Afrifa Vrs Kusi [2023] GHADC 132 (25 April 2023)

IN THE DISTRICT COURT, HELD AT GOASO COURT ‘2’ ON THE 25TH APRIL, 2023 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE SAMUEL KODUA AFRIFA PLAINTIFF SUIT NO. A1/22/2022 (SUING PER HIS LAWFUL ATTORNEY VERY REV. NICHOLAS OF ATONSU- AGOGO METHODIST CHURCH P. O. BOX 8369 AHEN SEN-KUMASI VRS KOFI KUSI DEFENDANT PARTIES PRESENT PARTIES UNREPRESENTED JUDGEMENT Plaintiff claims for the following reliefs as amended (a) Plaintiff seeks an order of the Honourable Court to re-demarcate the old boundary features between the parties on all that cocoa farm which is situated at NOBEMU on Mim stool land. (b) Recovery of possession of all that in claim ‘A’ supra (c) General damages for Trespass (d) Perpetual injunction to restrain the defendant his agents, labourers, workmen, assigns from dealing with the said boundary features (e) Costs The Defendant denied liability of all the Plaintiff’s claim and stated that he had a reasonable defence. EVIDENCE BY THE PLAINTIFF This is a civil case filed by the Plaintiff on the 30th June, 2022 against the Defendant herein claiming for re-demarcation of an old boundary features situate at NOBEMU on Mim stool land and bounded by the properties of Agya Kwaku Baffour, Agya Kwabena Yeboah, Opanyin Akwasi Marfo, Aunties Abena Frimpomaa and Teacher Atta. According to the Plaintiff the disputed cocoa farm was acquired by his uncle Opanyin Kofi Frimpong in a virgin state. He further contended that in 1979 his brother Samuel Kodua made a Lazy Chair and the Uncle Opanyin Kofi Frimpong expressed his desire of having one and his brother Samuel did same for him and thereafter promised him to pay him a regular visit every year and this continued. He again organized funeral arrangement in 1985 for the family after the death of their Uncle opanyin Yaw Kusi and this made Opanyin Kofi Frimpong excited even though Samuel Kodua was the youngest nephew amongst his nephews. He contended that in 1983 his brother Samuel again took the mantle upon himself to make an arrangement to put Opanyin Kofi Berko’s corpse at the mortuary and further organized his funeral rites and this made Opanyin Kofi Frimpong happy and announced before the entire family gathering including his wife and children that Samuel Kodua will succeed him after his death. Opanyin Kofi Frimpong again made another pronouncement before the family that his nephew Samuel Kodua will still succeed him after he connecting pipe borne water in the family house. He stated that his uncle Kofi Frimpong during his life time carved a portion of his cocoa farm and gifted it to the Plaintiff’s Attorney and Opanyin Kofi Frimpong instructed his son Kofi Kusi (Defendant) to plant flowers on the boundary as features and he did same but the mother of Kofi Kusi uprooted same. According to the Plaintiff’s Attorney the Uncle Kofi Frimpong gifted a portion of the cocoa farm to him because he took care of him when he fell sick for six months when Teacher Arthur and Agya Berko brought him to his residence at Agric Nzima at Kumasi. He contended that after the demise of Opanyin Kofi Frimpong his brother Samuel Kodua went to the village at Kasapin Nobem and saw that Kofi Kusi has replanted the flowers at a different place instead of the original boundary place where Opanyin Kofi Frimpong gave to them that their mother has uprooted the flowers. The sister of the Defendant’s, Margaret Braigo begged and promised us that she will make sure the caretaker will add that portion to the plaintiff’s farm and will make sure to replant the flowers at its original place after the death of their mother as she is old. He therefore contended that after the death of the Defendant’s mother and they asked them to replant the flowers to its original place the Defendant refused as the sister Margaret Braigo agreed and this made him to report the Defendant to a pastor and summoned him before the chief palace but he declined all the invitations hence the court action. PW1 corroborated Plaintiff’s assertion and testified further that his father Opanyin Kofi Frimpong was the original owner of the cocoa farm and carved a portion for the Plaintiff’s brother Samuel Kodua and he planted flowers as boundary features and when he returned from abroad came to Kasapin Nobem to visit the farm and saw that the original boundary features has been removed and he enquired from them of the person who removed the boundary features and they told him it was their mother Akua Nyarko