Owusu Vrs Anhwere [2022] GHADC 142 (11 October 2022)

IN THE DISTRICT COURT HELD AT BIBIANI ON TUESDAY THE 11TH DAY OF OCTOBER, 2022 BEFORE HIS WORSHIP PETER BANOE DAPILEH DISTRICT MAGISTRATE SUIT NO. A1/13/2021 RICHARD OWUSU VS. HELINA ANHWERE J U D G M E N T PLAINTIFF - PRESENT DEFENDANT - PRESENT The plaintiff took this action against the defendant claiming the following reliefs: - a. Declaration of title, ownership and recovery of possession of a cocoa farm situate, lying and being at a place commonly known as Asempaneye behind the Asempaneye filling station on the Sefwi Anhwiaso tool land and bounded by the properties of Mad. Kate Gyedu, Efua, Kwaku, Kintor and Ewuresua stream which cocoa farm is the bonafide property of the plaintiff’s late brother Kofi Yesu but the defendant is claiming ownership. b. An order of the honourable court to compel the defendant to render account on the proceeds she has so far realized from the sale of the dried cocoa beans on the farm in disputes from 2018 – 2019, 2019 – 2020 and 2020 – 2021 cocoa seasons. c. Perpetual injunction to restrain the defendant whether by herself, family members, assigns, caretaker etc. from interfering with the plaintiff on the cocoa farm in issue after the final determination of the suit. The case for the plaintiff is that his late brother called Kofi Yesu who was also known as Richard Owusu cultivated a cocoa farm with his former wife Grace Boadu also known as Nana Akua at Asempaneyey on land given to them by his wife’s biological mother., Kate Gyedu. That somewhere along the line, the marriage between his brother and the wife got dissolved and the said farm was shared equally between them. His late brother then gave his share to the defendant to take care of while he relocated to Sefwi Akoti. That the defendant took care of this farm for three (3) years, that suddenly his brother was taken ill and died. That after the funeral celebration of his deceased brother, the family delegated his ex-wife and mother in-law to meet with the defendant to find out whether there was any other agreement on the farm when taking care of same. To which the defendant said there none and only asked to be given time to clear the farm of some weed, before handing over same. That the family on receipt of this information, thanked her and then handed over the said farm to his ex-wife and child. That for that cocoa season, his late brothers ex-wife weeded the farm and harvested the cocoa. Then subsequently, when his ex-wife and her mother attempted to harvest the cocoa again, they were summoned by the defendant at Subri Nkwanta chief palace for the reason that she had purchased the said farm form the late Kofi Yesu alias Richard Owusu. That when the panel sat on the matter, they concluded that his late brother’s former wife and mother were liable as the defendant produced documents evidencing the sale. The plaintiff further stated that the documents which were tendered at the palace which were purportedly endorsed by himself, his mother and father were not genuine. And more so ever being the customary successor and the one who on behalf of the family who handed over the disputed subject matter to his late brother’s ex-wife, was not given adequate opportunity to present his side of the story. So therefore, after the experience at the palace, he decided to mount this action and claim as per the writ. The defendant on the other hand contested plaintiff’s claim. She stated that it was indeed true that initially the late Richard Owusu gave her the said cooca farm to take care of. However, somewhere along the line she bought the said farm outright from the deceased for cash the sum of GH₵9,000.00 in the presence of witnesses with each of them paying GH₵150.00 to the witnesses/panel who were present and witnessed the transaction. Thereafter the deceased executed a document evidencing the sale and the said document was endorsed by their respective witnesses. And that the said transaction took place on the 07-02-18. The said document was tendered into evidence and marked exhibit 1. According to defendant, the sale of the said farm to her was occasioned by the deceased need for money for employment and treatment as he was seriously sick and so when it was offered for sale she did not hesitate in purchasing same. She intimated that, after the purchased and when the deceased was still alive, the plaintiff who is the younger brother of the deceased once approached her to buy back the said farm by which time the deceased himself was still alive and she obliged him, but that he could not actualized his intention until his brother passed on. That after the death of her vendor, the brothers of his vendor’s ex-wife came to her with the view of re-possessing the said farm. That when that failed, PW1 and PW2 went