YEBOAH VRS ISAAC (BR/DR/DC/A1/13/2022) [2024] GHADC 231 (27 May 2024)

IN THE DISTRICT COURT, DROBO BONO REGION SUIT NO. BR/DR/DC/A1/13/202 KWAKU YEBOAH PLAINTIFF Suing as the customary successor of the Late Op. Donkor of Annor Family. VRS YAW ISAAC DEFENDANT JUDGMENT DELIVERED BY H/W LINDA E. NYAHE ESQ. (MAGISTRATE) DATED: 27/05/2024 Page 0 of 11 IN THE DISTRICT COURT HELD AT DROBO ON MONDAY, 27TH DAY OF MAY, 2024. BEFORE HER WORSHIP LINDA ENYONAM NYAHE ESQ MAGISTRATE SUITNO. BR/DR/DC/A1/13/202 KWAKU YEBOAH PLAINTIFF Suing as the customary successor of the Late Op. Donkor of Annor Family. VRS YAW ISAAC DEFENDANT Plaintiff – Present Defendant – Absent JUDGEMENT The Plaintiff, by his amended writ of Summons filed on the 17th day of September, 2021 claims against the Defendant the following reliefs: a. Declaration of title and recovery of possession of all that parcel of farmland being, lying and situate at a place commonly known as “NYINAWONSU near Koonsiah on Drobo Stool land which shares boundary with the properties of; Op. School Kwame, Yaw Asumah, Kwasi Ntor, Op. Kwame Twum, Kwaku Kwarfo, one Andrews and Op. Kwadwo Oppong which farmland the Defendant encroached upon and he (SIC) cultivating cashew thereon for a year now. b. An order for Perpetual injunction restraining the Defendant, his agents, his heirs, labourers, workmen and all those claiming through them from interfering with the disputed cashew farm. c. Cost to cater for the Plaintiff’s expense. Page 1 of 11 The case of the Plaintiff as can be gleaned from his Statement of Claim is that he is the customary successor of one Op. Donkor (deceased) who originally acquired the disputed farmland. That the disputed farmland is situated at a place commonly called “NYINAWONSU” near Koonsiah on Drobo Stool land which shares boundary with the properties of; Op. School Kwame, Yaw Asumah, Kwasi Ntor, Op. Kwame Twum, Kwaku Kwarfo, one Andrews and Op. Kwadwo Oppong as boundary owners. According to Plaintiff, Op. Kwaku Donkor during his lifetime cultivated cocoa farm on his land but at a point in time the cocoa farm was burnt by bush fire. That, since he became the customary successor of Op. Kwaku Donkor in 1995 after his death, he (Plaintiff) has been the custodian of the disputed land and for that matter has been in effective possession of the disputed land for the Annor family and Op. Donkor’s children without hindrance. Plaintiff contends that the Defendant herein is currently in possession of a portion of Kwaku Asuma’s land which shares common boundary with Op. Kwaku Donkor’s land (Plaintiff’s land). Plaintiff averred about a year ago, Defendant encroached onto the disputed land and started to cultivate same without the consent of any member of the family. Plaintiff averred he lodged a complaint with Okyeame Kramo Amera for the Defendant to stop his trespassory act but all efforts made to stop him has failed. It is Plaintiff’s case that on the stretch of the land where the boundary dispute is, he shares common boundary with three persons farm properties which are the properties of Op. Kwaku Asumah currently in the possession of the Defendant and one Andrews, Op. Kofi Oppong and Op. School Kwame. That among the boundary owners mentioned it is only the Defendant herein who had encroached onto his (Plaintiff) land and thus laying adverse claim to the disputed land. The Defendant per his Statement of Defence denied Plaintiff’s claim that he had encroached onto the Plaintiff’s land and said it is rather Plaintiff who wants to take the Page 2 of 11 portion of Kwaku Asuma’s land. He denied the boundary owners of the Plaintiff. Although he admits he shares boundary with the Plaintiff and some other boundary owners Plaintiff mentioned but not all of them. According to him, the disputed land shares common boundary with the properties of the following; Op. Kwaku Donkor’s land currently in possession of the Plaintiff, Op. Yaw Kyere and one Kwasi Ntor of Berekum, all at one side of Op. Kwaku Asuma’s land. Defendant averred that the disputed area is the property of the family of Kwaku Asuma, and his siblings as well as relatives have been cultivating the land for many years. He further said he honoured Okyeame Kramo Amera’s invitation and denied Plaintiff’s allegation that he has encroached on his land. Defendant prayed the Court to dismiss the Plaintiff’s case. The issues identified for determination by the Court are as follows; a. Whether or not Defendant has trespassed unto Plaintiff’s parcel of land b. Whether or not Plaintiff is entitled to his claims. For convenience sake, I seek to resolve the two issues raised above together in the light of the evidence adduced and application of the law. EVIDENCE ADDUCED BY PLAINTIFF At the trial, the Plaintiff relied on his witness statement filed as his evidence –in-chief and called one witness Martin Gyan (PW1) and brought his case to a close. The evidence of the Plaintiff is a rehash of all the averments contained in his Statement of Claim. The PW1 testified that he knows the disputed land which is situated and lying at a place known as NYINAWONSU near Konsiah on Drobo Stool land. That his late father Op. Kwasi Adinkrah and Op. Kwaku Donkor were family members