BENIN VRS BENIN (E1/10/2013) [2024] GHAHC 342 (16 February 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT WA ON FRIDAY 16TH FEBRUARY, 2024 BEFORE HIS LORDSHIP JUSTICE A. YUSIF ASIBEY– HIGH COURT JUDGE GBANA BENIN (Substituted by GBANA BASI) Landlord acting for and behalf Of the People of Timbaka village TUMU/ UPPER WEST REGION VRS. JIJEN BENIN (Substituted by BOHO SALIA) (Substituted by KADIRI BADUA) True and lawful Representative Of Wajie Family of Bandei TUMU/ UPPER-WEST REGION) SUIT NO. E1/10/2013 PLAINTIFF DEFENDANT JUDGMENT FACTS By a Writ of Summons and Statement of Claim dated 4th March, 2013, the Plaintiff herein instituted the instant action against the Defendant, praying this Court for the following reliefs: a. A declaration that all that piece or parcel of land lying between Bandei and Challu villages bounded to the North by Sakai village, to the North-East by Pieng and Challu, to the South by River 1 Walifuo, to the South West by Jejin and Sentie and to the South East by Tasaw and Kulfuo. b. Perpetual injunction restraining the Defendants, their agents, assigns, privies, etc. from carving out and selling portions of or dealing in any way with the said parcel of land. c. d. e. Recovery of possession Damages for trespass. Cost Defendant filed a Statement of Defence. Defendant in his Statement of Defence, counterclaims for the following; a. Declaration to all that piece or parcel of land lying between Bandei and Challu villages and bounded to the North by Sakai village, to the North East by Pieng and Challu, to the South by River Walifuo, to the South West by Jejin and Sentie and to the South East by b. c. Tasaw and Kulfuo. An order of recovery of possession of the land, the subject matter of this suit. An order or perpetual injunction restraining plaintiff whether by himself or his assigns, servants, privies, workmen and successors in title etc. from interfering with the subject land in any manner. d. Damages for trespass 2 PLAINTIFF’S CASE Plaintiff sued as the Landlord of the Timbaka village of Tumu in the Upper West Region. According to the Plaintiff, the Timbaka people are the owners by first settlement of a track of land at Bandei. Plaintiff says that the Defendant’s family, Wajie family, is one of many families that were settled by the people of Timbaka in or about 1901 when they came from Sakalo. Plaintiff says that the Defendant was permitted to farm at random but only after rituals had been performed by the Landlord of Timbaka. Defendant religiously adhered to the performance of these rituals until 1986 when they violated the customary practice by selling part of the land at Bandei to a Contractor from Wa, without the consent of the then Landlord of Timbaka. This caused the then landlord Gbene to recover the land from the Defendant by seizure to perform rituals for them to farm. Upon recovering the land, the then Landlord of Timbaka told the Defendant that the Land would only be given back to them if they brought one goat, two hens and 100pieces of cola nuts to perform rituals to appease the gods. Plaintiff avers that the Defendant brought these items and they were thus allowed to resume farming. According to the Plaintiff, the Defendant gave the requested items to the Plaintiff in or about 1992 to be reinstated on the land for farming only. Plaintiff says that, at no point was the land sold to the Defendant, and further that the Defendant now claims ownership of the land contrary to the original understanding that the land was only for them to farm temporarily. 3 DEFENDANT’S CASE In his Statement of Defence, Defendant avers that the Plaintiff does not own a track of land at Timbaka. Instead, Defendant says that his ancestor called Wajie, whose origin can be traced to Sakalo was the first to settle at Bandei, by virtue of which he owns all that piece of land lying between Bandei and Challu villages. According to the Defendant, the said land has been passed on from generation to generation within the Wajie family of Bandei up to date, and further that the Defendant family has been in possession and occupation and has continued to exercise overt acts of ownership by making grants to people for residential and farming purposes. Defendant says that in 2008, his family granted a lease to Vodafone Ghana Limited for the erection of a mast on the disputed land without any challenge from any person