YAHAYA VRS MBEI (NR/BB/DC/A1/07/2024) [2024] GHADC 416 (19 September 2024)

IN THE DISTRICT COURT HELD ON THURSDAY THE 19TH DAY OF SEPTEMBER, 2024 AT BIMBILLA BEFORE HIS WORSHIP PETER KOBBLAH AMETSOWU. SUIT NO. NR/BB/DC/A1/07/2024 ABDULAI YAHAYA PLAINTIFF (Head of family of Nakpawulana). OF NAKPA- GBENI/BIMBILLA VRS PAPAYE MBEI DEFENDANT OF NAKPA- GBENI/BIMBILLA INTRODUCTION JUDGMENT 1. The Plaintiff sues as the head of family of the Nakpawulana family of Nakpa- Gbeni. The Defendant is a farmer and resident in Nakpa-Gbeni. 2. On the 26th day of April, 2024 the Plaintiff issued out of the registry of this court a Writ of Summons against the Defendant in his capacity as head of family and claimed for the following reliefs: (i) Declaration that the over one hundred and fifty (150) acres of farm land sharing boundaries to the East with Alhassan, to the West is Wumbeido, to the North Wamzam Mahama and to the South Gbenaa Natogmah lying and situate at Janbikpariga in the Nanumba North Municipality of the Northern Region is the 1 | P a g e farm land of Nakpawulana family of Nakpa-Gbeni of which the plaintiff is the head of family. (ii) Declaration that the twenty (20) acres out of the said 150 acres farm land is where Plaintiff and his family are farming on now and nobody is allowed to farm within the said 20 acres… (iii) An order that the defendant vacates and stops his farming activities on the said two acres of the disputed land. (iv) Recovery and possession of the said two acre described in claim 2 above. (v) General and compensatory damages for intentionally and arrogantly trespass on to the said land. (vi) An order of prohibitory injunction restraining the Defendant, his assigns, agents, workmen or persons claiming through him from interfering with plaintiff’s ownership, control and management of the said farm land described in claim 2. (vii) Cost inclusive of instituting this action. 3. As a result, the Defendant pleaded not liable to all the reliefs sought by the Plaintiff. The court then ordered the parties to file their respective pleadings to enable the court set out the issues for determination. PLAINTIFF’S CASE. 4. The Plaintiff in its Writ of Summons and Summary of Subject Matter of Claim sought for declaration of title of the disputed land and some ancillary reliefs. It is the case of the Plaintiff that the land in dispute which is over 150 acres was allocated to his grandfather by the first Nakpa-Naa Attah. Plaintiff stated that his grandfather was part of the first Nanumbas to settle at Nakpa-Gbeni several years ago. That his grandfather became the third Nakpa Naa with the name Nakpa Naa Natogmah Garili. 2 | P a g e 5. Plaintiff also stated that his fathers had continued their farming activities on the disputed land. That in his time they could not farm on the whole of the 150 acres since his siblings had left Napka and settled at different places. As a result, Plaintiff states that he limited his farming activities to 20 acres where his nephew Bawa Zakari has been farming on a portion of the 20 acres for some years now. And that it is the portion granted to Bawa is the portion that the Defendant has trespassed without permission from the Plaintiff DEFENDANT’S CASE. 6. The Defendant, on the other hand, contended that the land the subject matter of this dispute does not belong to the Plaintiff’s grandfather but the Nakpando family, and that plaintiff’ father never farmed on the disputed land. Further, Defendant stated that before 1981 his father, Daboli was the one who gave Nakpa Naa Natogmah part of the disputed land to farm since the said Nakpa Naa was newly enskined and had no place to farm. ISSUE FOR DETERMINATION. 7. The court after perusing the processes filed by both parties concluded on one main issue for determination, and that is: (i) Whether or not the disputed land belongs to the Plaintiff’s family? STANDARD OF PROOF, ANALYSIS AND EVALUATION. 8. The issue identified above by the court will be analyzed and evaluated by considering both the fact and evidence put forward by both parties vis a vis the applicable laws. The issues are determined when the party with the burden to establish the existence or nonexistence of an allegation is able to produce credible 3 | P a g e evidence to that effect. This is /provided under section 14 of the Evidence Act, 1975 (NRCD 323) as follows: “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” 9. In the case of ABABIO VRS AKWASI III (1994-95) GBR 774 at 777, AIKINS JSC stated the principle thus: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not he loses on that particular issue. See Bank of West Africa Ltd v Ackun [1963] 1 GLR 176”. 10. In a similar case of ACKAH VRS. PERGAH TRANSPORT LTD [2010] SCGLR 728 at page 736 Adinyira, JSC stated that: “It is a basic principle of the law of 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…” 11. Being the Plaintiff, the responsibility rests with the Plaintiff to adduce credible evidence to enable him win his case on the balance of probabilities. 