Afedzie and Another Vrs Andoh and Another [2023] GHAHC 125 (2 February 2023)

IN THE HIGH COURT HELD IN CAPE COAST ON THURDAY, 2ND DAY OF FEBRUARY, 2023, BEFORE HER LADYSHIP MALIKE AWO WOANYAH DEY (HIGH COURT JUDGE) SUIT NO: E1/41/2004 1. EBUSUAPANYIN KOFI AFEDZIE ----------------- PLAINTIFFS 2. NANA KOFI NYANFUL III Substituted by KOJO ADOKO (FOR THEMSELVES AND ON BEHALF OF THE DEHYENA STOOL FAMILY OF ENYAN ABACA) VS. 1. EBUSUAPANYIN KOBINA ANDOH ---------------------- DEFENDANTS Substituted by EBUSUAPANYIN KOFI TAWIAH 2. NANA OTSIWA VI (EBUS & PRINCIPAL MEMBER OF ODUMNA FAMILY OF ENYAN ABASSA) PLAINTIFF PRESENT DEFENDANT PRESENT AMPONSAH DAZIE WITH FRANCESCA SEFENU FOR THE PLAINTIFF EKOW AMPAH KORSAH FOR THE DEFENDANT JUDGMENT Per a writ of summons filed on 26th April 2004, the plaintiffs, who are the Ebusuapanyin and Ankobeahene of the Royal Dehyena family of Enyan Abassa, 1 respectively, sued the defendants representing the Odumna family of Enyan Abassa for the following reliefs; a) Declaration of title to all that piece and parcel of land known as Ekotsir land situate being and lying at Enyan Abassa b) Recovery of possession of the said land c) Damages for Trespass d) Perpetual injunction restraining the defendants, their agents, servants, assigns, and anybody claiming through them from having anything to do with the in and use of the said Ekotsi land and or interfering with the plaintiffs’ interest in and use of the said Ekotsi lands. The case of the plaintiffs The plaintiffs introduced themselves as the Ebusuapanyin and Ankobeahene of the royal Dehyena family of Enyan Abaasa, suing on their own behalf and the family, whereas they stated that the defendants are members of the Odomna family of Enyan Abaasa. The plaintiffs traced their root of title to the disputed land through their ancestor, Kofi Nyanful, whom they testified discovered and reduced a large tract of land into possession. According to them, this large tract of land is called Ekotsi. Their ancestor Nana Kofi Nyanful permitted his nephew by the name Ahinful and his children to farm on a portion of the land, but he later built on it. They recognised the ownership of the land as belonging to the Royal Dehyena stool family. They claimed that the land acquired by the family shares boundary with the Methodist chapel square Yego clan(Ekotsi) Nana Tufuantse of the Odomna clan, with Nsona clan, with Nana Afedze of Kona clan, Kwame Akonu of the Twidan clan and lastly with Odum Kwansah’s Anona clan. They claimed that over the years, their family had exercised ownership and control over the land without let and hindrance from anybody. Continuing their narration, the plaintiffs claimed that over one hundred years ago, Nana Tufuantse trespassed onto a portion of the land and built on it. At that time, 2 their predecessor named Nana Kojo Abban, successfully brought an action against him at the Enyan Abaasa Traditional council. When Nana Tufuantse appealed from the traditional council to the High Court in Cape Coast, he lost and was subsequently sacked from the land. He was awarded 4 pounds as damages in respect of another house which was built and extended onto the plaintiffs' land. During the trial of the case between Nana Tufuantse and the plaintiffs’ predecessors, a member of the defendant's family named Kwesi Nyanful testified in support of the ownership of the land by the plaintiff's family. They also claimed that sometime in or about 1892, Kwame Turuwah, a predecessor and member of their family, took an action against one Kofi Assuandze of the Odumna No2 clan and a predecessor of the defendants over Ekotsi land at the court of the Omanhene of Enyan Abaasa. The judgment dated 27th February 1892 went in favour of Kwame Turuwah, and the defendants’ predecessors never appealed against the said judgment. Thus the defendants are estopped per rem judicatam and acquiescence in respect of the land. It is their case that lately, members of the defendants' family have been laying claims to their land, which is in dispute before this court. Wherefore they prayed for the reliefs stated above. The case of the defendants In their statement of defence, which was later amended on 11th April 2007, the defendants traced their root of title to the disputed land to their ancestor by the name Nana Otsiwa who broke the virgin forest, cultivated farms, put up buildings on part and settled other persons and institutions on the land. They claimed that the land is known as Ekotsir. The said Nana Otsiwa was of the Odumna family and owned the Odikro stool of Enyan Abaasa and therefore are the owners of the land. They claimed that the plaintiffs’ family, which is the Dehyena family occupy the Ankobea Stool of Enyan Abaasa. It is their case that the plaintiffs