Kwasaman Ii Vrs Agyeman [2022] GHAHC 80 (17 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN CAPE COAST ON THURSDAY, THE 17TH DAY OF NOVEMBER 2022, BEFORE HER LADYSHIP JUSTICE MALIKE AWO WOANYAH DEY (MRS.) SUIT NO: E12/18/2021 NANA ESSUMAN KWASAMAN II ----------------------- PLAINTIFF VS. NANA KOJO SEBEH AGYEMAN ------------------------- DEFENDANT PLAINTIFF PRESENT DEFENDANT ABSENT PHILIP YOUNG FOR THE PLAINTIFF JAMES KOJO TSIN FOR THE DEFENDANT JUDGMENT The plaintiff took out a writ of summons and statement of claim for the following reliefs against the defendant; An order of perpetual injunction restraining the defendant, his agents, assigns, privies and followers from in any way interfering with the administration management and rule of Kwasama Township and its stool lands by the plaintiff An order of perpetual injunction restraining the Defendant, his agents, assigns, privies and followers from in any way either by physically entering the Kwasama Township or any other medium of communication from instigating causing or authorising the tenant farmers residents and all persons on the Kwasama stool land to disregard challenge or interfere in the authority of the plaintiff as chief of Kwasama. Damages for Trespass Per the accompanying statement of claim, it is the plaintiff’s case that he is a gazetted Chief of Kwasama which falls in the Assin Atandanso Traditional area, whilst the defendant is the chief of Buabinso located in the Denkyira Traditional Area. He asserted that his ancestors discovered the township of Kwasama, which comprises the villages of One Pound, Denkyira Fosu, Asmah Camp, Sima Won, Nsiahkrom, Kofi Mbe, Offing Aboi, amongst others. According to him, Kwasaman shares boundaries with the Offin River, Nyaduam Lands, Badua Lands and Assin Awusam Lands. He asseverated that all lands in Kwasama are stool lands, out of which his predecessors gave portions to tenant farmers to cultivate cocoa, rice, etc. He also stated that there are about ten distinct and well-demarcated towns with boundaries between Kwasama and Buabinso. It is his case that his stool is not in any way linked to the defendant's stool, nor is there any blood relation between his royal family and that of the defendant. However, the defendant has, on several occasions, conducted himself in a manner to interfere with the performance of his duties and administration of the Kwasama Township as the chief of the town. He averred that on several occasions when he met with his tenant farmers and was interacting with them, the defendant and his assigns from nowhere interfered and disrupted the meeting, verbally assaulted and threatened the plaintiff and his elders with unlawful harm and further instigated the tenant farmers to disregard the plaintiff as nobody. The defendant has, on several occasions, on the premise that most of the tenant farmers on the plaintiff's stool lands are his people, tried to assert authority over the Kwasama Township to impose another person as their chief without justifiable basis. On other occasions, the defendant summoned the tenant farmers and small-scale miners in Kwasama and directed them as to whom they ought to pay their rents and royalties. Thus, the defendant's conduct has caused chaos and disruption to the relationship between the plaintiff and his tenant farmers and the entire Kwasama Township. He further asserted that due to the conduct of the defendant, he had instigated some of the tenant farmers and residents of Kwasama against him, leading to mob attacks by some unknown persons who are assigns of the defendant against him, some residents, his elders and visitors whenever he enters the town as the chief of the said town. The defendant has also caused the announcements to be made in the town as he is not the chief of Kwasama. The plaintiff also averred that in recent times, the defendant instigated some members of his family to schedule a durbar to be held in the town to inform residents and farmers that they were putting the town in the care and management of another person to which the plaintiff caused a complaint to be lodged with the Central Regional Commander. Upon the instructions of the Regional Commander, the Divisional Commander called a meeting at Dunkwa On Offin, at which the defendant and his agents were cautioned not to hold the durbar and also stop their unlawful acts. He further stated that the defendant has on several occasions communicated to the plaintiff that though the land belongs to the Kwasama stool since the tenant farmers are his people, he will not stop instigating them to disregard the administration and rule of the lands by the plaintiff. According to him, due to the defendant's conduct, most tenant farmers have disregarded or refused to pay the