Frimpong Vrs Nnipanka & 2 Others [2022] GHADC 88 (31 October 2022)

IN THE DISTRICT COURT HELD AT KUKUOM ON MONDAY THE 31ST DAY OF OCTOBER, 2022 BEFORE HER WORSHIP AKUA OPPONG-MENSAH (ESQ) SUIT NO. A1/10/20 AKWASI FRIMPONG VRS 1. ADWOA NNIPANKA 2. ABENA TAWIAH 3. MARGARET OSEI JUDGMENT BACKGROUND AND FACTS. The historical background of the case that culminated in the present action (which is disputed by the Defendants) are that the Plaintiff's late grandmother, one Nana Henewaa acquired the disputed land situate at Beposo Asaaman on Anwiam Stool lands several decades ago. The Plaintiff’s late grandmother, prior to her death, carved out a portion of the land, which is the subject matter of this dispute and gifted same to the Plaintiff’s mother, Afia Abrafi in appreciation of the care the Plaintiff’s mother had given to her when she was advanced and old in age. The disputed land was later reduced into a cocoa farm by the Plaintiff’s mother, which the Plaintiff’s mother occupied without any encumbrances, and continued to enjoy undisturbed possession of same, until about 10 years prior to the institution of this action, when she apportioned the land for the Plaintiff and his siblings. Following the Plaintiff’s mother’s demise in the year 2016, in 2017 the Defendants trespassed unto a portion of the disputed land, where palm trees had been cultivated and the 1st and 2nd Defendants started planting cocoa thereon. The 3rd Defendant also began cultivating foodstuffs on that portion of land. The Defendants were warned to desist from their trespassory acts, but they failed to heed persistent warnings from the Plaintiff. The Plaintiff therefore instituted the present action on the 15th day of June, 2020 claiming the following reliefs: a. A declaration of title, recovery of possession of all that farm/fallow land with cocoa on part thereof situate and being at a place called Beposo Asaaman on Anwiam Stool Land and bounded by the properties of Kwabena Lot, Adwoa Nnipanka, Kalala Animfa and Ama Donkor of which the Defendants are claiming ownership b. An order of perpetual injunction to restrain the Defendants, their agents and assigns etc. from dealing with the said land in any manner whatsoever. The Defendants did not file any counterclaim to the claim of the Plaintiff. ISSUES: The germane issues for determination of this suit are (i) whether or not the plaintiff established his root of title; and (ii) whether or not the land in dispute is family land PLAINTIFF’S CASE The Plaintiff’s case which, the Plaintiff in essence, repeated in his averments in his testimony before the court is that over 37 years prior to the institution of this action his mother acquired the disputed land, which was gifted to her by her late mother Nana Henewaa as a reward for her services, when the late Nana Henewaa was old and frail. The Defendants were also given their respective portions of the land, which are distinct from the Plaintiff’s mother’s land. The Plaintiff’s case is that his mother initially cultivated cocoa on the land, but due to the nature of the soil, the cocoa could not thrive, so the Plaintiff’s mother resorted to growing oil palm on the land. The Plaintiff’s mother before her demise apportioned the cocoa farm amongst her children and they continued to farm thereon until 2016 when their mother died. The Plaintiff claims that the genesis of the dispute over the land unravelled, when a funeral debt arose after the death of his senior brother, Danso Ababio. It is the case of the Plaintiff that when his older brother passed away, their uncles performed the funeral rites, and a humongous amount of debt was incurred. It is also the Plaintiff’s claim that their uncles, requested that the disputed farm be sold to offset the debt. The Plaintiff alleges that due to the misunderstanding the family was embroiled in over the debt, his older brother, one Kwame Fletcher settled the debt and paid a sum of GHC2500. The Plaintiff’s uncles, notwithstanding the settlement of the funeral debt proceeded to sell the oil palm on the Plaintiff’s late mother’s farm, which resulted in a report being made to the Police. It is the Plaintiff claim that after several protests the Defendants did not desist from their trespassory acts so he instituted the present action to recover possession of the land of his late mother. The Plaintiff called three witnesses to give evidence to buttress his claims to the court EVIDENCE OF PW1 PW1, Samuel Oppong, gave cadaverous evidence, and his evidence to the court was in essence that his farmland shared a boundary with the disputed land and was