NANA YAW MARFO VRS YEBOAH (C1/15/2023) [2023] GHACC 1127 (31 January 2023)

IN THE CIRCUIT COURT HELD AT FIAPRE ON WEDNESDAY THE 31ST OF JANUARY, 2023 BEFORE HER HONOUR AKUA ADOMA ADDAE Suit No: C1/15/2023 BETWEEN NANA YAW MARFO (NSENEYEHENE AWUAH DUMASE PLAINTIFF TRADITIONAL COUNCIL) SUING FOR HIMSELF AND ON THE BEHALF OF THE NSENEYE ROAYAL FAMILY OF KWATIRE IN SUNYANI WEST AND KWADWO YEBOAH ODUMASE DEFENDANT FINAL JUDGMENT The Plaintiff in this instant case per his writ of summons and accompanying affidavit filed in the registry of this Honourable Court, is claiming against the Defendant herein as follows: a) Declaration of title to and recovery of possession of all that piece and parcel of farmland lying and being situate at a place commonly known as “Sereso” near Adentia on the Awuah Domase Traditional Council, bounded by the properties of the late Opanin Kwasi Obiri, the Late Opananin Kwaku Tawia and the late Opanin Gyamfi (Defendant’s Grandfather) b) Recovery of Eight Thousand, One Hundred and Seventy-Four Ghana Cedis, Forty Pesewas (GH₵8,174.40) from the Defendant as made up as follows: i) Six Thousand One Hundred and Seventy-Four Thousand Ghana Cedis, Forty Pesewas (GH₵ 6, 174.40) being the assessment and valuation of damaged plantain farm intercropped with maize. ii) Two Thousand Ghana Cedis (GH₵2,000.00) being the cost of labour c) General Damages for trespass d) Perpetual injunction restraining the Defendant, families, his agents, assigns, workmen, friends etc from interfering or doing anything on the disputed land. e) Any further order/ orders that the Honourable Court may deem fit to make The case of the Plaintiff per the accompanying statement of claim is as follows: The Plaintiff, who describes himself as the Nseneyehene of Awuah Dumase Traditional Council brings this action on his behalf and the behalf of the Nseneye Royal family. The Plaintiff avers that the disputed land is the property of the Nseneye Royal family of Kwatire. Since his enstoolment as the Nseneyehene of Awuah, he has cultivated the disputed land for about 31 years. The disputed land was acquired in its virgin state by Plaintiff’s grandfather and he cultivated palm trees before cultivating maize which was destroyed by Defendant. According to the Plaintiff, the Defendant claims that his grandfather came to him in a dream and told him that the disputed land belongs to him and because of this said dream, the Defendant went unto the disputed farmland and destroyed 108 suckers of plantain and maize which were the property of the Plaintiff. This behaviour of the Defendant was reported to the Police and contacted the Department of Agriculture in the Municipality to assess the damage caused. The damage caused was estimated by the said department to be in the sum of Six Thousand, One Hundred and Seventy-Four Thousand Ghana Cedis, Forty Pesewas (GH₵ 6,174.40). The Plaintiff further stated that there was labour and spraying involved in the said assessment and this cost the Plaintiff Two Thousand Ghana Cedis (GH₵2,000.00) The land in dispute shares a boundary with Defendant’s grandfather the late Opanin Gyamfi and same was occupied by Defendant but the Defendant sold the said parcel of land belonging to Defendant’s grandfather and sharing a boundary with Plaintiff’s farm. It is the firm belief of the Plaintiff that the Defendant will persist with his acts of trespass and unlawful damage hence the report to the Police and this instant suit. After the Plaintiff’s writ of summons together with the accompanying Statement of Claim were served on the Defendant on the 6th of June, 2023, Mr Kofi Iddrissah Esq of Kofi Iddrissah & Associates, Law Offices H/No D. 29/2 Dominase entered appearance for and on behalf of the Defendant on the 12th of June, 2023. The said lawyer did not file any further processes though he was served with a motion on notice for interlocutory judgment filed on the 16th of August, 2023 as well as the Plaintiff’s pre-trial checklist and the witness statements of his witnesses. For all intent and purposes, service on the Lawyer is as good as service on the Defendant himself as there was no indication that the said Lawyer had ceased to represent the said Defendant. On the 29th of August, 2023, this Court, differently constituted ordered the Plaintiff to file his witness statements and his pre-trial checklist. This order was complied with on the 28th of November, 2023 and same was served on Counsel for the Defendant. The Plaintiff on the 13th of December, 2023, gave his evidence in chief. So did his 2 witnesses. There was no cross-examination as the Defendant opted not to participate in the proceedings before this court. At the close of the Plaintiff’s case, this court is now called upon to evaluate the evidence before it to determine whether or not: a. All that piece and parcel of farmland lying situate and being at a place commonly known as “Sereso” near Adentia on Awuah Domase Traditional Council bounded by the properties of the Late Opanin Kwasi Obiri, Late Opanin Kwaku Tawia and Late Opanin Gyamfi (Defendant’s father) is the bona fide property of the Plaintiff so as to entitle him to a declaration of title over the said farmland and also recovery of possession. b. The Plaintiff is entitled to recover from the Defendant the total sum of GH₵8,174.40 c. General Damages for trespass d. Perpetual injunction APPLICABLE LAW In land matters, just as in any civil matter, the Evidence Act NRCD 323 is the primary legislation regulating the standard of proof a litigant must meet in order to convince the trial court. Section 11(4) and 12(1) are the relevant provisions on the standard of proof in civil matter. The said sections provide as follows: 11(4) in other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude the existence of fact was more probable