migrated to Enyan Abaasa and, as brothers and friends, sought the leave of the defendant's family to settle on a portion of the disputed lands and have since acknowledged the defendants as the owners of 3 the land and have remained on the land as long as they acknowledged the defendant’s family as the owners of the land. The defendants have defended their interests anytime other people interfered with their possession. According to the defendants, their land shares boundaries with the old Abaasa Methodist church at the chapel square, the Yego family of Abaasa, the Anona family of Abaasa, the Odumna No.2 family of Abaasa, the owners of the Nkyidom stool, the Twidan family, i.e. the Omanhene’s family, the Yego (Adonten) family, the Kona Baamuhene’s family, the Asona clan and back to the chapel square. Continuing their assertions, they claimed that they could not deny the assertions of the plaintiff regarding the suit, but the plaintiff's ancestor litigated for and on behalf of the defendants' Odumna family, which permitted them to settle on that portion of land, and in fact, gave evidence for and on behalf of the plaintiffs who were then in possession of the land. They also averred that there are about three sections of the Odumna family at Enyan Abaasa, namely the defendants' Odumna family, the owners of the Odikro Stool and the land in dispute, the Odumna No2 family, the owners of the Nkyidom Stool and Nana Tufuantse’s section which is the same family which trespassed on the land the subject matter of the action that the plaintiff's ancestor instituted. It is their case that the suit went before the Native Tribunal of Abaasa and went on appeal to the Provincial Commissioner's court at Saltpond, but the appeal failed because Nana Tufuantse was not able to establish that he was the head of the Odumna family and therefore, clothed with capacity to litigate on the matter. They claim that the plaintiffs cannot deny that their ancestor fought that action on behalf of the defendant’s family to protect that portion of the land as the defendants’ family had permitted them to settle on the land. They averred further that they have been in possession since its acquisition, and one Egyabeng, also known as Hammond, brother of Nyanful of the plaintiff's family, obtained a portion of the land from their family. They also contended that their family gave the plaintiffs’ family a portion or a place for the burial 4 of their members called Epow. Their family has also felled trees on the disputed land to the knowledge of the plaintiffs without any protests. According to them, their family has granted lands to the Methodist Church, New Apostolic Church, Assemblies of God Mission, Roman Catholic church, Agricultural Department, For Entertainment Centre and Habitat. They asserted that they have also granted land to individuals namely, Obaapanyin Antobam, Esi Boaboma, Paoa Adasape and Kwame Nimbo, a brother of the plaintiffs' family who is known as Ntansa Maame. They further stated that some time ago, there was a dispute between the Omanhene's family, i.e. the Twidan family and their family, in respect of a portion of the disputed land. When the matter went before a panel for arbitration, Nana Ankobea of the plaintiff’s family was one of the panel members and took part in the deliberations and did not claim any portion of the land. They also visited the land; thereafter, part of the land was given to the Omanhene's Twidan family. Thus the plaintiffs are estopped from claiming any portion of the disputed land. They did not counterclaim for any relief. The plaintiff filed a reply and denied the assertions of the defendants. At the close of pleadings, the court adopted the following issues for trial. a) Whether or not the plaintiffs’ ancestor Nana Kofi Nyanful broke the virgin forest of the disputed land. b) Whether or not the name of the land in dispute is known and called Ekotsi land c) Whether or not the plaintiffs have exercised ownership of the disputed land without any interference from time immemorial. d) Whether or not the plaintiffs’ family litigated on the disputed land for and on behalf of the defendants’ family. e) Whether or not the plaintiffs are entitled to the reliefs being sought f) Any other issues arising from the pleadings. 