separated by a stream as a boundary feature. PW1 however stated that he was not aware of the arrangements that had been made in respect of the Plaintiff’s mother’s land following her death. EVIDENCE OF PW2 PW2, who also testified on behalf of the Plaintiff stated in his evidence to the court stated that during the lifetime of the Plaintiff's late mother called Maame Abrafi, the late Maame Abrafi granted him permission to farm on her land near his residence at Asaaman, and he continued to farm there for about 7 or 8 years, until he ceased farming about three years ago, on the land which is the subject matter of this dispute which shares boundaries with one Abre and the Asaaman Township on the South. PW2 also stated that the Plaintiff indicated to him that the land which had been given to him by his mother during her lifetime had been trespassed upon by the 1st Defendant, who happens to be a sibling of the Plaintiff's late mother, so he was in court to testify on the Plaintiff. PW2 however could not affirm whether the land solely belonged to the Plaintiff's mother. PW3. Kwabena Lot, also testified that during his youthful years, he was residing with his father at Sekentena in the Bono Region. PW3 in his testimony to the court, stated that when he attained 10 years of age, his grandmother Ataa brought him to Anwiam to live with her. PW3 further alluded to the fact that his late grandmother, Ataa , owned a land at Beposo-Asaaman. PW3 stated that during their visits to the land, his grandmother Ataa, showed him the boundary owners of the land, which included one Kwabena Adade, one Kofi Poku also known as Papa JJ, one Kwasi Dwomo and Eno Abrafi, the Plaintiff's mother. PW3 also stated that the land was separated by a river. PW3 testified that at a point in time Eno Abrafi, gave out the land to an Agric Officer by name Frank on abunu basis which suggested that she was the bona fide owner of the disputed land. PW3's evidence, in essence, was that during the lifetime of the Plaintiff's late mother, he never at any point saw the presence of the Defendants or any other person on the disputed land, so the land to all intents and purposes belonged to the Plaintiff's mother. THE CASE OF THE DEFENDANTS The Defendants who testified through the 2nd Defendant, vehemently denied the claims of the Plaintiff. It was the case of the Defendants that although the land which is bounded by the properties of Opanin JJ, Kwabena Lot, Kontanko River and the Asaaman Township was originally acquired by their grandaunt, Nana Henewaa (the Plaintiff’s grandmother), as asserted by the Plaintiff , the late Nana Henewaa never gifted the disputed land to the Plaintiff's mother. The 2nd Defendant who testified on behalf of the Defendants testified that when she was about the age of 7 or 8 years, she came to live her grandmother, Nana Akosua Pompo (the sister of the late Nana Henewaa), and would often go to the disputed land at Beposo Asaaman with her. It is the testimony of the 2nd Defendant that at that time, they resided in the same house with the Plaintiff's mother Afia Abrafi. It was further the testimony of the 2nd Defendant that later on, her grandmother was joined in holy matrimony with a man who was residing in Sefwi Wiaso, and whenever her grandmother travelled to see her spouse, she would stay at the residence of the Plaintiff's mother. The Defendants contend that in or around 1992, or 1993, Nana Akosua Pompo returned from her stay at Sefwi and decided to visit the disputed farm and realised that the Plaintiff's mother had given the disputed land to one Elder Tawiah to farm on without Nana Henewaa’s prior authorisation or permission. The Defendants testified that prior to this, the Plaintiff's late mother, Afia Abrafi and her husband who had just lost his job returned from Goaso, and , Nana Henewaa, placed the Plaintiff's mother in possession of the farm at Adupre (which is distinct from the land in dispute), so that she could use the proceeds to maintain the family as her husband was unemployed and they were in dire financial constraints, a request which the late Afia Henewaa obliged. The 2nd Defendant testified that when they returned home, her grandmother demanded to know from the Plaintiff's mother Afia Abrafi, why she had given out the land to someone without her express consent, and the Plaintiff's mother explained that she had done so to protect the land from encroachers, as that portion of the land was closer to the Asaaman Township, and further stated that that was why she had directed that they cultivate palm nuts rather than cocoa on the land. The Defendants