who has changed the original boundary features to another place that she deemed fit. She opined that Samuel Kodua did not take it kindly and approached Akua Nyarko why she uprooted the boundary features and this brought about misunderstanding between them and they promised brother Samuel to exercise restraint for they will ensure to fix the features again. According to PW1 brother Samuel did not agree to that and upon persistent plea and Teacher Atta who witness the agreement to replant the features again made brother Samuel accept same. She further testified that when the time and date fixed was due for them to go to the farm to fix the boundary features Kofi Kusi refused to accompany them. She is here testifying that the cocoa farm and its boundary in dispute was a bona fide property of Plaintiff’s brother that her father Opanyin Kofi Frimpong carved for him as a gift and praying the court to go and fix the features at its original place for them. PW2 corroborated the Plaintiff and PW1’s evidence and testified further that the Defendant after the death of Opanyin Kofi Frimpong reiterated that his father never carved any of his cocoa farm to the plaintiff and this made Plaintiff to summon the Defendant before the chief of Kasapin but the Defendant refused to attend the invitation. Thereafter the Plaintiff closed his case. EVIDENCE OF THE DEFENDANT It is the Defendant case that his late father Kofi Frimpong is the original owner of the said cocoa farm and during his lifetime carved a portion to his nephew Samuel Afrifa and asked Opanyin Kwadwo Berko and Opanyin Akwasi Asante to join them to fix the boundary and during that time there was a dry season and they could not fix it but they have fixed it at the place his father during his lifetime pointed to him as the boundary features of the plaintiff’s cocoa farm and that he is telling the court that he has not trespass unto the boundary of the Plaintiff’s cocoa farm. Defendant closed his case and did not called any witness. The issues that emerged for determination are as follows: (1) Whether or not the Defendant has trespassed unto the original boundary of the Plaintiff’s cocoa farm? (2) Whether or not the original boundary features was fixed during the lifetime of the Opanyin Kofi Frimpong the donor of the said gift? In civil case such as the instant one the onus of proof always rests on the Plaintiff to prove his claim as contained in his writ. The Plaintiff has to prove his case by a ‘preponderance of probabilities’ per Section 12(1) (2) of the Evidence Act 1975 (NRCD 323). “……except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” Section 12(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.” In the case of ADWUBENG V. DOMFEH [1996-97] SCGLR 660, the Supreme Court held that in all civil actions, “the standard of proof is proof by the preponderance of probabilities, and there is no exception to that rule”. Also in the case of LAMPTEY ALIAS NKPA V. FANYIE & OTHERS [1989-90] 1 GLR 286, the Supreme Court held that: “On general principles, it was the duty of a plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the defendant to lead sufficient evidence to tip the scale in his favour”. WHEN THE DEFENDANT CROSS-EXAMINED THE PLAINTIFF THE FOLLOWING ENSUED: Q. I want to know from you when my father was showing you the land was it in a dry season? A. I cannot tell because I was not present but a message got to me that you were given orders to plant the boundary features. Q. Can you tell me the time the boundary features was planted and the time my mother uprooted the features (flowers)? A. During my Uncle’s lifetime we came to the town Kasapin to the farm and saw that the boundary features has be set but when we came again you told us your mother has uprooted the flowers. Q. I want to know was it during the death of your uncle that we demarcated the boundary or during his lifetime? A. I have already replied you that during the lifetime of my uncle that we set the boundaries and it was after his death that you have removed the features Q. I am putting it to you that during the lifetime of your uncle he showed us where we should set the boundary features but we did not set them until his death that we set the boundaries. A. It is not true, for your own sister is my witness. WHEN THE DEFENDANT CROSS-EXAMINED PW1 THE FOLLOWING ENSUED: Q. Can you recall that after the summon was severed on me I approached you to plead on my behalf because the money they were demanding I