4 | P a g e 12. The burden of producing credible evidence by the parties as well as the burden of persuasion are provided under section 12 (1) of NRCD 323 which reads as follows: “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.” Subsection (2) of section 12 of NRCD 323 defines what preponderance of probabilities means as follows: "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.” 13. The sole issue to be resolved is, Whether or not the disputed land belongs to the Plaintiffs’ family? I find that on record that the Plaintiff’s grandfather acquired the disputed land of over 150 acres from the first Nakpa Naa Attah of which Plaintiff alleged that Defendant has trespassed onto. 14. The principle of law is that in land suits, the Plaintiff is required to prove his case by adducing credible evidence. In the case of DOWUONA II V. OLEWOLON (2006-2007) 7 MLRG 1534, the Supreme Court succinctly stated as follows: “It is trite learning, plaintiff seeking title, the onus rests upon him to prove his case” 15. Basically, there are two main essentials which the plaintiff is required to prove. These are his root of title and the identity of the land he claims. On root of title, see the case of HENRY DOE SAMLAFO VRS. GREDA AND ANOR (2010) 26 GMJ 94 CA 5 | P a g e 16. Related to root of title, is the identification of the land in dispute, where it was established in the case of BISSAH VRS. GYAMPO III (1964) GLR 381 where the Supreme Court held at Holding 1 as follows: “It is the duty of a plaintiff who claims a declaration of title to land to identify clearly to the court the area of land to which his claim relates…” 17. I observed that the Plaintiff has been able to trace his root of title to the disputed land through the allocation made to his grandfather as one of the first Nanumbas to settle in Nakpa- Gbeni several years ago. 18. Further, to satisfy the second requirement as stated earlier Plaintiff identified the land in dispute and gave the boundaries as follows in his Writ of Summons: to the East with Alhassan, to the West is Wumbeido, to the North Wamzam Mahama and to the South Gbenaa Natogmah lying and situate at Janbikpariga in the Nanumba North Municipality of the Northern Region. 19. In support of his case Plaintiff called two witnesses including IDDRISU NATONGMAH (PW1) and BAWA ZAKARI (PW2). In his testimony PW1 testified that his grandfather’s land shares boundary with the Plaintiff’s grandfather. PW1 further testified that sometime in 2022 the Defendant encroached his grandfather’s farm land and he subsequently took legal action against the Defendant. As the matter progresses the Defendant appeared once in court but absconded and judgment was delivered in favour of PW1. 20. To this testimony, the Defendant, in his cross examination of PW1 initially said he does not know PW1 but succumbed to the testimony of PW1. I reproduce here the whole of the Defendant’s cross examinations of PW1 on 08/08/2024 and 15/08/2024: Q. Do you live in Nakpa-Gbeini? Ans. Yes. I live in Nakpa, myself and my wife are in Nakpa in my own house. Q. I do not know you in Nakpa. I know you are in Bimbilla. Ans. I was in Nakpa when I took the action against you. 6 | P a g e Q. Is it because I did not want the matter to come to court that was why I did not appear to defend the suit. Ans. You encroached on my grandfather's land that was why I took the action against you. 21. On the 15/08/2024 this is what ensued between the Defendant and PW1: Q. I do not know you how can I have something to do with you? Ans. You know me. Q. Did you take Ghc300. 00 and a fowl and a guinea fowl from me that we will farm together in your previous case against me? Ans. It is not true. Q. You came and said Nakpa Regent sent you to me that we should get him something to pacify the farm land so that we farm together? Ans. It is not true. Q. I do not have any other question for the witness. 22. PW2 testified to the fact that he has been farming on a portion of the disputed land given to him by the Plaintiff for almost 20 years. For the 20 years that PW2 has been on the disputed land he testified that no one confronted him until this year when PW2 spotted the Defendant on his portion where he cultivated soya beans last year. 23. From the above cross examination and the testimony of PW2 I make the following fact finding: i) ii) That PW1 ever took a legal action against the Defendant and had judgment against the Defendant That PW2 has been farming on a portion of the disputed land and last farming season cultivated soya beans. iii) That it is this year that Defendant trespassed onto the portion cultivated by PW2. 