NYAMEKYE VRS MUSAH (A1/22/2020) [2024] GHADC 334 (20 March 2024)

IN THE DISTRICT COURT HELD AT AGOGO ON 20TH MARCH, 2024. BY HER WORSHIP CYNTHIA NUEKIE BLAGOGEE SUIT NO A1/22/2020 MAAME AKUA NYAMEKYE.............................………………….....….PLAINTIFF VRS DANLAADE MUSAH……………………………………………………………..DEFENDANT Plaintiff herein seeks the following from the defendant. JUDGEMENT 1. An order for ejection of the defendant from the seven acres portion of the plaintiff’s fifteen acres land situated at Anwanie on Agogo stool lands and bounded with properties of Maame Akua Tiwaa at the South, at the East with Maame Akua Danse and Maame Sipanin (deceased) at the west with Maame Beamha and at the North with same Maame Beamah and Opanin Amoako. 2. Recovery of 2 bags of dried maize and 20 bags of charcoal at a total cost of GH¢680.00 at GH¢140.00 and GH¢20.00 per bag respectively being plaintiff’s share of proceeds. 3. Recovery of GH¢4,000.00 being cost of twenty trees the defendant cut into lumber and sold same at the detriment of the plaintiff. THE PLAINTIFF CASE It is the plaintiff’s case that she is a farmer and so is the defendant. She intimated that she acquired the disputed farm land by way of gift from her mother uncle by name Yaw Nkrumah. The plaintiff described the disputed land as about fifteen acres in all and bounded with the properties of the following. That of Maame Akua Tiwaa at the South, 1 Maame Akua Danse and Maame Sipanin (deceased) at the East. At the West lies that of Maame Beamah and at the North with that of Maame Beamah and Opanin Amoako. According to the plaintiff about two years ago, she earmarked five acres of the land to the defendant to cultivate cocoa on abusa basis. And demanded an amount of GH¢700.00 as ‘Aseda’ from him. However, she averred that the defendant advanced an amount of GH¢400 and commenced work. That said, she intimated that the defendant was given two years to fully cultivate the five acres. Nonetheless, she said the defendant had cultivated only two acres out of the five acres. It is her beef that instead of the cultivation of the cocoa, the defendant had resoughted to the cultivation of food crops and lumbering. Again, she said the defendant harvested seven bags of dried maize, burnt sixty bags of charcoal and felled twenty trees, cut them into lumber and sold same without her benefit. Thus, she wants the court to eject the defendant from the farm for breach of the agreement. The plaintiff’s witness corroborated her story. THE DEFENDANT’S CASE: The defendant admitted the abusa tenancy between himself and the plaintiff. However, he refuted having paid an amount of GH¢400.00 as claimed by the plaintiff. And insisted that he advanced an amount of GH¢500.00 out of the GH¢700.00. He said the remaining GH¢200.00 was to be used for the documentation of the agreement. He was quick to add that the documentation was not executed because they were waiting for the plaintiff’s siblings to travel from Accra to witness same. Beyond that, the defendant contended that the plaintiff entrusted the entire fifteen acres land to him to cultivate out of which he had cultivated seven acres. For him, the court should appoint a valuer to value his work done for compensation to vacate the land. 2 ISSUE: Whether or not the plaintiff’s relief must avail her? THE LAW AND ANALYSIS It is trite that the onus or obligation to prove her case rests on the plaintiff. This provision is set out in sections 10 and 11 of the EVIDENCE ACT, 1975 (NRCD 323) and the standard as in civil cases such as the instant one is on the preponderance of probabilities as set out in section 12. These provisions are reiterated on a number of authorities including the case of ZABRAMA V SEGBEDZI [1991] 2 GLR at 246 where Kpegah J.A (as he then was) held. “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” The apex court also explained this principle in the KLAH V PHOENIX INSURANCE CO. LTD [2012] SC GLR 1139 case. Now, drawing from the above provisions, the plaintiff maintained throughout the trial that the defendant breached the agreement by his failure to cultivate the entire five acres farm land within the alleged two years. And that the defendant instead of the cultivation of cocoa took to lumbering. But more importantly, that the defendant failed to share the proceeds with her. 3 These facts were however, not pleaded by the defendant however, under cross examination he conceded having planted some maize. This is what transpired between plaintiff and the defendant. Q: I put it to you that when I first cultivated the land and planted maize, I had 3 and half bags. I took 2 bags and I reserved one and half bag for you but you refused to