Yaa Konamah v Kwame Mensah (EAS/NA/CC/C1/08/2025) [2025] GHACC 45 (28 May 2025)

IN THE CIRCUIT COURT NEW ABIREM, EASTERN REGION, BEFORE HER HONOUR MRS ADWOA AKYAAMAA OFOSU, CIRCUIT COURT JUDGE ON WEDNESDAY 28TH MAY, 2025 __________________________________________________________________ EAS/NA/CC/C1/08/2025 YAA KONAMAH - PLAINTIFF VRS KWAME MENSAH - DEFENDANT ……………………………………………………………………………………………………… TIME: 10:10 PARTIES: PRESENT PARTIES SELF REPRESENTED JUDGMENT On the 11th of December, 2025, the plaintiff instituted the instant action per a writ of summons sued out from the registry of this court against the defendants for the following reliefs: 1. Declaration of title, recovery of possession and occupation of all that piece or parcel of six plots of land situate and lying at a place commonly known as “Ahomamu” near a place called Afosu on Akyem Afosu stool land bounded by P a g e 1 | 12 plaintiff’s properties which defendant has encroached and trespassed and sold same to other people without the consent and authority of plaintiff herein 2. A perpetual Injunction against the defendant to restrain him from having anything to do with the disputed property upon determination 3. Any further orders as the court may deem fit In her accompanying statement of claim, the plaintiff says that she is a trader and minister of God and a resident of Afosu and the defendant is a chain saw operator and also a resident of Afosu. That the subject matter six plots of land situate at Ahomamu near Afosu is the bonafide property of the plaintiff which the defendant has encroached upon and surreptitiously sold same to people without her authorization. That the defendant has neither rendered account of sale of the said disputed properties nor compensated the plaintiff but is instead making claims to same without just cause. The plaintiff concludes that all efforts by the plaintiff to recover the said six plots of land from the defendant has proved futile and prays the court for the reliefs endorsed on the writ of summons. The defendant entered appearance on the 17th of December, 2024 and filed his statement of defence on the same day. He resists the claim of the plaintiff and avers that he shares a common boundary with the plaintiff’s father’s uncle who is of blessed memory. The defendant admits having sold the said plots but insists that it is his bonafide property and not the plaintiff’s and therefore he does not owe any accountability or explanation to the plaintiff. He therefore prays the court to dismiss the plaintiff’s claim as all her claim are full of shams and vexatious intent. At the Application for directions stage, the following issues were adopted for the trial; P a g e 2 | 12 1. Whether or not the defendant has trespassed and sold six (6) plots of land belonging to the plaintiff 2. Whether or not the defendant has title to the six plots of land he sold 3. Any other issues arising from the pleadings It is trite law that a person who asserts the affirmative of his case must prove. The standard of proof in all civil cases including land matters is proof by a preponderance of probabilities as was laid down by the Supreme Court in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 thus: But section 11(2) of NRCD 323 imposed proof beyond reasonable doubt only on prosecutions in criminal actions and in proof of a commission of a crime in any civil or criminal action. While sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities, no exceptions are made. In the light of the NRCD 323 therefore the cases which hold that proof of title to land required proof beyond reasonable doubt no longer represents the state of the law Thus the plaintiff in the instant case who seeks a declaration of title to the disputed land is required to prove his case by a preponderance of probabilities which is defined in section 12 of the Evidence Act 1975 (NRCD 323) as: “………….that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non- existence” Issue 1 P a g e 3 | 12 Whether or not the Defendant has trespassed and sold six plots of land belonging to the plaintiff. The settled law is that what issues are germane and central to the determination of controversy or dispute between parties lies with the trial judge. In this light the Supreme Court in the case of Fatal v. Wolley [2013-2014] 2 SCGLR 1070 speaking through wood JSC held that: “...indeed it is sound basic learning that courts are not tied down to only the issues agreed upon by the parties at pre-trial. Thus, if in the course of the hearing an issue is found to be irrelevant, moot or even not germane to the action under trial, there is no duty on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issue” See:  Kariyavouolas v. Osei [1982-83] GLR 658  Fidelity & Investment Advisors v. Aboagye Atta [2003-2005] 2 GLR 118  Lumor Bortey Borquaye v. Alhadji Abdul Aziz & Anor suit number H1/31/2020 Court of Appeal (unreported) dated 5th April, 2023. It is the view of the court therefore that before the court can determine this issue, the court first of all has to determine “whether or not the plaintiff is the owner of the disputed six plots of land” Here the plaintiff seeks a declaration of title to the disputed plots of land. The position of the law is that in an action for declaration of title, the onus is on the plaintiff to prove his/her case and he/she cannot rely on the weakness of the defendant’s case. He/she must indeed show clear title. See: Fosua & Adu –Poku v. Dufie (Deceased) & Adu- P a g e 4 | 12 Poku Mensah [2009] SCGLR 310, Sagoe & Others v. Social Security and National Insurance Trust (SSNIT) [2012] 2 SC GLR 1093 The Supreme Court in a plethora of cases has stated that to successfully maintain an action for declaration of title to land, the party asserting title to the land and on whom the burden of persuasion lies is required to prove his root of title, mode of acquisition and various