Akroful Vrs Agyare and Another [2023] GHAHC 141 (15 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, HELD ON WEDNESDAY THE 15TH DAY OF MARCH, 2023, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE.

DORIS BELINDA AKROFUL PER …

PLAINTIFF SUIT NO. EI/70/19 PER L/A SAMUEL KWESI MENSAH H/NO. C107H/ AMAMUDU-APAM. VS 1. MR AGYARE

BUILDING MATERIAL STOCK H/NO. AC 87/17, KASOA.

2. EBUSUAPANYIN NANA ABAM … DEFENDANTS ODIKRO’S PALACE

GOMOA AKYEMFO REPRESENTING THE ACHEMFO STOOL. __________________

J U D G M E N T The Plaintiff on the 17th day of May 2017 caused a Writ of Summons to be issued against the Defendant herein and amended same on the 27th day of October 2017 and further amended the amended Writ of Summons by the order of this court and proceeded to file same on 1st February 2019 and claimed for the following reliefs: a. Declaration Of title to all that piece or parcel of land lying and being at Bosaaedwedo Apam, extends 2.30 acres starting from survey pillar marked SGC1/71/78 To P.A on a bearing of 248, 30c at a distance of 400 feet; from P.A to P.B on a bearing of 254C at a distance of 320 feet; from P.C to P.1 on a bearing of land from P.3 to P.4 on a bearing of 1 76,30c measuring 200 feet more or less P.1 on a bearing of 166,30 measuring 500 feet, more or less and on the south-west By proposed road from P1 to P2 on a bearing of 256,30c measuring 500 feet more or less on the south-west by proposed road from P2 to P3 on a bearing of 346,30c measuring 500 feet more or less which piece or parcel of land is more particularly delineated on the plan attached hereto and thereon shewn edged pink which shows the relevant measurements. b. Perpetual injunction restraining the Defendant by himself, his principals, workman or agents however from entering into the said piece or parcel of land, interfering in any manner with the plaintiff‘s ownership and development of the said piece or parcel of land. c. Recovery of Six Thousand Five Hundred Ghana Cedis (GH¢ 6,500.00) being replacement cost of Bill Board, corner pillars and materials destroyed by the Defendant. d. Interest on relief ‘’C” above at the prevailing commercial bank rate to date of payment. e. General damages f. Solicitors cost and cost and cost for bringing this action to the court.

THE CASE OF THE PLAINTIFF It is the case of the Plaintiff through her lawful attorney that the Plaintiff is a royal of Apam Afrim Anona Royal family and the chief Executive of LINDADOR ENTERPRISE LIMITED and resides in the Koforidua in the Eastern Region of the Republic of Ghana. The Plaintiff avers that the 1st Defendant lives at Apam in the Central Region and a businessman who deals in building materials at Apam. The Plaintiff further states that 2 the 2nd Defendant is the representative of the Gomoa Akyemfo Stool and was joined to the suit upon application. According to the Plaintiff, sometime in or about 1988, she acquired by customary grant a piece of her Efrim Anona Family’s vacant unoccupied land and in May, 1990, she perfected her customarily acquired title to all that PIECE OR PARCEL OF LAND lying and being at BOSAAEDWEDO APAM, as described in paragraph 4 of the amended statement of claim filed on the 1st day of February 2019. The Plaintiff says that she moved into possession of the land by erecting boundary pillars 1/71/78 thereon soon after the execution of the deed of transfer of the land in her favor. The Plaintiff avers that she was the 11th family member to reduce the said land into possession and occupation clearing and depositing thereon building materials and erecting pillars SGC. 1/71/78 and a bill board with the inscription “LINDADOR HOTEL SITE” was mounted,

fixing all with notice of her ownership. The Plaintiff further avers that she duly registered the freehold at the Lands Commission and given land registration number 1576/2005 and a bill board without any let or hindrance or caveat. The Plaintiff contends that she has been in undisturbed and uninterrupted user of the land. The Plaintiff avers that sometime on or about July, 2016, the 1st Defendant without any lawful authority destroyed the corner pillars and the huge bill board serving a notice of LINDDADOR ENTREPRISE LIMITED intention to construct a hotel on the land. 3 The Plaintiff avers that the cost of the property destroyed by the Defendant valued GHS 6,500 and holds the Defendant liable for its recovery. According to the Plaintiff, she reported the 1st Defendant’s criminal trespass and the destruction of the property to Nana Edun Effrim X (Chief of Apam) and to the police at Apam who upon investigation found that the 1st Defendant had no defense for his conduct as his claim to acquiring the land from Gomoa Akyemfo, the 2nd Defendant herein, was if at all spurious. The Plaintiff contends that unless this Honorable Court uses its coercive powers to restrain Defendants, the Plaintiff by herself, principal, workers or her agents howsoever described, with the plaintiff who has taken a loan with interest to build the hotel would be put into avoidable expense and losses but also the entire Apam township would be denied the development including a planned tourist attraction.