5 From these issues, the court hereby finds the following issues below relevant to the determination of the case. They are; a) Whether or not the disputed land’s virgin forest was broken by the plaintiffs’ ancestor Nana Kofi Nyanful or the defendants’ ancestor Nana Otsiwa b) Whether or not the plaintiffs’ family or defendants’ family have exercised overt acts of ownership over the disputed land. Before I proceed, it must be stated that the original 2nd plaintiff and first defendant died in the course of the pendency of the suit and were substituted accordingly. Once issues were joined, the plaintiff would assume the burden of proof and the burden to produce sufficient evidence to prevent a ruling against him on any issue and to tilt the scales in his favour on the balance of probabilities. Section 11 of the Evidence Act 1975, NRCD 323, states; “the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. In other words, a party needs to produce enough evidence once all the evidence is before the court; a reasonable mind could conclude that the existence of the fact was more probable than its non-existence." The learned author and jurist S.A. BROBBEY explained the principle relating to the duty to produce evidence on page 31 of his book "Essentials of the Ghana Law of Evidence" in the following terms; "This literally means "the proof lies upon him who affirms not on he who denies since by the nature of things he who denies a fact cannot produce proof." Where the plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial." In the case of FAIBI V STATE HOTELS LTD [1968] GLR 471, it was held thus; 6 "Onus lay upon the party who would lose if no evidence was led in the case, and where some evidence has been led it lay on the party who would lose if no further evidence was led. On how to discharge the burden of proof, the Supreme Court, in the case of Ackah v Pergah LTD and others [2010] SCGLR 728 at 736, held that "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. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses admissible hearsay, documentary and things(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 probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and 2 and 11(1) and (4) of the Evidence Act, 1975 NRCD 323. " Further, it must be borne in mind that, generally, the defendant bears no burden of proof, particularly where there is no counterclaim. See also T.K Serbeh & CO [2005-2006] Ltd. V. Mensah 360 per Date-Bah JSC Before I proceed to discuss the evidence, it must be stated that the 2nd plaintiff testified through one Kofi Egyebeng who described himself as a principal elder of the plaintiff’s family and testified on behalf of the 2nd defendant Nana Kofi Nyanful III. Thereafter, the 1st plaintiff Kofi Afedzi testified and told the court that he has personal knowledge about the land in dispute and narrated how his family came by the land. They called PW1 Kofi Nyanful, a farmer from the Nkyidom Odomna family. He told the court that he shared boundaries with the Dehyena family lands, likewise Nsona 7 family lands. He also stated that the first person to settle on the land was Nana Kofi Nyanful. They further called PW2 Rear Admiral Jonathan Yanful Adoko (rtd), also known as Ebusuapanyin Kwaku Nyanful of the Ohyiawu Nsona family of Enyan Abaasa. He also told the court that his Nsona family shares boundaries with the plaintiff’s Dehyena family. Due to the fact that the case has been in this court for several years, it is pertinent that I list all the exhibits tendered by the parties in the course of this trial. The plaintiffs tendered the following documents in evidence a) Power of Attorney marked as exhibit A b) Site plan for Dehyena Stool Land Akotsi land marked as Exhibit B c) Judgment marked as Exhibit C d) Judgment from Archives marked as exhibit D e) Judgment of the Court of Appeal between Nana Otsiwaa vs JK Yanney marked as Exhibit E. f) Judgment between Kojo Aban vs Kweku Tufuantse & Kwamina Dontoh tendered but rejected and marked as “R” The defendants also testified through Kwasi Nyanful and he tendered some documents in support of their claim to the land. They also called PW1 Kojo Attah a farmer from Enyan Abaasa, DW2 Opanyin Kwesi Attah, a driver and a native of Enyan Abaasa and testified that he shares boundaries with the two parties, DW3 Charles Tetteh of the Asona family, DW4 Ebo Onomah, DW5 Francis Kobina Quainoo. The defendants also tendered the following documents a) Agreement between the defendants' family and Assemblies of God Church marked as Exhibit 1 b) Agreement between the defendants' family and Methodist church marked as 2 8 c) Indenture between the defendants' family and Ebo Amoanu Harrison marked as 3 d) Supplementary affidavit in opposition dated 25th January 1994 marked as Exhibit 4 e) Deeds of gift KO2 attached to the witness statement of Opanyin Kwame Otsiwa tendered but rejected and marked as R and R1 due to lack of stamp duty. Finally, it must be put on record that though the case was commenced under the old procedural rules and evidence taken orally, some of the witnesses for the defendant filed witness statements for the expeditious disposal of the case. This was after it was agreed that they could file their witness