Ampomah Vrs Kumi [2022] GHADC 127 (6 December 2022)

IN THE DISTRICT COURT HELD AT WASA AKROPONG HELD ON THURSDAY THE 6th DAY OF DECEMBER, 2022 BEFORE HIS WORSHIP MR. BRIGHT A. AKOANDE DISTRICT MAGISTRATE ARABA AMPOMAH……………………………….……….………... PLAINTIF SUIT NO: A1/14/2020 VRS: DUODU KUMI……….…………………………….…………….. …... DEFENDANT Parties – Present. Counsel: Edem Diabah for plaintiff. Bright Baiden for defendant. The Plaintiff’s per her writ of summons claims as follows: JUDGMENT “I. An order for declaration of title to a plot of land situate at Wassa Jappa bounded by the properties of Opanin Donkor, Mama Adwoa Asor, Atta Baah, Papa Boahene and the Wasa Japa-Ehyireso Feeder Road. II. Recovery of possession of the said land. III. General damages. IV. Perpetual injunction restraining the defendant, his assigns, privies, agents, workmen, representatives or persons deriving title under him from claiming any interest in the land in dispute. V. Cost.” The case of the plaintiff as gathered from her statement of claim and evidence is that it was her grand uncle, Opanin Kwekubea Appiah (deceased) who broke the virginity of the land in dispute and reduced it into a farm. The plaintiff’s said grand uncle was succeeded by Boadi Mensah (deceased) who was the father of the defendant. The plaintiff avers that during the life time of Opanin Kwekubea Appiah, the latter gave a portion of the land to the former for farming and she cultivated plantain, cassava and other food crops. She asseverates that she was very young when the land was given to her to cultivate food crops and feed on. She avers that she has been in possession of the land for over twenty years without hindrance. The plaintiff avers that about four years to the institution of this suit, the defendant had gone to the land with laborers to develop it. She asseverates that she quickly confronted the defendant over the development. The plaintiff also avers that the defendant entered the land again with a grader and completely destroyed the plaintiff’s cassava and cement blocks on the land. The defendant thereafter busily started developing the land in dispute and hence this action. The case of the defendant as gathered from his statement of defence is that it was his father, Boadi Mensah who broke the virgin forest of the disputed land. He avers that the plaintiff has never farmed on the land in dispute. The defendant asseverates that the land in dispute was given to him by his said father. He also avers that he has been cultivating cassava, pepper, tomatoes and corn on the land in dispute. After carefully examining the pleadings, I am of the considered opinion that the central issue for determination is whether or not the plaintiff has title to the land in dispute. Before I determine the central issue, I will briefly touch on the burden of proof. The general rule in civil cases is that the plaintiff who in his pleadings or writ raises issues essential to the success of his case assumes the onus of proof; See Faibi Vrs. State Hotels Corporation[1968],IGLR 471. The burden of proof is statutorily defined in sections 10(1) and (2), 11(1) and (4) ad 12 (1) and (2) of the Evidence Act, 1975 (Act 323). The burden of proof in civil cases and for that matter in land cases has been further explained in Adwubeng v Donfeh [1996-97] 1 SCGLR 660. Therefore, in the instant case, the burden lies on the plaintiff to adduce sufficient admissible evidence to prove her case on a balance of probabilities. I now proceed to determine the central issue which is whether or not the plaintiff has title to the land in dispute. Learned counsel have not filed written addresses and so I will determine this issue without much assistance from counsel. 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 owner of land. Title to land may take the form of possession or the form of a document or series of documents. In Ghana, possession by itself gives a good title to land against the whole world except someone having a better legal right of possession. A person who is relying on possession as his title must show that he is in physical possession or has a right to possession as having erected a building on it or planted crops on it or done something on it symbolic of ownership; See Wuta- Ofei V Danquah [1961] GLR 487. Such a person generally exercises dominion over the land such as by placing a lessee, tenant, a licensee or an agent on it. The presumption of title raised by possession and ownership has statutory blessings by virtue of section 48 of the Evidence Act, 1975(Act 323). Section 48 of Act 323 is in the following terms: “48 (1) The things which a person possesses are presumed to be owned by that person. (2) A person who exercises acts of ownership over property is presumed to be the owner of it.” In the instant case, the plaintiff could not produce even a single document to prove her title to the land in dispute. The crucial question now is, has the plaintiff adduced sufficient evidence of possession of the land in dispute? I have carefully examined her pleadings and the evidence on the record. She avers in her statement of claim that she has been in possession of the land in dispute for over twenty years without hindrance and has been cultivating cassava, plantain and other crops on the land. These averments by the plaintiff were vehemently denied by the defendant per his statement of defence and evidence. Since the plaintiff’s averments of possession were strongly denied by the defendant, the plaintiff was duty bound to lead sufficient evidence to prove her averments. The plaintiff mounted the witness box and merely