiff testified thus: 5. I know the land in dispute. It is located at Afrancho thus H/NO. Plot 12 Blk D, Afrancho. In the year 1968 the then chief of Afrancho gifted the land containing the Defendants’ shrine by name Kankama absolutely to my good self by virtue of me being a principal member of the Royal family of Afrancho. 6. After the said gift, the then chief of Afrancho issued an Allocation Note and Site plain covering the disputed land in my favour. Under cross-examination, however, the Plaintiff gave the answers below: Q: You want this Court to believe the land in dispute was gifted to the Plaintiff? A: That is correct, my Lord. The plot was gifted to three female children. The oldest was Akua Assor, then Yaa Donkor, my mother and then the Plaintiff herein. Q: And it is your evidence that the chief that allegedly gifted the plot to the Plaintiff issued the Plaintiff with an allocation note to evidence the alleged gift as per your Exhibit B? JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 20 A: Our ancestors gave us the land. At the time, our grandfather Kojo Addae was alive and he gave us the land; and not the chief. (Emphasis is mine) Q: Now your evidence and case are that the plot that you are claiming was gifted to Akua Assor, Yaa Donkor and the Plaintiff herein by Kojo Addae. Is that correct? A: That is correct, my Lord. In 1975, our grandfather of the Asona Clan, Akwasi Offeh died, in January 1975. He was buried the next day. Kojo Addae then sent a message to all family members that we should congregate for the 40th day celebration. Our grandfather at that meeting said the three women, Akua Assor, Yaa Donkor and the Plaintiff were becoming resident on a certain land, so he gifted the land of Abena Kwabena to them, i.e. the disputed land. Q: So that the alleged gift took place in 1975. A: Yes, my Lord, in January 1975. [28] The above is a clear departure from the witness statement of the Plaintiff herein; and that makes the testimony of the Plaintiff not in the least probable, because this Court cannot determine from whom the Plaintiff obtained the disputed land, bearing in mind the contradictory assertions in the pleadings, the witness statement and the cross-examination of the Plaintiff. The allocation note and site plan that the Plaintiff tendered in evidence could therefore not have emanated from any said chief because the Plaintiff’s attorney (now Plaintiff) JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 21 categorically stated that it was not the chief who gifted the plot of land to the Plaintiff. In the case of Irene Tettey-Enyo vrs Electricity Company Gh Ltd [2022] 177 GMJ at 223, the Court held: “Tritely, proof in law does not occur only on the say so of one party to a dispute; it requires the establishment of facts by proper legal means.” On the other hand, it has been held, in cases such as Robert Gyamfi v The Republic [2019] 142 GMJ 142, thus: “Where no rule of law or practice required corroboration, the test is whether the evidence, though given by a single witness was entitled to credibility. Therefore, the Court could act on uncorroborated evidence of a single witness since judicial decisions depended upon intelligence and credibility and not on the multiplicity of witnesses produced at the trial.” At page 151, it was further stated: “It is not about the number of witnesses but the quality.” [29] From the above however, I cannot even remotely come to the positive conclusion that the disputed land was gifted to the Plaintiff in any way because the Plaintiff and her Attorney (now the substantive Plaintiff) did not adduce even one iota of evidence to establish that they gave aseda after the purported gift was made to the Plaintiff. The evidence adduced by the Plaintiff does not JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 22 also establish who actually gave the gift to the Plaintiff because the evidence is riddled with inconsistencies and contradictions. The only answer in relation to the gift given by the Plaintiff under cross- examination was as follows: Q: Plot no. 12 Block B, Afrancho is the property of the Defendants and their siblings. A: That is never correct, my Lord. When Kojo Addae gave the plots to us, we were all present. And yet, no independent witness, for instance, was produced by the Plaintiff to confirm the above. In respect of customary gifts, it was held in the case of re Suhyen Stool; Wiredu & Obenewaa v Agyei & Ors [2005-2006] SCGLR 424 @ 435, as follows: The position is that: (a) there must be a clear intention on the part of the donor to make a gift; (b) publicity must be given to the making of the gift; (c) the donee must accept the gift by himself giving thank- offering or conventional aseda, or by simply using and enjoying the gift. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 23 On account of the above, I find that there was no evidence to exhibit the giving of a gift, save that the Plaintiff has built a four-bedroom house on the disputed property. [30] The Defendants on the other hand stated consistently that the disputed land was originally acquired by Yaw Barima, who placed his deity thereon; and the Plaintiff so confirmed at paragraph 5 of his witness statement thus: “… In the year 1968 the then chief of Afrancho gifted the land containing the Defendants’ shrine by name Kankama absolutely to my good self by virtue of me being a principal member of the Royal family of Afrancho. (Emphasis is mine) Indeed, the Defendants’ witnesses all confirmed the assertions of the Defendants; that the disputed plot housed Yaw Barima’s god, without any challenge from anyone and so it becomes more probable than not that the disputed land belonged to Yaw Barima, as he surely could not have placed his god on another person’s plot of land. [31] The Defendants further gave the line of succession from Yaw Barima until the Defendants’ mother, and I find no questions were posed to either the 2nd Defendant or any of the Defendants’ witnesses to discredit their testimonies under cross-examination. Indeed, the following question posed by the Plaintiff’s Counsel confirmed the Defendants’ assertions in their pleadings that the Plaintiff unlawfully went into occupation of the disputed land thus: JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 24 Q: Can you tell the Court when the Plaintiff came to the disputed land? A: Yes, my Lord. One of my mother’s sisters called Adwoa Serwaa was the one who gave the disputed property to Akua Obiani. Q: So Yaa Serwaa was a family member? A: Yes, my Lord; but she has a different mother, called Abrafi. Q: You will agree with me that Adwoa Serwaa could not grant Yaa Mansa’s property to Akua Obiani. A: That is correct; and so when she gave the disputed property to Akua Obiani, Adwoa Serwaa’s own son, called Owusu, asked her if the property belongs to her and why she should give it to Akua Obiani. Q: Granted that Adwoa Serwaa gave the disputed property to Akua Obiani, it is because Adwoa Serwaa, Akua Obiani and Afua Mansa were all family members. A: That is correct, my Lord; but because of what Adwoa Serwaa did, my mother challenged her and took the matter to the Chief’s palace. Adwoa Serwaa even had a plot of land nearby but she sold same and rather granted Afua Mansa’s land to Akua Obiani. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 25 Q: You will agree with me that in spite of the alleged challenge of your mother, the said Akua Obieni remained on the land even till date. A: It is true, my Lord, I will not lie. Akua Obiani is still on the land. The fact that the Plaintiff remained on the land did not metamorphose her occupation of the disputed land into ownership, as I find that the Plaintiff was unable to adequately establish to the Court how she got onto the disputed plot in the first place. In the case of Asante Appiah v Amponsah [2009] 7 GMJ 75, the Court held that “Where a party’s claims are for possession and perpetual injunction, he puts his title in issue. He therefore assumes the onus of proving his title by a preponderance of probabilities, like any party who claims declaration of title to land… the principle that the plaintiff is entitled to take advantage of loopholes or weakness in the case of his opponent only applies where the plaintiff has already established his title and thereafter proceeds to rely on the weakness in the case of his opponent to buttress his case. The principle cannot be invoked and applied in lieu of the necessity to prove one’s case… it is for the plaintiff who first had to prove what he had claimed in his summons.” Further in Awuku vrs Tetteh [2011] 1 SCGLR 366, it was also held: JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 26 “In an action for a declaration of title to land the onus was heavily on the Plaintiff to prove his case. He must indeed, show clear title. He could not rely on the weakness of the defendant’s case.” [32] From the totality of the evidence adduced before me, it becomes reasonably probable that the disputed land was acquired by Yaw Barima as the Plaintiff was unable to establish who did originally acquire same. I now proceed to deal with the following issues: XI. ISSUES TWO (2), FOUR (4) & FIVE (5) 2. Whether or not the Plaintiff started the construction of her said modern four-bedroom house and at material times during the said construction; the Defendants and members of the family saw the Plaintiff’s said constructional works but no one protested nor even challenged Plaintiff’s title. 