statements. I have also received the address of both counsels for the parties, and it has assisted the court in resolving the issues. EVALUATION OF THE EVIDENCE AND THE APPLICABLE PRINCIPLES OF LAW To begin, this court finds that the parties are laying rival claims to the same land though they have given the disputed land different names. While the plaintiff claims it is known as Ekotsi, the defendants claim it is known as Oguananmu. Both have clearly described their land in their various pleadings. However, the plaintiff went a step further to tender a site plan to identify their land (Exhibit B) signed by the director of surveys and a licensed surveyor, for it has been held that in an action for declaration of title to land perpetual injunction and recovery of possession the party laying claims to the land must clearly identify their land to enable any order issued in respect of the land to be traced to that specific land. See the case of Anane vs Donkor [1965] GLR 188. That plan delimits the extent of the land being claimed by the plaintiffs and depicts its boundary owners. See the cases of Layea v Ofoiwah 1984-86 2 GLR 410 CA and Abosu v Kotey 2003 2004 SCGLR 420, where the courts used site plans as a means of identifying land for the purpose of declaration of title to land. 9 However, as counsel for the plaintiff submitted, the bone of contention is who settled on the land first. In other words, who is the allodial owner of the disputed land? In order to satisfy the burden imposed on them, the plaintiffs through one Kofi Egyebeng the attorney of the 2nd plaintiff traced the plaintiffs’ family’s root of title through their great ancestor Nana Kofi Nyanful I whom he testified was the first to break the virgin forest of the disputed land about three hundred years ago whilst the defendants traced their root of title through their ancestor called Nana Otsiwah. Whilst the plaintiffs claimed that their family settled first and granted the defendants’ family permission to settle on the land, the defendant also claimed that they settled first and granted the plaintiffs’ family permission to settle on the disputed land. From the discourse between this witness and counsel for the defendant, it is clear that though he admitted that several institutions such as the Methodist Church, the Catholic Church, the New Apostolic Church and the Assemblies of God Church have their buildings on the disputed land, it was not his Dehyena family who granted them the land because he told the court that he did not know the family that granted them the land. It is, therefore, beyond dispute and the finding of this court that all these churches have occupied portions of the disputed land over the years, but it was not the plaintiffs' family that granted them the land otherwise, the witness would have said so emphatically. It is also established that amongst these institutions, with specificity, it was the defendants’ family that granted land to Habitat and Assemblies of God Church to build and also the Abaasa community itself. Therefore, the court finds that since the witness could not tell who granted the land to the other institutions, the plaintiffs' family did not grant it to them. Thus I agree with the counsel for both parties that both parties know that the defendant's family has been disposing of the disputed land to others and that, coupled with that, the defendants have also been felling trees on the disputed land. It is also not in doubt that several members of the plaintiffs' family have built on the land, as the witness admitted that he has his house on the disputed land and several 10 other family members. However, he categorically denied that he and his family members got the land from the defendants' family. Thus though there is no evidence of how these individual family members of the plaintiffs, including the witness herein, got their land, it is clear that they have built on portions of the disputed land, likewise the members of the defendant's family. Per the evidence, the defendants’ family has also granted various institutions portions of the disputed land without recourse to the plaintiffs’ family for a long while. It is also established per the evidence of the 1st plaintiff that these lands granted to the institutions were granted over twenty years ago as at the time the witness was in the box testifying and before the case was instituted in court. He also admitted that certain schools had been built on the disputed land given to the Enyan Abaasa Community but were unaware of those who granted the lands though his family had not given out the lands. If the plaintiffs' family did not give out all these lands and did not know who gave them out, one may ask whether they have indeed exercised ownership