collect it and it all went bad. A .Not correct, you got seven bags. I got this information from a driver. Again, you never asked me to come for any one and half bag of maize. From the plaintiff’s assertion that the defendant cultivated seven bags and that she had the information from a driver is not satisfactory. In that, the defendant disputed her assertions and as held in the ZABRAMA case she was obliged to prove same. However, having failed to call the said driver from whom she purported to have had the information to either confirm or deny same makes her averment fail that the defendant harvested seven bags of maize. Thus, inures in favour of the defendant as having three and half bags and not seven bags. Another contention by the plaintiff that the defendant abandoned the cocoa cultivation and concentrated on food crops was challenged by the defendant. This is what transpired between the two. Q: I put it to you that I have planted cocoa on all the farm. I have cultivated some of which have started to bear fruits. A. Not correct. Q. It is true that I have food crops amongst the cocoa which is the normal farm practice. 4 A. Yes that is the practice but what I know is that the cocoa is planted before the food crops are planted. In my view the defendant’s argument is sound. After all, he would have to feed his family, thus it is not unlawful to interplant food crops among the cocoa plants as the plaintiff sought to suggest, However, it is unacceptable on the part of the defendant to turn to food crop cultivation instead of his core cultivation of cocoa as agreed upon. Why do I say so? The court visited the locus upon the invitation of the parties. And I personally witnessed more plantains, cassava and cocoyam among other food crops planted on the farm. The observation I hold strengthened the plaintiff argument that the defendant had breached the agreement between them. But more worrying is the fact that he failed to share the proceeds with the plaintiff. Furthermore, it is the plaintiff’s case that the defendant burnt 60 bags charcoal and sold same without giving her share of the proceeds. The defendant denied that allegation and insisted it was just 30 bags. He also noted having given the plaintiff 10 bags but she rejected same. Let me reproduce the encounter between the two under cross examination. Q: Again you burnt charcoal of 60 bags but denied me of my share? A.The charcoal was 30 bags I took 20 bags and brought you 10 bags of which you rejected same. You asked me to sell same and that of the 11/2 bags of maize and vacate the land. This was about four years ago. Now, from the above encounter it is without doubt that there is mistrust between the parties long ago and for which the parties seen not to get along as landlord and tenant. The best in my view is for the parties to terminate the agreement and part company. 5 Another difference between the parties is about whether or not the plaintiff agreed to give 5 of the entire 15 acres of the land to defendant to cultivate. The plaintiff maintained that she contracted with the defendant to cultivate just 5 acres. However, the defendant refuted and said he was given the entire 4 acres of land to cultivate. See what transpired between the two under cross examination. Q. I put it to you that I gave you 5 acres to cultivate out of the entire 14 acres, that explains why I demanded customary drink of GH¢700.00. I would not have taken GH¢700.00 for the entire 14 acres of land. A.You asked me to cultivate the entire 14 acres and we negotiated for customary drink to be paid on the 14 acres as GH¢15,000.00. I pleaded for a reduction to GH¢800.00 which you obliged. I then paid GH¢500.00 out of the GH¢800.00. Now inferring from the above encounter I am of the view that a 14 acres farmland would attract more than GH¢800.00 consideration. I think the plaintiff’s story is more reasonably probable than that of the defendant in the absence of any documentation to substantiate same. It is in the light of the above that I am convinced the plaintiff’s case is more sound on the balance of probabilities as set out in NRCD 323 (Supra). I therefore enter Judgement for the plaintiff against the defendant for her reliefs in part. I eject the defendant to vacate the said farmland for with having breached the agreement. The plaintiff is ordered to recover possession forthwith, Plaintiff’s second relief is dismissed. Since she rejected her shares that the defendant should sell and keep the proceeds and vacate the land. With regard to her third claim, she failed to prove to warrant any relief. The parties are to bear their own cost. SGD 6 H/W CYNTIA NUEKIE BLAGOGEE 20/3/2024 MAGISTRATE 7