agreed payments to him for using his land for farming. He has instituted several actions at the High court against some of his tenant farmers, who are agents of the defendant, to compel them to abide by the tenancy agreements. He stated In his statement of defence, the defendant admitted that the plaintiff is the chief of Kwasama, which falls in the Assin Atandanso area. However, he claims that the towns mentioned by the plaintiff as being in Kwasama fall in the Denkyira Traditional Council. He also admitted that his stool is not linked to that of the plaintiff, nor are their royal families linked. According to him, the plaintiff is in the habit of seizing the farms and crops of the tenant farmers, who are his Denkyira people. According to him, Denkyira Fosu is under the defendant’s jurisdiction and also under the Denkyira Traditional council, so he has the power and authority to install a chief at Denkyira Fosu. Defendant also stated that some of the tenant farmers on Kwasama lands are his Denkyira people. Thus, he has the duty to come to their aid in times of need. He counterclaimed as follows; a) An order by the Honourable court restraining the plaintiff from seizing the farms and crops belonging to the tenant farmers. b) Costs After the close of pleadings, the court adopted the following issues as the issues for trial. 1. Whether or not One Pound, Denkyira Fosu, Asmah Camp, Sima Wono, Nsiahkrom, Kofi Mbe and Offin Aboi are communities within Kwasama Township or within the jurisdiction of Denkyira Traditional Council. 2. Whether or not the defendant has locus or capacity to maintain the counterclaim against the plaintiff 3. Whether or not the plaintiff is entitled to his claims. Before proceeding with the evaluation of the law and the evidence, in this case, vis a vis the issues set down, I wish to make some preliminary remarks about what was required by the law concerning the plaintiff's duty. By law, the plaintiff had a burden to prove his case to the standard required in a civil case, that is, on a balance of probabilities. Section 11 of the Evidence Act, 1975(NRCD 323) states that the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. In other words, a party needs to produce sufficient evidence such that once all the evidence is before the court, a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. On page 31 of his book Essentials of the GHANA LAW OF EVIDENCE, the learned author S. A Brobbey explained this duty thus; “This literally means the proof lies upon him who affirms, not on him who denies since, by the nature of things, he who denies cannot produce proof.' In the case of Faibi v. State Hotels Ltd. [1968] GLR 471, it was held as follows; “Onus lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led.” On the general burden of proof, the Supreme Court held in Bank of West Africa vs Ackun [1963] 1 GLR 176 SC that the onus of proof in civil cases depends upon the pleadings. The party who, in his pleadings, raises an issue essential to the success of his case assumes the burden of proof. The burden would shift to the other party when a prima facie case had been established. The test as to which party bore the burden of proof on any allegation is: Which party would fail if the allegations in question were struck out of the pleading? In the case of GIHOC Refrigeration and Household Products Ltd v. Hanna Assi [2005- 2006] 458, it was stated that "since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the Judge of the probable existence of the fact in issue." Again in his book cited supra, the learned author SA Brobbey states; "On the balance, if the existence establishes more than 50 per cent chance of the existence of the fact, the standard of proof can be said to have been achieved. The Bench Book for US District Court Judges explains the principle as follows; "the plaintiff has the burden of proving his [her] case by what is called the preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims are more likely to be true than not. To put it differently, if you were to put the plaintiff's and defendant's evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his [her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant.” Additionally, in the case of Bisi v Tabiri and Another [1987-88] 1GLR 386, it was held that; “the standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical precision as would fit a jigsaw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability but probability denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice recognised and selected was more probable than the choice rejected.” Both parties bear the burden of proving their respective claims in this case. I hold this view because the defendant has counterclaimed. The rules of procedure