rights over the land. The obvious conclusion is that the defendants' family gave the lands granted to these institutions, and it is either the witness did not have that knowledge, or he was not being candid with the court in respect of that fact. Even though it is clear to the court that it is the defendant’s family that granted land to all these institutions several years ago, the plaintiffs called PW1 Kofi Nyanful from the Nkyidom Odomna family to support their claim that it was the plaintiffs’ ancestor who first settled on the land and not the defendants’ ancestors. Counsel for the plaintiffs submitted that the defendant’s counsel did not question the witnesses on their evidence that the plaintiffs' ancestor Nana Kofi Nyanful was the first to settle on the land; thus, they are deemed to have been admitted that fact. Much as I would have agreed with counsel for the plaintiffs generally, it must be stated that the plaintiff was cross-examined on that evidence generally regarding the defendants' case that their ancestor was the first to settle on the land. Besides, from the inception of the case, the defendants had denied that history narrated by the plaintiffs and vice 11 versa. In short, both parties have given conflicting accounts on who founded the said land thus a conclusion cannot be reached on that simply because the witnesses were not cross-examined on that fact. It cannot be the basis for saying the defendants had admitted that fact. Since the court is not able to tell from the evidence whose traditional history is authentic, the law has provided the court with a solution in such circumstances, especially where it is clear that both parties have called boundary owners to corroborate their evidence that they were first to settle on the land. A legion of cases has laid down a guide to resolve the issue. It has been held that; “…where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief… the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the most probable. See the case of Adjeibi- Kojo v Bonsie 1957 3WALR 257 page 260 In the case of Mrs Vivian Aku Brown Danquah v Samuel Lanquaye Odartey Pwamang JSC stated after citing the Adjebi-Kojo case supra as follows; “..So where the traditional history conflicts, the court is required to examine the evidence and consider acts of ownership and possession of the disputed land by each of the parties and their grantees within living memory in the form of farming, building and other activities which are consistent with title to land.” Since the plaintiffs are before the court for a declaration of title to the land in question they must win on the strength of the evidence they have proffered before the court and not on the weaknesses in the case of the defendants who have not counterclaimed for any relief. I shall therefore examine the evidence led to see whether they have exercised any acts of ownership and possession over the disputed land. When PW1, the 2nd plaintiffs' attorney, testified, he was emphatic that the land belonged to them and that their ancestor was the one who broke the virgin forest first, 12 but under cross-examination, he either did not have a clue or he was not being candid as to who granted land to all the institutions mentioned. It is pertinent to reproduce the conversation between the said witness and counsel for the defendant as follows; Q: Do you know of the Methodist Church at Enyan Abaasa? A: Yes. Q: Which family granted them land to settle on at Enyan Abaasa? A: I do not know Q: Do you know that the Catholic Church had also settled on a portion of the land in dispute? A: Yes Q: Do you know which family granted them the land? A: I do not know Q; Do you know that the New Apostolic Church had also established their church on a portion of the disputed land? A: Yes I have it. Q: Do you know that the Assemblies of God had also established a church on a portion of the disputed land? A: I know Q: Who granted them permission to put up the church on that land? A: For that I know it was the defendants. Q; I put it to you that it was the defendants’ family who granted land on the disputed land to all the churches mentioned to build on same A: For that I do not know. 13 Q: Do you know one Egyabeng also known as Hammond? A: Yes I am the one. Q: Tell the court how you got your land? [Question reframed] Q: Do you have any land at Enyan Abaasa A: Yes. Q: Have you done any work on the land at Enyan Abaasa A: I built a house on the land. Q: Is your land part of the disputed land? A : Yes Q: You had your land from the defendant’s family? A: No. Q: Do you know one Obaapanyin Afua Abbam? A: Yes Q: Is she a member of your family? A: Yes Q; Do you know whether she has a building at Enyan Abaasa? A: Yes Q: Do you know how she came by the