Mensah Vrs Sackey [2023] GHACC 195 (28 February 2023)

IN THE CIRCUIT COURT HELD AT CAPE COAST ON TUESDAY THE 28TH DAY OF FEBRUARY, 2023 BEFORE HER HONOUR VERONIQUE PRABA TETTEH (MRS.), CIRCUIT JUDGE C1/15/2022 DAVID OSEI MENSAH VRS EBUSUAPANYIN KOFI SACKEY JUDGMENT According to the plaintiffs, their late father Opanyin Yaw Mensah who died over 30 years ago gifted his personally acquired farmlands to his wife and children in his will. It is plaintiff’s claim that a year after their father’s death, the then Ebusuapanyin Kwame Osei distributed the farmlands according to the dictates of the will. The farmland covers land space measuring 18.20 acres and is situated on the Fosu-Dunkwa road. The plaintiffs took possession of their farmland and occupied same until the defendant trespassed and started to lay claim to it as family property. The defendant is the current head of the family of the plaintiff’s late father and he disputes the plaintiff’s father’s ownership of the said lands. He also claims that no such will was made and even if it was, the father of the plaintiff’s father could not have gifted the land since it was family property. Both parties seek from this court declaration of title to all that piece and parcel of land situated at Fosu Dunkwa and measuring 18.20 acres. Also included in their reliefs is an order for perpetual injunction against the other party from interfering with the land as well as costs. The main issue for determination is whether or not the land in dispute is family property or the personal property of the late Yaw Mensah. The standard burden of proof in civil matters is proof by a preponderance of the probabilities. This principle of law has statutory backing having been provided for in sections 11(4) and 12 of the Evidence Decree, 1975 NRCD 323. It has also been affirmed by countless decisions of the Supreme Court of Ghana. See the cases of Adwubeng v Domfeh 1996-97 SCGLR 660 and Takoradi Flour Mills v Sami Faris 2005-06 SCGLR 682 In discharging the burden of proof the Supreme Court in the case Don Ackah v Pergah Transport & others [2010] SCGLR 728 held that ….the method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and thing (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 reasonable than its non-existence. The plaintiff gave evidence and relied on the evidence of two other witnesses. He testified that his father, while he was alive, farmed on land belonging to his family at place referred to as Patakor lands. This land was family land to which his father had succeeded to and had stated in his will that it was to go back to the family. His father also acquired his own farmland from one Kwabena Amenanor on which he planted oranges, pineapple and palm trees. In his will which was tendered and marked as Exhibit C, plaintiff’s father stated that his personal lands were to be given to his wife and children. Upon his death, plaintiff claims the contents of the will were accepted by the family with the then head of family Ebusuapanyin Kwame Osei seeing to the distribution. Plaintiff claimed further that, upon the defendant becoming head of his father’s family, he started to make attempts to take over the land his father had given to them. The defendant caused pillars to be placed on the land but he and his siblings removed them and the defendant caused their arrest by the police. They instituted this action as a result of the claims being made on the land by the defendant and their attempts to take possession. He was extensively cross examined by counsel for the defendant on the Exhibits that he had tendered. Exhibit A according to plaintiff was the site plan made by his father which covered the land acquired by his father measuring 20 acres in total. Exhibit B represented the document a gift of land also given by Kwabena Amenanor to the plaintiff’s father dated 25th March 1974. Exhibit C is the will of the plaintiff’s father dated 11th April 1984. The final exhibit is a site plan that plaintiff admitted had been made by him and his siblings based on the will made by the father. It must be noted here that the execution of Exhibit C is not challenged or in my opinion was not successfully challenged by the defendants. According to plaintiff also, none of the head of families who had succeeded Ebusuapanyin Kwame Osei had interfered with their possession and enjoyment of the land until the defendant’s tenure as head of family. The defendant explained that this non-interference was due to the crops on the land still being fruitful and a conscious decision by the family to let Yaw Mensah’s children enjoy the fruits until the trees died. The plaintiff’s first witness was one of the boundary owners of the land in dispute. He claimed to have been authorized by the head of the Ateban section of the Butuase family, Nana Akwamuhene Darko Ampem to give evidence. He was asked under cross examination if he had any power of attorney authorizing his presence in court to testify but he answered in the negative. He answered further that it was because he farmed close to boundary line that he shared with the plaintiff’s land that he came to testify. He also stated that he grew up seeing the plaintiff’s father working on the land and that it had been planted with orange and palm. During his cross examination he admitted to not knowing who had granted the land to the plaintiff’s father. The last witness of the plaintiff was his elder sister and her evidence supported the plaintiff’s case. She stated that she was present when her father’s will was read and that his properties were distributed by Ebusuapanyin Kwame Osei, a year after her father’s death. She testified that they had enjoyed peaceful possession of the land until the trespass by the defendant. She also narrated that her father’s brother and his customary successor, Opanyin Kwamina had been gifted a portion of their father’s land in his will and he had also enjoyed it until it was sold and the proceeds used to care for him in his old age. She was also cross examined extensively but maintained her case. At the close of the plaintiff’s