Badu Vrs Asamoah [2018] GHADC 1 (17 July 2018)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ONMONDAY THE 17TH DAY OF JULY,2023,BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB (DISTRICT MAGISTRATE) SUIT NO. A1/04/2018 BETWEEN MONICA BADU OF NSAWKAW - - PLAINTIFF VRS: KWASI ASAMOAH OF NSAWKAW - - DEFENDANT J U D G M E N T The plaintiff herein sued the defendant seeking the following reliefs; (a) A declaration of title to and recovery of possession of all that piece of parcel of farmland, lying, situate and being at “SONKWAI” near Nsawkaw on Nsawkaw Stool lands and bounded by the properties of Nsawkaw Chief Imam, Wofa K. and a foot path. (b) General damages for trespass; and (c) An order for a Perpetual Injunction restraining the defendant, his agents, workmen, labourers, descendants and all those who claim though the defendant from entering the said land. The defendant pleaded not liable to the claims after same were read and explained to him Twi. The defendant however counter-claimed the following against the plaintiff; (a) A declaration of title to and recovery of possession of that parcel farmland being at a place known as “SONKWAI” near Nsawkaw on Nsawkaw stool lands and bounded by the properties of Nsawkaw Chief Imam, Wofa K., Opanin Kwame Gyan, Kofi Manu Joshua and late Kwame Nkrumah which was gifted to them by their late father Kofi Asamoah before he died and which has become the property of the defendant and his siblings; (b) General damages for trespass. (c) An order for Perpetual Injunction to restrain the plaintiff, her agents, workmen, assigns, labourers and all those who claim through her from entering the said land. The plaintiff pleaded not liable to the counter-claims of the defendant. Having therefore examined the plaintiff’s claim and the counter-claim of the defendant, the following issues were set down for trial; (1) Whether or not the plaintiff has any valid title to the disputed land; (2) Whether or not the said disputed land is the property of the plaintiff. (3) Whether or not the plaintiff is entitle to a recovery of possession of the land; (4) Whether or not the defendant herein trespassed onto the land’ (5) Whether or not the plaintiff is entitle to general damages. (6) Whether or not the defendant is entitle to his counter-claims. (7) Whether or not the, an order will lie to injunct the defendant. The evidence of the plaintiff in prove of her claim and in answer to the counter- claim of the defendant consisted of her testimony and that of her sole witness. In her evidence in-chief, the plaintiff said she is Monica Badu and she is a farmer and lives at Nsawkaw. That she knows the defendant who has trespassed onto her (plaintiff) land at “SONKWAI”. Plaintiff said the disputed land shares boundary with the chief Imam of Nsawkaw, Wofa K. and a foot path. Plaintiff said she acquired the disputed land from her father Opanin Kofi Donkor (Now late) and her (plaintiff) auntie Adwoa Manu respectively. That she (plaintiff) has been farming on the disputed land for the past 30years without any interference from the defendant or any of his relatives until about 4years ago. Plaintiff said her father and her auntie died long ago when she (plaintiff) was young and did not know the land, until the late Afia Sarpong showed her (plaintiff) their land which she (plaintiff) has cultivated for so many years. Plaintiff said she was taken to the land by the said Maame Afia Sarpong. That when the defendant trespassed onto the land she (plaintiff) summoned defendant before one Opanin Kwame John and the head of their family but defendant failed to appear before them for the matter to be settled. Plaintiff contended that the defendant is not entitle to his counter-claim. The plaintiff’s sole witness (P. W.1) was one Akwasi Yeboah. He said he is a farmer and lives at Nsawkaw. P. W.1 said he knows the parties as well as the disputed land. That the land is at “SONKWAI” and it shares common boundary with Nana Kwabena Amoah, Nana Kofi Donkor, Afia Sarpong, Maame Adwoa Manu. P. W.1 said it was a grassland. That after the death of the people mentioned above the plaintiff started farming on the disputed land for the past 30years without any body claiming ownership of the same grassland. P. W.1 said the defendant’s late father, Kofi Asamoah shared boundary with his (P. W.1) late father Opanin Kwame Amoah, in the forest but not the grassland, were the plaintiff is currently farming. The defendant opened his defence as per his evidence in-chief and the testimonies of his three witnesses. In his evidence in defence of the plaintiff’s claim and in proof of his counter- claim, defendant said he is Kwasi Asamoah. That he is a business man and lives at Nsawkaw. That he knows the plaintiff and also knows the disputed land. That the disputed land is situate at “SONKWAI” and is the property of his parents. That the land was given to him (defendant) and his siblings by their father’s family and they offered (Thanks offering) “Aseda” two (2) bottles of