Agnes Vrs Stephen [2022] GHADC 257 (28 December 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT NEW ABIREM IN THE EASTERN REGION ON THE 28TH DAY OF DECEMBER, 2022 BEFORE H/W. BENJAMIN B. ATTABRA. SUIT NO. A1/2/23 YAA OBIYAA AGNES VRS. KWAKU STEPHEN Plaintiff ……………. Present Defendant…………... Absent By Court; JUDGMENT Plaintiff claim is for a declaration of title, ownership, possession and occupation of all that piece of farm land measuring about two acres situate and lying at a place commonly known and called “DADAM” on the Akoase stool land sharing boundaries on various sides with the properties of (1) Auntie Mary, Madam Akosua Adei, Opanin Ottoyo, Papa Kwame Boateng and River Asuoafu. General Damages of GH₵10.000.00 for trespass unto the plaintiff’s land. Perpetual injunction restraining the defendant, his assigns, agents, representatives etc. from having anything to do with the land in dispute. The case of the plaintiff is that she is a resident of Akoase likewise the defendant. Plaintiff claims to be the owner of a piece of land situate at “DADAM” as described above. Plaintiff asserts one of her boundary owners in the person of Opanin Ottoyo sold his land to the defendant before he died. When Opanin Ottoyo died his brother Opanin Antwi succeeded him. Plaintiff further intimated she entrusted her land to Opanin Kwame Ayeh as a tenant farmer. About a year ago, Kwame Ayeh came to her that the defendant had trespassed unto her land. Plaintiff went to verify same and from there contacted the defendant in the company of her son and Opanin Kwame Ayeh. Plaintiff asserts defendant became offended and threatened her never to question him about the land. Plaintiff asserts she proceeded to the defendant’s grantor’s customary successor Opanin Antwi to discuss the issue for him to find a lasting solution about the matter. Abusua Panin of the Ekoana, Abusua Panin Antwi Akomea who is the custodian of the land which the defendant claimed Ottoyo sold part to him went together with his nephew, her son, plaintiff, tenant farmer to the land and rectified the boundary and planted “ntome” on the boundary. Defendant later went to remove the “ntome” on the boundary. Plaintiff contended following this event, she reported the matter to the Chief of Akoase where he delegated a five member team to visit the land where the Abuasua Panin in the presence of the five member royal team accepted the boundary. Plaintiff says that during the farming season this year, the defendant trespassed unto her land and cultivated the remaining portion of her land hence the suit. The defendant upon being served by Benedicta Attayo, a bailiff of the court at Akoase to appear before the court on 2nd August 2022, failed to attend court. The court ordered for another hearing notice to be served on the defendant on the 30/8/22 to appear on 6th September 2022 but failed. On the 9th November 2022, defendant failed to attend court on the 21st November 2022. Hence the court set the 28th November 2022 for plaintiff to open her case. Issues to be determined by the court include; whether or not the defendant has trespassed unto plaintiff’s land? What is the extent of encroachment or trespass? Whether or not the supposed sale of land to the defendant was properly executed? What land size did the defendant buy? In the course of the trial, plaintiff test ified and called two other witnesses to support her stance. The defendant upon several notices to appear in court failed to come and defend the suit. Plaintiff gave description of her land and its boundary. Plaintiff called the head of family of the contested area as witness. It was in evidence that Kwasi Boateng was given the land adjacent to the plaintiff’s land containing cocoa plants. The said Kwasi Boateng allegedly sold the land to defendant without informing the head of family about the sale. From the evidence no boundary owner was invited to witness the sale. However, when problem arose the defendant told the head of family of his vendor that he has left with GH₵1000.00 to be given the deceased (vendor). Who then will receive the remaining Gh₵1000.00 when defendant is ready with it? The answer is readily available: the head of family or the customary successor of the deceased vendor. The first witness for the plaintiff (PW1), who is the head of Family of Ekoana Family of Ekoase Kwasi Boateng belonged have the capacity under the circumstance to deal with the defendant. The first witness for the plaintiff (PW1) Abusuapanin Antwi Akomeah of Akoase and New Juaben. He stated that about 16 years ago, he succeeded his late uncle called Kwasi Boateng alias Kwasi Ackom and inherited a land at a place called “Dadam” at Akoase. The said land shared common boundary with plaintiff’s land. It is a family land. He was a boundary owner to plaintiff’s predecessor Anane. That his brother Kwesi Boateng was then staying at Kade Nkwantanan. At Nkwantanan things were not good for him so he gave him the cocoa farm at “Dadam”. He does not go to the farm often so when Plaintiff reported a case of trespass unto her land by the vendee of his predecessor to the chief and elders of Akoase. The defendant was invited by the chief and elders and he made the chief and elders aware that he bought the parcel of land from his predecessor Kwasi Boateng alias Ottoyo. For the sake of peace, he agreed to join the delegation to visit the land to demarcate the land between the plaintiff and his late uncle. Having had the boundary re-demarcated defendant was still not satisfied. That to the best of his knowledge the defendant encroached upon the plaintiff’s land. Nana Kwabena Duah (Dwantoahene) of Akoase testified to the effect that sometime ago plaintiff reported that defendant had trespassed unto her land at “DADAM”. In the event, the chief appointed him as the Dwanetoahene to lead a five member delegation to visit the land with parties to set the boundary correctly. Hitherto, the owner of the defendant’s land had gone to demarcate the land. Together with the plaintiff and defendant they visited the land in contention and both of them accepted the boundary as where it is yet few days later plaintiff came back to informed him that defendant had gone to remove the boundary marks. Later on, the chief instructed him to visit the land to ascertain the truth about plaintiff’s averment. Lo and behold the defendant had cultivated the area. SALE OF LAND UNDER CUSTOMARY LAW Authority (BRUCE v QUAYIVOR)[1959] GLR p.292-297 Elements: 1. Identification of the area to be sold, placing the purchaser in possession in the presence of adjoining land owners. 