stated that despite several protests by her grandmother, the Plaintiff's mother also gave a portion of the land to one Frank to farm rice, and continued to allow others including one Mr. Afranie and one Tetteh Quao to farm on the land much to the chagrin of the 1st Defendant, and whenever she was questioned as to why she continued to allow strangers to farm on the land, she insisted that it was to protect the land. It is also the case of the Defendants that when the 1st Defendant who had left Anwiam to join her husband later came back to Anwiam, the Plaintiff's mother was asked by the late Nana Henewaa to render vacant possession of the portion of the disputed land where the palm trees had been planted to the 1st Defendant and clear all the palm nuts from the land, but the Plaintiff's mother failed to heed to their grandmother's requests. The Defendants testified that the Plaintiff's mother died sometime in 2016, and less than a year later, her eldest son also passed on after a long protracted illness. The Defendants stated that her uncle, Osei Kwabena (DW1), the head of family then suggested that the palm trees on the portion of the land, that the Plaintiff's mother should have made vacant during her lifetime, as well as the portions of the land that were given to Elder Tawiah and Tetteh Quao be sold to use the proceeds to offset the debt, that arose from the funeral celebrations of the late Ababio. The Defendants testified that the family then sold the palm nuts to offset the funeral debt, the Plaintiff however became dissatisfied and lodged a complaint at the Noberkaw Police Station that his uncles had stolen his farm. According to the Defendants at the police station, the police explained that even if the disputed land was family land as they were asserting, the palm nuts belonged to the Plaintiff's mother as she planted the palm trees, even though it had been grown on family land, and so the family should pay for the palmnuts, so payment was made by DW1. The 2nd Defendants testified that subsequent to the squabble over the farm, she and the 1st Defendant sought permission from the head of family to grow cocoa, which she cultivated from 2017 through to 2019 and the 3rd Defendant began growing foodstuffs in 2020. The Defendants testified that during that period in question, the Plaintiff was resident in Anwiam, but never protested against their farming on the land. The Defendants stated that the Plaintiff, in 2020, destroyed the farm of the 2nd Defendant and started threatening the 1st and 3rd Defendants in the farm, so they reported the matter to the police at Goaso, but when the matter came before the court, he did not appear before the court. The 2nd Defendant tendered in a photograph of the destruction of the farm as Exhibit1, and the warrant of arrest of the Plaintiff as Exhibit 2. The Defendants further testified that the Plaintiff had given out a portion of the land to Kofi Temate and one Oti who is the son of Elder Tawiah, is in possession of his mother's land at Adupre, but the Plaintiff is attempting to have an exclusive right of ownership over the disputed land. The Defendants, in essence, testified that although the Plaintiff has instituted the present claim in an apparent bid to protect his interest in the land, he only pursued the case after a criminal charge was laid before him in court and therefore same had been brought in bad faith. DW1, Osei Bediako, in his evidence to the court testified that the Plaintiff was his nephew whilst the 1st Defendant was his sibling and the 2nd and 3rd Defendants were his nieces. DW1 testified the late Afia Henewaa, the maternal grandmother of the 2nd and 3rd Defendants acquired a vast land at Anwiam, which is the subject matter of this dispute. DW1 testified that the land was never shared amongst the siblings by the late Nana Henewaa, and anyone could farm on any portion of the land. DW1 further testified that a portion of the land which is the subject matter of this dispute, was dry, whilst the other portion was swampy. According to DW1, the Plaintiff's mother, cultivated rice in the marshy area and gave the other portion out to caretakers to cultivate palm nuts. DW1 further stated that although the palmnut the Plaintiff's mother has cultivated has withered, the Plaintiff and his siblings’ farm on that part of the land. DW1 testified that in 1984 he travelled to Nigeria and when he returned the Plaintiff's mother had cut down his cocoa trees and grown palm nuts. DW1 stated that when he discovered this, he confronted the Plaintiff's mother as to why she had done so, when she could