KORANTEMAA VRS. OBOSHIE AND OTHERS (C1/157/2015) [2023] GHAHC 680 (19 December 2023)

IN THE HIGH COURT OF JUSTICE SITTING AT KOFORIDUA ON TUESDAY THE 19TH DAY OF DECEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE SENYO AMEDAHE SUIT NO: C1/157/2015 OBAAPANYIN ABENA KORANTEMAA HSE NO. N1714, BARRIER, NIAWK PLAINTIFF VRS. 1. MAMDAM OBOSHIE DEFENDANTS UNNUMBERED HOUSE/ NICAWKAW 2. SARPONG MINTAH KWMA 163, AWENADE, NKAWIAVV 3. AGYA ATTAH 1WMA 164, AWENANDE/ NKAWIAW 4. MADAM OBOLO KWMA 164/ AWENADE, NIAVVKAW 5. OPANYIN TAWIAH UNNUMBERED HOUSE, AWENANDE/ 6, MASTER AMPONG 1 WMA 165, AWENADEI NKAWIAVV 7. WOFA ATTAH KWMA 162, AWENADE, NKAVVIAW pg. 1 8. DR. 1 AWKU ASIEDU FORMER ASSEMBLYMAN AWENADE, NIAWKAW 9, MR. KWAKU KURU OBO-KWAHU 10. MADAM ADWOA ANSOIVIOAH AWENADE, NKAWIAW SUBMISSION OF ADDRESS BY COUNSEL FOR THE PLAINTIFF ______________________________________________________________________ JUDGMENT ___________________________________________________________________ The Plaintiff Obaapanin Abena Korantemaa issued a writ of summons against the ten Defendants in August 2015 claiming the following reliefs: a) A Declaration that the entire land described in paragraph 4 of the claim belongs to the plaintiff. b) An order to recover possession of the land. c) Damages for trespass. d) A Perpetual Injunction restraining the Defendants, their assigns, privies, agents and workmen from holding themselves out as the owners of the said land and from any further interference in the rights and ownership of the land by the plaintiff. e) Cost and any other orders the court deems fit. pg. 2 The Plaintiff died on 23rd March, 2018 and was substituted by her daughter Madam HELLENA DARFOUR per an order of this Court obtained on 13th March 2020. According to the statement of claim the Plaintiff avers that the Defendants entered her land without the knowledge, authority and without her permission and started constructing different houses on a portion of her land. She said she confronted the Defendants to stop their unlawful trespass but to no avail and was therefore compelled to issue the present writ for a recovery of the land together with the above listed reliefs. THE DEFENDANTS The Defendants failed to file a Defence to the action resulting in an Interlocutory Judgment of the Court against the Defendants herein dated 17th November 2015. ACTION TAKEN. After the Interlocutory Judgment was granted by the court in default of defence against all the Defendants under Order 13 Rule 2 of C. I 47 and same was entered and filed in court on 18th December 2015. The Notice of the Entry of the Interlocutory Judgment was served on the Defendants via substituted service. It must be noted that the defendants who did not participate in the entire hearing of this case were given the opportunity to do so but they refused to participate. The Defendants were served with the Court’s processes by substituted service per Order 7 Rule 6 of C. I. 47 because they had failed to enter appearances and file a defence. The common law is clear that a party must not receive adverse ruling by a court of competent jurisdiction unless he or she is heard. This is popularly referred to in Latin as the audi alteram partem rule. Commenting on the said rule, His Lordship Kpegah JSC (as he then was), in the case of AWUNI vs. WAEC (2003-2004) SCGLR 471, indicated that. . pg. 3 .“the phrase,…” to act fairly and reasonably”, in my opinion necessarily import a duty to observe the common law maxim of audi alteram partem and the principles of natural justice which is very much part of our jurisprudence….”. Based on the above principle the Plaintiff’s attorney was heard alone, that is after the court had assured itself that the Defendants had been given the opportunity to defend the action in Court. BURDEN OF PROOF Subsequently, the Plaintiff who was substituted by Madam Helen Darfour mounted the box and testified together with her witnesses in support of the case of the Plaintiff. The non- appearance of the Defendants in Court did not reduce the discharge of her burden to proof her case in Court. The settled position of the law is that it is the party who stands to lose on an issue if no evidence is led on it that bears the burden of proof as far as that issue is concerned, In FAIBI VRS STATE HOTELS CORPORATION (1968) GLR 471 it was held that the "Onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led" Clearly the burden would be at the door-step of the Plaintiffs herein to proof their case by preponderance of probabilities. See Section 11 (4) and 12 of Evidence Decree 1975 (NRCD) 323. see GIFTY AVAZINU VRS THERESA NJOONA (2010) 26 MLRG 105 @ 108 Court of Appeal, pg. 4 Similarly, in BISI VRS TABIRI ALIAS ASARE (1987-88) IGLR 360 @ 361, the Supreme Court 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 a call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzleo Preponderance of evidence became the trier's belief in the preponderance of probability. But "probability" denoted an element of doubt or uncertainty and recognized that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected " THE EVIDENCE OF THE PLAINTIFF My Lord, I address the evidence of tlne Plaintiff led before the court under the following headings: a. ACQUISITION OF THE LAND b. DESCRIPTION OF THE LAND c. ACTS