Dewortor and Another Vrs Dewortor and Another [2023] GHADC 538 (17 January 2023)

IN THE DISTRICT COURT HELD AT DZODZE ON TUESDAY THE 17TH OF JANUARY,2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU, DISTRICT MAGISTRATE. Suit No. A1/22/19 THERESA AMA DEWORTOR & ANOTHER PLAINTIFFS VRS SOTORXOE DEWORTOR & ANOTHER DEFENDANTS JUDGMENT PARTIES PLAINTIFF - PRESENT DEFENDANT - PRESENT INTRODUCTION/BACKGROUND: Per a Writ of Summons and Statement of Claim filed on the 29th of April, 2019 in this Court, the Plaintiffs prayed for the following reliefs; a. Declaration of title, ownership and recovery of possession of all that parcel of land situate, lying and being at Kuli and bounded as follows; i. On one side by the property of Ashitor Dewortor ii. On one side by the property of Afatsawo Dewortor iii. On one side by the property of Xedagbui and iv. On the last side by the Kuli-Dzogbefime road. Page | 1 b. Perpetual injunction restraining the defendants, their agents, workmen, servants, assigns and privies from entering the disputed land. c. General damages for trespass d. Costs CASE OF THE PLAINTIFFS The plaintiffs assert that they inherited the disputed land from their father Eklu Dewortor. The plaintiffs assert that from the time of their inheritance, they have been in possession of the land in dispute without any controversy until recently when the defendants trespassed on to the land claiming ownership of same. The plaintiffs stated further that the defendants have started building on the disputed land and that all efforts made to restrain them have proved futile. Hence this action. THE CASE OF DEFENDANTS By an affidavit in opposition filed by the 1st defendant for herself and on behalf of the 2nd defendant on 7th May, 2019, the 1st defendant stated that, over thirty- seven (37) years ago her father, Vivordi Dewortor and Uncle, Ashittor Dewortor granted part of their inherited land to her which shares boundary with each other for development. The 1st defendant stated that her father assisted her to construct a mud house on the land by way of possession. The defendants stated that, the 1st defendant later commenced the building of three single rooms on the land out of which two rooms were completed and the defendants have been living there with their children for over fifteen (15) years without any hindrance. Page | 2 The defendants stated that the land inherited by the plaintiffs from their father Eklu Dewortor is the one on which their father established his shrine for the Zove deity which is different from their own. The defendants stated that, the 1st defendant’s father, Vivordi Derwortor’s remaining lands were shared among his children and thereafter, her siblings Xede Dewortor and Kodzo Dewortor sold their portions to people who have since erected corner pillars on same. The defendants stated that the plaintiffs are not entitled to their reliefs and prayed that same should be dismissed with punitive cost. PROCEDURAL HISTORY The writ in this suit was issued on 29th April,2019. The case commenced before His Worship Derrick Pardon Eshun and taken over by Her Worship Rejoyce Aseye Gadago. The proceedings were adopted before me on 22nd March, 2022 and hearing continued with the defendants opening their defence. ISSUES Page | 3 From the pleadings filed by both parties, the following issues were set down for determination; 1. Whether or not the land described and being claimed by plaintiffs was allocated to their father Eklu Dewortor? 2. Whether or not the land in dispute where the defendants’ building is situated forms part of Eklu Dewortor’s land? 3. Whether or not the land in dispute was allocated to Ashitor Dewortor? 4. Whether Ashitor Dewortor gifted the land in dispute to Sotormiso Dewortor or the 1st defendant? BURDEN OF PROOF The plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities according to section 12(2) of the Evidence Act (NRCD 323) 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” Where the plaintiff has been able to lead sufficient evidence in support of his case, then the burden is upon the defendant to lead sufficient evidence in rebuttal or risk being ruled against on the issues. Under section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. In Okudzeto Ablakwa (No. 2) v. Attorney General & Obetsebi Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held as follows; Page | 4 “he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a)…What this rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”. In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, the Supreme Court in dealing with the burden of proof in respect of declaration of title stated through Georgina Wood C. J as follows; “In land litigation….the law requires the person asserting title and on whom the burden of persuasion falls to prove the root of title, mode of acquisition and various acts of possession, exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim”. The Court is also mindful of one of the cardinal duties of a Court in evaluating evidence led during trial which is for the Court to assess all the evidence on record in order to determine in whose favour the balance of probabilities should lie. See the cases of Adwubeng v. Domfeh [1996-97] SCGLR 660 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882. SUMMARY OF EVIDENCE The plaintiffs gave evidence through the 1st plaintiff and called two other witnesses namely Vincentia Dewortor (PW1) and Daniel Dewortor (PW2). Page | 5 The defendants on the other hand testified through the 1st Defendant and Francis Dewortor (DW1). ANALYSIS In an action for declaration of title and recovery of possession, one of the essential requirements is that, the party seeking declaration must be