including the Plaintiff’s village. Defendant also says that his family planted mango and cashew trees on the disputed land without any hindrances or protest. Defendant further alleges that his family has shrines on the disputed land and has ever performed the requisite ritual for an accident. Defendant avers that it is rather the Plaintiff family who approached his family in the past and sought the permission of the Defendant family to settle at their current location, with the condition that the Plaintiff family would always recognize the Defendant family as the allodial owners of the land. Defendant says that a contractor approached his family as the owners of the disputed land and sought their consent to fetch gravel from part of the disputed land. Defendant maintains that his family is the owner of the disputed land and says that his assertion is 4 reinforced by the decision of this court in Suit No L.S/8/97 entitled Alhaji Abdulai Bawiina vrs. Tubie Mumuni in which the High Court found his family to be owners of the disputed land, a fact that the Plaintiff is aware of. On the strength of the decision in L.S/8/97, Defendant says that the suit is res judicata. Plaintiff however continues to engage in various acts of trespass on the disputed land. PLAINTIFF’S REPLY TO DEFENCE In a Reply dated 16thMay, 2013, Plaintiff admits that the Defendant granted land to Vodafone Ghana Limited, save that same was done without the consent of the Plaintiff family. Plaintiff admits that the Defendant did plant cashew and mango trees on the disputed land but says that the landlord of the plaintiff family then, called the Defendant to order, whereupon he pleaded with the landlord of the plaintiff family. Plaintiff avers that they were never party to any legal battle over the disputed land. Plaintiff maintains that his family owns the disputed land. SUBSTITUTION OF PARTIES On 20th November, 2020, Plaintiff Gbana Benin, upon his death, was substituted by Gbana Basi. By an Order dated 6th November, 2014, Boho Salia was made a substitute to Jijen Benin upon his death. By an order dated 7th April, 2022, Kadiri Badua was made to substitute Boho Salia as Defendant. ISSUES SET DOWN FOR TRIAL Nine issues were set down in the Application for Directions filled by the plaintiff on 16th May, 2013. Defendant also set out in the Notice of Additional Issues filled on 24th May, 2013. Nine issues bringing the total number of issues to eighteen. 5 Having gone through the facts and the entire record of proceedings, the court has set down the following issues as the relevant ones. 1. Whether or not the Plaintiff has capacity to institute the Instant Action; 2. Whether or not the Instant Action is caught Estoppel per rem judicatam; 3. Whether or not the Plaintiff is entitled to his claim; 4. Whether or not the Defendant is entitled to his counter claim. THE APPLICABLE LAW On the burden of proof in civil cases, the Supreme Court in Poku v. Poku [2007-2008] 2 SCGLR 996 at 1022 per Georgina Woode CJ stated the statutory duty on a party in a civil suit to discharge the burden of proof when it held as follows: “It raises the legal question of who bears the burden of persuasion in such civil matters, …….. Who has the onus of proof and what is the degree or standard of proof? Generally speaking, this depends largely on ……. the facts averred and therefore the facts in issue……Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard or degree of proof must also necessarily be proof on the preponderance of the probabilities within the meaning of Section 12(2) of the Evidence Act, 1975 (NRCD 323)”. On burden of proof in civil cases, see also MONDIAL VENEER(GH) LTD V AMUAH GYEBU XV (2011) 1 SCGLR 446 @ 475 The principle as stated in the Poku v. Poku case (supra) is based on Sections 10, 11, 12 ,14 and 17 of the Evidence Act, 1975 (NRCD 323). It is trite law that the 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. In the case of Takoradi Flour Mills v. Samir Faris [2005 -2006] SCGLR 882, it was held that when the plaintiff has been able to discharge the burden of proof on him, and has by his evidence 6 established facts from which an inference can reasonably be drawn in his favour, then the onus would shift on the defendant. From the foregoing, it is apparent that the legal burden/burden of persuasion at all material times lies with the Plaintiff to prove