4. Whether or not the Odikro of Afancho Nana Asumadu Poku ruled against the Plaintiff but gave the Plaintiff a plot of land at Afrancho Nfantoame upon the plea of the Plaintiff and Yaw Owusu in the interest of peace which land the Plaintiff has sold and pocked the proceeds. (sic) 5. Whether or not the Defendants have molded quantities of building blocks on the land in dispute but the Plaintiff is unlawfully preventing them from developing same JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 27 [33] The above, I find, are facts that both sides averred and which ought to be established by the adduction of evidence; and not triable issues which ought to have been set down. With respect to issue two, the Defendants contended that their mother challenged the construction the Plaintiff was undertaking on the disputed plot and thus reported the matter to the Manhyia palace. On account of that assertion, a witness statement was filed for the head of family, who was said to have taken the matter out of the palace to be settled at home; but the said head of family was bedridden and so his witness statement was tendered in evidence without any objection. [34] Therein there were averments that supported the case of the Defendants that the head of family, Yaw Owusu, sought to amicably settle the matter. In the same vein DW1 was also produced as the former Odikro, and even though he did not state that he settled the matter between the parties, he informed the Court that he was made aware of the dispute over some plot of land between the parties and he granted the Plaintiff another plot of land to bring peace. Under cross-examination, the Plaintiff’s Counsel sought to state that the Plaintiff did not receive any such plot of land; but that assertion did not materially discredit the testimony of DW1 because DW1 stated under cross- examination that the Land Allocation Committee of the town had confirmed that the Plaintiff received the plot and resold same, confirming the assertions of the Defendants in their pleadings. Having quantities of cement blocks on the disputed land or not is immaterial because the Defendants again were able to establish that they also have structures on the disputed land and dwelt therein. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 28 The above thus are factual situations that if proven, would only be in support of whether or not either side is entitled to their claims, and so I shall proceed to deal with the final set of issues, as below: XII. ISSUES SIX (6), SEVEN (7) & EIGHT (8) 6. Whether or not the Plaintiff is entitled to her claim. 7. Whether or not the Defendants are entitled to their counterclaims. 8. Any other issues raised in the pleadings. [35] In the case of Okoe v Ankrah [1961] GLR 160 - 124, Ollenu J (as he then was) held as follows: It is a well-established principle of our customary law, that upon a person's death intestate his self-acquired property, real and personal, vest in his family as family property… The family which inherits may be the maternal family, or the paternal family, depending upon the tribe to which the deceased belonged, and in exceptional cases the joint maternal and paternal family. Also, in the case of Ankrah & Another v Aryeh & Others [1958] 3 WALR 104, the Court of Appeal confirmed the principle above as follows: “By these findings of the courts below, self-acquired property … becomes family property on the death intestate of its owner…” JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 29 Whilst cross-examining DW2 also, Counsel for the Plaintiff posed the following question: Q: You will agree with me that Opanin Yaw Barima died without making a willing? A: Yes, my Lord. He did not make a will. It is therefore obvious that Yaw Barima died intestate, from the above answer solicited by the Plaintiff’s Counsel. [36] For the foregoing reasons, I find that the evidence adduced by the Defendants, support their assertions that Yaw Barima acquired the disputed land and on which he placed his god, Kankamia. Having died intestate, the disputed property became family property and only one member of the family cannot purport to gift out the land to another as Yaa Serwa was said to have done. Again, I find the story of Yaa Serwa permitting the Plaintiff to construct on the disputed plot more probable than not, because the Plaintiff was unable to establish exactly how she came into possession of the disputed property, having adduced contradictory evidence on who gifted the plot to the Plaintiff. There being sufficient