AMOAKO VRS ADWOA (BR/SP/DC/A1/11/2023) [2023] GHADC 1194 (22 December 2023)

IN THE DISTRICT COURT HELD AT SAMPA ON FRIDAY, 22ND DAY OF DECEMBER, 2023. BEFORE HIS WORSHIP MR JOSEPH BAAH-ANSAH (DISTRICT MAGISTRATE) SUIT NO BR/SP/DC/A1/11/2023 BETWEEN. FRANCIS AMOAKO ATTA PER HIS LAWFUL ATTORNEY, ANKAMAAH GLADYS OF ASIRI PLAINTIFF AND ADWOA CECILIA PER HER LAWFUL ATTORNEY DEFENDANT COMOS YEBOAH OF ASIRI JUDGMENT The plaintiff one Francis Amoako Atta per his Lawful Attorney, Ankamaah Gladys of Asiri in the Jaman North District within the Bono Region of Ghana by his writ of Summons issued against the defendant on 14th day of February, 2023 claims the following relief(s): (a) Declaration of title to an unnumbered building plot located at a place popularly known and called “City Pub” at Asiri on Asiri Stool Lands and bounded on all sides by unnumbered building plots i.e. City Pub, Brother Kwasi and Path respectively. (b) Recovery of possession of all that piece and parcel of land. (c) An interlocutory injunction of the defendant. The case for the plaintiff as put forward through her summary of evidence and Supplementary Affidavit in support of her claims were that: Somewhere in June, 2009 one Ankamaa Gladys (herein after called the Plaintiff) was instructed by her brother one Francis Amoako Atta who was based in Accra to purchase a plot of land at Asiri for the purpose of constructing a public place of convenience (toilet) for the entire community. According to the plaintiff this directive was fully complied with. Following this, she acquired one unnumbered building plot at a place known and called ‘city pub’ from the chief at that time, Nana Oti Adinkra and elders on Asiri Stool Lands. According to the plaintiff this building plot continued to be there and she maintained the said plot without any instruction or encroachment from any angle until September, 2022 when she noticed that the defendant had begun to put up structure on the land. Upon thorough investigation, the defendant confirmed that he was responsible for the construction of that structure and had no intention of relinquishing possession of the land to the plaintiff. All efforts made by plaintiff to get back the land from defendant through negotiation proved futile hence this action. Plaintiff ended her evidence by tendering the following exhibit: Exhibit ‘A’ being a valid receipt obtained from the Asiri Traditional Council covering the sale of the plot under dispute dated June, 2009 in the name of her brother Francis Amoako Atta. It is important also to state that the above mentioned exhibit was presented in court by plaintiff as a way of legitimizing her position as the true owner of the disputed land. At the trial plaintiff, one Ankamaah Gladys called two witnesses to support her establish her case against the defendant. These witnesses were Twene Clement (PW1) and Nana Kofi Tawia (PW2). It is worthy to mention that all the witnesses’ evidence corroborated the evidence given by plaintiff. In his defence, defendant disputed plaintiff’s claim in paragraph 1, 2, 3 and 4 which suggest that she plaintiff was instructed by her brother to purchase plot of land at Asiri for the purpose of constructing public toilet for the entire community. For defendant this was fallacious and untrue and further stated that, there was no legitimate plot allocation committee in Asiri as at 2009 of which Twene Clement (PW1) was the chairman. Again the defendant denied paragraph 7 and contends that the disputed land rather situates at a place called ‘Dadiease’ and further stated that, that area had not been demarcated hence no one could have purchased a building plot there. Rather it used to be farm land of Fumasah Royal Family. Defendant further made averment that the disputed land had not been demarcated by then and that, her mother use to farm there by growing banana, pineapples among others. Defendant again maintained that due to the dicey chieftaincy nature of Asiri, there is no properly constituted plots Allocating Committee by any Traditional Authority to demarcate plots, since each clan is headed by a sub-chief who also own their respective and autonomously allocates same. Defendant closed his case by not supporting any site plan to substantiate his claim. He also called two witnesses. At the close of the pleadings and at the end of the trial the following issues were set up for determination. (i) Whether or not plaintiff has the capacity to bring this case to court. (ii) Whether or not there was a valid consent and concurrence from the chief and the principal elders of the family. (iii) Whether or not plaintiff is entitled to her claim. (iv) Whether or not defendant can continue to possess the land he claim was gifted to him. In civil case the burden is on the plaintiff to persuade