its case; however, the burden to produce evidence may shift where necessary to the Defendant. Reference is made to the case of Sumaila Bielbel v Adamu Dramani & Attorney –General (No. 3) [2012] 1 SCGLR 370 at 371 which states ‘the distinction between the two burdens of proof, namely, the “burden of persuasion” as defined in section 10(1) and the “burden of producing evidence” as defined in Section 11(1) of the same Act, is important because the incidence of the burden of producing evidence can lead to a defendant acquiring the right to bring leading evidence in a trial, even though the burden of persuasion remains on the plaintiff. Ordinarily, the burden of persuasion lies on the same party as bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move on to a defendant….” It is thus trite that where the Plaintiff produces evidence to prove any fact in issue, the burden of producing shifts to the Defendant to produce such relevant evidence to disprove the Plaintiff’s case. Holding 5 of the Takoradi Flour Mills case (supra) states that; “……. this being a civil suit the rules of evidence require ……..that in assessing the balance of probabilities, all the evidence, be it that of plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict……..” 7 In respect of the counterclaim, the same standard of proof discussed above would be used in evaluating and assessing the Defendant’s case. See JASS CO LTD AND ANOR V. APPAU AND ANOR. [2009] SCGLR 265, holding one. EVIDENCE FILED BY PARTIES In proving its case, the Plaintiff in accordance with the High Court (Civil Procedure) (Amendment) Rules, 2014 C.I. 87,(C.I.87) and the orders of this Court filed Witness Statements on 9thFebruary, 2016 for the following witnesses; Gbana Benin, Glbert Bachua Dimmua and Fiyali Bayong. No exhibits were tendered by the Plaintiff or his witnesses. During trial, the Plaintiff testified and was cross-examined by counsel for the Defendant. Gilbert Bachua testified as PW1 and was cross-examined by Counsel for the Defendant. The witness statement of Fiyali Bayong was withdrawn and struck out on 23rd July, 2020 as the witness was bed-ridden and unable to testify. In his stead, one Fiayli Bayoung Kadiri testified on behalf of the Plaintiff as PW2. The Defendant filed his witness statement on 10th November, 2022. The following documents attached to the Witness Statement of the Defendant marked and tendered without objection as follows: (i) (ii) EXHIBIT ‘1’Lease document from Defendant family to Vodafone; EXHIBIT ‘2’Judgment in Suit No L.S/8/97 entitled Alhaji Abdulai Bawiina v Tubie Mumuni. (iii) EXHIBIT 3: Statement of Defence in Suit No L.S/8/97 (iv) EXHIBIT 4: Proceedings in Suit No L.S/8/97 (v) EXHIBIT 5:Letter to occupiers, developers and trespassers of disputed land (vi) EXHIBIT 6:Letter dated 13/03/2012 (vii) EXHIBIT 7:Writ of Summons in Suit No E1/11/2012 8 Witness Statements were also filed on behalf of Janali Issah(DW2), Bakuor Hillia(DW4), Bawa Dakoko(DW3), Dauda Musah Luri (DW5), in support of Defendant’s case. Evidence was received from surveyor Alexander Naah as Court Witness(CW) and he tendered Survey Report as Exhibit CE1 and Map of land as Exhibit CE2. CW1 was cross-examined by Counsel for both Plaintiff and Defendant on 15th May, 2018 DETERMINATION OF ISSUES The Court will now proceed to determine the issues it has set down. The first issue the court will determine is: Whether or not the Plaintiff has capacity to institute the instant action In YOUHANA V. ABBOUD (1973) 1 GLR 258, the court held, inter alia, that:“Where the authority of a person to sue in a representative capacity had been challenged, the onus was upon him to prove that he had been duly authorised. He could not succeed on the merits without first satisfying the court on this important preliminary point.” Plaintiff averred in paragraph 1 of the Statement of Claim that he is the Landlord of Timbaka Village. Defendant denied this assertion in paragraph 2 of the Statement of Defence and put the Plaintiff to strict proof. In paragraph 3 of his evidence in chief, Plaintiff testified that he is the landlord of Timbaka Village. During cross examination, Plaintiff maintained that he was the landlord of Timbaka village (Please see Record of Proceedings for 27th February, 2019 at page 58). This is corroborated by the evidence of PW1 during cross examination (Please see Record of Proceedings for 20thMarch, 2020 at page 80). There is no further cross-examination on the status of Plaintiff as the landlord of Timbaka. There is no evidence from the Defendant denying the capacity of the Plaintiff to sue. This evidence remains uncontested. 9 The principle reiterated in HAMMOND V. AMUAH (1991) 1 GLR 89-93 thus “the law is quite well settled that where a party makes an averment and that averment is not denied, no issue is joined and no evidence need to be led on that averment. Similarly, when a party has given evidence of a material fact and is not cross-examined upon it, he need not call further evidence of that matter”. In the absence of controversy regarding the capacity of the Plaintiff, the Court makes a finding of fact that the Plaintiff has the capacity to institute the instant action. Whether or not Plaintiff is estopped from relitigating the instant suit in respect of that parcel of land in Suit No L.S. 8/97 which this Court adjudged Defendant’s family owners. Acquah JSC in the case of NYAME V. KESE ALIAS KONTO (1998-1999) SCGLR 476 @ 478 explains the principle of res judicata as follows; “the plea of res judicata is never a technical plea. It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits, is conclusive as to the rights of the parties and their privies and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. In Spencer- Bower and Turner’s book, Res Judicata (2nd ed) at p 9, para 9, the plea is explained thus: “Where a final decision has been pronounced by a ... a judicial tribunal of competent jurisdiction over the parties to, and the subject-matter of the litigation, any party or privy to such litigation, as against any other party or privy thereto ... is estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it be used as the foundation of an action or relied upon as a bar to any claim.”” 10 Further, in the Supreme Court case of A.J. FANJ V. GHACEM (2022) JELR 109672 (SC) the principle of res judicata is explained thus “…even though the laws of the land permits any person to bring any action against any person to vindicate his or her right, be it to property or anything and to pursue same to any level, there comes a time when the judicial system could tell a litigating party that “enough is enough, this matter or issue has been adjudicated upon by a court of competent jurisdiction to its finality and so cannot be re-opened”. This simply put is res judicata. This is how the principle of res judicata has been described in various texts. Black’s Law Dictionary 8th Edition “Res Judicata has been defined as a doctrine barring the same parties from litigating a second suit on the same transaction or any other claim arising from the same transaction or series of transactions or that could have been raised but was not raised in the first suit. For a proper invocation of the doctrine, these elements must exist 1. There must be an earlier decision on the issue 2. A final judgment on the merits and 3. The involvement of the same parties or parties in privity of the original parties” Strouds Judicial Dictionary of Words and Phrases 6th ED. Vol3 pg 2289” In view of the above, the duty of this court is to determine from the evidence before the court, whether there is an earlier decision on the subject matter; whether that decision is a final decision and whether the parties herein were parties/ parties in privy to any previous suit. In exhibit CE1 tendered by the Surveyor, the Land claimed by the Plaintiff is stripped whilst the land claimed by the Defendant is hatched.CW1 testified that, there is a 40% intersection between the land claimed by the Plaintiff and the land claimed by the Defendant,(See proceedings of 15th May, 2018 at page 49 of Record of Proceedings). 11 Thus, it is evident that portions of the land claimed by the Defendant fall within the land claimed by the Plaintiff. What this means is that on the ground, the dispute between the parties revolves around the 40% intersection between the Plaintiff’s land and the Defendant’s land. There is no dispute over the remaining 60% percent of the land claimed by the Plaintiff in this suit. Thus, that 60% of the land claimed by the Plaintiff that is not in dispute shall not be concern of this decision. It is not in dispute that there is an earlier decision in Suit No L.S/8/97 which is a final judgment. According to CW1, the land surveyed in Suit No L.S/8/97 is the same as the land claimed by the Defendant. What is in issue is whether the Plaintiff herein is/ or was privy to the judgment inSuit No L.S/8/97. The 9th Edition of the Black’s Law Dictionary defines a privy to include the following; ‘The term also appears in the context of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim’. Plaintiff asserts that his family is not party to and has never been party to any suit on the disputed land. Defendant on the other hand says that the Plaintiff was a privy to Suit No L.S/8/97. What evidence has been adduced? Exhibit 2 (the decision in Suit No L.S/8/97) shows that the court made a declaration of title in favour of the Defendant herein to all that piece claimed in that suit, which is the same as the land claimed by the Defendant in this suit. In the Statement of Defence filed by the Defendant in Suit No L.S/8/97(Exhibit 3), paragraph 29 provides as follows; ‘Defendant further avers that the land in dispute is part of a largetrack of land measuring two square miles more or less acquired by the Defendant’s great grandfather one Balokoun from the Tindanas of Timbaka village who are the allodial title holders of the land.’ Thus although the Plaintiff was not a party to Suit No. L.S/8/97, the Defendant therein traced their root of title to the Plaintiff in this matter. In fact, Exhibit 12 4(the proceedings in Suit No L.S/8/97) show clearly that on 21st January, 2004, the chief of Timbaka testified on behalf of the Defendant in Suit No L.S/8/97, and confirmed that it was the Timbaka people that gave the land to the Defendant in Suit No L.S/8/97. It is interesting to note that the Chief of Timbaka who testified on behalf of the Defendant in Suit No L.S/8/97 is the same person who testified as PW1 on behalf of the Plaintiff herein. During trial in this matter, PW1 confirmed that the Plaintiff’s family was the grantor of the Defendant in Suit No L.S/8/97 and further conceded that judgment was given in favour of the Defendant herein in Suit No LS/8/97. See Record of Proceedings of 18th June, 2020 and as follows; Q: In Suit No LS/8/97, titled Alhaji Abdulai Bawiina v Tubie Mumini, your evidence was that the disputed land was given to the people of Bandei and Challu village by the people of Timabaka A: Yes I said so Q: You know that in that suit Alhaji Abdulai Bawiina was declared owner of the land in issue. A: That is correct. Upon careful examination of Exhibits 2, 3 and 4 as well as the evidence of PW1, the court finds that the Plaintiffs herein were privy to Suit No. L.S/8/97 as grantors of the Defendant therein. Indeed, in the unreported case of NANA YAW OWUSU AND 2 OTHERS V. HYDRAFORM ESTATES LTD CIVIL APPEAL NO J4/62/2013 DATED 26TH MARCH, 2014 the Supreme Court held that ‘In a suit of this nature, the respective grantors of the parties were not joined to the suit to prove their respective titles, if any... It is not clear from the evidence that the vendor of appellant was aware of the litigation, but if he was, and sat by for not applying to be joined, he would be bound by the outcome of this appeal...’ In the 13 instant case, the Plaintiff herein was aware of Suit No. L.S/8/97 and yet failed to join as parties even though the landlord of Timbaka testified as grantor of the Defendant therein. Certainly, the Plaintiff cannot expect to escape the effect of the judgment in Suit No L.S/8/97. Having established the Plaintiff herein as privy to Suit No L.S/8/97 whose subject matter is the same as the subject matter of this suit (according to CW1), this court cannot reopen the matter. CONCLUSION Plaintiff is bound by exhibit 2 ie. the judgment in suit No. LS/8/97. Plaintiff is estopped from re litigating the land in dispute. The Court holds that the Defendants having been adjudged by this very Court as owners of the same land in dispute in an earlier suit (see EXH 2) in which the Plaintiffs were privies, this Court makes a declaration that the instant suit is caught by Estoppel per Rem Judicatam. Parties accordingly will not be permitted to reopen the subject matter. COST: The court, taking into account the fact this case has travelled for ten years, will award cost of GHC 20,000 against Plaintiff in favour of Defendant. HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE 14 COUNSEL JAMES MARSHALL BELIEB ESQ FOR PLAINTIFF SIDDIQUE UBEIDU ESQ FOR DEFENDANT 15