repeated her averments on oath without providing sufficient proof. In Majolagbe V Larbi [1959] 1GLR 190, it was held that when a party makes an averment in his pleadings which is capable of proof in a positive way and the averment is denied, that averment cannot be sufficiently proved by just mounting the witness box and reciting the averment on oath without adducing some corroborative evidence. This principle was extensively explained in Zabrama V Segbedzi[1991] 2GLR221. The plaintiff stated the boundary owners of the land in dispute in paragraph 24 of her statement of claim as Opanin Donkor, Mama Adwoa Asor, Atta Baah and Papa Boahene yet she failed to call any of these persons to testify for her regarding her alleged possession and farming on the land in dispute. The testimony of boundary owners in a land dispute cannot be under estimated; See Adwubeng V Donfeh (supra). If the plaintiff were speaking the truth, she would have no difficulty in calling the boundary owners to testify for her regarding her alleged possession and farming on the land in dispute, given the fact that the defendant has vigously denied the plaintiff’s averments pertaining to her alleged possession of and farming on the land in dispute. The plaintiff avers in paragraph 19 of the statement of claim that the defendant used a grader and completely destroyed her (plaintiff’s) cassava and cement blocks on the land in dispute. It must be noted that the defendant has strongly denied this averment in his statement of defence. A careful review of the evidence would only show that the plaintiff failed to adduce the requisite evidence to prove her said averment. There is no evidence that the plaintiff reported the alleged unlawful damage to the police for the defendant to be arrested and prosecuted. The said averment of the plaintiff is a bare and unproved averment. On the evidence, I find that the plaintiff has never been in possession of the land in dispute. It is also interesting to note that the plaintiff pleaded in paragraph 6 of her statement of claim that during the life time of Opanin Kwekubea Appiah (deceased), the plaintiff was given a portion of the disputed land to cultivate food crops and feed on. She repeated this averment verbatim in paragraph 6 of her witness statement which was adopted by the court as her evidence-in-chief. Assuming without admitting that this averment is true, this would amount to a licence granted to her by Opanin Kwekubea Appiah to farm on the land. Surprisingly, when learned counsel for the defendant, during cross- examination, put the plaintiff to strict proof of her case, she said the land in dispute was gifted to her by the said Opanin Kwekubea Appiah. The plaintiff’s evidence of an alleged gift of the land to her can only be an afterthought. She never pleaded anywhere in her pleadings that the land in dispute was a gift to her. Her evidence of an alleged gift to her is at variance with her pleadings. The law is settled that where one party’s evidence amounts to a departure from his pleadings and the evidence of the other party is consistent with the pleadings, the latter is to be preferred; See Appiah V Takyi [1982-83] 1GLR 1. In any case, if the land in dispute was gifted to the plaintiff by the said Opanin Kwekubea Appiah, why did the plaintiff sue in a representative capacity? See the title of the suit. Clearly, on the evidence the plaintiff’s evidence is a fabrication and no court will believe her. In any case, her evidence of an alleged gift was strongly resisted by the defence and she failed to lead sufficient evidence to prove the elements of a gift. Although there are weaknesses in the case of the defence, these weaknesses do not strengthen the case of the plaintiff in any way since the plaintiff could not produce sufficient evidence to prove her case. The defendant avers in paragraph 5 of him statement of defence that the land in dispute was given to him by his father, Boadi Mensah. He avers in paragraph 10 of his statement of defence that the land in dispute was gifted to him by his father, Boadi Mensah who he claims was the one who broke the virginity of the land in dispute and reduced it in to a farm. The defendant however, failed to lead sufficient evidence to prove the gift to him. When learned counsel for the plaintiff, during cross-examination, put the defendant to strict` proof of the alleged gift, the defendant wavered and wobbled. He could not adduce sufficient evidence to prove the alleged gift to him. Though, the defendant filed three witness statements, he did not call any of them to testify for him to establish the alleged gift of the land to him. I have examined the defendant’s evidence critically and I am satisfied that he did not lead sufficient evidence to prove the alleged gift to him. Since the defendant had averred that it was his father who gifted the land in dispute to him, there was an evidential burden on him to adduce sufficient evidence to prove the gift to him. He however failed to discharge the evidential burden as he led no credible evidence at all to prove the alleged gift. Nevertheless, a principle of law is that however unsatisfactory or conflicting the defence may be or how weak the defence may be, it cannot avail the plaintiff; See Barima Gyamfi V Ama Badu [1963] 2GLR 596, SC. From all of the foregoing, I hold that the plaintiff does not have title to the land in dispute. For the reasons given above, the defendant is not found liable to the claim. The claim fails and it is hereby dismissed. Costs of GHc20,000.00 is awarded against the plaintiff. MR. A. A. BRIGHT DISTRICT MAGISTRATE (SGD)