have farmed on another portion as the land had not been shared, but he later abandoned that portion and cultivated cocoa on another portion of the land. DW1 further stated that he advised John Amankwa, a sibling to the Plaintiff and the Plaintiff to farm on the land as the 2nd and 3rd Defendants were farming on the land, but the Plaintiff declined. DW1 further stated that as the eldest sibling, he has been conferred with the authority to act as a caretaker of the disputed land, and has been clothed with capacity to decide who may farm on a particular portion of the land. DW1 further testified that at a point the Plaintiff started threatening the Defendants on the farm, and so the 2nd Defendant reported the Plaintiff’s conduct to him. DW1 stated that the 2nd Defendant had by then lodged a complaint against the Plaintiff at the Noberkaw Police Station. DW1 stated the he advised the 2nd Defendant to take the matter out of court, though the Plaintiff was to be arrested which she obliged. DW1 again stated that the Plaintiff and his siblings were still farming on a portion of the disputed land with his siblings, and they had currently given out that portion to a caretaker to cultivate coconuts, and had not been precluded from farming on the land. DW1, however stated that the Plaintiff’s bid to claim the disputed land can be described as agreed as he and his siblings are not entitled to exclusive ownership and undisturbed possession as the land is family land. DW1 further testified that due to the debt that arose he had to take a loan to settle the debt and was recalled to tender in a promissory note in respect of the loan he took in 2017 towards the funeral debt which he omitted to tender in when giving his testimony in court, which was tendered in as Exhibit 3. WHETHER OR NOT THE PLAINTIFF SUCCEEDED IN ESTABLISHING HIS ROOT OF TITLE The law is well settled that where a party to an action is seeking the relief of a declaration of title to land, there is a duty cast on that party to establish their root of title. This proposition of law received judicial pronouncement in the case of Mrs Vincentia Mensah v Numo Adjei Kwanko II Civil Appeal No. J4/17/2016, delivered on 14th June, 2017, where the court stated “In land suits in which title is in issue, the party claiming title must always plead and prove his root of title to enable him succeed. Furthermore, in the case of Ghana Muslim Mission vrs Haruna Oppong Boateng Suit No SOL/3/09 delivered on 28th July, 2022, the court opined that “ In land matters, the person asserting title must prove his root of title strictly, among others.” The court in the case of Ghana Muslim Mission (supra), in explaining the concept of title to land relied on the case of In Delman Oil Company Ltd v. HFC Bank Ghana Limited (2016) 92 G. M. J. 1, where the court stated "Title is the means by which a person establishes his right to land. A person's title indicates by what means he claims to be the owner of land. Title to land may take the form of possession or it may take the form of a document or a series of documents. A good title, however, is always documentary...". Therefore, it behooves on a party claiming title to land to demonstrate to the court whether he has the requisite title, preferably, through documentary evidence, or otherwise through possession, to effectively establish his root of title. Again, in the case of Mondial Veneer (Gh) Ltd v. Amuah Gyebu XV (2011) SCGLR 466 at page 468 (holding 4), the Supreme Court, per Georgina Wood CJ extrapolated on the requirements laid down by law in establishing a root of title "In land litigation, even where living witnesses involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on who bore the burden of persuasion... to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It is was only where the party had succeeded in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim" The contention of the Plaintiff is that ownership of the land was conferred on him by his late mother, Afia Abrafi to whom the land had been gifted by their late grandmother, Afia Henewaa. The Plaintiff, however did not proffer any cogent evidence, documentary or oral to buttress his claims that the land been gifted to his mother. The essentials of a valid customary law gift have been eludicated in a plethora of cases. In the case of Abdul Rahman Osmanu Giwah and 2 others v Baba Ladi CIVIL APPEAL. NO J4/36/2013 · JULY 29, 2013, the Supreme Court stated “The most important element of a customary gift……………………………is that the gift must be o ered and accepted and must be witnessed by somebody else other