able to describe the land in dispute. The position of the law is that, for a person to succeed in his action for declaration of title, recovery of possession and an injunction, he must establish by positive evidence the identity of his land which is the subject matter of the action else his action shall fail for lack of identity. See the case of Agyei Osae & Others v. Adjeifio & Others [2007-2008] SCGLR 499. In their writ of summons, the plaintiffs described the land as bounded as follows; i. ii. iii. iv. On one side by the property of Ashitor Dewortor On one side by the property of Afatsawo Dewortor On one side by the property of Xedagbui and On the last side by the Kuli-Dzogbefime road. Since the issues border on allocations to their fathers, part of which is a subject of the dispute before this court, the parties are required to call material witnesses to testify to this allocation. Page | 6 Whether or not the land in dispute belongs to Eklu Dewortor and whether the land on which the defendant’s building is situated forms part of Eklu Dewortor’s land? For the sake of convenience, the court will combine issues one (1) and two (2) in its analysis. It is the case of the plaintiffs, that they inherited the land from their father Eklu Dewortor. The defendant’s denied that assertion by the plaintiffs and stated that the 1st defendant also inherited the land from her father Vivordi Dewortor and that the area where their building is situated is not part of Eklu Dewortor’s land. In Klah v. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139 it is held that, “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true”. The principle reiterated above affirms that the burden is on the plaintiffs to prove their ownership over the land. The principles require that the plaintiffs adduce sufficient evidence to prove that the actual land given to their father Eklu Dewortor covers the portion where the defendants situated their building or currently extending their project. In her evidence, the 1st plaintiff stated that the land forms part of a large parcel of land which was acquired by her grandfather Dewortor. Page | 7 The 1st plaintiff stated that her grandfather Dewortor gave birth to five male children namely Akakpovi, Eklu, Ashitor, Afatsawu and Setormisu and that the land of Dewortor was shared by the family after his death to all the five children. The plaintiffs asserted further that the area in dispute forms part of the portion allocated to their father Eklu and that their father’s land does not share boundary with that of Sotormiso, father of the 1st defendant. The plaintiffs did not tender any documentary evidence to the court as prove of the exact boundaries of land allocated to their father Eklu Dewortor. They did not also call as a witness, the family head or any principal members of the family who were privy to issues in relation to the allocation of the lands. However, they were able to describe the boundaries of the area they seek to claim. The onus of proof required by law as regards the identity of the land would be discharged by meeting the conditions clearly stated in the court’s decision in Tetteh v. Hayford (2012) SCGLR 417 citing the case of Kwabena v. Atuahene (1981) GLR 136 thus: i) The plaintiff has to establish positively the identity of the land to which he claimed title subject matter of the suit. ii) Plaintiff also has to establish all his boundaries iii) Where there is no properly oriented plan drawn to the scale, which made compass bearings vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title. Even though the court stipulates that the requirement to establish the identity of land does not mean mathematical precision or exactness, the stipulation calls for the provision of a proof which demands material witnesses. This is because of the principle in the law of evidence that a party who bears the burden of proof is to produce the required Page | 8 evidence of the facts in issue that have the quality of credibility short of which his claim may fail. The requirement that the area a party seeks to claim is made certain to the court, is to avoid the situation where the judgment given may be used by the victorious party to extend his boundaries. The defendants have not denied the fact that they are cousins to the plaintiffs and that both parties are beneficiaries of lands inherited by their fathers from their grandfather. This therefore makes the issue for determination a question of whether the portion where the defendants are developing form part of the plaintiffs’ father’s allocated land. The nature of the issues required material witnesses to be called from the family elders and persons who witnessed the sharing of the land. The plaintiffs did not call any principal family member or persons who witnessed the sharing or allocation but rather asserted in their evidence that, all those who witnessed or did the sharing of the land are deceased. Under circumstances such as this, where a party is unable to call living witnesses to testify to their root of inheritance, the court could rely on acts of possession if the party is able to demonstrate same. Having mentioned Ashitor Dewortor, Afatsawo Dewortor and Xedagbui as the people with whom the land shares boundary, it was also material that witnesses are called from the boundary owners to give evidence. In his book, “Land law, practice and conveyancing in Ghana, 2nd Edition at page 123, the learned author Justice Dennis Dominic Adjei stated as follows; Page | 9 “In practice, where a party finds it difficult to prove his boundary he may call a boundary owner to describe either his boundary marks or features with the party whose identity of the land is in dispute and