provide that in proceedings arising out of a counterclaim, the counterclaim is deemed a writ and statement of claim and the party making the counterclaim and the party against whom it is made are also deemed the plaintiff and defendant, respectively. The plaintiff and Defendant must rely on the strength of their cases and not on the weakness of the other's case. These are the evidential rules that must guide the court in a case like this in determining which party wins the case. These rules must therefore be satisfied by a party who raises an issue essential to the success of his case. In order to prove his case, the plaintiff testified and called two witnesses, Nana Yaw Atiemo and John Ansah. The defendant also testified and called one witness, Enoch Opoku, who told the court that he was an Assemblyman in the area. I shall proceed to evaluate the evidence and the applicable principles of law. The issues shall therefore be considered seriatim. 1. WHETHER OR NOT ONE POUND, DENKYIRA FOSU, ASMAH CAMP, SIMA WONO, NSIAHKROM, KOFI MBE AND OFFIN ABOI ARE COMMUNITIES WITHIN KWASAMA TOWNSHIP OR WITHIN THE JURISDICTION OF DENKYIRA TRADITIONAL COUNCIL. The plaintiff’s assertion that these towns are communities within the Kwasaman Township was vehemently denied by the defendant because they are all within Denkyira Traditional council. However, the defendant did not deny categoricaly that these towns are communities within Kwasaman Township. The fact that the defendant claims these towns fall within the Denkyira Traditional council does not mean they are not communities within Kwasaman. The defendant never denied the plaintiff's claim that all the lands in these communities belong to the Kwasaman stool. All he had to say was that though the land belonged to the Kwasaman Stool, the town did not belong to the stool. The defendant did not dispute the plaintiff's status as the chief of Kwasaman, but the plaintiff, in proof of his assertion, produced the Register of chiefs to show that he is a gazetted chief and that Kwasama falls under Assin Attandanso Traditional council. It, therefore, stands to reason that since the defendant did not deny that these communities are within Kwasaman Township, this court concludes that all those towns mentioned which are within the Kwasaman Township are under Assin Attandanso Traditional council and not under Denkyira Traditional council as the defendant would have the court believe. Counsel for the plaintiff in his address submits that the defendant has expressly admitted the plaintiff's case on that issue because paragraph 2 of his statement of defence stated that, indeed, the plaintiff is chief of Kwasama, which falls under the Assin Atandaso Traditional area. He, therefore, urged the court to rely on IN RE ASERE STOOL NIKOI OLAI MONTIA IV SUBS BY TWAFO AMONII VRS AKOTIA OWIRISIKA III SUUBST. BY LARYAE AYIKU III 2005 2006 SCGLR 637 at 656, in which the Supreme Court stated that there could be no better proof than an adversary admitting a fact in contention. Indeed the defendant also told the court under cross-examination that the lands belong to the plaintiff's stool. However, the Town is not for the stool. In the court's opinion, this answer is absurd, and the defendant did not take it upon himself to explain the import of that answer to the court. Instead, he confirmed the absurdity when he answered questions thus; Q: You are aware that Denkyira Fosu forms part of Kwasaman Stool lands? A: That is so the land belongs to Kwasaman stool but the town does not belong to the Kwasaman stool. Q: Are you aware that the tenant farmers at Denkyira Fosu took their grants from the Kwasaman Stool? A; That is true. Q: Are you aware that anybody who owns lands exercises all rights and interests over the said land? A: I disagree. I have acknowledged that the land belongs to the plaintiff, and I have not had any confrontation with him in respect of the lands but my concern is about the treatment of my subjects in the town. I have not questioned his sale of lands. Q; On what basis are you asserting that Denkyira Fosu belongs to you? A; When you go to Denkyira Traditional Council and Assembly, you will realise that it falls under my council, which is Denkyira Traditional Council. Q: Do you have any document before the court listing Denkyira Fosu as being under your Traditional council? A: No I do not have it presently but I have it, and I can present it before the court. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXX Q; As chief of Buabinso Ahenkro you exercise control over Buabinso Ahenkro? A: Yes, my Lord. Additionally, I also have 13 towns under my jurisdiction. Q: No other chief exercises any control over Buabinso Ahenkro? A: That is so, my Lord. Q: You will agree with me that before any chief from another town comes to Buabinso Ahenkro, he must necessarily inform you as chief of Buabinso? A: That is so. Q: You have been interfering in the plaintiff’s management and control of his stool lands A: That is not true. Thus if by his own showing, no other chief can exercise authority over the Buabinso Township, then it stands to reason that no other chief can have control over Kwasaman except for the plaintiff, who is the chief of Kwasaman. I must also say that even if the tenant farmers owe allegiance to the defendants once they are the tenants on the plaintiff's stool land, the defendant cannot exercise any control over them in terms of the contractual relationship between them and the plaintiff. Quite apart from the defendant's admissions, his evidence and that of his witnesses before the court, the plaintiff's witnesses corroborated the evidence of the plaintiff that the towns mentioned are part of the Kwasama Township and were not cross- examined on that aspect of their testimony. Thus their testimony also supports and corroborates the evidence of the plaintiff, and the court will accept it as the truth. As stated supra, the plaintiff still produced documentary proof of his assertion despite the defendant's admission. See Exhibit A. Thus on the totality of the evidence before the court, this court finds as a fact that Kwasama, with all the communities within it, including Denkyira Fosu, falls under Assin Antandaso Traditional Council. In view of this finding, the testimony of the defendant that Denkyira Fosu, which forms part of Kwasama, is under Denkyira Traditional Council is hereby rejected as his oral evidence cannot be preferred over the documentary evidence (Exh A) produced by the plaintiff to that effect. 2. WHETHER OR NOT THE DEFENDANT HAS LOCUS OR CAPACITY TO MAINTAIN THE COUNTERCLAIM AGAINST THE PLAINTIFF. In his reply and defence to counterclaim, the plaintiff averred that the defendant lacked the capacity to make any counterclaim of that nature against the plaintiff. It should be noted that the relationship between the plaintiff and the tenant farmers is based on contract. Indeed as already stated, the defendant has admitted that the tenant farmers are on the plaintiff's stool lands. Once the plaintiff had raised the capacity issue, it behoved the defendant to prove that he had the capacity to counterclaim against the plaintiff in respect of the contract between him and his tenant farmers. It is for the tenant farmers to sue to enforce the contract and not the defendant, who is not a party to the said contract. As known amongst the legal fraternity, capacity is the foundation upon which any action in law is determined. Thus the defendant bore the burden of proof on that issue to be able to convince this court that it could even pronounce on his counterclaim. Indeed as stated by counsel for the plaintiff, the defendant has no locus standi, neither does he have the capacity to pray for the said relief before the court. See the case of FLORINI LUCA AND ANOR VS SAMIR AND 2 OTHERS CIVIL APPEAL NO J4 49/2020 DATED 21ST April 2021. I agree with counsel for the plaintiff that since the evidence reveals that the defendant and the plaintiff do not belong to the same royal family and their stools are not linked, which was expressly admitted by the defendant, he cannot purport to exercise his authority over the stool lands of the plaintiff within the Kwasaman Township because the lands given to the tenant farmers as admitted by the defendant, do not belong to him. If the defendant believes that the tenant farmers are his subjects and, therefore, he has power over the town, he must take the issue before the appropriate forum. As we speak, evidence of the tenant farmers being his subjects was not even established before this court. Besides, under the law, the fact that the tenant farmers may come from the defendant's town does not mean he has power or authority over contracts they have entered with the plaintiff. Additionally, it should be noted that the tenant farmers are themselves parties to the tenancy agreements between themselves and the plaintiff, and they are the only persons permitted under the law to bring such an action before the court. They may also appoint attorneys to institute the action on their behalf. I must say that the reason given by the defendant that the tenant farmers are his subjects has not been proved before this court. None of his witnesses corroborated his evidence on that issue. I must also state that in the opinion of the court, even if he had established that the tenant farmers are his subjects, there is no basis in law for interfering in the private contracts of his subjects with any individual. He, therefore, cannot take it