than the donor and donee. Thus when the fact that a gift has been made is challenged, it will not be su cient to state barely that a gift was made; you have to go on to show the occasion, if any, on which the gift was made; the date; the time, if possible; the venue and most importantly, in whose presence it was made. These factors are by no means exhaustive, but it is important to note that when you seek to claim a gift was made by a donor who has since died, a bare averment and bare assertion will not su ce as proof. Furthermore, in the case of Nathaniel Baddoo and 3 Others v. Mrs. Mercy Ampofo and 2 Others SUIT NO. OCC/95/14 · FEB. 24, 2016, the court relied on the case of KYEI and ANOR V. AFRIYIE (1992) 1 GLR 257 where the court per Lartey J stated: "The essentials of a valid gift in customary law were publicity, acceptance and placing the donee in possession. The way to give publicity to a gift of land was to make the gift in the presence of witnesses. The acceptance should be evidenced by the presentation of "drink" or some small amount of money to the donor, part of which was served to the witnesses. “ Last but not least, in the case of PAPA GYIMAH GENFI V. DR. J . K. ACQUAYE CIVIL APPEAL NO. H1/189/2013 · NOV. 14, 2014 · GHANA, the court observed that the authorities are clear that for a gift to be valid under customary law there must not only be publicity of the gift but also acceptance. The Plaintiff called three witnesses to testify on his behalf in court, however none of the witnesses, gave an inkling of evidence to court to substantiate the Plaintiff’s claim that a gift of the land had been made to the late Afia Abrafi, the Plaintiff’s mother. The Plaintiff himself on whom the onus was placed to give concrete evidence, apart from making a mere assertion that the land had been gifted to his late mother, omitted to give concrete and convincing evidence of a valid gift and could not name any witnesses, either living or dead, who were present when the gift was allegedly made to his mother. The witnesses who testified on the Plaintiff’s behalf only acknowledged that the during their lifetime, they saw the Plaintiff’s mother cultivating disputed land, but none of them led evidence to demonstrate that a gift of the disputed land had been made in favour of the Plaintiff’s mother. The Plaintiff also did not provide any documentary evidence by way of a deed of gift to demonstrate that the land had been gifted to his mother. Therefore, although the Plaintiff’s mother demonstrated overt acts of possession over the disputed land, during her lifetime the narration of events by the Plaintiff do not lead to the irresistible conclusion that the land was gifted to the Plaintiff’s mother, as the alleged gift did not conform with the requirements of the law. The court is of this view, as it well-settled in our jurisprudence, that the double edged requirements of the mode of acquisition and possession are both germane in establishing the root of title, and as the Plaintiff omitted to establish his mode of acquisition, he did not succeed in establishing his root of title. WHETHER OR NOT THE LAND IS FAMILY LAND The Defendants contend that the Plaintiff’s mother did not have an unfettered right of ownership of the land as the land was family land. The Defendants concede that the late Nana Henewaa who originally acquired the land in dispute, remained in undisturbed possession of same during her lifetime, but however asserted that she never conferred ownership of any portion of the land to any member of the family during her lifetime. From the evidence garnered in court, though the Plaintiff sought to protect his interest in the land, he could not demonstrate to the court that the disputed land was the unencumbered property of his mother. The Plaintiff’s witnesses, whom he heavily relied on, to prove his claim, in essence, only led evidence to show that the Plaintiff’s mother exercised overt acts of possession over the disputed land, but not an absolute right of possession over the land. Possession, though it has been held in a wide number of authorities as prima facie evidence of ownership is not conclusive evidence of possession, where there is evidence to negate same. Indeed, even where a party has established that party’s root of title (which the Plaintiff has failed to do in this case), same could be negated by compelling evidence. This proposition of law was cited in the case of Thomas Cobbinah Yaw Asiedu v Isaac Kwofie , Civil Appeal No H1/25/2017, dated 12th July, 2018, where the court stated that evidence of party of his root of title