case, the defendant testified and called on three witnesses. The defendant’s case is a denial of the plaintiff’s case. He testified that the land at Aboaboso is the property of the Subiya family of Fosu. His evidence was that the virgin forest was broken by his ancestor named Nana Kwabena Nifa and that the Aboaboso forms part of that land. He also testified that the land, had since time immemorial been farmed by Subiya family members and he mentioned the names of previous members who had farmed on the land. He also claimed that plaintiffs and his siblings were allowed to continue farming on the land after their father’s death because the oranges, pineapple and palm trees at the time were not matured. When they realized the crops planted on the land had died off, they decided to allocate it to another family member only to hear rumours of the plaintiff’s intention to sell the land. It is the reason why they erected the pillars and also planted maize on the land. He also mentioned one Opanyin Adioke, nephew of plaintiff’s father, as a member of the family who also farmed on family land close to the land in dispute. He denied that the land was the personal property of plaintiff’s father or that the late Ebusuapanyin had distributed any property. Two pictures of the land were tendered into evidence and these pictures reveal grassland and also show the maize planted on it. During his cross examination the defendant stated that “it is because the orange trees planted by the man by his own sweat were still on the land and the man also said he was giving the orange trees to his children. So until the orange trees died of, we could not take the land from them” He was asked further how he acquired that knowledge and his response was that it belonged to their father so customarily it came to the children but the land belonged to the family. He denied seeing the will but stated again that during Ebusuapanyin Sei’s time, he gave the orange trees to the children. This Ebusuapanyin Sei refers to Ebusuapanyin Osei. The second witness of the defendant was Kwame Adioke. He also disputed the plaintiff’s claim that the land was the personal property of their father. He claimed that the family land was vast with no divisions except that family members had been assigned different portions to farm on. He also testified to seeing different family member’s farm on the land in dispute prior to plaintiff’s father inheriting the land. He also claims to have lived with the plaintiff’s father all his ’youthful’ life and their father never claimed the land as his personal property. The next witness of the defendant was Ebusuapanyin Kojo Darko. He stated that the plaintiff’s father came to farmed on the land later in his life and that other people from the Subiya family had farm on the land and none of them claimed it as theirs. He also testified to personally assisting one Kwabena Mintah to farm on the land. When asked during cross examination if he knew the personal properties of the plaintiff’s father and he answered that plaintiff’s father had owned an orange farm. The last witness of the defendant was Francis Arthur. His testimony was on the efforts being made by the plaintiff’s siblings to sell the land in dispute to an estate company. He claims he was approached by the plaintiff’s brother and plaintiff’s nephew; they pleaded with him to append his signature to a document to which he refused. Under cross examination he admitted that he could not speak to how the plaintiff’s father had acquired his personal properties. Analysis of the issues and evidence Having each made positive claims for declaration of title, the parties were each required to prove the root of their title, identification of the land and establish acts of ownership of the land. Both parties bear the same level of proof as they seek this court to make orders granting their reliefs. The facts not disputed include the fact that it was the plaintiff’s father who cultivated orange and palm trees on the land and also that the plaintiff and his siblings have been in possession of the land since their father’s death. On the question of how his father came to own the land, the plaintiff’s case is that his father acquired the land from one Kwame Amenanor and that at a later time Kwame Amenanor gifted his father another portion. The plaintiff could not produce any document for the acquisition of land but presented the site plan Exhibit A which states in its heading that it is a “Plan of an oil palm and citrus farm, the property of Opanyin Yaw Mensah”. In this document is indicated, although faintly through a stamp, the date of 2nd September 1971. The site plan was prepared and signed by a licensed surveyor and was made for the plaintiff’s father in 1971. The gift is evidenced in Exhibit B. While Exhibit B may not have been offered as proof of the entire land, in the description of the boundaries, Exhibit B states that one side of the gifted land is bounded by Yaw Mensah’s own property. This document was not challenged either as to its authenticity or credibility and I am satisfied that it represents a conveyance to Yaw Mensah of land by Kwabena Amenano on the 25th of March 1974, 3 years after Exhibit A was made. The plaintiff also called one of the boundary owners of the land who came to testify that plaintiff’s father had owned the land and that he had seen plaintiff’s father work on the land that shared a direct boundary with his land. The defendants on the other hand claimed that the land was first acquired by Kwabena Nifa their ancestor who broke the virgin land. Defendant and his witnesses also mentioned the names of several persons who they claimed had worked on the land. Kwame Adioke testified both as a member of the family and as boundary owner. Counsel for the defendant, in her address, drew attention to the fact that the plaintiff’s had not challenged the claim of Kwame Adioke, that all the lands including the one he farmed on was Subiya family land. This point was addressed by plaintiff’s counsel in his address when he argued that the boundary owners whose