AGBENYO III VRS KORKU (A1/15/2021) [2022] GHADC 425 (15 November 2022)

IN THE DISTRICT COURT HELD AT ANLOGA ON TUESDAY THE 15TH DAY OF NOVEMBER, 2022. BEFORE HER WORSHIP REJOICE ASEYE GADAGOE. DISTRICT MAGISTRATE. TORGBI AGBENYO III SUING FOR HIMSELF AND ON BEHALF OF THE AWUMEY AND GBABUTA FAMILIES PLAINTIFF SUIT NO.: A1/15/2021. EKPE KORKU OF BENADZI VERSUS DEFENDANT JUDGMENT The Plaintiff instituted the instant action for himself and on behalf of the AWUMEY (AWUMEE) and GBABUTA FAMILIES, on 25/5/2021; seeking the under listed Reliefs: a) “Declaration of title and rightful ownership to all that piece or parcel of land situate, lying and being at BENADZI and bounded as follows:- On the East by Agornyo Korshie On the West by Awayigbe Awumey On the South by Kpologo Adorkor and On the North by Fiador b) Perpetual injunction order to be decreed, restraining the Defendant by himself, his assigns, privies, associates, workmen and or labourers and any other person or persons whatsoever connected to the Defendant, from committing any further act or acts of trespass onto the land, subject matter of dispute. c) General damages for unlawful trespass and encroachment. d) Recovery of possession. e) Costs.” PLAINTIFF’S CASE: In his evidence in chief, the Plaintiff averred that he is the Chief of BENADZI and Head of the AWUMEE and GBABUTA Families of Benadzi. Plaintiff is sixty-seven (67) years old. That the disputed Land originally belonged to his late grandfather AWUMEE AHADZI. AWUMEE AHADZI gifted the disputed land to his daughter GBABUTA DOGBEY AWUMEE. GBABUTA DOGBEY AWUMEE also begat XETSA AWUMEE, TORNYEWONYA AWUMEE and KODZOVI TSIADZA AWUMEE. XETSA AWUMEE begat KORSHIWOR ADORKOR; who happens to be Plaintiff’s biological Mother. Accordingly, the Plaintiff had stated in paragraph ‘6’ of his witness statement that, the disputed land became “an inheritance to my mother and SONEXOE KULEKE being the only child of TORNYEWONYA AWUMEE”. Plaintiff stated further that some time ago, father of the Defendant, KPELOGO ADORKOR got affected by a flood and approached TOGBE AGBENYO II for assistance. He pleaded for the disputed land to be released to him. In paragraph ‘8’ of his witness statement, Plaintiff stated as follows; “His said request the entire was granted by TOGBI AGBENYO II and for AWUMEE/GBABUTA families”. that matter KPELOGO ADORKOR later vacated the land and went back to ZIGAKOPE- BENADZI. He officially informed the Awumee family of his vacation. The disputed Land thereafter, was handed over to KOSHIWOR ADORKOR. Koshiwor Adorkor never took effective possession of the land but the Plaintiff insists the disputed Land had devolved to him (Plaintiff) and his Siblings. Plaintiff himself is not in occupation of the disputed land yet. He avers that he had been molding Cement Blocks on the quiet in preparation to putting up a Building on the Land. Plaintiff effectively avoided DATES in his evidence in chief; thereby making it difficult to put his narrations into proper perspective. In his “SUMMARY OF SUBJECT MATTER” HOWEVER, Plaintiff had stated the following: 1. “That during the nationwide floods, which occurred in 1968, the Defendant’s father KPELOGO ADORKOR, was among those displaced at ZIGAKOPE- BENADZI. 2. KPELOGO sought permission to put up a temporal structure that was granted by TORGBI AGBENYO. 3. That (8) years after the incident, the Defendant’s father vacated the land and officially handed the house over to TORGBI AGBENYO”. The Plaintiff’s witness was Rev. S. K. AWUMEE. According to the witness, his father gave the disputed Land to the Defendant’s father. That, PW1’s father had once lived on the disputed land in 1945. Whilst under cross- examination, the Defendant enquired from PW1 whether or not he was present when the discussions between their respective Fathers ensued and PW1 said no. PW1 mentioned his late father as the source of his information. CASE OF THE DEFENDANT: The Defendant averred that the Allodial owner of the disputed Land was TOGBI AKORLOR. He was the Father of TOGBI AGBENYO I. TOGBI AGBENYO begat SOGLO and TESHI among other children. Defendant insisted the disputed land was allotted to his late father by SOGLO. The grandson of the allodial owner of the disputed land, TOGBI AKORLOR. The Honourable Court has reproduced the Defendant’s statement in paragraph ‘6’ of his affidavit in opposition to Plaintiff’s Interlocutory injunction application below. “That the house which I am rehabilitating and which has become the subject matter of the instant suit