and acts of possession were prima facie evidence of title to a property but same could be displaced by cogent evidence negating title to the property. Interestingly, the Plaintiff’s own witness, PW 1, Samuel Oppong, when cross-examined by the court differently constituted, as to the nature of the land in dispute, conceded that the land was family land. The following ensued in court Q Is it a family land ? A It is a family land PW1, in cross-examination further noted that the Plaintiff’s mother, to all intents and purposes was using the land merely for her sustenance. Q What was she doing on the land in question A What I came to meet is that she was feeding from the land Again, prior, to the cross-examination by the court, in cross-examination of PW1 by the 2nd Defendant, the following ensued Q Did she tell you the land had been gifted to her? A What I know is that she was feeding from the land PW1, therefore corroborated the defence put up by the Defendants, that the disputed land is family land. Corroborative evidence was defined in the case of J. K. Ackah v Francis Eghan, Civil Appeal No. H1/56/2010, delivered on 9th April, 2014 in a legal context as confirming, enforcing and reinforcing evidence supporting other evidence of the same fact. Furthermore, in the case of Sol Lueshing Company v Adeleke Oyinlola, Captain of MV Soleushing, Suit No OCC25/2013.delivered on 14th July,2017, on corroboration, the court relying on the case of Osei Yaw v. Domfeh (1965) GLR 418 at 423 stated: “where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the court finds the corroborated version incredible or impossible." Therefore, PW1’s testimony lends credence to the Defendant’s evidence that the land is family land over the Plaintiff’s uncorroborated version of facts that the land exclusively belongs to him and his siblings. The Plaintiff further acknowledged in cross-examination by the 2nd Defendant that it was not the whole of the disputed land that belonged to his mother as he was claiming Q Where you guaranteed to Kofi Temate and Tetteh Quao was not part of your mother’s portion A That’s correct Furthermore, in the case YAKUBU AWABEGO VRS TINDANA CIVIL APPEAL NO. J4/6/2016 · 23 NOV 2016, where the court stated that it is a trite principle of Land Law in this country that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is thereby supported. As may be gleaned from the evidence at trial, from 2017 to 2020, the Defendants continued to cultivate portions of the disputed land without any protests from the Plaintiff, and exercised overt acts of possession, following the misunderstanding with the Plaintiff over the funeral debt in 2017. The court is of the view that if the Defendants had no interest whatsoever in the land in dispute, he would have restrained them from working on the land, particularly following the clamour that arose in respect of the land following the death of the Plaintiff’s late brother, Danso Ababio. Again, the Defendant and DW1 stated that the Plaintiff was cultivating a portion of the disputed land, which DW1 emphatically testified was the exact portion of the land, where the Plaintiff’s mother planted the palm trees during her lifetime, and where the Plaintiff had currently engaged caretakers to plant coconut on the land. The Plaintiff in the course of the trial, did not deny any of the above assertions during crossexamination and is considered in law to have acknowledged the veracity of the Defendants claims. In the case of G/Sgt Ahmed W. K. Numekevor v the Inspector General of Police and the Attorney-General Suit No BMISC/990/2014, dated on 17th November 2021, the court stated that it is trite, that failure to cross-examine a party on an averment means the averment is admitted sub silento. Furthermore, the court in the case of Isaac K. Kobi and 24 Others v Ghana Manganese Company Limited H1/70/2004, dated 24th June 2004, the court stated “The law is quite succinct that where a party leads evidence and his opponent fails to take him on, shake or puncture the claims or allegations of facts he has made, then there is a presumption in law that the opponent who has failed to cross-examine on the fact, has conceded the correctness of the fact alleged” Furthermore, the court is of the view that DW1 as the head of family, could not have made the evocation, that the Plaintiff should sell the palmnuts on the portion of the disputed land where the Plaintiff’s mother cultivated the oil palm to offset the funeral debt, if the land was not family land. Consequently, I find it a preposterous claim by the Plaintiff, that the entire disputed