couldn’t get it? A. It is true but the time you fixed you failed to honour it. DURING CROSS-EXAMINATION OF PW2 BY THE DEFENDANT THE FOLLOWING ENSUED: Q. Can you tell me who accompanied Nana Frimpong when he was going to show his nephew Afrifa, the farm? A. Yourself, our mother and myself accompanied Nana Frimpong to give his farm to his nephew. Q. I want to know traditionally when someone gifts you a farm or anything you pay aseda and I want to know if the nephew paid any aseda? A. Yes he paid aseda Q. Can you tell me the people who accepted the nephew’s aseda? A. He paid the aseda to us who accompanied him to the farm. Q. Can you tell the year Opanyin Frimpong showed the farm to his nephew? A. Almost 30 years, and it was somewhere in 1990 going. Q. In your witness statement at paragraph 11, you stated that our mother uprooted the boundary features (flowers) and want to know was Opanyin Frimpong alive or dead? A. It was after the death of our father that she uprooted the boundary features. Q. How old were the boundary features that that woman can uproot? A. The boundary was not too old. WHEN THE PLAINTIFF CROSS-EXAMINED THE DEFENDANT THE FOLLOWING TRANSPIRED: Q. Can you recall that you took your sick father Kofi Frimpong to Mr. Afrifa in my brother’s house instead of the family house? A. Yes it is true Q. Can you recall that after the death of your father you took the dead body to my brother Samuel Afrifa’s house at Kumasi Agric Nzima? A. It is true Q. I want to know from you was my brother the head of family or what made you to send your father’s corpse to my brother’s house? A. No he was not the head of family but my father made semansiuw that he Samuel Afrifa should succeed him. Q. Will you agree that your father gifted the farm in dispute to Samuel Kodua Afrifa and he rendered aseda? A. Yes he gifted the farm to him but he failed to render aseda. Q. Can you recall that when my brother returned from abroad you told us that your mother has caused damage to the boundary features and that your mother is old so you will ensure to erect the boundary features again? A. It is not true Q. Can you recall that this disputed case we made several effort to settle and you refused? A. No, it is not true. From the above cross-examination it is clear from all indication that the original boundary features was fixed during the life time of the donor but it was removed by the Defendant’s mother and that the Defendant who has refused to replant the features in its their original place. In the instant case the Plaintiff’s witnesses and the Defendant confirmed that cocoa farm in dispute was carved by Opanyin Kofi Frimpong to the Plaintiff’s Attorney Samuel Kodua Afrifa and boundary features were set during the lifetime of the donor. PW2 a material witness and a daughter of the donor corroborated and added that it was their mother who uprooted same and this brought about a misunderstanding between her mother and Samuel Kodua Afrifa when he returned from abroad and they arranged and agreed to set same at its original place when the Defendant refused to comply with the agreement because to him the Plaintiff’s attorney did not render aseda hence his refusal to accompany them to replant the flowers at its original place since the Defendant unilaterally set the boundaries. I have considered all the evidence adduced by the parties and it is my finding that Plaintiff discharged the burden of proof by way of leading adequate evidence. The Defendant was unable to lead sufficient evidence to establish his. In the case of SARKODIE V. FKA CO. LTD [2009] SCGLR 65 @ PAGE 69 it was held that“.... The main issue for the court to determine is simply that, on a preponderance of the probabilities, whose story is more probable than not?’ That question put differently is whose evidence had more weight and credibility?” On the preponderance of probabilities therefore I enter judgment in favour of the Plaintiff and make the following orders: 1) That title and ownership of the cocoa farm at NOBEMU is still the bona fide property of the Plaintiff’s Attorney 2) That the original boundary features set by the court should be in force. 3) That the Defendant, his agents, assignees, and anybody who wants title through him are estopped from having anything to do with the set boundaries. A general damage of GHc1,000.00 for trespass is awarded against the Defendant. A costs of GHc700.00 is awarded against the Defendant. ……………………………………… H/W MAGDALENE THOMPSON DISTRICT MAGISTRATE