upon himself, legally speaking, to intervene by suing any person with whom his so-called subjects have entered into an agreement. This court, therefore, finds that the defendant not being a party to the tenancy agreements between the plaintiff and the tenant farmers on the plaintiff's stool lands and also failing to produce any tenancy agreement between himself and the plaintiff or at least a power of attorney from the so-called tenant farmers whose produce had been seized, he does not have the capacity to sue the plaintiff in respect of the farms of the tenant farmers on plaintiff’s stool land. If indeed there has been any such seizure, then it behoves those tenant farmers to bring an action against the plaintiff for breaching the terms of the tenancy agreement. 3. WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIMS. It ought to be noted that having established that the lands in question belong to the Kwasaman Stool of which the plaintiff is custodian and the tenancy arrangements have been established to be between the tenant farmers and the plaintiff I am of the view that the plaintiff is entitled to relief a) and b) to the extent that it touches on the administration of the plaintiff’s stool lands given out to tenant farmers. Thus this court grants relief a) with the necessary modifications as follows; a) An order of perpetual injunction restraining the defendant, his agents, assigns privies and followers from in any way interfering with the administration and management of Kwasaman stool lands. b) An order of perpetual injunction restraining the Defendant, his agents, assigns, privies and followers from in any way or by the use of any other medium of communication from instigating, causing or authorising the tenant farmers residents and all persons on the Kwasama stool land to disregard, challenge or interfere in the authority of the plaintiff. Regarding the damages for trespass, there is ample evidence on the record that the lands in question belong to the Kwasaman stool and not to the plaintiff. There is ample evidence produced by the defendant in support of the plaintiff's allegations that the defendant had been interfering with the rights of the plaintiff in relation to his tenant farmers. According to the evidence on the record, the defendant himself claimed that he had to defend the tenant farmers because they were his subjects. Rather than take the law into his own hands, I think that the defendant should rather be the one to advise the so-called suppressed tenant farmers to take legal action against the plaintiff if they feel that the plaintiff has been abusing their right to ownership of their farms beyond what is expected of him as a landlord because this is a country of laws and order and any citizen who has a grievance ought to use the appropriate medium established to resolve same. From the evidence led, it is clear to the court that in the name of defending his subjects, the defendant has been interfering with the legitimate right of the plaintiff as their landlord. There is evidence on the record, and this court finds that the administrator of stool lands organised a meeting with the plaintiff and tenant farmers to educate them on their obligations. There is also evidence on the record that there was a petition to the Administrator of Stool Lands by DW1. However, there is no evidence before the court that the Administrator of Stool lands responded to that petition formally and informed them of the meeting based on the said petition. Nevertheless, it behoved the defendant as chief of another town to inform the plaintiff about his intended participation in the said meeting in the plaintiff’s town having admitted that per custom that was the practice. It is the opinion of the court that even if the Administrator of Stool lands invited the defendant for that meeting which I doubt, it behoved on the defendant, who is also no doubt a chief, to inform the plaintiff about his presence in the town in order to be awarded the necessary protocols. Instead, there is ample evidence on the record that the defendant hurled insults at the plaintiff and threatened to assault him in the presence of his tenant farmers and the full glare of the public. There is evidence on the record that the defendant had threatened to slap the plaintiff, addressed him in an uncustomary manner, and tried to undermine his right in respect of the administration of the stool lands belonging to Kwasama town. That, in the opinion of the court, amounts to trespass. The plaintiff is therefore entitled to damages for trespass. This court can only award nominal damages of GH10000.00 in his favour. I hereby award costs of GHC5000.00 against the defendant. MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST