AWAGA VRS DATEY AND ANOTHER (A1/3/2017) [2023] GHADC 1152 (31 March 2023)

IN THE DISTRICT MAGISTRATE COURT, HELD AT AGBOZUME ON FRIDAY THE 31ST DAY OF MARCH, 2023 BEFORE HIS WORSHIP IDDRISU ISSAH THE DISTRICT MAGISTRATE SUIT NO. A1/3/2017 KWASI AWAGA HEAD OF AWAGA FAMILY OF KLIKOR/HORME - PLAINTIFF VRS: 1. MARY DATEY 2. SETH SEGBEDZI BOTH OF SATSIMADZA AND GLIDZI - DEFENDANTS JUDGMENT: The plaintiff in this case, Kwasi Awaga instituted this suit against the defendant, Mary Datey and Seth Segbedzi. The action against the defendants is jointly and severally for the following reliefs: (1) A declaration of title to all that piece and parcel of land situate, lying and being at Akave, Klikor if for the Awaga family and bounded particularly as follows: (a) On one side by the property of Adelayita. (b) On another side by the property of Takpe (c) On another side by the property of Agbolor (d) And on the last side by the property of Aveke Towu. (2) A declaration that, the plaintiff sold only a portion of the above described land to the husband of the 1st defendant with following boundaries. (a) On the north by the vendor measuring 127 feet. (b) On the south by the vendor measuring 122 feet. (c) On east by Drafor measuring 142 feet. (d) On the west by the vendor measuring 200 feet. (3) A declaration that, the defendants, can only deal with the portion of the land sold to the husband. (4) An order at the 1st defendant to refrain from interfering with the plaintiffs on the land. (5) General and special damages for trespass. (6) Recovery of possession (7) Perpetual injunction restraining the defendants from dealing with the land or anyone through them. (8) An order to the 1st defendant to account for the coconuts she illegally and unlawfully plucked from the plaintiff’s land as well as other economic trees and crops. (9) Any other reliefs/remedies that the court deems fit and appropriate. (10) Punitive costs. The plaintiff’s averments in his statement of claim, following his writ of summons were to the effect that he got the land as part of inheritance to his family land. He sold 100 x 100 feet land size to the defendant’s husband one Martin Azumah Dartey. He prepared a purchase (receipt) certificate on the transaction. A copy of the document was tendered and marked as exhibit A. Besides plaintiff also tended in other purchase certificates which were marked as exhibits B and C. The plaintiff stated in his witness statement that he sold the land to the husband of the first defendant on the 20th of May, 2006. The purchaser put up a building on a portion of the land. He prepared a purchase receipt which was witnessed by the first defendant on the 16th February, 2008. Thereafter the 1st defendant started to trespass in to portion of the larger land, which was not sold to her husband. Further the 1st defendant do harvest coconut trees which are not part of the land sold to her husband. The first witness to the plaintiff Torgbui Ayenor II stated that he knew that the first defendant’s husband purchased a land from the plaintiff, whilst the second defendant works on the land for the first defendant. The 1st defendant on the other hand stated that she was led by one man popularly referred to as Teacher from Satsimadza in Tokor for a piece of land. She present drinks to the plaintiff. He then led them to the land. She purchased two (2) plots of (100 by 100) each. The teacher was also given two (2) plots on credits. She made a part payment of 200 Ghana Cedis in the presence of Torgbui Ayenor II, Yo Awaga and the Teacher. The plaintiff issued her with a receipt. Three days later she led her husband (now deceased) to the plaintiff to pay additional GHC200.00. At the end of the month her husband too sent GHC200.00 and was issued a receipt. A month later she paid GHC300.00. All payments in total was GHC900.00 for the two (2) plots of land. An indenture was prepared in her husband’s name. She wrongly signed as a witness but not as a vendee. The second defendant also testified and stated that it was one Eklu who granted him a portion of land to farm. The land laid along the Accra-Aflao road. The land on which he was, was different from the first defendant’s land. The plaintiff does not own land at Akave where he farmed. Plaintiff sued Eklu at the High Court which went in favour of Eklu. Under cross examination the second defendant gave the following responses: Q. What are the boundaries of the land granted to you? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. I don’t know the boundaries. Is it your case that your land is separated from the first defendant’s? That is so. Do you share boundary with her. No. You are saying one Eklu gave you’re the land. Yes. Did you tell him about this litigation? Yes. Do you insist Eklu obtained judgment against plaintiff at the High Court? Yes. I put it to you that it is not true proceedings is ongoing at the High Court. Not true, judgment was delivered. I put it to you that the case is not with the plaintiff but involves Kositsi Semakor. That is not true. This land where is not located. A Satsi Do you say plaintiff has no land at Akave. I put it to you that the Awaga family has land at Akave, not so. To my knowledge he owns land there. I put it to you that you are liable to trespass as claimed by plaintiff. That is not true. At the end of the evidence adduced by both parties, the court identified the following as its findings of facts: (I) (II) The plaintiff sold a piece of land to the first defendant’s and husband. The parties are all on the land. (III) The plaintiff family own a larger track of land in the area. Given the facts of this case the relevant issues for determination are (1) Whether the plaintiff is the owner of the land. (2) Whether or not the first defendant should be from plaintiff’s restrained quiet enjoyment and use of his land. (3) Whether or not damages should be awarded against the defendants A well establish rule under our civil jurisprudence is that the person who assets bears the onus of proof. The standard required on this proof is prove on the balance of probabilities. Section 12 of the Evidence Act 1975, NRCD 323 provides as follows: (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. (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. The first issue for determination is whether or not the plaintiff is the owner of the land in dispute. The plaintiff’s argument throughout the case is that the entire land as described at Akave in Klikor is the family property of the Awaga family. He got the land by inheritance. His family has been on this land for a long time. He sold portions of this land out to people including the first defendant’s husband. However the second defendant trespassed to the portion he was. Whilst the second defendant agree that they acquired her portion from the plaintiff she insisted that she gave out the money but not the late husband. Similarly the second defendant mentioned one Eklu as the one who put him at the place to farm. It is evident from the documentary evidence of the plaintiff that he sold out portions of the land to different people. The exhibits A, B and C confirms the ownership claim by the plaintiff. The matter on first defendants land is about the measurement of the boundaries on the ground. As to the second defendant he did not support his claim either by the evidence of his grantor, Eklu or any documentary, proof. Given the evidence before it, the court is of the view that the plaintiff has a good title to the land. Section 64 (1) of the Land Act 2020, Act 1036 provides that: (1) “good title is derived from: (a) An enactment. (b) A grant, vesting under or conveyance from the state. (c) A final judgment of a court of competent jurisdiction; or (d) A grant, an acquisition under customary law, conveyance, assignment or mortgage which is at last thirty years old and establishes that a person is entitled to convey an interest in the land. The court observed that the plaintiffs claim is supported by section 64 (1) (d) of the Act 1036 on customary grant. Having considered the case in its totality the court has found the matter in favour of the plaintiff. Finally the court has declared the plaintiff as the owner of the land in dispute. Let the court registry help with the support of a surveyor to measure out the boundary between the first defendant and the plaintiff. The second defendant is to yield vacant possession of the land to plaintiff. Let each of the defendants pay a sum of GH₡1000.00 as compensation to the plaintiff for the use of the land for all these years. Costs of GH₡500.00 against each of the defendants. H/W IDDIRSU ISSAH DISTRICT MAGISTRATE 19/3/2021 7