onto the said farm and started harvesting the cocoa. Peeved by that conduct, she summoned them at Asempaneye chief palace and then when they refused to show up, she repeated the process at Subiri Nkwanta chief palace that while the case was still on going at the said palace, the brother to both PW1 and PW2 were threatening to kill her if she went to the farm, for which reason she caused their arrest by the police. She intimated that when the mother was on going at the palace, the plaintiff perceived losing the case and so decided to mount this action. She reiterated that the plaintiff himself and all his witness are very much aware that the farm was properly legally sold and delivered to her that is why he eventually lost at the said palace. For a fuller appreciation of the entire evidence, it would be worthwhile, considering the evidence of the witnesses of the parties. The plaintiff called two (2) witnesses while the defendant called three (3). Grace Badu PW1 told the court that she is the ex-wife of the defendant’s vendor and that when the marriage between her and her husband collapsed the said farm was shared in two equal parts between them. That after the divorce she was aware that her husband owed the defendant some amount of money but it was not in her contemplation that her ex-husband sold his portion of the farm to the defendant as her interaction with him, not reveal such a thing. So therefore after the finals funeral rites of her former husband, the said farm was handed over to her by his family. She took possession and her brother helped her to weed same. However when she and her mother PW2 went and harvested the cocoa thereon, the defendant did not take kindly to that and summoned them at Subiri Nkwanta chief palace. Kate Gyedu (PW2) intimated that the alleged vendor of the disputed farm was her son in-law. And she was the one who granted him the land for the cultivation of the cocoa farm which was later shared between her daughter and the deceased. She told the court further that she was aware that after the dissolution of the marriage between her daughter and the plaintiff’s brother, the deceased was about relocating to Akoti and therefore gave the farm to the defendant as a care taker. Then subsequently the said ex-husband of her daughter fell sick and died. That after his death, the customary successor who is the plaintiff, gave the disputed farm to the PW1 and her child by the deceased, after the defendant was informed to give up possession. And that one day she and PW1 went onto the farm to harvest the cocoa for a second time and the defendant summoned them including the deceased mother at Subiri Nkwanta palace. That at the said palace she was found culpable for trying to assist her daughter to re-possess the said farm. That even though the plaintiff himself was present, he was not given the opportunity to speak. Kwasi Awuah DW1 also told the court that he was privy to the said transaction that culminated in the sale of the disputed cocoa farm to the defendant. He stated that he once accompanied the deceased to the defendant for financial assistance of GH₵5,000.00 to enable him get employed at Chirano gold Mines. That after the late Richard Owusu lost his job with the Chirano Gold Mines he became redundant and sick and so he led him to the defendant one day and before a panel he told the defendant was selling the disputed cocoa farm for GH₵9,000.00. and so the defendant accepted the offer and then gave him GH₵4,000.00 summing up with the earlier GH₵5,000.00 making GH₵9,000.00. And that each of them then paid GH₵150.00 to seal the deal and a document was prepared covering the sale and duly endorsed by both parties and their witnesses. Grace Mensah DW2, evidence is to the effect that the late Kofi Yesu @ Richard Owusu, his father and the defendant among others came to their house in search of her husband. And when they met. The deceased said he owed the defendant GH₵5,000.00, but could not pay and was instead offering his cocoa farm for sale at GH₵9,000.00. That in her presence, the defendant accepted the offer and immediately paid him GH₵3,000.00 and promised to pay the rest of the GH₵1,500.00 after a document was executed to that effect. And that each of them after that paid a stamping fee of GH₵150.00. That after the execution of the document in her presence the remaining GH₵1,000.00 was paid to the deceased. Philip Ntiamoah DW3 further added that one day, the plaintiff came to his house and told his wife, the defendant, that his brother the vendor was seriously sick because of the farm he had sold to her and wanted to be shown where the farm was, as he was willing to refund the GH₵9,000.00 to the defendant for same. That in his presence, the defendant only asked him to refund the amount to her and go for the farm