names were mentioned did not all belong to the Subiyah family. So even though Kwame Adioke was a member of the family and shared a boundary with plaintiff’s fathers land, the other boundary owners, one of whom was represented in court in the person of Yaw Oppong were not members of the Subiyah family. I find that the evidence of Yaw Oppong on the boundary owners shows that the defendants did not own all the lands in Aboaboso and that other families owned lands in that area. It was thus possible for plaintiff’s father to acquire land from one of the other families. Counsel for the plaintiff in his address also drew attention to the inconsistent evidence of the defendant and Kwame Adioke regarding the time of death of plaintiff’s father and Ebusuapanyin Kwame Osei. It is clear that Kwame Adioke was not being truthful when he insisted that Yaw Mensah predeceased Kwame Osei. I am inclined to believe the defendant’s evidence that Yaw Mensah predeceased Ebusuapanyin Kwame Osei and that Kwame Adioke’s evidence was not wholly reliable. On the claim that several members of defendant’s family had worked on the land, the defendant himself testified that the elders had cleared the land and plaintiff’s father had cultivated it. I do not find it hard to believe that the plaintiff’s father had worked on the land or had been seen by both witnesses. This fact is not in dispute as defendant himself admits the plaintiff’s father had cultivated the land himself. One thing that all the witnesses agreed on was the fact that the plaintiff’s father had planted oranges, pineapple and palm trees on the land. Does it mean then, that when he acquired the land no other crops had been planted on it? The second witness also mentions the names of six(6) people he claims to have seen farm on the same land in dispute before the plaintiff’s father. This evidence sounds exaggerated in my opinion and coupled with the fact that it is not clear what they cultivated except in the case of Kwame Minta who is said to have planted maize on the land. This raises the question of the probability of 6 different people farming one life during the life time of one person. Unlike the plaintiff, the defendant did not call any boundary owners to testify on his behalf apart from Kwame Adioke. It is important to note that even though defendant claimed ownership of land bigger than the plaintiff claimed, the defendant relied on the plaintiff’s description of the size of the land. One very important piece of evidence not alluded to is the mention of Ebusuapanyin Kwame Osei in the will of Yaw Mensah. It is not disputed that Kwame Osei was the Subiyah head of family during the lifetime of Yaw Mensah. The last witness to attest to Exhibit C is this same head of family. He is recorded as “Subiya Abusuapanyin Kwame Osei, Farmer, Assin Fosu” and his thumbprint can be seen by his name. In my opinion this is significant as it shows that the head of family was aware of the contents of the will even before the death of Yaw Mensah and could have objected to the inclusion of family land in the will. Not only is there no evidence of the objection, this same head of family is the one who distributed properties per the instructions of the will. It also explains why none of the other family heads who succeeded after Kwame Osei’s death interfered with the plaintiff and his siblings’ possession and enjoyment of the land. In that regard I do not find the reasons given by the defendant for the family’s non- interference as credible or the position under customary law. In Yeboah and Others v Kwakye[1987-88] 2 GLR 50, the court of appeal per Osei Hwere JA held that “...where a family member made a farm on vacant family land even by his own private resources and unaided by the family, whether with or without the prior permission of the family, he acquired only a usufructuary life interest therein. Although the life interest is fully alienable (e.g. it can be given as security for a loan) it is not open to the life tenant, unless he acts with the concurrence of the head and principal members of the family, to alienate any greater interest than his’ life estate. On his death, the interest in the property vests in the family. It follows that any disposition by the life tenant purporting to have any other effect, such as a devise under his will, shall be ineffective” By this position of the law, upon the death of Yaw Mensah, the property would have reverted back to the family immediately. There was no requirement that the crops planted on the farm had to all die off before the family could or would take possession. While it is true that the plaintiffs could have remained on the land at the pleasure of the defendant’s family, in this particular instance I do not find it to be so. I find that the family’s failure to take back the farm was not because of a special arrangement to enable the children of Yaw Mensah feed on the farm but because the family knew it was his personally acquired property separate form their family properties. This position is supported by the fact that Kwame Osei and the other heads of families took no action against the plaintiffs or evidenced any intention to take over the farm until the defendant succeeded as head of family. Defendant himself claims that the plants had died off and the family was making plans to allocate this to somebody else, which means even after the trees were dead no attempts until recently had been made hence this action. Having considered both the plaintiff and defendant’s cases based on their testimonies and that of their witnesses, I am satisfied that plaintiffs’ case is weightier than the defendant’s when considered on the balance of probabilities. I find that the land at Aboaboso described in Exhibit C and captured in Exhibit A was the personal property of Yaw Mensah and he could dispose of it however he chose which he did by leaving it to his wife and children. The plaintiff is thus entitled to judgment on all his reliefs sought. Cost of GH¢5000 is awarded in plaintiff’s favour. (SGD) H/H VERONIQUE PRABA TETTEH (MRS) (CIRCUIT JUDGE)