schnapps and a cash amount of GH₵200.00 in the presence of witnesses including the successor and head of their late father’s family. That the said land shares boundary with one Kay, the chief Imam of Nsawkaw, and the late Papa Kwame Nkrumah, then Kwame Djan as well as Kwame Amoah. Defendant said he also farms on his mother’s portion of the same land at “SONKWAI” which also shares boundary with that of his (defendant) father’s land. Defendant said he has been on the land for about 7years now. Defendant said he has witness to testify in support of his case on the ownership of the land. Defendant said the plaintiff is therefore not entitle to the reliefs she is seeking from the court. The defendant’s first witness (D. W.1) was one Opanin Kwame Gyan. He told the court he is a farmer and lives at Nsawkaw. That he knows the parties herein. D. W.1 said he knows the land in dispute as same is situate at “SONKWAI” on Nsawkaw stool lands. The witness (D. W.1) said he cultivated near the said disputed land. In the year 1966 and shares boundary with the defendant’s father, late Opanin Kofi Asamoah, the late Kofi Amoah, defendant grandfather, Opanin Kwabena Amoah D. W.1 said he does not share any boundary with the plaintiff herein or any of her (plaintiff) relations. D. W.1 said it was whiles they were farming at “SONKWAI” that one Maame Afia Sarpong came and cultivated a part of the grassland near the forest area where he (D. W.1)_and the other older he mentioned above were farming. That the said Maame Afia Sarpong also came and met the defendant’s mother who was cultivating on both forest and the grassland respectively. That the late Afia Sarpong planted palm trees on her portion of the land but later left the land after there was no other fresh land to farm on. D. W.1 said after the death of Afia Sarpong, he saw the plaintiff cultivating Afia Sarpong’s land and so he (D. W.1) confronted the plaintiff because he (D. W.1) is a relation of the said Afia Sarpong, maternally, D. W.1 said plaintiff told him (D. W.1) she (plaintiff) begged Afia Sarpong for the land to plant food crops to feed herself. And this was before Afia Sarpong died. Then later he (D. W.1) saw that plaintiff had trespassed onto the land of the defendant’s mother so he (D. W.1) drew the plaintiff’s attention to that. That plaintiff then said she was cultivating cash crop and so will continue, even though the defendant’s mother had planted banana, plantain and some cashew on the land in dispute. The witness (D. W.1) said when the plaintiff continued the trespassory act on the defendant’s mother’s grassland into the forest he (D. W.1) then told plaintiff to see Afia Sarpong’s children to demarcate the boundary properly between defendant’s mother’s land but the plaintiff did not do that. That the plaintiff took defendant to CHARAJ and he (D. W.1) went and testified for defendant and plaintiff was found liable. Then later defendant told him (D. W.1) the plaintiff has brought him (defendant) to court, the second witness (D. W.2) was one Yaw Aseidu. He said he is a farmer and lives at Nsawkaw. That he knows the parties. That he knows the disputed land which is at “SONKWAI” near Nsawkaw. D. W.2 said the defendant is his brother-in-law as he is marked to the defendant’s sister call Gladys Adwowaa Amoah. That when he (D. W.2) married defendant’s sister, the defendant’s father Agya Asamoah gave the disputed land to him (D. W.2) to farm and feed himself and his (D. W.2) family. That the defendant’s father was then travelling to Sefwi at the time. That the defendant’s father then showed him (D. W.2) all the boundaries of the said disputed land and the boundary owners. That the land, shares boundary with the properties of the late Kwame Nkrumah, Kwame Amoah, Opanin Kwame Gyan, (who is D. W.1) and the late Papa Y aw Donkor respectively. D. W.2 told the court, he cultivated the disputed land for about 6years but later there was a divorce between himself (D. W.2) and the wife (defendant’s sister) and he (D. W.2) left the disputed land. That even after he (D. W.2) left the land in dispute, his (D. W.2) eldest son went back to the land and continue to farm on same and then later his (D. W.2) second son call Yaw Richard also went to farm on the land. D. W.2 said recently he (D. W.2) even saw that his former wife also went to farm on the land. D. W.2 said at the time defendant’s father gave him the disputed land to farm the defendant was then in Abijan/Ivory Coast and was therefore not farming on the land. Then about three months ago defendant called him (D. W.2) to CHRAJ and that plaintiff was found liable there. Then later defendant again told him (D. W.2) that he should come to the court to testify in the same matter. The third and final witness for the defendant (D. W.3) told the court he is Kwadwo Agyapong, and that he is a farmer. That he knows the parties herein. D. W.3 said he knows the disputed land and that he shares boundary with the defendant on the land. That the land in dispute is situate at “SONKWAI” on Nsawkaw stool lands. That he (D. W.3) farms on his (D. W.3) father’s land which his (D. W.3) father gave to him before he, died. D. W.3 said his father is Opanin Yaw Donkor. That the boundaries his (D. W.3) father showed him (D. W.3) are the lands of AgyaAsamaoh (defendant’s father) and Opanin Kwame Gyan (D. W.1) D. W.3 said he has been cultivating his land for more than 20years now. That he (D. W.3) has been seeing the plaintiff in the disputed area but he (D. W.3) does not share boundary with the plaintiff nor the one the plaintiff said gave the land to her (plaintiff). D. W.3 said where the plaintiff is claiming belongs to the defendant. That some time ago the defendant called him (D. W.3) as a witness at the CHRAJ on an issue over the same land with the plaintiff. That defendant later told him (D. W.3) that they found the plaintiff liable. Upon a proper and careful evaluation of all the evidence it is instructive to observe that though the plaintiff herein stated that the disputed land is her property and which she got from her late father Opanin Kofi Donkor and her auntie Adwoa Manu also late. It is however important to state that the plaintiff has not traced her said late father and aunties’ root of title to the said disputed land. As a matter of law once the plaintiff herein sought to trace her title to the said disputed land to her late father and her late auntie, it was incumbent on her (plaintiff) to properly establish her late father’s root of title to the land. The plaintiff however only told the court she was only shown the land by one MaameAfia Sarpong after the death of her (plaintiff) father and auntie. And even though the plaintiff contended that she has farmed on the disputed land for the past 30years it was still very necessary for the plaintiff to prove her root of title, once she is claiming ownership of the land. This the plaintiff did not do. As the plaintiff herself told the court she was very young at the time her father and her aunties died and so did not know the land until Afia Sarpong showed her (plaintiff) the land (See paragraph 7 of plaintiff’s evidence in chief). It means the plaintiff had no personal knowledge of her (plaintiff) father’s mode of acquisition of the disputed land. The plaintiff also did not call any member of her (plaintiff) late father’s family to support her (plaintiff) case in tracing father’s title to the land in dispute. It must also be observed that the plaintiff sole witness one Akwasi Yeboah (P. W.1) in his testimony did not also establish or trace the roof of title of the plaintiff relative to her (plaintiff) father to the disputed land. D. W.1 only noted that the plaintiff herein started farming on the disputed land after the death of her (plaintiff) father and that plaintiff has been on the said land for about 30years. It is again important to state that there is some inconsistency in the plaintiff’s description of the disputed land relative to its boundary and boundary owners as against the description given of the same land by the plaintiff’s sole witness, (P. W.1) AkwasiYeboah. The plaintiff though said the disputed land is situate at “SONKWAI” but the boundary owners plaintiff mentioned area. The chief Imam of Nsawkaw, Wofa K. and a foot path. This is different from the boundary owners that plaintiff’s sole witness Akwasi Yeboah also mentioned in his testimony. P. W.1 mentioned, Nana Kwabena Amoah, Nana Kofi Donkor, Afia Sarpong and Maame Adwoa Manu. The witness (P. W.1) never mentioned any foot path as a boundary feature of the disputed land. This clearly then makes one wonder if indeed the plaintiff herein and her sole witness are talking about the same land. This is even moreso, when the witness of the plaintiff (P. W.1) also told the court in paragraph 5 of his witness statement now his testimony, that the defendant’s father Opanin Kofi Asamoah’s (now deceased) land shares boundary with his (P. W.1) father’s land and that his (P. W.1) father is the late Opanin Kwame Amoah in the forest and not the grassland. P. W.1 did not indicate if he was referring to the land in dispute or to some other land somewhere. That notwithstanding, the fact still remaining that the description given by the witness of the plaintiff, appears to be that of a land that is different from the land that the plaintiff has come to court to claim. This made the testimony of P. W.4 not that very corroborative of the evidence given by the plaintiff whose case P. W.1 sought to support. Also it must be noted that the said chief Imam of Nsawkaw and the Wofa K, mentioned by the plaintiff as boundary owners to the disputed land have not been called to support her claim. Indeed if even they are no more, but at least there are people from their families or people who currently are on their respective lands. These people could have bene call as witnesses to testify in support of the case of the plaintiff. This is because in a claim for ownership of land, the claimant is duly bound to not only establish