acts of possession. Thus in the case of Mondial Veneer (GH) Ltd. V Amuah Gebu XV [2011] SCGLR 466 Wood CJ observed, “In land litigation ...the law requires the person asserting title and on whom the burden of persuasion falls...to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim” See also Yehans International Limited v. Martey Tsuru Family and Another [2018] DLSC 2488 The plaintiff testified that, the disputed plots of land initially belonged to her late father and during his life time he showed her the boundaries. She said that the disputed land had cocoa plantation on one part and a bare land on the other side. That the disputed land forms part of a vast land which her father gave portions to three farmers for tenancy farming for which proceeds were paid to her father. She further said that after the death of her father, someone attempted to adversely claim the land from the plaintiff’s family which she stood in and sought legal redress and recovered the land from the said person. The plaintiff says that his other siblings failed to cooperate with her in seeking redress but told her to keep custody of the said land if she is able to secure it and so after successfully recovering the land, she became the custodian. P a g e 5 | 12 This evidence of the plaintiff was corroborated by PW1, the plaintiff’s son. It is trite that a litigant proves their root of title to land in a court case by presenting evidence of ownership including deeds, registered documents and potentially traditional evidence to demonstrate a chain of ownership back to the original owner. Here the plaintiff did not tender any documents and obviously relied on traditional evidence with the only assertion that the land in dispute is the bonafide property of her father without more. This in my view does not constitute sufficient proof of root of title. On her mode of acquisition, she claims that her father showed her the boundaries of the land and that after the death of her father, someone attempted to adversely claim the land from the plaintiff’s family and she sought legal redress and recovered same. The plaintiff however did not mention the name of the person who attempted to adversely claim the disputed land, the year in which this occurred and she did not tender any documents evidencing the alleged legal redress she sought and the outcome. The position of the law is that a person does not prove her case by merely mounting the witness box and repeating his averments on oath. Thus in Klah v Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139 the court held that: “Where a party makes an averment capable of proof in some positive way example by producing documents, description of things, reference to other facts instances and his averment is denied he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true” Besides, there is no evidence that the plaintiff’s father gifted the property to her and indeed the plaintiff does not allege a gift. From her own showing, after her father’s death, “someone attempted to adversely claim the land from the plaintiff’s family. This confirms that the disputed property never became the plaintiff’s bonafide property as P a g e 6 | 12 she claims. The plaintiff therefore failed to prove how she acquired the disputed land and became the bonafide owner. On her acts of possession, even though the plaintiff claims that her father gave her the land in 1983, she has not demonstrated any acts of possession of same. During cross examination when she was asked by the defendant whether she was aware that there has been orange cultivation on the land for twenty five (25) years the following transpired: Q: Did you ever see that there was orange cultivation on the land in dispute A: I did but it was recently that I saw it Q: Have you ever benefitted from the proceeds of the sale of the oranges A: No my lord Q: Are you aware that I have worked on the land in dispute for 25 years A: No I don’t know Q: If you don’t know, then I am putting it to you that I have been in possession of the land and given it to somebody to cultivate oranges on the land for 25 years A: My father gave the land to me in the year 1983 and at the time, there were no oranges on it Q: For the 25 years that the oranges were on the land were you in the town or not A: I was not there Meanwhile, when PW1 was asked under cross examination whether he knew that some persons that the defendant mentioned had cultivated oranges on the land for 25 years, P a g e 7 | 12 he answered in the affirmative thus corroborating the evidence of the defendant that he has been in possession of the land for 25 years. The rule is that where the evidence of one party on an issue in a suit is corroborated by the witnesses of his opponent whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason (which must appear on the face of the judgment) the court found the corroborated version incredible or impossible. See; Banahene v. Adinkra and Others [1976] 1GLR 346-354 Further evidence by both DW1 and CW1 also showed that for the past 25 years the defendant has been in possession of the land and oranges have been cultivated on the said land. Furthermore, CW1 told the court that the defendant’s land was demarcated in 2018 and that of the plaintiff’s family land was demarcated in 2020. That when they went to demarcate the defendant’s land, the plaintiff’s family was represented by one Tawiah and the boundary owners confirmed that they share boundaries with the defendant and they showed the boundaries. He further said that in 2020, they went again to demarcate the plaintiff’s land and she came with her brother Karikari. That when they asked the plaintiff to show the boundary, she said she did not know so it was his brother in law (CW1’s brother in law) who came to help with the identification of the plaintiff’s plot. That the defendant’s plots were six out of which one plot was part of the cemetery so he took three plots and gave two to the chief. During cross examination of CW1 by the plaintiff the following ensued: P a g e 8 | 12 Q: Do you recall that when we invited my brother Tawiah for purposes of demarcating the plot, I went to Asante and brought a letter from my uncle to the chief that as for our plot, my uncle says it should not be demarcated A: I don’t remember anything about that Q: Do you remember that when we went to demarcate the land, I mentioned that it includes the boundary of Opanin Sakyi and you said you did not come here to litigate A: What you are saying is not true. On the day we went, you said you did not know the boundary and so it was my in law Joe- who showed the boundaries. From the above it is obvious that the plaintiff has not been in possession of the disputed six plots of land. The position of the law as espoused in the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-2004] SCGLR 420 at 465 is that; “a litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realise that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant”. P a g e 9 | 12 It is the contention of the defendant that, the land was acquired by his great grandfather Opanin Denteh in its virgin state about 150 years ago and upon his death was succeeded by heads of family of Aduana family in the persons of the late Opanin Kwadwo Atta, Opanin Yaw Opuni, Opanin Kofi Okoto and Opanin Kwame Bobie and they all inherited the land during their lifetime. According to the defendant Opanin Kofi Okoto cultivated Orange plantation on the disputed land which measures one and half acres, the property of the Aduana family and gave same to Opanin Kwaku Oduro on tenancy farming for fair sharing. He testified that the disputed land shares boundaries with Opanin Denkyira and Obaapanin Akua Oklu and a street. That the said Opanin Kwaku Oduro cultivated oranges on the land for 25 years without any interference from or adverse claims by any person until he fell same upon maturity. He said that in the year 2020, he inherited the disputed land and at that time development had merged with the farm land and so the chief and the plot allocation committee came for them to measure the land. They realised that one plot had been used as cemetery and so after the measurements had been taken, the chief took two plots and gave three plots to the Aduana family of which he is the head and that he sold the said three plots in his capacity as the head of family. The defendant’s witness Nana Nimako Boateng, DW1, told the court that many years ago, he used to follow his grandmother to farm at Ahomamu where his late grandmother’s property shares common boundaries with the plaintiff’s late uncle Opanin Denkyira on one side, Opanin Opuni, the defendant’s uncle on another side and a street and a stream. That he once saw that Opanin Opuni’s land was cultivated into orange farm but he did not inquire about who gave the said land to the farmer till date. P a g e 10 | 12 Thus the plaintiff’s witness confirmed that the defendant’s late uncle shared boundaries with the plaintiff’s late uncle’s land. After the parties testified, the court deemed it fit to move to locus and so on the 2nd of April, 2025, the court moved to locus to ascertain the boundaries of the land in dispute. Despite the visit to locus, there was the further need to invite the plot allocation committee chairman who acted on the chief’s instructions to demarcate the disputed land into plots to come and testify. Consequently a subpoena was issued and the acting plot allocation committee chairman in the person of Alhaji Mohammed Iddrisu came to testify as CW1. CW1 told the court that in 2018, the defendant approached the chief and said that he wanted his land to be demarcated into building plots so the chief informed them about it. He told the court that usually before they go, they investigate to know the boundary owners before they go and take the measurements. According to CW1, the defendant mentioned that he shares boundary with the plaintiff’s family and represented by one Tawiah and Opanin Brenya so they went to them and they confirmed that indeed they share boundaries with the defendant and they all went onto the land and they showed the boundaries. That when they went on the land they saw orange plantation and they asked who cultivated it and the defendant said it was one Opanin Oduro who cultivated it so they contacted the said Opanin Oduro and he said it was the defendant’s uncle Bobie who gave the land to him and he cultivated the oranges and that he had been on the land for twenty five years. From the evidence led by the defendant, he has been in possession of the land as head of the family for 25 years without any interruption from any quarters. Furthermore in 2018, he got the plot allocation committee to demarcate the disputed land into plots. Again, there were no protests from the plaintiff or anywhere and the land was P a g e 11 | 12 accordingly demarcated at his instance. Seven years later, the plaintiff brings this instant action claiming to be the owner of the disputed land. On the preponderance of the evidence, I prefer the version of the defendant to that of the plaintiff and so it is my view that the plaintiff failed to prove her root of title, mode of acquisition and overt acts of possession to entitle her to a declaration of title to the disputed six plots of land. On the basis of the above finding the defendant cannot be said to have trespassed onto the plaintiff’s six plots of land. CONCLUSION On the totality of the evidence adduced, and on the preponderance of probabilities, it is my view that the plaintiff failed woefully to prove her claim against the defendant. In the circumstance the plaintiff’s claim is dismissed in its entirety. Costs of GH₵3,000.00 is awarded in favour of the defendant. H/H ADWOA AKYAAMAA OFOSU (MRS) CIRCUIT COURT JUDGE P a g e 12 | 12