THE CASE OF THE DEFENDANTS In denying the Plaintiff’s claim, it is the case of the Defendants that sometime in 2003, the Defendants Stool granted the land in dispute to one Efua Brew through the 1st Defendant for a fee. According to the Defendants, the 1st Defendant was given all the necessary documents to cover the transaction including an indenture on behalf of Efua Brew. The Defendants further avers that upon acquisition the 1st Defendant went into immediate possession of the disputed land. According to the Defendants, the land in dispute as described by the Plaintiff, forms part of a large tract of land which in its virgin states was discovered and broken by the predecessors of the 2nd Defendant, led by Nana Amotwer Ampaabeng and his brother Nana Kusa and sister Nana Kaadze. 4 The Defendants contend that, the land is modern day Gomoa Akyemfo and boundaries starting from the north are as follows: Gomoa Abura stool, Apam stool land, Mumford stool land, Hweda stool land, Brofoyedur stool land and Kweku Tapors land confirmed by the Court of Appeal judgment dated the 20th day of June 2002 and particularly described in the judgment plan attached. According to the Defendants, in 2012, the 1st Defendant put up a house on the land in dispute and has been living on the disputed land since. Also, the 1st Defendant has a 40- footer container on the land in dispute since 2013 where he

has been doing his business of selling cement, iron rods and general building materials general. The Defendants contend that, the 1st Defendant connected electricity to the land since 2014 and has been operating block manufacturing factory since 2014. Also, the 1st Defendant has a backhoe caterpillar machine sitting on the land since 2014. The Defendants aver that, the 1st Defendant left for Kasoa few months ago for a weekend and on his return noticed pillars being planted around his house and the 1st Defendant quickly abated the nuisance and informed the 2nd Defendant’s family (grantors). The Defendants then Counter-claimed as follows: a. A declaration that the land as described per relief (a) of the Amended statement of claim is the property of Gomoa Akyemfo stool family as confirmed by the Court of Appeal judgment dated the 20th day of June 2002 and particularly described in the judgment plan attached. 5 b. Declaration that the land the subject matter in dispute as described by relief (a) of the amended statement of claim falls within the Gomoa Akyemfo stool land and validity granted by the 2nd Defendant’s stool. c. Order for removal of all structures at the cost of the plaintiff d. Perpetual injunction restraining the plaintiff, his purported vendors, assigns Defendants’ ownership, use and enjoyment of the land. e. Damages for trespass unto the disputed land. f. Costs incidental to the suit.

THE BURDEN OF PROOF IN A CIVIL ACTION Section 14 of the Evidence Act 1975 NRCD 323 provides thus: “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". The provision above is in line with the general position at law in the determination of issues by the court in a civil discourse. Therefore, in order to enable the court decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. 6 Also, Sections 10, 11, 12, and 14 of the Evidence Act 1975, sets out the standard of proof in any civil discourse. Section 10 (1) and (2) of the EVIDENCE ACT, 19751 defines the burden of persuasion thus: (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non- existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11(1)(4) of NRCD 323 deals with the burden of producing evidence

and defines same thus: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce 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. Again, Section 12(1)(2) NRCD 323 provides for the Proof by a Preponderance of the Probabilities states: (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 1 (NRCD 323) 7 (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. SEE ZABRAMA V. SEGBEDZI2 and MAJOLAGBE V LARBI AND ORS3 In the instant case before this court, the main allegation is fraud which has a standard beyond reasonable doubt though in a civil discourse such as the instant case. I will proceed to examine the evidence adduced by the parties in relation to the issues set out in this case and the law, in order to determine whether or not the parties have discharged their respective burden of proof to the standard as prescribed by the Evidence Act and case law.