was built by my late father, KPELOGO ZIGAH ADORKOR as far back as 1963; and that is where I have stayed from my youthful days till date”. The Court had attached the whole of the Defendant’s Witness statement below. WITNESS STATEMENT OF DEFENDANT: 5 LOCUS IN QUO INSPECTION FINDINGS: The Court obliged the Parties’ request with a visit to the disputed land and subject of this suit which is situate at BENADZI; on 20th May, 2022. As usual, the locus inspection clarified the facts and made the matter a lot simpler. Findings include the following: MADAM KORSHIWOR ADORKOR: Madam Korshiwor Adorkor, Mother of the Plaintiff was present and the Team had an opportunity to interact with her. She told the team the land belongs to her late mother Xetsa Awumey. That her grandfather married three Wives and the rest of the women happened to be their boundary owners. The team asked Madam Korshiwor Adorkor if part of her grandmother’s land was the one given (gifted) to Kpelogo and she replied yes. She continued that the part gifted to Kpelogo is where his building is situate. She also stated that she and her siblings were all born and bred on the disputed land. Further, Madam Korshiwor Adorkor stated that, it was her maternal uncle who planted the boundary Trees around the disputed land. Madam Korshiwor Adorkor laid a lot of emphasis on the fact that, the disputed land does not form part of the land given/gifted to Kpelogo Adorkor. Madam Korshiwor Adorkor however failed to explain why she bears the same surname with the Defendant’s late Father, Kpelogo Adorkor. AMUZU KPEGLO: MR. AMUZU KPEGLO, happened to be the father of the defence witness. He told the team that, the Neem tree was planted by the Fiadors and had served as shade to everyone in the community. It is therefore, the Fiadors, who occasionally prune the tree without seeking permission from anyone. Mr. Amuzu Kpeglo also atated that the remains of the old building does not belong to Kpelogo. Torgbui Agbenyo I gave out the land to Kpelogo so that he could live thereon when his place was flooded. When Kpelogo was leaving, he requested for part of the land to be gifted to him, WHICH WAS DONE. There was already a swish building thereon in which the Defendant’s father dwelt. Finally, Mr. Amuzu told the team that, Mother of the Plaintiff should be the rightful owner of the disputed land since it belonged to her mother. PAPA KLUTSEY DOGBATSEY: Papa Klutsey Dogbatsey looked very elderly and probably around 80 to 90 years old. He was reputed to be the oldest man living currently in the Benadzi Township. His submission was that, TORGBUI AGBENYO granted Kpelogo permission to stay on the land when the lagoon side he was living got flooded. He continued and said after the flood, he moved back there and that was where he lived and died. Papa Klutsey Dogbatsey also told the team on Kpelogo’s request to be granted part of the land to put up a building; Land was granted him and he gave out a token as an appreciation. He informed the team finally that, the disputed land was never a part of the one granted Kpelogo. Kpelogo never lived on any part of the disputed land during his lifetime. THE COURT’S FINDINGS: The Court discovered on its own that there is an uncompleted building on one side of the disputed land. Defendant also has a thatch-roofed structure on the remaining part of the disputed land. There is also a Swish Building on the land, which the defendant said had been gifted to his father, Kpelogo. The Team saw a tree in front of the building on the Defendant father’s land among others. The Defendant is currently living on part of the land. He has had a structure there that serves as both a kitchen and a distillery. The distillery was actually put up by his late brother EKPE KOFI. The uncompleted building and main catalyst for this instant suit is on part of the disputed land, and forms part of Defendant’s late father’s compound. CLOSING REMARKS OF THE PARTIES HEREIN: PLAINTIFF: “The land was for our great-grandmother. Her father had held onto the Land for over 35 years. We have people in the family who are in need of land to dwell on. Is it proper for the Defendant to insist on holding on to the disputed land? If this is allowed to continue, will anyone be willing to assist others in need again?” “Plaintiff had been saying the Land had been lying fallow for 35 to 38 years. Plaintiff’s Mother also told the Court she was young when the land was granted to my grand-father ZIGA DONKOR. DEFENDANT: The plaintiff’s Mother was young at the