the court of the merits of his case by a preponderance of probabilities Section 12(1) of the Evidence Act, 1975 (NRCD 323) states that “the burden of persuasion requires proof by a preponderance of probabilities” which is defined in sub section (2) as “that degree of certainty of belief in the mind of tribunal of fact or the court by which it is convicted that the existence of a fact is more probable than its non-existence” . On issue one: whether or not plaintiff has capacity to bring this action to court. The present position of the law is that an individual has capacity to sue to protect his or her interest in land provided he or she has attained the age of twenty-one and above and is of sound mind. In this case plaintiff is slightly over fifty (50) years hence one can argue without any contradiction that she is of age and of sound mind to enable her contest this suit. Also it was held in the case of Kwan V. Nyieni (1959) GLR 67 by Justice Van Lare (the then Acting CJ) that “where family property is in damage of being lost to the family, and it is shown that the head, either out of personal interest or otherwise, will not make a move to save or preserve it, or where owing to a division in the family, the head of family and some of the principal members will not take any steps or where the head and the principal members are deliberately disposing of the family in their personal interest to the detriment of the family as a whole” any member of the family, either upon proof that he has been authorized by other members of the family to sue, or upon proof of necessity to sue may act on behalf of the family. In the instant case if defendant is having the opinion that Nana Oti Adinkra and his elders have not got any capacity to alienate “City Pub” land of Asiri to plaintiff why have they kept mute and gross over it for over twenty (20) years? Defendant should have even been the first person to contest this case. Flowing from the above therefore plaintiff has the legal right to institute this action against the defendant in this case. On issue two: whether or not there was valid consent and concurrence from the chief and the principal elders of the royal family. It is trite that in alienating a family land, the law is that such alienation must be granted to the person by the head of family with the consent and concurrence of the principal members of the family consent. Head of family alone cannot validly alienate family property. See the case of Bayaidee V. Mensah [1958] GLR. Similarly, the proper person to grant stool lands is the occupant of the stool or the agent or caretaker acting together with the consent and concurrence of the principal member of the stool. A grant by a caretaker alone without the knowledge, consent and concurrence of the elders of the stool is void for lack of capacity. Alienation by the chief alone without the knowledge, consent and concurrence of the principal members of the stool is also void. See the case of Awuku V. Tettey [2011] 1 SCGLR 366. Flowing from the above therefore the then chief of Asiri, Nana Dr. Oti Adinkra in 2009 formed a plot Allocation Committee involving all the sub chiefs as well as elders of the town under the chairmanship of one Twene Clement (a.k.a Ajasco) to alienate plots to natives and strangers who were willing to buy plots of land in Asiri. In this respect one might see this alienation of the said plot of land to plaintiff as valid since the disputed land was alienated to the plaintiff by them. In any case if defendant claims that plaintiff does not know the actual location of the disputed land what about the witnesses’ plaintiff called in this case whose ages ranges between 45 to 60 years. The question to ask is were these witnesses blind, absolutely not. In any case if defendant thinks she is the owner of the disputed land the best thing she should have initiated was to pursue a legal suit first against the plaintiff since they believe they have iron cast case. Not only that but also the mere fact that defendant claims that her mother was having a farm on the disputed land does not make her the owner of the land simply because the land belongs to the clan and the overlord of Asiri Nana Dr. Oti Adinkra and his elders have not alienated it to her and in that regard, cannot claim absolute possession of ‘City Pub’ land. Above all, the then Asiri Chief Nana Dr. Oti Adinkra’s position as a chief by then was not contested to disprove his legitimacy in the alienation of the disputed land therefore he had the right to alienate any land to natives and the entire community as a whole by the consent and concurrence of the principal elders of his clan. On the third issue whether or not plaintiff is entitle to her claim. In her evidence-in-chief plaintiff averred that the disputed