land belongs to him, particularly based on the fact that was only in cross-examination the Plaintiff claimed ownership of the marshy portion of the land where the 2nd Defendant has cultivated rice, when he never led evidence to show ownership of the marshy portion of land where the Defendant was growing rice. Q I put it to you that the water-logged land which you are using to cultivate rice belongs to us A That’s not correct Indeed, if the land which is the subject matter of this dispute was the exclusively owned by the Plaintiff and siblings it does not appear logical they would leave the marshy portion of the land vacant without cultivating same. The court finds it absurd and baffling that a person who has title to the land, would rather overemphasise not being given a share of the portion of the proceeds from the farm as may be surmised from the following in his cross-examination of the Defendant. Q ………………….after my mother died, when you harvested the cocoa that belongs to our grandmother, Nana Akosua Pompo, did you give us some of the proceeds or not. A. I disagree with you because we are grandchildren and we cannot claim the proceeds from the farm, so the proceeds go to the siblings of your mother. Furthermore, when cross-examining DW1, he enquired the following Q There is a portion of the land which is used to cultivate rice, ever since my mother passed on six years ago, have you ever given her children a portion of the proceeds realized from that farm A I did not give you any share of the proceeds realized from the cultivation of the rice, because your mother has a portion of the marshy area, which you have been given out to people to cultivate rice, so it would be unfair of my part to again give you a share of this area. Again, the claim of the Plaintiff is for “a declaration of title, recovery of possession of all that farm/fallow land with cocoa on part thereof situate and being at a place called Beposo Asaaman on Anwiam Stool Land and bounded by the properties of Kwabena Lot, Adwoa Nnipanka, Kalala Animfa and Ama Donkor of which the Defendants. However, the Plaintiff in his own evidence before the court unequivocally stated that his mother planted cocoa on the disputed land, but the cocoa was not doing well on the soil so she resorted to cultivating oil palm. The logical conclusion that may be drawn from this is that the land the Plaintiff is claiming is distinct from his mother’s land, as the description of the subject matter in dispute, provided in the Plaintiff’s claim is in respect of a farm with cocoa thereon. Again, from the evidence on record, it appears the Plaintiff did not know the precise identity of the land as the boundary owners mentioned by his own witnesses, particularly PW3, are rather in consonance with the boundary owners named by the Defendants, namely, Kwabena Lot (PW3), Opanin JJ and, the Kontanko River (stream), which contrasts with the boundary owners mentioned by the Plaintiff that is Kwabena Lot, Adwoa Nnipanka (the 1st Defendant), Kalala Animfa, Yaw Bimpeh and Ama Donkor. Furthermore, the 2nd Defendant emphatically stated in their defence that Yaw Bimpeh and Ama Donkor, were erroneously named as boundary owners, which was affirmed during the trial as neither PW1, PW2 or PW3 mentioned them as boundary owners. It may be therefore be inferred that the land is family property and not the exclusive property of the Plaintiff and his siblings, as if it were their bona fide property, the Plaintiff would have been able to accurately identify the land. Moreover in the case of Abed Nortey v African Institute of Journalism and Communication, Stephen Nartey and Daniel Nartey Civil Appeal No. J4/47/2013 dated 26th February 2014 , the Supreme Court held that where a Plaintiff sought a declaration of title to land, recovery of possession and injunction, the was required to establish by positive evidence of the identity and limits of the land that he claims. Therefore, from a contextual analysis from the evidence garnered trial, and weighing all the evidence, the court finds that disputed is a family land. ANALYSIS AND EVALUATION OF THE EVIDENCE AT TRIAL In civil trials, the burden of is proof on the preponderance of the probabilities. Section 12(1) of the Evidence Act, 1975 (NRCD 323), provides that except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. “Preponderance of the probabilities” is defined under section 12(2) of the Evidence Act, 1975 (NRCD 323) as a 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. Furthermore, the principles on which our civil jurisprudence are hinged on require that a