KONTOR VRS ADAMS & ANOTHER (A1/28/2020) [2023] GHADC 1230 (15 December 2023)

IN THE DISTRICT COURT KINTAMPO HELD ON FRIDAY 15TH DECEMBER, 2023 BEFORE HIS WORSHIP KWAME ADJEI MANU ESQ. SUIT NO. A1/28/2020 EMMANUEL KWAME KONTOR - PLAINTIFF VRS 1. SAIBU ADAMS 2. MAYIBA - DEFENDANTS JUDGMENT 1. Introduction 1.1. This dispute concerns ownership of land. Plaintiff’s claims against Defendants as contained in his writ of summons are as follow: “(a)Declaration of title and recovery of possession of all that parcel of farmland measuring 91.55 acres lying, situate and being at "ABOMKONKOMA" on Dadiase Stool lands and bounded by the properties of I. K BOAHEN, RIVER BOMFREH, OPANIN KOO WUO AND A Road from Apesika to Abomasuogya. (b) General damages for trespass. (c)An order for Perpetual Injunction restraining the Defendant, his agents, labourers, workmen, descendants, relatives, assigns and all those who claim through the defendant from entering the said Farmland.” Page 1 of 16 1.2. Parties in this suit are lay persons who acted for themselves conducting their own cases. In view of this, the Court extended all indulgences to them as recommended in the case of Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G. L. R. 314, S. C. This was motivated also, by the duty owed to them as lay court users long discussed in cases such as Edun v. Koledoye (1954) 14 W. A. C. A. 642. as relied on in Wiafe v. Kom [1973] 1 GLR 240. Plaintiff’s case 1.3. Plaintiff’s case as contained in his eighty (80) paragraph statement of claim and repeated in his eighty-one (81) paragraph evidence-in-chief is as follows. He self- identified as a farmer and resident of Kintampo in the Bono East Region of Ghana, acquainted with Defendants, who are fellow farmers residing at Apesika in the Kintampo South District of the Bono East Region. 1.4. In the year 1983, he stayed with his uncles, namely Nana Kwesi Nyame, Nana Kwesi Ameyaw, and Nana Kofi Donkor, at a place commonly known as Abom Konkomba in the Kintampo South District. During this stay, Nana Kwesi Nyame's wife resided in Aboabo, and Nana Kofi Donkor's wife was in Nkoranza. He resided with Kwasi Nyame and Kofi Donkor in the same house at Asaasewura and in recognition of the services he rendered to his uncles Kwesi Nyame and Kofi Donkor, Kofi Donkor bestowed upon him a gift of 91.55 acres of farmland situated at Abom Konkomba in the year 1985. 1.5. The land gifted to him shares common boundaries with the properties of Opanin Wuo, Bomfreh River, Apesika-Abom-Asuogya road, and Abomasuogya Cottages. To express gratitude for this kind gesture, he provided one crate of minerals and an amount of fifty Ghana Cedis (GHC50.00) to his uncle. Subsequently, he commenced the cultivation of yams on the disputed farmland, harvesting the yams and planting a second yam with the excess yam suckers on the land. On a Page 2 of 16 particular day, he encountered 1st Defendant on his land, and after a greeting, he inquired about the purpose of 1st Defendant's presence. 1st Defendant explained that he had created yam mounds in the area, and Plaintiff offered him some yam suckers. 1.6. After three days, upon revisiting 1st Defendant's farm, Plaintiff discovered that it formed part of his land. In a subsequent conversation, 1st Defendant expressed gratitude for the yam suckers and disclosed that the elders had given him permission to work on the land, requiring him to provide ten (10) tubers of yams annually to them. Upon Plaintiff clarifying that his uncle was Nana Kofi Donkor, who had gifted him the land, 1st Defendant acknowledged having found a landlord and pledged not to send yams to Asaasewura again. Since then, 1st Defendant has treated Plaintiff as a son, and reciprocally, Plaintiff has regarded 1st Defendant as a father, though no material benefits have been received by Plaintiff from 1st Defendant. 1.7. On 21st of April 1991, Nana Kofi Donkor passed away, and Nana Amankwaah Gyamfi II succeeded him as Asaasewura. Despite these changes, Plaintiff has not sought or collected anything from 1st Defendant. In October 2014, 1st Defendant conveyed a message through Atanyiba, notifying Plaintiff that someone was using a caterpillar to plough the area, potentially encroaching on his farmland. Upon investigation, Plaintiff discovered that the ploughing had indeed encroached on about half an acre of his land. After inquiries, it was revealed that Mr. Boahen had instructed the caterpillar operator, claiming that Nana Amankwaah had given the land to him. 1.8. When confronted, Nana Amankwaah stated he was unaware of the land belonging to Plaintiff and suggested Plaintiff marking a boundary at his discretion. Following this advice, Plaintiff demarcated the boundary from Bomfreh River to Page 3 of 16 Abomasuogya road, aligning it with Mr. Boahen's property. 1st Defendant praised Plaintiff for this action which was aimed at preventing further trespass. 