that would assist the party to vividly describe the limits of his land. It becomes more complex where a side of the boundary may have four or five boundary owners and the defendant disputes that the plaintiff does not share boundary with any of them. In such a situation, the plaintiff in order to prove the limits of his land must call all the boundary owners whose evidence would assist him to positively establish the identity of his land. Where the defendant is not disputing the boundary owners of the plaintiff but his claim is about the limits of the land, it would not be necessary for the plaintiff to call all the boundary owners except the one whose evidence is material in relation to the limit of the disputed land”. In this case, the defendants are disputing the fact that the plaintiff’s father is the owner of the land in dispute, a claim which places the plaintiffs under obligation to call the boundary owners as witnesses. The plaintiffs however called only Vincentia Dewortor, the daughter of Fatsawo Dewortor as a witness. Her evidence was however impugned by her admission that she was not privy to the allocation of the land but was even shown her father’s portion upon her return to the jurisdiction later from Lome by her Uncles Sotormiso and Ashitor Dewortor. In her description of the land, the 1st defendant stated the boundaries as follows; i. ii. iii. iv. On one side by Vivor Sotormiso Afatsawo On one side by Kuli Dzogbefime road On one side by Afatsawo On one side by Vivor Sotormiso Afatsawo Page | 10 The witness for plaintiffs. Vincentia Dewortor (PW1) who identified herself as daughter of Afatsawu Dewortor stated, that the land in dispute shares boundary with her father’s land and that of Xedagbui. PW1 stated that she is currently in possession of her father’s land following the demise of all her siblings and that there used to be a plant known as “Anya” which served as the boundary between plaintiffs’ father’s land and that of the father of 1st defendant. PW1 under cross examination on 24th January, 2020 confirmed that it was the father of the 1st defendant and some elders who showed her the land of her father, upon her return from Lome and she has since been in possession. She stated further that the area where the 1st defendant is currently extending her building forms part of the plaintiffs’ father’s allocation. PW2, Daniel Derwortor, brother of the plaintiffs, testified that the disputed land forms part of the share of his father Peter Klu Dewortor and that the land shares boundary with the portions of Sotormisu, Torgbui Hedagbui and others. PW2 stated further that, in 1971 and 1972, he used to farm on his father’s share of the land when his father was alive and that there used to be an Anya plant which served as the boundary between Klu and Setormisu but now withered and replaced with the high tension electricity pole. The challenge with PW2 was that his evidence contradicted that of the plaintiffs on the stated boundaries. Whereas it was the case of the plaintiffs that their father’s land shared boundary on one part with Ashitor Dewortor, PW2 was of the view that Ashitor’s land was not in that area. Page | 11 Below were the responses of PW2 under cross examination by D2 on 24th September,2021; Q. Are you saying the land belongs to your father? A. Yes Q. I put it to you that the disputed land falls within the portion owned by Ashitor Dewortor? A. It is not true. Q. So does your land share boundary with Ashitor Dewortor? A. No Despite the contradiction in the evidence of 1st plaintiff and PW2, the 1st defendant admitted and stuck to her evidence that the area in dispute where she seeks to extend their building belongs to Ashitor Dewortor. She stated in paragraph 10 of her witness statement filed on 19th July, 2022 that the place where she initially built was for her father Setormiso but the area where she seeks to extend the building originally belongs to Ashitor. Under cross examination by 2nd defendant on 24th September, 2021, PW2 corroborated the assertion of the 1st defendant as follows; Q. The land was for my wife’s father and we have put up a complete building on same. Why are you now bringing this action against us? Page | 12 A. At first the house was on your father’s land. Now you have entered our father’s land hence the instant action. This evidence by PW2 corroborated paragraph 10 of the witness statement of 1st defendant as reproduced below; “10. The land on which I initially put up my building was inherited from my late father Setormiso. In actual fact, when I put up the initial building, it was within the boundaries of Setormiso and thereafter whilst carrying out the extension it entered Ashitor’s land”. From the evidence of PW1 and PW2, it appears both witnesses for the plaintiff agree that Setormiso and Klu Dewortor’s lands are situated at the same location and only separated by the “Anya” plant in which place there is now the electric pole. The effect of the evidence of the plaintiffs’ witnesses point to the fact that the land of Klu Dewortor, father of the plaintiffs and Sotormisu Dewortor, father of the 1st defendant is bounded by each other and separated by the electric pole which was put in place of the Anyaa tree. This was contradictory to the plaintiffs’ description of the land which did not admit Sotormisu as a boundary neighbor. Under section 14 of the Evidence Act, 1975 (NRCD 323), a party has the burden of persuasion as to facts the existence or non-existence of which is essential to the claim or defence he is asserting. With the fact about the ownership of the land where the initial building of the defendant is situated corroborated by the plaintiff’s second witness, the onus was on the defendant