OF POSSESSION AND OWNERSHIP d. ACTS OF TRESPASS BY THE DEFENDANTS A. ACQUISITION OF THE LAND. According to the Plaintiff in the year 2008, she entered into a lease agreement with the original and custodial owner of the land Nana Yeboah Afari Il, Obohene of Obo in the Kwahu Traditional Area in the Eastern Region of Ghana. They went into an agreement and executed the necessary deed of conveyance which they registered at the lands Commission in 2014 as Deed No. EA. 17981 with Serial No. 163/2014. pg. 5 According to the Plaintiff, before she executed the lease agreement with her lessor, she had, in the past, led her elder brother to lease the same land from the Awenade Chief and had already entered the land and possessed same by erecting pillars, and gave out the land to one Akua Serwah to farm the land with food crops, etc. After the death of the late chief of Awenade, she wanted to register the land in her name but she was informed that the proper person to prepare the lease for her was the Obohene. She then consulted the Obohene who resold the land to her and after paying for same, her lessor prepared the lease for her to register same with the Lands Commission. Plaintiff's witness in the person of Madam Faustina Agyare corroborated this piece of evidence in her evidence in chief she gave before the court on 14th Day of March 2022. She relied on her witness statement filed on 14th January 2021. This piece of evidence traces the root of title of the Plaintiff and affirms the title owned by Plaintiff’s vendors which was passed on to the Plaintiff after the purchase and to the extent that this piece of evidence was not challenged by the Defendants it stands as uncontroverted evidence. B. DESCRIPTION OF THE LAND In paragraph 4 of the plaintiff’s Claim she provided the full description of her land as ALL THAT PIECE AND PARCEL OF LAND lying, situate and being at Awenade within the Kwahu West District in the Eastern Region of Ghana and bounded on the North by the Obo Stool land measuring Six. Hundred and Four Feet (604ft) feet more or less, on the South by Obo Stool land measuring Six Hundred and Twenty-Five (625ft) feet more or less, on the East by Obo Stool land and measuring on that side a distance of Three Hundred and Forty-Two (342 ft.) feet more or less, and on the West by Obo Stool land and measuring on that side a distance of Four Hundred and Twenty-Five (425ft) feet more or less which contain an approximate Area of 5.21 Acres (2.11 Ha). pg. 6 Madam Helena Darfour filed her Witness Statement on 14/01/2021 which contained her evidence. It contained the same description as it is in the claim of the Plaintiff. She attached to the Witness Statement the indenture covering the land. This was marked as her Exhibit “C”. Exhibit ‘B’ is a series of receipts in the name of the original Plaintiff, Obapayin Abena Koranteng showing monies paid the Lands Commission in respect of the disputed land. The description in the said indenture has the same description of the land as averred by the Plaintiff and it also has a Site Plan which shows the location and the exact description together with the dimensions of the Plaintiffs land which puts beyond doubt any issues regarding the identity of the land. This piece of evidence was also corroborated by her witness Madam Faustina Agyare in her witness statement. All these pieces of evidence were not cross examined, making these pieces of evidence uncontroverted C. ACTS OF POSSESSION AND OWNERSHIP The relevance of possession in land law cannot be overemphasized. Section 48 (2) of the Evidence Decree (NRCD 323) puts it that: "A person who exercises acts of ownership over property is presumed to be the owner of it. " There is a long-list of settled judicial precedents to buttress the importance of possession. OSEI (SUBSTITUTED BY GILARD) V. KORANG [2013-20141 1 SCGLR 221 @ 234 "Now in law, possession is nine-tenths of the law and a plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to ownership and it pg. 7 being good against the whole world, except the true owner, he cannot be ousted from it" DELIMAN OIL CO. LTD. V. HFC BANK GH. LTD. [20161 92 GMJ 1 @ 25 "A person who is relying on possession as his title must show that he is in physical possession or has a right to possession as having erected a building on it or planted crops on it or done something on it symbolic of ownership, " — Barbara Ackah-Yensu JA. The Plaintiff in his evidence has shown that she has been in possession of her 5.2 acres of land soon after she purchased it in somewhere 2008. Immediately after acquiring it she placed Akua Serwah on it as her caretaker, who engaged in farming activities on it. She demonstrated her control over the land in her evidence that she placed Madam Akua Serwah on the land who farmed it and took care of it. It is the case of the Plaintiff that after acquiring the land she proceeded to register same afterwards and has given the registration number. Plaintiff further testified that before entering into the lease agreement with her lessor, she had, in the past, led his elder brother to lease the same land from the Awenade Chief and had already entered the land and possessed same by erecting pillars on the boundaries of the land, and gave the land to one Akua Serwah to farm the land of food crops, etc. This piece of evidence was affirmed by Plaintiff's witness Faustina Agyare who testified and corroborated the evidence of the Plaintiff in this regard. A witness in this case corroborated the evidence of the Plaintiff, she is Akua Serwa. She farmed soon after it was purchased by the Plaintiff, Obaapayin Abena Koranteng. I shall reproduce part of her evidence from her Witness Statement as follows: 1. Sometime ago, and before I got to know her, I needed land to farm on so I enquired about the land and I was directed to her. pg. 8 2. I went to her and she confirmed ownership and took me to the land and showed me the boundaries. 