time. That means she did not have any Child then. Why will the Plaintiff keep mentioning 35 years and 37 years”? ISSUES FOR DETERMINATION AFTER TRIAL: WHETHER OR NOT PLAINTIFF WAS RIGHT IN SUING IN A REPRESENTATIVE CAPACITY? Plaintiff insisted the disputed Land belonged to his maternal grandmother and had since devolved unto his Mother. Yet, Plaintiff chose to commence his action in the name of the AWUMEE and GBABUTA Families. It gets suspicious when one considers how all of Plaintiffs ancestors bear AWUMEE/AWUMEY. Plaintiff’s great-great-grandfather was AWUMEE AHADZI. His daughter and Plaintiff’s great-grandmother was therefore, GBABUTA AWUMEE. Somehow, Gbabuta’s children were also AWUMEE which included Plaintiff’s grandmother, XETSA AWUMEE. It was Xetsa who begat Plaintiff’s Mother, KORSHIWOR ADORKOR. The Court had not been able to unravel why the Plaintiff sought to claim the disputed land for his Mother through GBABUTA, when Plaintiff clearly knows the root from ZIGA ADORKOR was simpler and more straightforward. THE INCONSISTENCES IN PLAINTIFF’S EVIDENCE: Plaintiff had been very inconsistent in his narrations. Some of the instances are captured below:  GBABUTA is Plaintiff’s grandmother (Mother’s mother). Yet the Plaintiff happens to be the Head of GBABUTA’s Family.  Then Plaintiff sues in the name of AWUMEE and GBABUTA Families, to claim what he asserts belongs to his Mother.  Plaintiff’s Mother had not granted the Plaintiff power to represent her. Neither did she show up in Court as a Witness. She was seen only at the locus inspection on 20th May, 2022.  Plaintiff insisted the disputed Land was granted to the Defendant’s father in 1965 (or 1968). Eight (8) years on, he released it back to the TORGBI AGBENYO II and went back to his original location.  Also, Defendant’s Father KPELOGO ADORKOR had put up a structure on the Land since 1963.  Plaintiff asserted that his Mother was young at the time the Defendant’s Father was allotted the Land. This was a misrepresentation of the facts because Plaintiff is deemed to know his Mother was actually born on the disputed land.  Plaintiff’s Mother, KORSHIWOR ADORKOR informed the Honourable Court that she and her siblings were all born and bred on the disputed land. Upon further probe, the Court also discovered rather shockingly, that the reason Plaintiff’s Mother and the Defendant’s Father bear the same surname ‘ADORKOR’; is because they are both Children/grandchildren of ZIGA ADORKOR. Accordingly, since Plaintiff’s Mother said she was born on the disputed land, she effectively informed the Honourable Court ZIGA ADORKOR had been in possession of the disputed land over 87 years old ago. Plaintiff’s Mother is alive. She never challenged the Defendant’s right to be on her land. Again, Plaintiff himself is 67 years old but could not provide the Honourable Court with any evidence of an instance in history, when any member of the two families he represents, had challenged the forebears of the Defendant in proving their title to the disputed land. Clearly, there must be reasonable/compelling or valid reasons why the Plaintiff’s Mother had not contested the disputed Land with the occupants thereon. Even after the Plaintiff instituted the instant action, she had still not bothered to be Party to the suit nor followed Her Son to Court. If the Plaintiff was truly convinced the disputed Land belonged to his Mother, then it would have been more prudent for him to institute the action in her name. By claiming the land had devolved to his Mother, Plaintiff should have known it no longer belongs to the GBABUTA and AWUMEE families Plaintiff therefore, instituted the instant action in the wrong capacity. WHETHER OR NOT THE DEFENDANT HAD PROVED HIS COUNTER- CLAIM TO THE DISPUTED LAND? I humbly quote the dissenting opinion of His Lordship AMUA-SAKYI JSC; in NARTEY VRS MECHANICAL LLOYD ASSEMBLY PLANT [1987-88] 2 GLR. He stated thus: “There seems to be a misunderstanding of the cases which decide that a party who is in possession of land is entitled to the protection of the Courts against all those who cannot prove a better title. The cases show that it is not possession for a day, a week, a month or even a year, which suffices to bring the rule into operation. It is rather the long, peaceful, undisturbed possession over a considerable period of time that raises a presumption in favour of ownership as has happened in the instant case”. In paragraph ‘4’ of his witness statement, the Defendant describes his root of title aptly thus; “ZIGA