if only he was interested. With this gesture, the plaintiff asked him to thank his wife defendant for him and left, but never fulfilled his promise until the vendor died. Upon perusing the entire evidence before me the issue for the determination of this court are; i. Whether or not the plaintiff can recover the disputed cocoa farm. ii. Whether or not the defendant’s purchase of the disputed cocoa farm can be affirmed. iii. Whether or not the plaintiff succeeds with his claim. iv. Whether or not the defendant succeeds with his counter claim. In this case, it is not in dispute that the disputed cocoa farm was the self-acquired property of plaintiff deceased brother Kofi Yesu alias Richard Owusu. However, even though the plaintiff and his witnesses are not in doubt as to the certainty of his late brother owing the defendant same money, his contention is that the said farm has not at any point in time been sold out to the defendant. The thrust of his argument is that if the sale was to pass then deceased would have involved some principal members of the family. And that the document evidencing the sale exhibit 2 was fraudulently procured. The two (2) witnesses he called PW1 and PW2 did not help his course apart from repeating that the defendant did not purchase the cocoa farm when their evidence indicate that neither of them were involved in the life of the deceased vendor after the dissolution of the marriage and during his sickness. In any case the disputed property being complained of from the evidence is the self- acquired property of the deceased vendor Kofi Yesu alias Richard Owusu. And the law is that once it is his self-acquired property, he can deal with it and how and as and when he chooses without recourse to informing and seeking the consent of any family member. The defendant tendered exhibit 1 which appeared to have been dually endorsed by deceased and he plaintiff if he thinks otherwise of the said document authenticating the transaction, he needed to have called. Some of the witnesses to his late brother to contradict or discredit the said exhibit, yet he choose not to do so, neither did he challenge the signature of his late brother on the said document by introducing something to the contrary. So therefore merely saying that the said document was fake can not avail him. As compared to the defendant, she called living witnesses to the transaction. All the witnesses she called from DW1 to DW3 all sat through in one stage or the other during the sale of the said farm. If the plaintiff was in any doubt, there should have discredited them which he unfortunately didn’t do. The defendant, however, sustained the credibility and authenticity of the said document exhibit I called Kwasi Awuah DW1 and Philip Nkansah DW3 who were signatories to the said document as witnesses who also testified to effect that the farm was sold to the defendant. Be that as it may, I can recalled that the plaintiff in his evidence told the court that as customary successor he gave the disputed farm to his late brother’s ex-wife on behalf of the family. As a customary successor it is not part of his duty to distribute the estate of a deceased person, he is a care taker of the deceased property and hasn’t the locus standi to do as he wish with such property. Granted without admitting that he even had the power to distribute the deceased brothers property as he himself and his witnesses are trying to make this court believes, and has given the said farm to the PW1, then in what capacity can he be said to be suing since the property in question will cease to be within his reach of again as the new owner would have been the deceased ex-wife PW1. From the above, it is quite clear that the narrative of the defendant has but only been supported by the evidence of her witnesses but also by exhibit 1 which crowns it all, for which reach I have no doubt in my mind that she legitimately made a purchase of the said disputed farm and cannot but affirm same. The plaintiff on the other hand has merely relied on the evidence of his late brother’s ex- wife and mother in-law whose evidence is not credible enough for me to believe them and tilt the scale in his favour. It is therefore the opinion of this court that plaintiff action against the defendant fails, while defendant counter claim succeeds. Judgment is therefore entered in favour of the defendant. In doing so however I refuse to order for any general damages to be paid as well as the rendering account for 2020, 2021, cocoa season as there isn’t enough evidence to support same. The defendant is however entitled to recover the disputed cocoa farm at Asempaneye on Sefwi Anhwiaso stool land. Cost of GH₵400.00 is awarded in favour of the defendant against the plaintiff. SGD. PETER BANOE DAPILEH (DISTRICT MAGISTRATE) 10