1.9. In 2017, Plaintiff discovered a boundary set without his knowledge, leading to an investigation. It was revealed that Akubi and Kofi Koranteng, directed by Nana Amankwaah, had carved out a portion of the land, resulting in the sale of that portion to Fofie. Plaintiff reimbursed Fofie GHC2400.00 through Kwabena Donyina. 1.10. In 2019, documents were prepared to formalize Plaintiff as the bona-fide owner of the land, endorsed by Nana Amankwah Gyamfi, successor to the late Nana Kofi Donkor. Despite these efforts, challenges persisted. In July 2019, a chain-saw operator was found lumbering on the land, leading to interventions by Alhaji Abdulai and Hon. Gabriel Asante. Additionally, in August 2019, Akurugu claimed permission from 1st Defendant to cultivate yams, prompting Plaintiff to reclaim his land. 1.11. Further conflicts arose in October 2019, with 1st Defendant bringing 2nd Defendant to cultivate yams, leading to subsequent disputes. Despite interventions by Nana Amankwaah, tensions persisted, leading Plaintiff eventually deciding to take legal action in April 2020, as Nana Amankwaah was bereaved and unable to address the matter. Defendant’s case 1.12. In a Statement of Defence thumb printed by one of Defendants, which of them specifically though initially unclear becomes clear from the averments thererein as 1st Defendant, 1st Defendant made the case that he returned to Apesika from Nanto in the year 1967, and stated further that as at that time Abom-Konkomba, Abom, Basare, Kommandaa and Awaho Communities were not in existence. Nana Page 4 of 16 Appiah was chief of Apesika whilst Nana Darko was the landowner (Asasewura). He approached Nana Darko for a farmland to be owned by him, to farm. Nana Darko obliged and demanded an amount of 40.00 cedis, four (4) eggs and a bottle of Schnapps to purify the land for him to stay there for good. 1.13. After receiving the items, Nana Darko, Nana Appiah, Koo Manu, Yaw Adu and Koo Oduro went and demarcated a portion of land for him. The portion demarcated for him was eighty (80) acres. Per the rope used to measure, one is equivalent to four (4) acres and twenty ropes were measured for him. 1.14. 1st Defendant’s case was that he took Plaintiff as a son and assisted him in his assembly man Election. When Plaintiff became an assemblyman for Apesika he requested for a piece of land to plant mangoes and because Plaintiff was an Assemblyman, he showed Plaintiff part of the land to Plant the mangoes. 1.15. He gave the remaining farmland to labourers to work on his behalf and Plaintiff went and drove them away, laying adverse claim thereto so he informed Kwadwo Appiah the son of the late Nana Appiah of this. Defendant went with Kwadwo Appiah to Nana Amankwaa and after explaining to Nana Amankwaa, documents were prepared to cover twenty acres out of the original eighty (80) acres he acquired from Nana Darko which he 1st Defendants thought was to cover the whole eighty (80) acres. 1.16. Plaintiff’s claim to the entire land led parties to Nana Amakwaah who sought to settle the issue and it was agreed that Plaintiff gives fifteen (15) acres of land out of the Twenty (20) acres documented for 1st Defendant out of respect for the Chiefs who sat on the issue. The Chiefs asked Plaintiff to carve out fifteen (15) acres of land and document same for 1st Defendant but instead of the 15 acres agreed, Plaintiff documented only six (6) acres for 1st Defendant with the condition that, he Page 5 of 16 (1st defendant) has no right to sell, give to his son or plant cash crops on the land, but to return the land to Plaintiff on 1st Defendant’s return home. 1st Defendant finding this unacceptable, contended that Plaintiff is not entitled to his reliefs. 1.17. The main issues raised in this suit are whether Plaintiff is owner of the disputed land and whether Defendants have trespassed unto Plaintiff’s land. 2. Burden and standard of proof 2.1. In Memuna Moudy and Others v Antwi [2003-2004] 2 SCGLR 967 at pages 974- 975, the Supreme Court speaking through Wood JSC (as she then was) reiterated that where a fact as alleged by a party pleading is denied by the opponent, an issue arises for determination and the party alleging the denied fact has the burden of proving it. The Court stated as follows: “A cardinal principle of law on proof as enunciated in the age-old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases, including Zabrama v Segbedzi (1991) 2 GLR 221 at 246, 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 his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred." 2.2. The evidential burden on Plaintiff whose case is essentially denied by at least 1st Defendant was explained in Ackah v. Pergah Transport Ltd. & ORS (2010) SCGLR 728, by the Supreme Court thus; “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim will fail. The method of producing evidence is varied and it includes the testimonies of parties and material Page 6 of 16 witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non- existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the Evidence Act, 1975 (NRCD 323)” 2.3. Since in this suit a claim has been made for a declaration