ADORKOR begat DOGBEY NORMANYO, DOGBE NORMANYO begat KPELOGO who was my Father. The land in dispute had passed through all these generation until it finally devolved unto me through my father, KPELOGO”. The above description represents a classic example of how Roots of Title to Lands are traced; and how transfers of title to Lands typically occur. In the instant case however, the Plaintiff traced his root of title to the disputed through his maternal family, and ended up with his Mother as the rightful owner of the disputed land. Having established that, he still by-passed his Mother’s supposed title, and rather instituted the instant action in the names of the AWUMEY and GBABUTA Families. In KUMA VRS KUMA (1934) 2 WACA; the Honourable Court held as follows; “In an action for a declaration of title, the onus of proof is on the Plaintiff to show a clear title”. For emphasis, in an action for declaration of title to land, there is need for the claimant to plead and prove his root of title before he can found his claim. SECTIONS 10 (1) AND 11 (1), (4) OF THE EVIDENCE ACT, 1975 (NRCD 323); provides as follows; “10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence”. Both the Plaintiff and his witness REV. AWUMEY, relied on inadmissible hearsay evidence because they were not privy to any credible first-hand information. Those unfortunately, did not constitute proof to found a claim in declaration of title to Land. Considering the fact that the Defendant has been in possession over a very long time; Plaintiff had a duty to prove a Superior title. Plaintiff could not prove any title, had never occupied the disputed land; and his evidence was largely hearsay. Those were not sufficient grounds to dispossess the defendant of his inherited land. On the contrary, the Defendant had attached a lot of seriousness to the instant suit. His root of title had clearly been established through traditional history. Defendant’s Parents were in possession for a long time. Defendant himself is currently in occupation of the disputed land and has nothing further to poof. The statutory provision below makes a definite pronouncement as to what constitutes OWNERSHIP. SECTION 48 (1) and (2) OF THE EVIDENCE DECREE, 1975 (NRCD 323); provide as follows; “(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.” Evidence adduced by the Parties help the Courts to make their determinations. Therefore, in seeking a declaration of title to the disputed land, Plaintiff had definitely put his own title in issue; and has a duty to substantiate all his assertions. Unfortunately, the Plaintiff’s evidence and those of his witness were all based on inadmissible hearsay In a nutshell, the Plaintiff failed to prove he possesses a better/superior title in order to tilt any consideration of the Honourable court in his favour. Additionally, this Honourable Court finds that; both the Defendant, MR. EKPE KORKU and the Plaintiff’s Mother, MADAM KORSHIWOR ADORKOR, are descendants of TOGBI ZIGA ADORKOR. As a result, the Defendant had succeeded in proving his Root of Title by right of succession. ORDER 15 RULE 2 (1) AND (2) OF THE DISTRICT COURT RULES, (C. I. 59) provide as follows; “Counterclaim, set-off 2. (1) A defendant in an action may set-off, or set up by way of counterclaim against the claim of the plaintiff, any right or claim the defendant has in relation to the plaintiff. (2) A set-off or counterclaim under sub-rule (1) has the same effect as a statement of claim in a cross action and the Court may pronounce final judgment in the same action, both on the original and on the cross claim.” Having succeeded in proving some form of tile in the disputed land, the Defendant can now be permitted to found his Counter-claim of Title to the disputed Land; on his acts of Ownership and Long Possession. EVALUATION OF THE EVIDENCE: The issues presented appear simple but they raise very interesting legal and factual conundrums, The Defendant is in possession of the disputed Land and that places a huge burden on Plaintiff to prove a superior title. That notwithstanding, the Plaintiff’s Mother had not taken any steps to go into occupation of the Land, neither had she ever contested the ownership of same. Plaintiff according to ANLO CUSTOM AND TRADITION belongs to his Father’s Family and not to his Mother’s grandmother’s (GBABUTA) Family. The Law has remained well settled that in an action for a declaration of title to land; a Plaintiff has the duty of establishing to the satisfaction of the Court, how he came into