than its non-existence 12(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. The above sections clearly indicate that the standard of proof to be met in this instant case is one on the preponderance of probabilities and not beyond reasonable doubt as we have in criminal matters. According to Sir Denis Adjei in his Book “Land Law: Practice and Conveyancing in Ghana at page 130, “the most common feature of evidence in land matters is the use of traditional evidence. Wherever there is dispute over property acquired several years ago, and none of the parties and their witnesses could give eye witness accounts or the acquisition of the property has a long standing history; the impression given by the Parties when they are in the witness box should not be used to either credit or discredit them but the court is to examine their evidence with undisturbed overt acts of long possession or occupation or judgments that have been obtained in respect of that land. Again the in the case of In Re Taahyen & Asaago Stools; Kumanin II (substituted by) Opanin v Anin, [1998-99]SCGLR399 the Supreme held as follows: In assessing the rival traditional evidence, the court…must rather examine the events and acts within living memory established by the evidence, paying particular attention to undisputed acts of ownership and possession on record” The Plaintiff in this instant case filed his witness statements on the 28th of November, 2023. Per his own witness statement which was adopted as his evidence in chief before this Honourable Court, the Plaintiff averred therein that he has been enstooled as the Nseneyehene for over thirty-one years and had cultivated the disputed land since his enstoolment. According to the Plaintiff, the disputed land was obtained in its virgin state by the Plaintiff’s great grandfather. The said land is located at Sereso and bounded by the properties of the late Opanin Kwasi Obiri, the late Opanin Kwaku Tawiah and the late Opanin Kwaku Tawiah and the late Opanin Gyamfi who happens to be the grandfather of the Defendant. The Plaintiff’s account of events is corroborated by that of PWI, Nana Kwaku Fosu. In PW1’s witness statement which was adopted as his evidence in chief before this Honurable Court, he averred that, he is the Kyidomhene of the Plaintiff and that the Plaintiff is his uncle. He confirmed that the disputed land is a family land, located at Sereso near Adantia on Awua Dumase Stool lands. The land share boundaries with the properties of the late Opanin Kwasi Obiri, the late Opanin Kwaku Tawiah and the late Opanin Gyamfi, the grandfather of the Defendant herein. He claims that the Plaintiff was shown the boundaries of the disputed land when he was enthroned over 31 years ago and has been working on the said land for the same period of time. PW3 in her Evidence in Chief also corroborated the evidence of those before her. In her evidence-in-chief, PW2 said that she saw a group of people including the Defendant’s children causing destruction to the Plaintiff’s family land. She also stated that the Defendant subsequently came to the disputed land, where she PW2 was working and threatened her and told her to stop working on the land because same belonged to him. She stated emphatically that the damage caused to the Plaintiff’s family land was caused by the defendant herein. FINDINGS AND CONCLUSION I find that the Plaintiff has led sufficient evidence to show that he has exercised acts of ownership and possession on this disputed land for an extensive period of time. His evidence shows that the land is his family's land and same was acquired by his great- grandfather in its virgin state. The destruction of the crops on the land, being a plantain farm intertwined with maize and the property of Plaintiff confirms that the Plaintiff herein has been exercising acts of ownership and has been in peaceful possession of the disputed land until the Defendant herein decided to trespass and cause unlawful damage to same. The Plaintiff, by way of proving the nature of damage caused and the value of the damage caused tendered in evidence Exhibits A, B and C. The said exhibits are admitted in evidence and on a preponderance of probabilities, the Plaintiff did indeed suffer damage to his crops at the hands of the Defendant. The Plaintiff per Exhibits C has also been able to prove that the value of the damage caused is Six Thousand One Hundred and Seventy-Four Ghana Cedis, forty Pesewas (GH₵6, 174.40) Though there is no cost of labour stated thereon, this court is inclined to believe the Plaintiff when he says that he paid Two Thousand Ghana Cedis (GH₵2,000.00) to have the land cleared. After an examination of the evidence before me I hereby make the following findings a) In respect of relief (a) if find that all that piece and parcel of farmland lying situate and being at a place commonly known and called “Sereso” near Adentia on Awuah Domase Traditional Council bounded by the properties of the Late Opanin Kwasi Obiri, the late Opanin Kwaku Tawiah and the Late Opanin Gyamfi, the Defendant’s Grandfather, is the property of Nseneye Royal Family of Kwatire in Sunyani. b) In respect of relief (b) I find that the Defendant is liable to pay to the Plaintiff the total sum of Eight Thousand, One Hundred and Seventy Four Ghana Cedis, Forty Pesewas (GH₵8,174.40)in respect of damage caused to the Plaintiff’s crops. c) In respect of relief (c) I award general damages of Three Thousand Ghana Cedis (GH₵3,000.00) against the Defendant. d) In respect of relief (d), I hereby grant a perpetual injunction restraining the Defendant, his heirs, assigns and workmen from dealing with the disputed family land in any form or manner. Cost of One Thousand Ghana Cedis is awarded against the Defendant herein. ………………………………………….. AKUA ADOMA ADDAE CIRCUIT COURT FIAPRE