of title to land, I must clarify that the evidence required to prove such a claim was in Benyak Company Ltd v. Paytell ltd & 3 ors [2014] 76 GMJ 1, explained by the Supreme court as comprising the following: “Certainly, this court has held that the plaintiff apart from pleading his root of title, mode of acquisition and overt acts of membership, if any, must prove that he is entitled to the declaration sought” 2.4. In this suit, even if Defendant’s had not put up much of a case, Plaintiff puts his title in issue and must prove his root of title, the boundaries of the land in dispute and acts of ownership exercised over same. This position of the law is sufficiently clarified in Ebusuapanyin Yaa Kwesi v. Arhin Davis & Anor (2005) JELR 92075 (SC). 3. Evidence and the issues 3.1. Defendants did not call a single witness or give any evidence themselves to contradict Plaintiff’s case and I do not find this surprising. 1st Defendant perhaps under the mistaken impression that he could prevent the matter from proceeding, Page 7 of 16 had led the Court to believe that he was unable to speak twi and required an interpreter in the Dagomba language before he could proceed. Unfortunately for him, interpreter was procured and it was the stuff of television courtroom drama, when he burst out in rather competent twi, raising objections to the interpreter. 3.2. He failed or refused to file his witness statements, which was mandatory since pleadings were delivered in this suit and was unmoved by the several indulgences by the Court. Defendants, more specifically 1st Defendant, are accordingly deemed to have abandoned any pleadings they filed. In Adjei and Ors. v. Nmai Boi and Ors. [2013-2014] 2 SCGLR 1474 Adinyira JSC stated thus: “... It is trite law that pleadings would not constitute evidence. To hold otherwise would negate the requirements of proof as provided in the Evidence Act, 1975 (NRCD 323).” 3.3. In addition, the Supreme Court in Ofori Agyekum v. Madam Akua Bio (2016) JELR 66782 (SC), held per Benin JSC that where no evidence is adduced on a fact that has been pleaded, it is treated as having been abandoned by the pleader and the court does not call it into question in its judgment. The duty of this Court in this circumstance was stated by his lordship in these words: “The court’s only duty is to consider the evidence the party has proffered in determining whether or not he has met the right standard of proof” 3.4. This standard of proof as held in Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah and 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S. C. (Unreported), is on a balance of probabilities. Appau JSC stated in that case thus: Page 8 of 16 “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975 [NRCD 323]”. 3.5. It is also settled at law that when a party, without legally justifiable impediment elects to forgo the opportunity to be heard or to present a defence the tribunal is justified in proceeding to decide without it. In the event of an unfavorable decision to such an individual, they are precluded from subsequently raising objection to the taking of proceedings in their absence or without their defence and invoking the audi alteram partem rule. 3.6. The Supreme Court in has long settled this point in Republic v. High Court, (Human Rights Division) Accra Ex Parte Josephine Akita (Mancell-Egala, Attorney General Interested Party) [2010] SCGLR 374 and Gifty Addo J in applying it had this to say on the matte in The Republic v. Judicial Service of Ghana & Attorney General & Ex Parte: Mrs. Bannerman Quist (Guardian Ad Litem or Next Friend of Justice Charles Quist) (2021) JELR 107577 (HC): “It is important however to underscore the critical point that where a person’s ability to put up a defence upon invitation is not vitiated by any legally justifiable reason yet the person spurns the opportunity to be heard, the decision maker can proceed to take a decision. Should the decision go against such a person, it will lie ill in his or her mouth to complain afterwards. As was observed by the Court in the case of REPUBLIC VRS. HIGH COURT, (HUMAN RIGHTS DIVISION) ACCRA EX PARTE JOSEPHINE AKITA (MANCELL-EGALA, ATTORNEY GENERAL INTERESTED PARTY) [2010] SCGLR 374: A person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his own decision to boycott Page 9 of 16 proceedings cannot later complain that the proceedings have proceeded without him and then plead in aid the audi alteram partem rule.” 3.7. In effect, Defendants relinquished their rights to be heard and this Court was justified in continuing with the trial and reaching its decision herein based on the available evidence and arguments. Plaintiff in contrast, called two (2) witnesses who gave evidence corroborating Plaintiff’s ownership of the disputed land. Whether Plaintiff is the owner of the disputed land 3.8. On the first issue, that I consider necessary for the Court to settle before any definitive orders can be made, I remind myself that the appropriate test of satisfactoriness or