NANA ASARE ASSIEDU VRS. MENSAH (GJ1/24/2025) [2025] GHAHC 56 (11 March 2025)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD AT KUMASI ON TUESDAY 11TH DAY OF MARCH 2025 BEFORE HIS LORDSHIP JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE ------------------------------------------------------------------------------------------------------------- SUIT NO. GJ1/24/2025 NANA ASARE ASSIEDU (KOTWI HENE) - PLAINTIFF H/NO. KI 1 KOTWI (representing the Kotwi Stool) VRS KWABENA MENSAH - DEFENDANTS KOTWI ------------------------------------------------------------------------------------------------ TIME: 1:55PM. JUDGMENT: Howsoever, one looks at this suit, the only basis for the institution of same before this Court has to do with, who has authority to alienate Kotwi Stool Lands as between the Plaintiff and the Defendant. This is easy to glean from the second substantive relief of the Plaintiff. That relief is for a declaration that, it is he, the Plaintiff, as the occupant of Kotwi Stool, who is the only person, clothed with power and authority to demarcate and alienate Kotwi Stool Lands or portions thereof. It is also gleaned from paragraph 11 of the Statement of Defence of the Defendant when he also says that, since the destoolment of the Plaintiff as Kotwihene, it is he as Abusuapanyin of the Kotwi Stool who has taken over the affairs of the Kotwi Stool. Against this observation, the Issues filed and set down for determination, can now be seen, not to be germane to the resolution of this suit. They are: 1. Whether or not the Plaintiff is the caretaker chief of Kotwi Stool Land. 2. Whether or not the 1st Defendant has been deposed as the Head of Family of the Kotwi Stool. 3. Whether or not the agreement to demarcate Kotwi Stool Land and to have layout prepared was entered into by the Plaintiff and Mr. Anfo. 4. Whether or not allocation of Kotwi Stool land is done by the Kotwi Stool through the Stool Occupant. 5. Whether or not allocation of Kotwi Stool Land is done by the Asramponhene. The Court therefore substitutes the above Issues set down but found in the Judgment writing not to be relevant, for the issue of which of the parties before this Court can alienate Kotwi Stool Lands. This step taken by this Court finds support in the case of Mohammed Wolley v Salami Fattal [2013 – 2014] 2 SCGLR, 1070 where the Supreme Court speaking through, Her Ladyship Georgina Woode (Mrs.) JSC (as she then was) held: “…admittedly, it is indeed sound basic learning that, Courts are not tied down to only the issues identified and agreed upon by the parties at Pre-Trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the Court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out but emanates at the trial from either the pleading or the evidence, the Court cannot refuse to address it on the ground that, it is not included in the agreed issues.” From the pleadings of the parties, the burden of proof as to which of the parties must provide evidence on the issue of which of them can alienate Kotwi Stool Lands is derived from the pleadings. The Plaintiff, throughout his pleadings has contended that, he is the Chief of Kotwi and brings this action for and on behalf of the Kotwi Stool. He contends further that, he was enstooled as the Chief of Kotwi on 5th May, 2018. It is significant, what the Defendant says about the Plaintiff being the Chief of Kotwi. He says in paragraph 5 of his Statement of Defence that, the Plaintiff was the Chief of Kotwi until he was destooled in 2024. The Plaintiff has denied having been destooled. Clearly, the issue is narrowed. The Defendant by his paragraph 5 of the Statement of Defence admits that, the Plaintiff has been enstooled as the Chief of Kotwi. His departure of the Plaintiff as the Chief of Kotwi however, is that, he was destooled in 2024. Since it is the Defendant who is asserting the positive that, the Plaintiff was destooled in the year 2024 which is vehemently denied at paragraph 2 of Plaintiff's Reply to the said paragraph 5 of the Statement of Defence, it is he, the Defendant, who must provide the evidence of the alleged destoolment of the Plaintiff. It is not the Plaintiff who must provide evidence of a claim of destoolment that he has not made. It is trite that, he who avers must be the one to proof the said averment. Has the Defendant discharged the burden of proof that, the Plaintiff has been destooled. in 2024, since he became