7 | P a g e iv) That granted that the 2-acre portion of the disputed land belongs to Nakpando family where has this family been for all the 20 years that PW2 has been on the land? 24. As provided by the law under section 14 of the Evidence Act (Supra) the Plaintiff has been able to discharge the burden of producing sufficient evidence for the success of his case. The Defendant in his attempt to controvert the evidence of the Plaintiff testified that he was born and grew up in Nakpa-Gbeni and met his father farming on the disputed land. Defendant further added that the disputed land is owned by the Nakpando family and does not belong to the Plaintiff’s family. The question now is, where is Nakpando family for all these years and have not noticed the presence of the Plaintiff and his nephew (PW2) on the disputed land. According to PW2 he has been on the disputed land for almost 20 years without any hindrance until this year that the Defendant encroached on his soya beans farm. 25. On another leg of his defence the Defendant called one witness in the person of kwasi Daboli (DW1). In their testimonies both Defendant and DW2 testified that it was one Daboli, the Defendant’s father and uncle of DW1 who gave the disputed land to Nakpa-Naa Natogmah when he was newly enskinned as the chief of Nakpa for his farming activities because Nakpa-Naa Natogmah had no farm land. 26. But when the Defendant and DW1 were subjected to cross examination their assertion that Defendant’s father Daboli gave the disputed land to Nakpa-Naa Natogmah, a doubt was created in the mind of the court in respect of the narration of the Defendant. This is a portion of what transpired between the Plaintiff and The Defendant on 19/08/2024: Q. Put: that you made mention to this court that your grandfather gave one Nakpa Naa a land to farm. Ans. It is true 8 | P a g e Q. Who was the chief that your grandfather gave the land to? Ans. Naa Nantogmah. He was from Juo-naayili and became the Nakpa chief. Q. A chief and a settler who gives land to his fellow? Ans. It is the chief who gives out land to settlers. Q. How come your grandfather gave land to Naa Nantogmah to farm? Ans. It was because my grandfather was already on the land before the chief was enskinned. Q. Put: that you have not been truthful to the court. Ans. It is true. 27. Thereafter DW1 had his turn to mount the Witness Box, and this is a portion of what ensued between the Plaintiff and DW1 on 27/08/2024: Q. Put: that you have never farmed on the disputed land. Ans. I have farmed there. Q. The soya beans we are harvesting were you the one who cultivated the soya beans? Ans. I did not cultivate the soya beans. You begged my younger brother who gave you the land to do the farming. Q. Put: that it was PW2 the person I handed the disputed land to for 20 years. PW2 has been on the land for 20 years. Ans. it is not true Q. Myself and you who is supposed to give land to the other in Nakpa lands? Ans. We were there before your father brought you when you were a small boy. When your father came there was a new chief. Our family gave land to the said chief to farm. Q. A settler and a Chief who is supposed to grant land to the other? Ans. It is the Chief that will grant land to the settler. Q. The lands belongs to us before you people came and we accepted you. Ans. I know that the Nanumbas own the land but I do not know the Plaintiff to own land. 9 | P a g e 28. The inconsistencies in Defendant’s narrations creates doubts in the mind of the court to believe and accept his side of the story. It is highly improbable that the Defendant’s grandfather owned the disputed land and gave Nakpa-Naa Nantogmah land to farm. Consequently, I conclude in favour of the Plaintiff to the effect that the disputed land which forms part of a larger parcel of land of about 150 acres belongs to Plaintiff’s family. CONCLUSION 29. On the strength of the evidence before the court I am convinced that the Plaintiff has been able to prove his case against the Defendant. Before I proceed with the orders I wish to make this pronouncement in respect of some of the reliefs sought by the Plaintiff. Relief (ii) in my view is a repetition of relief (i), hence it is struck out as being superfluous. Relief (vi), which reads prohibitory injunction, I believe the Plaintiff is seeking for perpetual injunction. Accordingly, this relief is amended to read perpetual injunction against the Defendant. Accordingly, I make the following orders: i. It is declared that the over one hundred and fifty (150) acres of farm land sharing boundaries to the East with Alhassan, to the West is Wumbeido, to the North Wamzam Mahama and to the South Gbenaa Natogmah lying and situate, at Janbikpariga in the Nanumba North Municipality of the Northern Region is the farm land of Nakpawulana family of Nakpa-Gbeni of which the plaintiff is the head of family. ii. It is ordered that the defendant vacates and stops his farming activities on the said two acres of the disputed land. iii. Recovery and possession of the disputed land. 10 | P a g e iv. Perpetual injunction restraining the Defendant, his assigns, agents, workmen or persons claiming through him from interfering with plaintiff’s ownership, control and management of the said farm land described in claim 2. v. Cost of GHȼ1,500.00 is awraded in favour of the Plaintiff against the Defendant. SGD HIS WORSHIP PETER KOBBLAH AMETSOWU. 11 | P a g e