from the Annor family. PW1 continued that during the lifetime of his late father and Op. Donkor, both acquired their respective lands in the same area and cultivated cocoa farms separately sharing common boundary. He testified further that it is the Plaintiff and his Page 3 of 11 nephews who had been in effective occupation of Op. Kwaku Donkor’s land. Further, to the best of his knowledge the Defendant is currently in possession of Kwaku Asuma’s land but the said land does not extend up to where the Defendant is claiming. EVIDENCE ADDUCED BY DEFENDANT Defendant also filed witness statement and relied on same as his evidence. He called one witness in the person of Andrews Bosomtwe (DW1). Defendant testified that the disputed land forms part of Op. Kwaku Asuma’s family land and that he is currently in occupation of Op. Kwaku Asuma’s land. That after the demise of Op. Kwaku Asuma, the disputed land devolved unto his children that is Andrews Bosomtwe (DW1), Fosu Matthew, Agartha Kyeremaa etc. Further that, the said children granted the land to him (Defendant) to cultivate same about six (6) years ago. He testified that when he moved into occupation there were planted hedges/flowers already on the common boundary between Op. Kwaku Asuma’s land and that of Op. Kwaku Donkor which Plaintiff claims he is the customary successor. He went on to say that he has not encroached onto the Plaintiff’s land rather it was the Plaintiff who wants to take a portion of Kwaku Asuma’s land. DW1, Andrews Bosomtwe also relying on his witness statement testified that the land in dispute is for his late father; Op. Kwaku Asumah also known as Peter Kwaku Tawiah who acquired the land in its virgin state when same was a forest. He told the Court further that the disputed land shares common boundary with Op. Kwaku Donkor’s land currently in possession of the Plaintiff, Op. Yaw Kyere and one Kwasi Nto of Berekum. He continued by saying he has farmed on his father’s land for many years until in 2004 when he left the disputed land and went to Sefwi to buy cocoa. On his return, he saw that Plaintiff has solely planted flowers on the boundaries without his notice and thereafter travelled out of the jurisdiction. DW1 continued that he made several attempts for Plaintiff and himself to resolve their boundary dispute but to no Page 4 of 11 avail and for that matter he had to give his father’s land to the Defendant to cultivate cashew thereon to avoid future litigation. DW1 further said he has gone unto the disputed land to inspect all the boundaries and at no point has Defendant encroached unto Plaintiff’s land rather it is the Plaintiff who had taken a portion of his father’s land. EVALUATION OF EVIDENCE AND APPLICATION OF THE LAW It is worthy of note that the Plaintiff did not put his entire land in issue. The real issue between the parties as revealed by the evidence is a boundary dispute between two adjoining owners. Fundamental and crucial to every boundary dispute is the onus on the party who claims for declaration of title to clearly establish the identity of the land he claims. Thus, it is settled law that a party who claims for declaration of title to land, injunction, and possession must clearly identify the land by positive evidence. The rationale for this rule has been amply explained by Ollenu JSC in the case of ANANE V DONKOR [1965] GLR 188 at page 192 as follows; “Where a Court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the Court will be in vain…”. In this regard, since Plaintiff is the one seeking for declaration of title, he bears the burden to prove the identity of his land which consist of his boundaries, his boundary features, the extent of his land and that of the portion trespassed on by calling credible boundary owners in support of his case. Page 5 of 11 The relevant question now is whether the Plaintiff adduced evidence to establish clearly the identity of the land he claims. It became incumbent for Plaintiff to call adjoining land owners to establish all his boundaries and boundary features. In ACKAH V PERGAH TRANSPORT LIMITED [2010] SCGLR 728 at 736 Adinyira, JSC aptly stated the position thus; “It is a basic principle of 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 may fail…it is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non- existence. This is the requirement of the law on evidence under section (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323)” On the part of Plaintiff apart from saying that Defendant has trespassed unto his land, nothing else has been done in proof of his case. It has been held that mere repetition of averments on oath does not constitute proof. See the case of MAJOLAGBE VRS LARBI (1959) GLR 190. The size of Plaintiff’s land is not known; the extent of the alleged trespass is also not known because he did not give any evidence on same. He didn’t testify on his boundary features. It was only during cross-examination that Plaintiff sought to tell Defendant that currently, their boundary features are marked by five (5) palm trees but Defendant cut down one. In another breath under cross-examination Plaintiff told the Court he and the DW1, the Defendant’s grantor planted flowers on the boundary as