sufficiency of the evidence is the degree of belief that the evidence or its proponent creates in the mind of the trial court concerning the fact or facts in issue. For evidence to pass this test and be deemed satisfactory, after having assessed the facts on all the evidence adduced, a reasonable mind should come to a conclusion that the existence of some fact in issue is more probable and reasonable than its non-existence. This was the position of the Courts in the cases of Ackah v. Pergah Transport Ltd [2010] SCGLR 728, 731 and Faibi v. State Hotels Corp [1968] GLR 471 3.9. It appears to me that Plaintiff’s alleged ownership of the disputed land is in the nature of a usufruct as can be gleaned from his pleadings and evidence. He alleges a customary oral grant from his uncle of land which he admits is on Dadiase stool land. 3.10. The nature of usufructuary ownership was explained by Appau JSC in Togbe Lugu Awadali IV v. Togbe Gbadawu IV (2018) JELR 68854 (SC) in these words: Page 10 of 16 “The word ‘Usufruct’ comes from the Latin phrase ‘usus et fructus’, which means; ‘use and enjoyment’, with ‘fructus’ used in a figurative sense to mean fruits enjoyed from the use, which include; the right to convey, transfer, lease, assign or tax during the pendency of the use of the property concerned. The term stands for a limited real right (or in rem right) found in civil law and mixed jurisdictions that unite the two property interests of ‘usus’ and ‘fructus’; i.e. the right to use and enjoy a thing possessed, directly and without altering it. It connotes the right of enjoying all the advantages derivable from the use of something (not only land) that belongs to another, as far as is compatible with the substance of the thing not being destroyed or injured. The Cambridge English Dictionary describes it as; “the legal right to use someone else’s property temporarily and to keep any profit made”. Black’s Law Dictionary, in its ninth edition, defined it as; “the right of using and enjoying property belonging to another provided the substance of the property remained unimpaired. More exactly, was the right granted to a man personally to use and enjoy, usually for his life...the property of another which, when the usufruct ended, was to revert intact to the dominus or his heir”. The Shorter Oxford English Dictionary; Deluxe Edition, describes it as; “The right of enjoying the use of and income from another’s property without destroying, damaging, or diminishing the property”. In customary law, usufruct means land is owned in common by the people, but families and individuals have the right to use certain plots or portions of the land. While people can take fruits of the land, they may not sell or abuse it in ways that stop future use of the land by the community.” 3.11. In the case of Mansu v. Abboye and Another [1982-83] GLR 1313-1323 the Court of Appeal per Francois JA (as he then was) spoke of the usufructuary interest thus: “... Some of the cardinal incidence of the usufructuary interest were that the usufructuary had exclusive possession of the portion of land and he Page 11 of 16 could not capriciously be divested of that interest by the stool neither could the stool alienate that portion of land to any other person without the prior consent and concurrence of the usufructuary. Thus, the usufructuary interest was potentially perpetual the interest of the usufructuary could be determined only by his consent, his abandonment or upon failure of his successors”. (emphasis mine). 3.12. I consider Defendants to also have admitted Plaintiff’s case as made by him, by their failure to challenge it by cogent evidence, not merely by their simple failure at cross-examination, since to my mind they are lay and unrepresented at best, as the trite learning requires. The definition of an admission that I have adopted is as found in the 7th edition of the Black’s Law Dictionary, that is “a voluntary acknowledgment of the existence of facts relevant to an adversary’s case.” 3.13. As held in Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, where a matter is admitted proof is dispensed with. In the case of in re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III (substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656, the court laid the legal rule on admissions thus: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.” 3.14. Although 1st Defendant made some attempt at cross-examination and to deny Plaintiff’s case, it is trite that a bare denial, that is one which is not supported by any evidence or explanation contradicting the denied fact or evidence is at law insufficient and achieves almost nothing. I have been mindful not to hold Defendants failure to cross-examine against them as admonished severally since Page 12 of 16 they are lay and unrepresented, but it is still not sufficient to simply deny an allegation without providing any evidence or explanation to support the denial and for this reason, in Hilodjie v. George (2005-2006) SCGLR 974 at 995 Georgina Woode JSC (as she then was) stated as follows: “In any action, cause or matter, a party who disputes an issue does not simply rest the case on formal denials either made in examination-in- chief or ‘put’ or ‘suggested’ to an opponent under cross-examination. If the opponent does not admit those suggestions, then he or she is deemed to have succeeded in establishing a prima facie case on the disputed fact, and the evidentiary burden shifts on to that party to prove contrary facts if he or she is desirous of avoiding a ruling against him or her on that issue.” 