the Chief of Kotwi, in accordance with Sections 10(1) and 11(1) of the Evidence Act, NRCD 323. The Defendant’s case before the Court remains in pleading and not more than that. The Defendant filed a Witness Statement on 16th January, 2025. That Witness Statement did not become evidence for evaluation in this Judgment because he failed to have same adopted as his Evidence-In-Chief. The Defendant did not open his case. The Defendant participated in the trial on 10th March, 2025, by cross-examining the Plaintiff per his Lawyer. This is the Cross-Examination: “Q: Give your name to the Court? A: Nana Asare Asiedu Kotwi." The suit was adjourned to 11th March, 2025, for Defendant per Counsel, to continue with further Cross-Examination. The Defendant was absent from Court but was represented by one Osei Agyemang. Defendant's Lawyer did not show up in Court and did not provide, on the record of this Court, any reason whatsoever for his absence in Court. On the basis of the foregoing, the Court holds that, the pleading of the Defendant does not constitute evidence. The Court holds further that, since Defendant did not have his Witness Statement adopted as Evidence-In-Chief, same did not transform itself, from a mere document, to a Witness Statement. The Court finds that, the Cross-Examination by Counsel for Defendant on 10th March, 2025, was not sufficient to discharge the burden of proof on Defendant in accordance with Sections 10(1) and 11(1) of the Evidence Act, NRCD 323. The Court in the absence of proof that, the Plaintiff was destooled in 2024, as the Chief of Kotwi, finds that, the Plaintiff remains the Chief of Kotwi. The Court resolves the issue of who is clothed with power and authority to demarcate and allocate Kotwi Stool Lands or portion(s) thereof, as between the Plaintiff and Defendant, in favour of the Plaintiff. Order 4 r 9(1) of C. I. 47 provides as follows: “9(1) The occupant of a stool or skin or, where the stool or skin is vacant, regent or caretaker of that stool or skin may sue and be sued on behalf of or as representing the stool or skin.” From Sub-Rule 9(1) supra, it is clear that, it is the occupant of the Stool who may sue on behalf of the Stool. The Defendant having failed to proof his allegation of destoolment of the Plaintiff as the Chief of Kotwi, the Court finds that, the Plaintiff is the occupant of the Kotwi Stool. He therefore has capacity to bring the instant action in his status as Chief of Kotwi for and on behalf of the Kotwi Stool. The Court grants relief (b) of the Plaintiff and declares that, he is the occupant of the Kotwi Stool and the only person clothed with power and authority to demarcate and allocate Kotwi Stool Lands or portion(s) thereof. The Court consequentially grants relief (c) and hereby makes an Order injuncting and/or restraining the Defendant, his agents, workmen and assigns from in any manner, alienate any portion(s) of the Kotwi Stool Lands. The Court refuses to grant relief (a) for the reason that, Kotwi Stool Lands was not in dispute in this suit. Had it been contended that, a certain portion(s) of Lands does not form part of Kotwi Stool Lands or the boundaries, the extent and limitation of the entirety of Kotwi Stool Lands was in dispute, the Court would have resolved that. In this case, the Court did not resolve any issue on whether the Land around which this suit was mounted was Kotwi Stool Lands or not. At the commencement of the suit, Atwima Kwanwoma District Assembly was made a party in this suit per the original Writ filed on 16th February, 2024, as 2nd Defendant. This entity was non-suited as per the Amended Writ of Summons filed on 14th February, 2025. The relief (d) of the Amended Writ against the 2nd Defendant therein is struck out as that 2nd Defendant is presently unknown to the suit. The Plaintiff's action succeeds on reliefs (b) and (c) only. Costs of GH₡50,000.00 is awarded in favour of the Plaintiff against the Defendant. The Defendant is ordered to pay the costs immediately as provided for by Order 74 r 3(1) of C. I. 47. For the avoidance of doubt, the Defendant is ordered to pay the costs not later than two (2) days from the date of this Judgment into Court in favour of the Plaintiff. BENTUM (SGD.) H/L JUSTICE CHARLES KWESI (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Kwame Adomako Afram holding the brief of K. A. Asante-Krobea for the Plaintiff. Henry Asante for the Defendant. 7