party who asserts a fact leads credible evidence to prove same. In the case of Lydia Akwandua Quarcoo v Alhaji Baba Salifu Suit No FAL/191/14 , decided on 20th June, 2019 the court cited with approval, the following proposition from the case of Zabrama v. Segbedzi (1991) 2 GLR 221 CA “The correct proposition is that a person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” In the case of Esi Yeboah v Mfantseman Municipal Assembly Suit No A2/06.21 decided on 13th October, 2022, the court relied on the case of Ababio v Akwasi III (1995-96) GBR 774, where the court stated that “a party whose pleadings raised an issue essential to the success of the case assumed the burden of proving such an issue. The burden only shifted to the defendant when the Plaintiff had adduced evidence in support of the Plaintiff’s claim” The Plaintiff, was unable to proffer succinct evidence of the gift made to his mother which this case propelled on, and also could not lucidly identify the land in dispute. The Plaintiff therefore could not rely on the any inconsistencies from the testimony of the Defendants to strengthen its case. In the case of Edith v. Keelson [2012] 37 MLRG 127 at pages 176-177, the court observed: “If the plaintiff in a civil suit, fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant’s case to ask for relief. If however, he makes a case which would entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff’s claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant’s case to strengthen his case”. Furthermore, I find the Defendants to be more credible as to a large extent their testimony was devoid of flaws and consistencies. The Defendants in their testimony did not depart from their pleadings and their defence that the land in dispute was family land for which ownership had not been conferred on any member of the family, and led incontrovertible evidence to that effect including acts of recent possession which was further corroborated by DW1, the head of family. The Plaintiff’s evidence on the other hand was riddled with so many gaps and inconsistencies, and the Plaintiff could not discharge the burden placed on him to prove his root of title and omitted to identify the identity and boundaries of the land. There was also a contortion of facts, and a hodgepodge of inconsistencies by the Plaintiff on material evidence during the trial. Though the Plaintiff in one breadth claimed that DW1, demanded that he sell the farm, he changed this version of the story during the trial in cross-examination, that it was the rather the oil palm on the land that was to be sold and not the farm, which is not a trivial inconsistency that may be overlooked by the court. The Plaintiff also appears to have lumped two distinct lands together in this claim, to sue for ownership of same, in a lopsided attempt to secure exclusive ownership of the disputed land. The court further observes that the Plaintiff appeared to have had other motivations as he mounted the present suit, subsequent to criminal action being taken against him by the Defendants. It therefore appears that he had no real interest in the land, as from the evidence adduced, he would not have tardily brought the instant action for recovery of possession of the disputed land, but instituted the action immediately after the row over the funeral debt in 2017 and not in 2020, three long years after the misunderstanding arose. Therefore, I am of the view that the Plaintiff failed to lead compelling evidence to substantiate his claims as required by a party seeking a declaration of title to land and the scales of justice tilt in favour of the Defendants. This position of law is supported by the case of Mary Larley Nunoo v Manasse Ataglo Suit No. H1/55/2017, decided on 2nd November, 2017, where an appeal against a declaration of title to land was upheld due to the Plaintiff’s failure discharge the burden of proof by failing to disclose the root of title or divulge the mode of acquisition. The Plaintiff’s claim must therefore fail. CONCLUSION Considering the rival versions, the Plaintiff undoubtedly failed to establish his claim against the Defendants on the preponderance of probabilities, and therefore the Plaintiff’s claim therefore fails in its entirety and is dismissed. The courts are there to do justice and not to cause acrimony or mar relationships, therefore parties to this action, being close relations, the court would not award costs in favour of the victorious party. The Plaintiff’s claim is dismissed. Judgment entered for the Defendants. SGD. AKUA OPPONG-MENSAH ESQ. DISTRICT MAGISTR ATE 21