THE APPLICATION FOR DIRECTION In this suit, the issues to be determined are those issues set out in the application for directions and additional issues, as well as issues dictated by law arising from the pleadings filed by the parties. See: ORDER 32 RULE 1 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 ( C.I 47. In the instant case before this court, the main issues settled for trial were: 1. Whether or not Plaintiff is the lawful owner of the land in dispute 2. Whether or not Plaintiff is entitled to recovery of an amount of GHS, 6,500 being replacement cost of Bill Board, corner pillars and materials destroyed by the Defendant together with interest at the prevailing commercial bank rate from Defendants. 2 [1991] 2 GLR 223 3 [1959] GLR 190 – 195 8 3. Whether or not there is a Court of Appeal judgment dated the 20th day of June 2002 and particularly described in the judgment plan attached on the property of Gomoa Akyemfo Stool family.

3. Whether or not the land the subject matter of this dispute as described by relief A of the amended statement of claim falls within the Gomoa Akyemfo stool family land supra. THE EVIDENCE, ANALYSIS AND THE APPLICABLE LAW In resolving this matter, I will provide a summary of the evidence and proceed to determine issues three and four before completing with issues one and two. In her evidence , the Plaintiff through her Lawful Attorney per Exhibit A informed the court that the Plaintiff acquired a customary grant of a vacant unoccupied land around 1988 and around 10th May 1990 perfected her customary grant as described in Exhibit B as well as paragraph 4 of the amended statement of claim. The Plaintiff further testified that she perfected the customary grant by an outright purchase of the land from the then Head of the said Family by name EBUSUAPANYIN KOJO AFFUL (now deceased) who acted with the consent and concurrence of the principal members of the family whose consent and concurrence was required for a valid alienation of the family's land per EXHIBIT "B". Soon after the execution, the deed of transfer of the said piece of land in favour of the Plaintiff in or about 10th May, 1990, the Plaintiff said she went into possession of the land and erected boundary pillars 1/71/78 thereon. 9 According to the Plaintiff, in or around the 6th of September, 2005, the Plaintiff delivered

her deed of conveyance to the Lands Commission for registration of her title to the land and it was registered as number 1576/2005. The Plaintiff informed the court that she continued to be in undisturbed and uninterrupted of the land until sometime in July, 2016, the Plaintiff erected a bill board or sign post on the land with the inscription, "LINDADOR HOTEL SITE" and the 1st Defendant trespassed to the Plaintiff's said piece of land and destroyed the said bill board or sign post together with some of the boundary pillars erected by the Plaintiff valued at Six Thousand five hundred Ghana cedis (GH¢6500.00) which comprises the cost the materials used in making them and the cost of labour. The Plaintiff further testified that on 6th April, 2017 a search conducted by the Plaintiff at the Lands Commission showed that the aforementioned deed of conveyance of the Plaintiff was registered and that the area also falls within a 20th June, 2002 judgment in favour of one Nana Owusu and Another but neither the Plaintiff nor her family- grantors were party to that judgment. See EXHIBITC". The Plaintiff’s witness Nana Edu Effrim X informed the court that he is the Chief of Apam and mainly corroborated the evidence of the Plaintiff through her Lawful Attorney. The 1st Defendant informed the court that he acquired the land in dispute from the Gomoa Akyempim Stool for and on behalf of one

Maame Efua Brew and was given an indenture to cover the transaction per Exhibit 4 and further stated that the land in dispute forms part of the larger Gomoa Akyemfo Stool land covering an area of about 1.77 acres per a search report at the lands Commission Exhibit 5. The 1st Defendant said he put up a house on the land and also placed a container on the land in 2013 from 10 where he operates his business, selling cement, iron rods and general building materials. The 2nd Defendant gave comprehensive accounts of the land in dispute and went further to inform the court that the Gomoa Akyemfo Stool gave the land in dispute to the 1st Defendant for Maame Efua Brew. The 2nd Defendant further stated that he is the Head of the Gomoa Akyemfo Asona Stool family and substituted one Kwame Ponku in suit no. LS.25/73, the case of OPANYIN KWA BOTWE & Another vrs NANA EDWEY IX SUBSTITUTED FOR BY NANA OKUMTWI BREBO ESSAMUADU & 10 Ors per Exhibit 1 In his evidence, the 2nd Defendant said the land in dispute is located at Gomoa Akyemfo bounded on all sides by Gomoa Akyemfo stool land covering an area of approximately 1.77 acres. According to the 2nd Defendant, the land, subject of the dispute forms part of a larger tract of land which in it virgin state, was discovered and broken by his predecessors led by Nana Amotwer Ampaabeng and his brother Nana Kusa and sister Nana Kaadze. According to the

2nd Defendants, the discovered land is the modern day Gomoa Akyemfo and the boundaries starting from the north are as follows: Gomoa Abura stool land, Apam stool land, Mumford stool land, Hweda stool land, Brofoyedur stool land and KwekuTapors land. According to the 2nd Defendant, sometime in the 1970's there was a boundary dispute between the Mumford stool and the Gomoa Akyemfo stool which resulted in a suit, LS.25/73, the case of OPANYIN KWA BOTWE & ANO. VRS

NANA EDWEY IX SUBSTITUTED FOR BY NANA OKUMTWI BREBO ESSAMUADU & 10 ORS. The case went to appeal with civil appeal no. 156/2000 which judgment was delivered on the 20 day of June 2002. The judgment with its judgment plan amply describes the Gomoa Akyemfo stool land per Exhibit “2”. 11 The 2nd Defendant further said in her evidence that, by virtue of the Order in Council No.1 of 1919 section 3(2) and section 17 of the Town Ordinance 1892 the site plan of Apam was drawn by the Governor of the Gold Coast Colony, Gomoa Akyemfo and Abrekum being boundary owners were invited to participate in the exercise and were given copies of the site plan per Exhibit “3”. The Defendants also their counter-claim prayed for the following: a. The declaration that the land as described claim per relief A of the Amended statement of is the property of Gomoa Akyemfo stool family as Appeal confirmed by the Court of judgment dated the 20 day of June 2002 and particularly described in the judgment plan attached. b. Declaration that the land the subject matter in dispute as described by relief (a) of the amended statement of claim falls within the Gomoa Akyemfo stool land and validly granted by the 2nd Defendant's stool. c. Order for removal of all structures at the cost of the Plaintiff. d. Perpetual injunction restraining the Plaintiff, his purported vendors, assigns, workmen and anyone claiming through

them from interfering with the Defendants ownership, use and enjoyment of the land. e. Damages for trespass unto the disputed land. f. Cost incidental to the suit. On issue three (3), it is not in doubt that the land in dispute was a subject of a Court of Appeal judgment in favour of the family of the 2nd Defendant dated the 20th day of June 2002 and particularly described in the judgment plan attached on the property of Gomoa Akyemfo Stool family. This piece of evidence and information has come to the knowledge of the Plaintiff and she admitted same. Under cross - examination the Plaintiff answered thus among others: 12 Q: In your paragraph 15 of your witness statements, you stated that you conducted a search at Lands Commission, Cape Coast in respect of the land in dispute A: That is correct Q: And the result of your search indicated that the area in dispute falls within the 20th June, 2002, judgment in favour of one Nana Owusu and another. A: That is correct. Q: You told this court that the land in dispute was granted to the Plaintiff in 1990. A: It was granted to the plaintiff in 1989 and we registered it in 1990. Q: The land in dispute was not granted by Nana Owusu to the Plaintiff. A: No, it was not granted to the Plaintiff by Nana Owusu because that area falls within the lands of Apam so the Ebusuapanyin then granted same to her. Q: Per your own search results, the land

belongs to Nana Owusu, the predecessor or 2nd Defendant. A: The search revealed that the area formed part of Nana Owusu's land which I disagreed with that because the area in dispute is part of the Apam lands Q: You know that the Lands Commission, Cape Coast entered the particulars of this land in accordance with the 20th June, 2002, Court of Appeal's judgment. A: Previously I was not aware but this came to my knowledge when I conducted the search. However, as far as I am concerned I know that the land therein belongs to Apam Q: When you became aware of the judgment affecting the land in dispute, you did not take any step to set aside this judgment. A: I did not take any steps to set it aside because I had to consult our elders to find out why there was a pending judgment affecting the land which they had done nothing about it all this time. 13 From the foregoing, I find and hold that the land in dispute was affected by a court of Appeal Judgment dated 20th June 2002 which judgment is yet to be set aside and same admitted by the Plaintiff. See: CHOU SEN LIN V TONADO ENTERPRISE LTD⁴ Therefore, despite the Plaintiff’s disagreement to the Court of Appeal judgment that affected the land in dispute, the Plaintiff should have taken steps to set aside the said judgment. Especially if in the opinion of the Plaintiff that the land in dispute belongs to her and that the judgment was not

properly procured. Therefore no matter how bad a judgment is, it must be obeyed unless set aside by way of appeal or that the attainment of the judgment was fraudulent. See: THE REPUBLIC VRS. NII ADAMAH & 10 ORS⁵. Even though the Plaintiff’s land falls within the site plan given by the grantor as indicated by the Court witness’s (Surveyor) and per court exhibit 1 (CE1), same has been affected by the Court of Appeal judgment that granted same to the Gomoa Akyempim stool in a suit in which the 2nd Defendant was a Plaintiff in the case therein. Indeed it is also established that the land in dispute is part of a larger tract of land belonging to the Gomoa Akyempim stool and not the Apam stool as affirmed by the judgment of the Court of Appeal. From the foregoing, the composite plan and issue four (4) will therefore not avail the Plaintiff. See: SARKODIE VRS. FKA COMPANY LTD SCGLR 65 @ 70 & 72 AND TETTEH VRS. HAYFORD⁶. _____ ⁵[2014] 73 GMJ 1 @ 50. ⁶[2012] 1 SCGLR 417 @ 423 – 424. Having failed to establish issues 3 and 4, issues 1 and 2 is of no effect and considered mute. 14 I have also examined the evidence adduced by the respective parties and hold that the evidence adduced by the Plaintiff was not sufficient to persuade the tribunal of fact and law to rule in favour of the Plaintiff as the lawful owner of the land in dispute on the balance of the preponderance of the probabilities. See SECTION 12(1)(2) OF THE EVIDENCE ACT , 1975 NRCD 323 AND ABBEY & OTHERS VRS. ANTWI V [2010]

SCGLR 17 AT 23 – 24. Indeed I cannot also pretend to operate as an appellant court superior to the Court of Appeal whose decision is binding on me unless it was obtained by fraud. Unfortunately, no such issue was canvassed before me, neither was there an overwhelming evidence to invoke the court’s inherent jurisdiction to do substantial justice without falling into the gallery. Also, the Plaintiff’s quest to establish issue one (1) fails under the circumstance. On the contrary, the Defendants succeeds in their counter claim having established that they rightly acquired the land from the rightful owner (Gomoa Akyempim Stool) of the land in dispute as demonstrated by the judgment of the Court of Appeal per Exhibit 2 among others. I therefore agree as argued for and on behalf of the Defendants that, ‘where a Defendant has been in long undisturbed possession and occupation of land, he is entitled to the protection of the law against all who cannot affirmatively prove a better title’. See Abakam Effiana Family & Ors v Mbibado Effiana Family Ors’ Upon consideration of the totality evidence adduced, the authorities cited and hold the view that the balance of the preponderance of the probabilities the Plaintiff failed to establish that in spite of the land being affected by a decision of Court of Appeal steps were taken to enable the court to set aside the Judgment of the Court of

Appeal by way of fraud or mistake neither did she lead sufficient evidence to establish her case. 15 Accordingly, the Plaintiff failed to establish her case and the action is dismissed and judgment is entered for the Defendant’s counterclaim. ____ ⁷[1959] GLR 362 - 365 Though, the conduct of the Plaintiff constitutes trespass, and warrants the court’s intervention for damages, the extent of damage applicable was not adequately described. The Defendants will therefore be entitled to nominal damages. Accordingly, I will grant the Defendants the following reliefs: a. A declaration that the land as described per relief (a) of the Amended statement of claim is the property of Gomoa Akyemfo stool family as confirmed by the Court of Appeal judgment dated the 20th day of June 2002 and particularly described in the judgment plan attached. b. A declaration that the land the subject matter of this dispute as described by relief (a) of the amended statement of claim falls within the Gomoa Akyemfo stool land and validity granted by the 2nd Defendant’s stool. c. Order for removal of all structures at the cost of the plaintiff d. Perpetual injunction restraining the plaintiff, his purported vendors, assigns Defendants’ ownership, use and enjoyment of the land. e. Nominal Damages for trespass unto the disputed land assessed at Two Thousand Ghana Cedis (GH¢2,000.00) 16 f. Cost of (Twenty – five thousand Ghana Cedis) GH¢25,000.00.

JUSTICE ABOAGYE TANDOH HIGH COURT JUDGE. (SGD.)

COUNSEL VICTOR YANKSON ESQ, WITH KOBBY NDOM ESQ, FOR THE DEFENDANTS. JOSEPH PONTE-KWOFIE ESQ, HOLDING THE BRIEF OF ANTHONY LARTEY ESQ, FOR THE PLAINTIFF. /MK/ 17