ASAMOAH VRS KONADU [2024] GHADC 336 (3 September 2024)

IN THE DISTRICT COURT HELD AT AGOGO ON THE 3/9/2024 BEFORE HER WORSHIP CYNTHIA NUEKIE BLAGOGEE (MRS.) DISTRICT MAGISTRATE SUIT NO: A1/4/2023 SAMPSON ASAMOAH OF H/NO: E17 GYIDIMU-AGOGO ……PLAINTIFF VRS AKUA KONADU OF AGOGO .….. DEFENDANT PARTIES UNREPRESENTED JUDGEMENT The plaintiff herein has mounted this action against the defendant for the following: (1) Declaration of title, recovery of possession to all the two acres land, lying and situate at a place commonly called Abrisu on Agogo stool lands and bounded by the properties of Opanin Yaw Ketewa (deceased), Madam Yaa Atiape (deceased), Madam Ama Dufa (deceased) now occupied by the defendant and river Aboriisu. (2). Perpetual injunction restraining the defendant, her assigns, agents, workmen and anybody claiming title or interest in the said land. It is the account of the plaintiff that the land in dispute was originally acquired by his late grandfather by name Opanin Kwadwo Appiah. And he gifted same to his late mother; Akosua Twoaa in the year 1979 in the presence of witnesses. He noted that prior to the demised of his mother she gave the land to him, thus, he has been in possession of same since the year 2006. He described the boundary owners of the land in dispute as Opanin Yaw Ketoa, Maame Yaa Atiape, Ama Adufa (defendant’s mother) and the river Aboriisu. According to the plaintiff the defendant summoned him before Nana Atufohene in Agogo claiming the said land, but the decision was ruled against the defendant. However, he averred that the defendant has trespassed on the land, hence his claims. The plaintiff’s witness who described himself as Opanin Kofi Asadu confirmed the plaintiff’s story. Indeed, he intimated to the court that his landowner is Maame Atiape who is one of the boundary members of the disputed land. He was quick to add that he had been on his land since the year 1988. And that after the demised of the defendant’s mother; Maame Adufa and one of the disputed land neighbours, the defendant went to see him so he could show her, her mother’s boundary features of which he obliged without any consideration. On the part of the defendant; she described the land in dispute as about four acres. She intimated to the court that it was originally acquired by her late grandmother, Ama Adufa and her husband; Kwasi Darko in its virgin state. She mentioned the boundary owners as: Yaa Donkor and Opanin Kwabena Appiah (plaintiff’s uncle). Furthermore, she said before the demised of her grandparents, they gifted the land to her mother, auntie and two uncles. She was quick to add that she is currently in charge of the land in dispute for and on behalf of the above named beneficiaries. According to the defendant, she summoned the plaintiff before the Atuofohene and the matter was ruled against her. Dissatisfied with that, she added that she took him to the Agogohemaa and the case is still pending. Her witness; Dw1 confirmed the defendant’s story. The issue that is for determination is whether or not the plaintiff has a better title than the defendant. This is a case for determination of title to a two-acre farm land and it is trite that the plaintiff in order to get a ruling in his favour is obliged to prove the source of his title, mode of acquisition and exercise of possession as held in the MONDIAL VENEER (GH) LTD VRS AMUAH GYEBU XV [2011] SC GLR 446. Again, it is the obligation of the plaintiff to prove his case as he averred in his pleadings as held in the case of ABABIO VRS KWASI [1994-95] GBR 774 at 777 as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case that is he must prove what he alleges.” Now, relating the above position of the law to the case, I must state that the plaintiff in my humble view has discharged the above requirement of the law as set out in the sections 10, 11(1) & (4) and 12 of the EVIDENCE ACT, 1975 (NRCD 323). The plaintiff called one of his neighbors (PW1) who corroborated his case as held in the case of ZABRAMA V SEGBEDZI [1991] 2 GLR 221 CA, that when a party makes an averment and same is refuted by his opponent, it is not enough to mount the witness box and repeat his pleadings, instead, he ought to call some witnesses to corroborate his assertions or otherwise. On the part of the defendant she equally produced a witness who confirmed her case. However, with the consent of the parties, a visit to the farm proved otherwise. Other boundary members challenged the claim by the defendant to the land in dispute. Indeed, one Kwadwo Peprah was emphatic that they had been on their land which shares common boundary with the land in dispute since 2012, when their grandmother died in 1999. He equally averred that it was only about three years ago that the defendant surfaced laying claim to the disputed land. But more importantly, the defendant herein when given the opportunity to cross examine PW1 did not challenge him about his earlier assertion that the defendant went to see him to assist her know her late mother’s boundary features. This assertion is very critical, in the sense that if the defendant truly was certain about her late mother’s land as she sought to suggest, she would not have gone to see PW1 to assist her. Obviously, a land owner who is not certain about her boundary features and members is not worthy to claim the land as hers. That is the holding in the case of BEDU V AGBI [1972] 2 GLR 238 and KWARTENG V DONKOR (Consolidated) [1965] GLR 188 SC where OLLENU JSC put the matter succinctly as follows: “Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land subject matter of that declaration should be clearly identified so that an order for possession can be executed without difficulty.” From the above holding the defendant in my humble view failed to satisfy the court that she had been in possession of the said land. It is from the above analysis that I find as a fact that the plaintiff has proved his case on the balance of probabilities. I therefore enter Judgment for the plaintiff for his reliefs. I declare title in the two acres land situate at Abrisu to the plaintiff. The plaintiff is ordered to recover possession of same. The defendant, her assigns, agents, workers and any other person claiming title through her are perpetually restrained from any interference of the said land forthwith. Cost of GH¢1,000.00 is awarded against the defendant for the plaintiff. SGD CYNTHIA N. BLAGOGEE (MRS.) DISTRICT MAGISTRATE 5