possession of the land in dispute. The Plaintiff herein is not in possession of the disputed land and had never been in possession of the disputed land. Defendant on the other hand, had proved that he was born on the disputed land. Meaning, he has lived there all his life. The Defendant also averred that his late Mother lived and sold Porridge (koko) under the Neem Tree. The Defendant insinuated that all the people present during the locus inspection; including the Plaintiff himself; have had an opportunity to drink his Mother’s porridge. Again, it was the Defendant who revealed to the Honourable Court that the Plaintiff’s Mother, like Defendant’s late father, qualifies to inherit the disputed land through ZIGA ADORKOR. This Court is convinced that arguing from MADAM KORSHIWOR ADORKOR’s paternal lineage, would have been a lot more meaningful than what Plaintiff came to allege. Why Plaintiff’s Mother also decided to corroborate her Son’s ‘GBABUTA story’; to the neglect of her superior title through ZIGA ADORKOR remains a mystery. CONCLUSION: It is a real wonder how the Parties managed to get the Honourable Court to determine this matter on its merit. This is because; Plaintiff had sued in the wrong capacity; and his assertions were largely unproved. In ACKAH V. PERGAH TRANSPORT LTD., [2010] SCGLR [2011] 31 GMJ 174; the Court held as follows; “There are various methods of producing evidence which includes;  THE TESTIMONIES THE PARTIES;  MATERIAL WITNESSES.  ADMISSIBLE HEARSAY; AND,  DOCUMENTARY PROOFS”. Plaintiff and his witness had not complied with any of the known modes of adducing evidence stated in the above authority. They had also failed to prove their ancestors’ acts of ownership. Also in the recent case of YEHANS INTERNATIONAL LTD., VRS MARTEY TSURU FAMILY& ANOTHER [2019-2020]; the Court laid down three elements required in order for a Plaintiff to succeed in an action for a declaration of title to Land. These are;  “ROOT OF TITLE;  MODE OF ACQUISITION; AND,  VARIOUS ACTS OF POSSESSION OVER THE LAND”. Defendant’s traditional history and root of title were very coherent. Defendant had also proved that he and his predecessors in title have been in long, undisturbed and unchallenged possession and enjoyment of the disputed land; as well as proved the possession of connected and adjacent lands such as the one with the distillery. These are positive enough circumstances as to warrant the inference that the owner of such adjacent or connected lands; is probably the owner of the land in dispute as well. Further, the Defendant presently has exclusive physical presence and control of the disputed land; and had been in undisturbed possession over a sufficient length of time since the demise of his parents. In conclusion, Plaintiff had failed woefully in rebutting the presumption of the Defendants inherited ownership of the disputed land. This is because;  Plaintiff sued the Defendant in the wrong capacity; and,  Plaintiff also failed to prove his claim against the Defendant. Again, Plaintiff secured an interlocutory injunction order from this Court to restrain the Defendant from continuing with his building project. The said application was granted on 1st June, 2021. Considering the astronomical increases in the prices of building materials, the Defendant deserved to be awarded costs commensurate with his financial losses. The Honourable Court had taken a number of factors into consideration, which include the fact that, Plaintiff’s action is not entirely frivolous but lacked legal merit. ORDERS:  THE DEFENDANT IS NOT LIABLE FOR THE RELIEFS ENDORSED ON PLAINTIFF’S WRIT OF SUMMONS.  PLAINTIFF’S CLAIM IS DENIED. HE SUED IN THE WRONG CAPACITY AND FAILED TO SUBSTANTIATE HIS CLAIM. HIS CLAIM IS ACCORDINGLY DISMISSED.  THE DEFENDANT’S COUNTER-CLAIM SUCCEEDS. ZIGA ADORKOR IS HEREBY DECLARED THE RIGHTFUL OWNER OF THE PARCEL OF LAND DESCRIBED IN THE WRIT OF SUMMONS. THE LAND SHALL HOWEVER VEST IN THE DEFENDANT IN TRUST FOR ALL SUCCESSORS IN TITLE TO ZIGA ADORKOR.  PERPETUAL INJUNCTION IS HEREBY GRANTED AGAINST THE PLAINTIFF; RESTRAINING THE PLAINTIFF BY HIMSELF, HIS ASSIGNS, PRIVIES AND THE MEMBERS OF THE TWO FAMILIES HE REPRESENTED IN COURT; FROM ANY FURTHER HARASSMENT OF THE DEFENDANT. THEY ARE FURTHER RESTRAINED FROM INTERFERING IN THE QUIET ENJOYMENT OF THE DISPUTED LAND; BY THE DEFENDANT AND OTHER SUCCESSORS-IN-TITLE TO ZIGA ADORKOR’S LAND.  COSTS IS PEGGED AT GH¢2,000.00 ON HUMANITARIAN GROUNDS. (SGD) H/W REJOICE ASEYE GADAGOE 15/11/2022. DISTRICT MAGISTRATE ANLOGA 16