land she has built on? A: I do not know. Q; Do you know that her house is constructed on part of the disputed land A: No 14 Q: I am suggesting to you that her house is on part of the disputed land A: I do not know. Counsel for the defendant cross-examined this witness at length, and though he admitted that he did not know how even his family members came by the land, he insisted that they did not acquire same from the defendant's family. However, as earlier stated supra, the evidence shows that throughout the period until the case came to court, the plaintiffs had not alienated the land to anybody or any institution, but the defendant had always been the family alienating the lands to others as far back as 1968. Though the said plaintiff said he did not know the family that granted portions of the disputed land to the institutions and even his own family members, when the 1st plaintiff testified and was cross-examined, he admitted that all these corporate bodies and institutions were granted the land by the defendants family and had been on the land for over 20 years. It is noteworthy that the 1st plaintiff told the court that the defendants had granted land to the Abaasa Community, and thus they decided to bring them to court to show them that they were not the owners of the land. The plaintiffs are only clinging on to that particular case in which the defendants admitted that their relative had testified in support of one Abban, just like some Odumna Nkyidom family members have done in this particular case before the court. In the opinion of the court, that fact is not sufficient to show that they are the owners of the disputed land. Apart from that, it behoved the plaintiffs to show their acts of possession over the land since that judgment. On the record, the plaintiffs have not led evidence to show their acts of possession over the disputed land since the said judgment except to say that they are the owners of the land. I agree with counsel for the defendants that all these grants to the corporate institutions had taken place in the full glare of the plaintiffs, but they did nothing about it until 2004 when they decided to mount this action to show the 15 defendants that they were the owners of the land. The alienation of portions of the disputed lands by the defendants to these institutions and the loud acquiescence of the plaintiffs throughout the years has led this court to conclude that they are not the owners of the land in dispute otherwise, they would have resisted all the grants that the defendants had made from the time the defendants began alienating the lands to others and also felling trees on same. The closest the plaintiffs testified to as an act of challenge was when the 1st plaintiff told the court under cross-examination that they called the elders of the Assemblies of God church to inform them that the land did not belong to the defendants. It ought to be noted that the defendants have not in any way counterclaimed for a declaration of title to the land; thus, the burden lay squarely on the shoulders of the plaintiffs to prove their case. From the analysis of the evidence led by the plaintiffs to prove their case and that of the defendants as to their acts of alienation and on the balance of probabilities, it is the opinion of the court that the story of the defendants is more probable than that of the plaintiffs as there is evidence that they have acted in a manner that is consistent with the ownership of the land. Therefore, this court holds that the defendants, having alienated the lands to others in the full glare of the plaintiffs without any resistance from the plaintiffs' family for over 20 years before the suit was instituted, the plaintiffs’ family cannot now claim to be the owner of the land. Their loud silence in the face of all these alienations shows that even if they are on portions of the disputed land and have built on same, the story of the defendants that the plaintiffs are on the land at their behest is more probable than the story of the plaintiffs that it was their ancestor who settled first on the land and granted the defendants permission. In effect, the silence of the plaintiffs’ family is inconsistent with the ownership rights in respect of which they seek a declaration from this court. I have analysed the entire evidence before the court, and I hold the opinion that the plaintiffs have failed to convince the court about their ownership of the disputed land. 16 In my opinion, the scales must tilt in favour of the defendants. The plaintiffs are therefore, not entitled to the reliefs they seek before this court. Their reliefs are hereby dismissed. Costs of 2,000.00 against the plaintiffs. MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST 17