boundary features which from the proceedings differ. I seek to reproduce relevant portion of cross-examination of Plaintiff by Defendant on 21/06/22 as well as cross-examination of Defendant by Plaintiff on 12/06/24 respectively as follows; Page 6 of 11 Cross-examination of Plaintiff by Defendant Q. Do you remember you made a complaint against me before Op Kramo Amera and when we met I asked who planted a flower which served as a boundary feature and you said you were the one who planted it alone? A. It is not true. I cultivated these flowers with your uncle, Andrews Cross-examination of Defendant by Plaintiff Q. Currently, our boundary features are 5 palm trees. They were six but Defendant cut down one. A. It is not true This is the same Plaintiff who admitted that he planted flowers on the boundaries between his land and that of the Defendant but now mentioning five (5) palm trees as boundary features. The inconsistencies show that Plaintiff is not certain or doesn’t know his boundary features. In essence, Plaintiff couldn’t prove his boundary features as well. Moreover, since Plaintiff testified that the stretch where the boundary dispute is shares boundary with the properties of Op. Kofi Oppong and Op. School Kwame’s land, one would have thought that Plaintiff would have made diligent efforts to call any of those boundary owners as material witnesses but he failed to. Aside them none of the boundary owners or the persons now in possession of those lands were called by the Plaintiff. The PW1, Plaintiff’s only witness claimed his father the late Op. Kwasi Adinkrah shared a common boundary with the disputed land. However, Plaintiff in describing his boundary owners never mentioned Op. Kwasi Adinkrah as a boundary owner of his land. This means the PW1 is not a boundary owner as he portrays and consequently not a material witness. It is not surprising that he testified whiles under Page 7 of 11 cross-examination that he doesn’t know about the boundary Plaintiff shared with the Defendant as well as other boundary owners. With this major inconsistency and other inconsistencies in his evidence, his testimony fell flat and made Plaintiff’s case to wobble the more. The following ensued during the cross-examination of PW1 by Defendant Q. I suggest to you that your father purchased his land but did not cultivate it in its virgin state? A. I cannot tell Q. You are not being truthful to the Honourable Court? A. I am telling the Court the whole truth Q. Plaintiff claims that he shares the common boundary with Op. School Kwame and Op. Kwaku Asuma (my grandfather). What do you know about that boundary? A. To the best of my knowledge the Plaintiff’s land shares common boundary with my father’s land but I do not know about the other boundary owners. There is ample of evidence to show that there have been some misunderstandings as regards where the common boundary is and the boundary dispute between Defendant’s grantor and the Plaintiff have existed long before Defendant was put into possession but the parties have not been able to find a lasting solution to it. DW1 gave the Court a clue by saying they do not have any boundary features as the boundary features got burnt during the 1983 bush fire and that has sparked the confusion as to where the boundary really is. In my humble view it may be the reason Plaintiff keeps coming up with new boundary features. The problem will only be fixed if parties are willing to make compromises. Now, what is happening is that each party is saying the Page 8 of 11 other has taken a portion of his land. Considering the whole evidence, although Plaintiff and Defendant share a common boundary, there is no evidence that the Defendant has trespassed unto the Plaintiff’s land. Section 12 of the Evidence Act, 1975 (NRCD 323) provides; (1) “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities” (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” On the totality of the evidence, Plaintiff fell short of the standard of proof required. Plaintiff failed to prove the identity of the land he claims, his case fails and he cannot rely on the weakness in the Defendant’s case. As in the case of YORMEVU V. AWUTE AND OTHERS [1987-88] 1GLR 9, “It was settled law that when after the close of a case the judge came to the conclusion that the plaintiff’s case was weak and that of the defendant’s too was weak, the judge could not prefer the plaintiff’s weak case to that of the defendant, and it would be wrong to grant to the plaintiff the reliefs he sought. Where the defendant did not call any evidence at all the position would not be different unless there was a counterclaim. In which case the evidence which would be required from the defendant would be the same evidence to establish the counterclaim and not evidence in rebuttal of the plaintiff’s claim.” Therefore, in conclusion, the plaintiff’s weak case cannot and will not be preferred to that of the defendant’s, who equally has a weak case. In that regard, all the reliefs being sought by the plaintiff are hereby dismissed. Cost of GHC2,000.00 is awarded against the Plaintiff in favour of Defendant. Page 9 of 11 ……….……SGD…............... H/W LINDA E. NYAHE ESQ. MAGISTARTE Page 10 of 11