who avers that the portion of the land where they were extending their building originally belonged to Ashitor Dewortor to prove same. Page | 13 The defendants called Francis Dewortor (DW1) as their witness. DW1 described himself as the brother of the 1st defendant and a cousin of the plaintiffs. It was the testimony of DW1 that the portion of the land in dispute forms part of Ashitor Dewortor’s land which was under the care of their father Sotormisu Dewortor. DW1 stated that the plaintiffs do not have the capacity to litigate over Ashitor Dewortor land since they already have their share of their father Eklu Dewortor’s land. To prove their root of title, the defendants should have demonstrated to the court how the land became the property of Ashitor Dewortor and how ownership got to be transferred to their father and subsequently to them by calling further witnesses and adducing material evidence. Such a claim is not established by going into the witness box and simply repeating their claims. In paragraph 8 of the affidavit in opposition filed on 7th May, 2019 the 1st defendant stated that she has documentation in support of the gift of the land to her. This document was also not tendered for the court’s evaluation. Effect of the evidence of possession The principle is that a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title Page | 14 In the case of Summey v. Yohuno [1962] 1 GLR it was held that, “in a land case that in a claim for title land where none was able to show title because of want of evidence, or that the evidence was confusing and conflicting, the safest guide to determine the rights of the parties was by reference to possession”. The defendants sought to take advantage of this principle with the claim that their concrete building has been on the land for over fifteen years and that the mud structure was also constructed over thirty years ago. The plaintiffs denied the above assertion by the defendants therefore putting the matter in issue but the defendants did not put any further evidence before the court to substantiate that claim. However, the issue about the ownership of the portion of the land where the initial structure is situated was confirmed by the corroboration of the defendant’s assertion by the plaintiffs’ own witness, PW2 when he admitted that it is rather the extended area which had affected the plaintiffs’ land. The effect is that the defendant’s claim to possession if admitted at all will not cover the area of extension under dispute because no evidence was led to prove that portion was also under their possession. CONCLUSION In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (supra), the Supreme Court in dealing with the burden of proof in respect of declaration of title stated through Georgina Wood C. J as follows; Page | 15 “In land litigation….the law requires the person asserting title and on whom the burden of persuasion falls to prove the root of title, mode of acquisition and various acts of possession, exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim”. The plaintiffs called as their witnesses Vincentia Dewortor, PW1 and Daniel Dewortor, PW2. Both witnesses appeared to have knowledge about the land and confirmed that it is only an “Anya” plant that separates the plaintiffs’ father’s land from that of the 1st defendant’s father. This confirmation by PW1 and PW2 as indicated above contradicts the plaintiffs’ case that Sotormisu Dewortor’s land does not share boundary with Eklu Dewortor’s land. The evidence of PW1 and PW2 to the effect that the area where the defendant’s initial building is situated belong to 1st defendant’s father and that the portion of the land where they have extended the building has affected another person’s allocation is found more probable considering the fact that the defendants failed to prove the circumstances of their inheritance and the claim that the particular land belonged to Ashitor Dewortor. The issue as to who actually own the portion of the land where the defendants are extending their building is what the parties were not able to help the court resolve by the nature of their evidence and witnesses called. On a locus inquo visit by the court, the plaintiffs’ claim that the portion of the land where defendants earlier constructed their building is on Eklu Dewortor’s land was inconsistent with her subsequent assertions. She at some point claimed that the entire building of the 1st defendant is situated on their land but subsequently stated that it is rather the new extension that enters into their land. Page | 16 The above assertion considered together with the evidence of PW1 and PW2 renders the area sought to be claimed by the plaintiffs uncertain. Final Orders Consequently, the court is unable to grant a declaration of title and an order to recover possession in favour of plaintiffs because of the uncertainty of the land described. The defendant’s building is to remain on the portion of the land where it is currently situated since the plaintiffs have not been able to disprove the fact that the portion of that land belongs to Setormisu Dewortor, the 1st defendant’s father. The defendants are restrained from going ahead with the extension because they have not been able to prove ownership over that portion of the land which they claimed belongs to Ashitor Dewortor. They failed to provide evidence or witnesses to substantiate the assertion that Ashitor was allocated that portion and the fact that he gifted his portion of the land to their father, through whom the 1st defendant or any other person inherited same. The court will dispense with the issue of cost because of the relationship between the parties. NELSON DELASI AWUKU MAGISTRATE Page | 17