his/her root of title, but must also establish the identity of the disputed land in respect of its location and size and this is done by clearly establishing the boundaries and also naming the boundary owners and/or features. He the plaintiff has mentioned the lands or properties of some people she says share boundary with the disputed land, yet the plaintiff failed to call any of these persons to corroborate her (plaintiff) evidence in prove of her (plaintiff) claim of ownership of the disputed land. It must also be observed that the defendant herein in proving his counter claim and in dislodging the claims of the plaintiff, stated that the disputed land is part of his father and which land was given to him (defendant) and his other siblings. The defendant mentioned the boundary owners of the said disputed land as one Kay, the chief Imam of Nsawkaw, Papa Kwame Nkrumah Kwame Djan and then one Kwame Amoah. This ascertion by the defendant was corroborated in greater detail by the testimony of all his three (3) witnesses he called and one of whom is a boundary owner. That is Kwame Djan (D. W.1). Indeed, D. W.1 Kwame Djan told this court he has been cultivating his land since the year 1966 and that the said land shares boundary with the disputed land and which land belongs to the defendant’s late father Opanin Kofi Asamoah. D. W.1 said the disputed land and his land are at “SONKWAI” on Nsawkaw stool land. That he and the other boundary owners including the defendant’s father were farming in the area before one Afia Sarpong came to also cultivate a portion of a grassland near their lands. D. W.1 told the court this was after they cultivated their lands including the disputed land. That the said Afia Sarpong even came and meet the defendant’s mother also farming in the area. D. W.3 said it was after the death of Afia Sarpong that he saw plaintiff on Afia Sarpong’s land. These facts as put out by D. W.1 were not controverted or traversed by the plaintiff and that clearly means that the defendant’s father and the other boundary owner named by the defendant were on the land even before the said Afia Sarpong came to the area. And it is this Afia Sarpong and the plaintiff’s father that the plaintiff claims are the original owners of the disputed land. Here again, it must be observed that the plaintiff herself appeared to have corroborated the evidence of D. W.1 (Kwame Gyan) that the plaintiff only came to the “SONKWAI” area and for that matter to the disputed land after the death of both her (plaintiff) father and Afia Sarpong. This is because the plaintiff herself in her evidence in chief told the court that she did not know the disputed land at the time her father farmed on same and that she was a young girl at the time she was only taken to the land by MaameAfia Sarpong. (See paragraphs 7 and 8 of plaintiff’s witness statement). This means that even before the plaintiff was shown the disputed land, as she herself stated the defendant’s father and the other boundary owners including D. W.1 were already farming on the land. It is also worth noting that the plaintiff said she has been on the land for about 30years now since she was taken to the land, D. W.1, Kwame Gyan also told the court he has been on his land since the year 1966, which means the witness (D. W.1) has farmed in the area for about 57 years, longer than the time the plaintiff stated. D. W.1 also said for all these years he shared boundary with the defendant’s father Agya Kofi Asamoah who was on the disputed land. This again confirmed the fact as stated by the defendant that his father, Kofi Asamoah cultivated the said disputed land and which said land was given to the children of Opanin Kofi Asamoah including the defendant herein. Finally, it must be noted that the defendant’s second witness (D. W.2) Yaw Seidu told the court he farmed on the disputed land for several years after same was given to him by the defendant’s father Agya Kofi Asamoah. D. W.2 said he was given the disputed land to farm because he got married to the defendant’s sister and who was the daughter of Agya Kofi Asamoah, the defendant’s father. The woman is one Gladys Adowaa Amoah and that he (D. W.1) only left the land after his divorce with the said sister of the defendant, D. W.2 said even that his (D. W.2) children (sons) he had with the woman still farmed on the land in dispute the witness said at the time the defendant’s father gave the disputed land to him (D. W.2), the defendant was then in Abijan in Ivory Coast and so was not farming on the land at the time. D. W.2 said he was shown the boundaries and boundary owners of the said disputed land and which boundary owners included Kwame Djan (D. W.1 herein). Having therefore evaluated all the evidence, I found the following as facts; (1) That the disputed land is a farmland located and situate, at a place all “SONKWAI” near Nsawkaw on Nsawkaw stool lands. (2) That the said disputed land was first cultivated by one Agya Kofi Asamoah who is the father of the defendant