3.15. Considering all the evidence on record, the substance of which has not been discredited under cross-examination, nor controverted by credible contradictory evidence, I find that Plaintiff is the owner of the disputed land. Whether Defendants have trespassed unto Plaintiff’s land 3.16. On the second issue raised irresistibly by Plaintiff’s case, the law is that unauthorized entry onto land, that is without the agreement, approval or consent of the true owner, their agents, servants, or any person in possession, constitutes trespass. This infringement is a violation against possession, as established in Chegu v. Dagomba [1977] 1 GLR 412. According to the pronouncement of Wiredu J, when a court determines trespass, the consequential award of damages is imperative. However, in the grant of damages, a substantive foundation for an amount greater than a nominal sum must be established. Page 13 of 16 3.17. Plaintiff’s case that Defendants have entered the disputed land went unchallenged, even admitted, so I find that Defendants have trespassed unto Plaintiff’s land. 4. Damages 4.1. This Court has determined that trespass has occurred, and it is trite that trespass is actionable per se. Accordingly, an award of damages is appropriate in this suit for the breach of Plaintiff’s rights, that is the trespass to Plaintiff’s land, to compensate Plaintiff in fulfillment of the general rule that the award of damages is meant to place him in the same position as if the breach had not occurred. 4.2. As held in Cornelius Ogbu v. Access Bank (Gh) Ltd (2015) JELR 69870 (CA) the object of an award of damages is to give Plaintiff compensation for the damage, loss or injury he has suffered. The Court may also award compensatory damages to make Plaintiff whole financially. This notwithstanding, there must be a basis for an award of damages that is more than nominal. There is evidence on the record which stands unchallenged and uncontroverted by contrary evidence that Defendants have cultivated the disputed land with yam. I note that this may require effort and expense on the part of Plaintiff to remove, if he finds them desirable. In my estimation, this suffices as grounds for the award of damages that is more than nominal. 4.3. By the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C. I. 52) it is provided at Rule 1 that if the court in a civil matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated (a) at the bank rate prevailing at the time the order is made, and (b) at simple interest, but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner. Rule 2(1) of C. I. 52 provides that Subject to subrule (2) each judgment Page 14 of 16 debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment. 4.4. The prevailing bank rate as provided under Rule 4(1) is the bank rate prevailing at the time the judgement or order is made by the court and where there is doubt as to the prevailing bank rate, the 91 days Treasury Bill rate as determined by the Bank of Ghana shall be the prevailing bank rate as provided by rule 4(2). Applying the reasoning of the Supreme Court in Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC), I apply rule 4(2) of C. I. 52 in computing damages in this suit, at the statutory rate of 29.58 % per annum, which I have taken notice of as the Bank of Ghana 91-day treasury bill rate as at judgment, since there is clearly no statutory or contractual interest rate to be applied. Conclusion In conclusion, Plaintiff’s action succeeds entirely and the Court makes the following orders in favour of Plaintiff against Defendants jointly and severally: a. Declaration of Plaintiff’s usufructuary title to all that parcel of farmland measuring 91.55 acres lying, situate and being at "ABOMKONKOMA" on Dadiase Stool lands and bounded by the properties of I. K BOAHEN, RIVER BOMFREH, OPANIN KOO WUO AND A Road from Apesika to Abomasuogya b. Recovery of possession of the all that farmland described in order (a) above. c. An order of Perpetual Injunction restraining Defendants and all those claiming through them from entering or dealing in whatever manner with Plaintiff’s farmland described in order (a) above. Page 15 of 16 d. Damages for trespass to land in the sum of GHS 5,000.00. e. Interest on the sum in order (d) above at a rate of 29.58 % per annum till final payment. f. I assess Plaintiff’s Costs at GHS 5000.00. SGD. KWAME ADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present (unrepresented) Page 16 of 16