3. She asked me to farm a portion of it but before I could do so, people just entered the land from nowhere and started building on it and at a very fast rate. 4. I was even scared so I didn't enter the land again. 5. When I enquired I was told it was some people who sold the land to them. 6. I informed the late Abena Korantemaa but sooner than later she got ill and did not recover until her death. 7. I even approached one man who was also building and I informed him that the land belonged to the deceased so he put a stop to the building and didn't come to the land again. The evidence of the Madam Akua Serwah points to the fact that she was a caretaker/farmer of the land for Obaapayin Abena Korantenmaa. From her evidence she was farming this land when the Defendants entered on to the land and scared her. She went and reported the conduct of the Defendants to the late Obaapayin Abena Korantemaa who owned the land, now in dispute. D. ACTS OF TRESPASS BY THE DEFENDANTS. Plaintiff avers that sometime later after acquiring the land she observed that some unknown persons had entered her land and started developing same. Plaintiff says she quickly informed her Lessor Nana Yeboah Afari Il (Obohene) (her lessor) about the developments and he caused a gong on to be beaten three times in the village of Awenade asking any developers on the land to report to his palace and to submit proof of ownership of the portion of the land being developed by such persons and to show where and from whom they had obtained the land. Plaintiff says that despite the gong on announcement, none of the defendants showed up at the chief's palace to show proof of their title to the various portions of the land occupied by them. pg. 9 According to her after the failure of the defendants to respond to the gong on beating and to report to the chief (her lessor) and custodian of the land, her lessor (Obohene) advised her (Plaintiff) to take the necessary action to recover her land. Plaintiff says that all efforts to get the defendants to stop developments on the land yielded no positive results hence the law suits against the Defendants herein. Though the Plaintiff pleaded trespass, she did not provide much particulars of the acts of trespass, undertaken especially by each of the Defendants, apart from saying that they undertook construction works on the land she did not give much details. Especially what is the extent of the damages caused by each of the parties? She however told the court about the steps she undertook to get them to stop the act. She warned them, reported them to the Chief and his elders, got them to be warned by the Chief who caused a gong on to be beaten, inviting them to his palace. Eventually she had to issue this writ against them when they refused to leave the land. She tendered pictures showing constructional activities of the Defendants on the land. The activities are captured in Exhibits ‘E to E3’. CONCLUSION The failure of the opponent to cross examined the Plaintiff or tender any evidence to the contrary must be deemed as admission. This position is in line with the Supreme Court case of TAKORADI FLOUR MILLS VRS. SAMIR FARIS (2005/2006) where the court concluded as follows; " Where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence contrary, the facts deposed to in that evidence are deemed to have been admitted and must be accepted by the trial Court. " This Court gave the Defendants the opportunity to come to Court and defend their interest if any or cross examine but they refused to turn up. This Court concludes that the substituted Plaintiff has proved with the support of documentary evidence, especially her indenture tendered as Exhibit ‘D’ that she is the owner of that lander covering 5.21 acres (2.1 Ha) as properly described in paragraph 4 of pg. 10 her claim. The Plaintiff having satisfied the provisions of Sections 10, 11 and 12 of the Evidence Act 1975 (Act 323), I enter judgment in favour of the Plaintiff and grant her the following reliefs: I grant the following reliefs: i. I declare all that land described in paragraph 4 of the claim of the Plaintiff as belonging to her. ii. I grant to the Plaintiff possession all that land referred to in relief above. ii. The extent of damages for trespass was not proved though the defendants did trespass on the land of the plaintiff observing from the pictures tendered by the Plaintiff’s attorney. I shall award cost of GH¢1, 000 against each of the defendants for their acts of trespass. I award costs of GH¢20, 000 against each of the defendants. SGD: JUSTICE SENYO AMEDAHE JUSTICE OF THE HIGH COURT Counsel: Isaac M. Larbi for the plaintiff present. pg. 11