herein. (3) That the said Agya Kofi Asamoah’s children which includes the defendant herein took over the land upon the death of their father. (4) That the plaintiff herein later went to farm on the land of one Afia Sarpong in the said “SONKWAI” area but which said land is district from the defendant’s father’s land. (5) That even before the said Afia Sarpong went to the area the defendant’s father Kofi Asamoah and the other boundary owners named by the defendant were already farming in the area. (6) The burden in civil trial has always been that the party who is his/her pleadings or writ of summons raise issues that are essential to the success of their case assumes the onus of proof; See Faibi Vs State Hotels Crop {1968} GLR, 176. The standard burden of proof required of the averring party or the claimant is set out in Section 11 (4) of the Evidence Act, 1975 (NRCD 323). Section 11 (4) states that, “ 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 that the existence of the fact was more probable than its non-existences”. This provision of section 11 (4) as stated above requires the party carrying the burden of produce sufficient evidence to make out a claim on a preponderance of the probabilities as defined in Section 11 (4) above and then Section 12 (1) of the Act 323. Indeed Section 12 (1) states that; Section 12 (1); “Except as otherwise provided by law, the burden of persuasion requires proof by the preponderance of probabilities”. The court in assessing the balance of probabilities therefore must as per the evidence adduced consider all evidence and the party in whose favour the balance tilts is the person whose case ought to be adjudged as more probable and deserving of a favourable verdict. Again, Section 12 (2) of Act 323 defines the persuasive burden to mean, “the degree of certainty of belief in the mind of the court by which the court is convinced that the existence of the fact was more probable than its nonexistence”. It is therefore trite law, that in all civil trials, the standard of proof is on the preponderance of probabilities. That is to say that a party has to win on the strength of their case. In a claim for ownership of land the law also is that the party laying the claim to the disputed land ought to prove the following; (a) His/her root of title to the disputed land; (b) The incidence of the claimants acquisition of the disputed land; and (c) Evidence of acts of unchallenged possession of the disputed land. See the law as set out in Ogbamey Tetteh Vs Ogbemey Tetteh {1993-94} SLR, 353. And also the case of Nana AnnuaGyebi XV Vs Mondial/Veneer Co. Ltd {2011} 32 MLR9, 64 SC. In the Ogbamey Tetteh Vs Ogbamey Tetteh case (supra) the Supreme Court held that “in an action for declaration of title to land a plaintiff who failed to establish the roof of title must fail, because such a default was fatal to his case” On the counter-claim of the defendant herein the law was settled in the case of Aryeh &Akakpo Vs Ayaa Iddrisu {2010} SCGLR, 891 AT 901. When the court held that, “A party who counter- claimed bears the burden of proving his counter-claim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counter-claim on the strength of his own case and not on the weakness of his opponent’s case”. On the basis of the evidence adduced before this court and the law as stated above therefore, it is my considered conclusion, having regard to the findings of fact made, that the plaintiff herein has not been able to prove her claims and same failed. The defendant/counter-claimed however has proved his counter-claim on the preponderance of the probabilities and as required by law and judgment is hereby entered for the defendant. The reasons for the above conclusions include the following; (1) That the disputed was acquired by the defendant’s father Opanin Kofi Asamoah and he farmed on same until he died. (2) That the said disputed land then passed on to the defendant his siblings; (3) That the plaintiff only farmed on the land of one Adwoa Manu after she said she was taken to the said land by one Afia Sarpong upon the demise of Adwoa Manu and the plaintiff’s father. (4) That the disputed land is not the same as the said land that plaintiff said Afia Sarpong took her (plaintiff) to. (5) That whereas the plaintiff failed to prove her main claims, the defendant on his part proved his counter-claim against the plaintiff. The following orders are according made; (1) The plaintiff case is hereby dismissed entirely. (2) It is hereby declared that the disputed land herein is the property of the defendant and he shall take possession of same. (3) That the plaintiff, her assigns, workmen descendants and anyone claiming for or through the plaintiff are hereby restrained forthwith from entering the land or have anything to do with it. (4) That an amount of GH₵1,000.00 is award to the defendant as general damages and against the plaintiff. (5) Cost of GH₵1,000.00 for the defendant and against the plaintiff. ……SGD…………… ISSAH ABDUL-WAHAB (MAGISTRATE) 14