land is undoubtedly sold to her by Nana Oti Adinkra by the consent and concurrence of the principal elders of the royal family to enable her brother put up a public lavatory (toilet) on it. This was corroborated by Nana Kofi Tawia (PW1) and further stated that any purported sale or claim to the land in dispute by any third party smacks of bad faith and is calculated to deceive the court. Plaintiff further intimated that her acquisition of the ‘City Pub’ land in Asiri was not in bad faith, but rather to establish public toilet which will go a long way to benefit the entire community. This will in the long run also, help prevent spread of communicable diseases in the town if natives in the town defecate indiscriminately in public. Therefore by putting up toilet facility on the disputed land for the general benefit of the people within the community will enhance public policy objective which will promote the general well being of the people and ensures public health and safety. From the foregoing it is more probable to maintain that plaintiff is right to contest this suit in court. Finally, whether or not defendant can continue to possess the land he claims was gifted to him. In elucidating his evidence, the defendant made it categorically clear to court that the disputed land was gifted to the defendant by her mother who was by then cultivating banana, pineapples among others. With this, the court decided to find out what a gift is, in terms of customary land law. Customarily, a gift of land is a voluntary donation of property owned by the donor who is not a person of disability to the donee to the presence of witnesses who may include family members of the donor and the donee and must accept the gift by providing thanksgiving (aseda) which could be a token or substantial in the presence of witnesses and the thanksgiving must be accepted by the donor after which the interest of the donor intends to pass to the donee would vest in the donee. See the case of Asare V. Kumoji [1999-2000] 2 GLR. In any case gifts are made in two ways. The first being a deed of gift which is prepared to evidence the transaction and the second one where it is orally made in accordance with customary law. In analyzing the evidence of the defendant the court realized that defendant failed to give sufficient evidence to substantiate his case this is because no deed of gift was prepared to evidence the transaction. Not even a site plan was provided to support their claim. The witnesses the defendant provided also gave contradictory evidence this therefore made the case of defendant highly negligible and weak. Even though I know that customary law knows no writing, once a valid oral customary grant is made, it is accepted like any other grant, but as at now the court was expecting a ‘Deed of gift’ from the Grantor to Grantee since it has been a long time but this was absent, (about 20 years ago). In any case if the defendant still believe that they should have been on the winning side, the court believes that the issue of laches and estoppel can be set in here this is because it took so long. Defendants’ were negligent to claim their relief. From the evaluation of the evidence so far and addused before me, I find as a fact the following: (a) The plaintiff has the legal right to contest this case, (b) The plaintiff claim of acquiring the disputed land from Nana Oti Adinkra and elders on Asiri Stool Land is valid and lawful, since Nana Oti Adinkra was still a chief by then, (c) It is also not true that defendant’s mother acquired the disputed land perhaps she was only farming on it just because she was a family member. The actual land did not belong to her. (d) Finally, for good conscience of the plaintiff to build public lavatory for the community shows how selfless and patriotic she is towards her community. The court will not do anything to prevent it. With the above finds I hold that plaintiff is entitled to her claims. Judgment is hereby entered for the plaintiff as follows: (i) Title in the land dispute situated at a place popularly known and called ‘City Pub’ at Asiri and on Asiri Stool Lands and bounded on all sides by unnumbered building plots i.e. City Pub, Kwasi and path respectively has been adjudged as the owner of the disputed land. (ii) The plaintiff is the right person who has been adjudged as the owner of the disputed land. (iii) That the plaintiff has the right to destroy any development defendant has put on the land and possess her property. (iv) By this judgment the defendant, his agents’ servants, workmen, assign, relatives and privies are restrained from interring the disputed land now adjudged to be owned by the plaintiff. Costs of GH¢500.00 awarded against the defendant. Signed H/W Joseph Baah-Ansah District Magistrate 22/12/2023 9