evidence to sustain the assertion that the disputed land is family property, I hold that the disputed property ought to be enjoyed by the immediate family or the extended family; and family property cannot be JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 30 disposed of as if same is self-acquired. A person can only gift his or her own self-acquired property(ies) to whosoever they wish, but never family property. [37] In the case of Mills v Addy [1958] 3 WALR 357, Ollenu J (as he then was) held: Where, in matrilineal areas, family property is enjoyed by members of a family, the nature of the interests of each member therein is that of a joint life interest for the lives of all of them, continuing as a life interest for the survivor of them. The property concerned cannot be disposed of by such life tenants or tenant, either inter vivos or by testamentary disposition or otherwise.” (Emphasis is mine) The learned Judge went on to pronounce: … Thus, "once family property, always family property"-the fact that the members of a class entitled for the time being to the enjoyment of family property are reduced to one does not cause the property to lose its character as family property and become the absolute property of that person. (Emphasis is mine) The Plaintiff herein could therefore not, and indeed, she ought not to be allowed to deal with the disputed property as if same were her self-acquired property. If the original Plaintiff has built her four-bedroom house thereon (on the disputed plot), the Plaintiff only has a life interest therein and it reverts to the Defendants’ family after her death. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 31 The Plaintiff also paid the property rates as she stated she did, to her own detriment because I find that the disputed property is family property and cannot be said to be the Plaintiff’s personal property. [39] In the case of ATTAH v. AIDOO AND OTHERS [1968] GLR 362 -372, where it was held, per Archer J (as he then was) as follows: "By customary law, no valid alienation of a stool or family land can be made except by the occupant of the stool, acting with the consent and concurrence of the principal elders... The Allocation note and site plan, purported to have been made out to the Plaintiff ought not to be allowed to stand because the Plaintiff was unable to establish that the Chief of Afrancho ever gifted the disputed property to the Plaintiff and/or issued those documents to her. The Plaintiff therefore only has a life interest in the house she has constructed on the disputed property, as stated above. [40] I also rely on the case of AMISSAH-ABADOO v. ABADOO [1974] GLR 110- 132, where it was held thus: But a building which the individual member of a family is permitted to erect on family land in use by the family, e.g., a site on which family structure of any sort exists, is property in which the individual member who builds has a life interest only; it is to be used and treated in every respect as his individual property, except that he cannot create an interest in it which may subsist after his life." (Emphasis is mine) JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 32 XIII. CONCLUSION [41] For the above reasons, I hold that the Plaintiff was unable to establish that she was entitled to her claims even on a balance of probabilities, and so I would have to dismiss the Plaintiff’s claims; and they are hereby dismissed in their entirety. [42] The counterclaims of the Defendants succeed as follows: a. A declaration that the land in dispute, plot 10 Block ‘D’ forms part of the estate of the mother of the 1st and 2nd Defendant who is also the grandmother of the 3rd Defendant which property the 1st and 2nd Defendants are beneficial owners as children of their said mother, Afia Mansah. b. Recovery of possession. c. An order of injunction restraining the Plaintiff’s her agents, assigns, workmen, privies and all persons taken (sic) instructions from her from interfering with the Defendants use and enjoyment of the disputed plot of land. And for only further order as the Court may deem fit including cost. JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 33 Considering the entire circumstances of this case and since the parties appear to be family, I will award costs of Gh¢20,000.00 in favour of the Defendants herein. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘6’ GENERAL JURISDICTION KUMASI, ASHANTI REGION. 10TH NOVEMBER 2023. COUNSEL: DEBORAH ASANTE – DANKWA PRESENT, HOLDING FRANCIS ACHEAMPONG’S BRIEF FOR THE PLAINTIFF SHADRACK OBENG – YEBOAH ESQ., COUNSEL FOR THE DEFENDANTS PRESENT JUDGMENT – AKWASI ASAMOAH vrs DIANA OBENG & 2 ORS 34