2. Payment of the “TRAMMA” or earnest money by the purchaser. The “TRAMMA” is the valuable consideration for the sale. 3. The performance of the “GUAHA” custom. The “GUAHA” satisfies the change of ownership. Formalities for the creation and the transfer of Legal Interest in land  Any conveyance or sale of land is a transfer of an interest in land, as per s. 1 (i) of the Conveyance Decree, 1973, NRCD 175  By S.2 and 10 of NRCD 175, a contract for sale of land must be in writing, signed, sealed and delivered by the party against whom the contract is to be enforced, or his duly authorized Agent.  An Oral Contract may be enforced under a Claim for Specific Performance where:- a) The purchaser has given valuable consideration. b) And there is sufficient act of Part-Performance; or c) There is sufficient Memorandum in writing of the oral contract for the sale of the land. In order to satisfy S.2 of NRCD 45, the memorandum must contain the following:- - The names or the descriptions of the parties. - The subject-matter of the Contract - The consideration - Any special terms agreed upon between the parties - The signature of the person against whom the contract is to be enforced of his Agent.  For unregistered land, S. 17 and 18 of NRCD 175 lays down the conditions for a VOIDABLE conveyance as follows:- a) Where it was made to defraud creditors of the transferor;-s. 17(i) b) Where it was made with the intent to defraud subsequent purchasers, other than the transferee; -s. 17(2) c) Where the transaction can be described as UNCONSCIONABLE, (ie) - Where the parties were not in an equal bargaining position; - Due to the conduct of the parties during the negotiation - The value of each party of the agreement rendered.  For a registered land, s.122 of NRCD 175 empowers the High Court to RECTIFY the Land Register, if it finds that the conveyance was tainted with mistakes, fraud, or undue influence.  The High Court shall set aside a conveyance as VOID, if it is tainted with fraud, undue influence, unconscious ability, illegally, or mistake. The Law on “Declaration of Title to Land” (a) The Common Law approach to a “Declaration of Title to Land” is that:- 1. The Pt. must rely on the strength of his own case, and not on the weakness of the – See: (Kodilinye v Odu)[1933] 2 WACA 336 DT.’s case. 2. The Pt’s action would not succeed, if he fails clearly to ascertain the boundaries – See: (Kwadzo v Adjei)[1944] 10 WACA 274 the of land in dispute. 3. The Court would refuse a “declaration” where both the Pt. and the Dt., tender – See: (Amata v Modekwe) [1952] 4 WACA 580 evidence inaccurate in site plans. 4. The Pt.’s action would also not succeed:  Where the Dt. had been in long and lawful possession of the land; or  Where the Dt. entered the land not through fraudulent and violent means. – See: (Rickets v Addo)[1975] 2 GLR 5. The Court may grant possession, or occupation to the Pt. until the Dt. is able to prove a better title than the Pt. – See: (Eyo Ita v Etubom) 2 WACA 339 In Ghana entities which hold interest in land include the stool, the family, quarters and sub-stools. The stool is a corporation sole or entity which never dies. The office of the chief is symbolized by the Stool. A Stool may hold the allodial interest in land. The 1992 constitution, under Article 295 (i) defines Stool Land as “Any land or interest or right over land controlled by a Stool or a Skin, the head of a particular community or the Captain of a company, for the benefit of the subjects of that Stool, or the members of the community, or company.” The stool as a corporate body may alienate its lands through the following:- the chief, the elders, councilors and other representatives, such as quarters. The consent of all the above is needed for a valid alienation of stool land. But in the case of TOTAL Oil Product Co. Ltd. v Obeng & Manu [1962] 1 GLR 228, it was held that if the subject usufructuary holder grants a lease to a stranger, he does not need the consent of the Stool. Article 267 (5) of the 1992 Constitution prohibits the grant of freehold in any Stool land. Article 267 (3) of the 1992 Constitution also requires the certification of all grants of Stool land for development purposes. Again, litigation in respect of Stool property is vested in the Chief, Elders, Councilors, and Linguist. In the case of Nyikplokor v. Agboder (1987-1988) GLR 165 at 171. The court, speaking unanimously through Abban JA as he then was, and who of blessed memory, outlined the duty of a claimant to a declaration of title to land as follows:- “To succeed in an action for a declaration of title to land, recovery of possession and for an injunction the plaintiff must establish by position evidence the identity and limits of the land which he claims”. The common law approach to a declaration of title to land is that Plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. (Kodilinye v Odu) [1933] 2 WACA 336. Again, the plaintiff’s action would not succeed, if he fails clearly to ascertain the boundaries of the land in dispute. (Kwadzo v Adjei) [1944] 10 WACA 274. However, the court would refuse a declaration where both the plaintiff and the defendant tender in evidence inaccurate site plans (Amata v Modekwe) [1952] 4 WACA 580. Furthermore, plaintiff’s action would not succeed where the defendant had been in long and lawful possession of the land; or where the defendant entered the land not through fraudulent and violent means. (Rickets v Addo) [1975] 2 GLR157. The court may grant possession, or occupation to the plaintiff until the defendant is able to prove a better title than the plaintiff. (Eyo Ita v Etubom) [1932] 2 WACA 339. In the instant case, plaintiff did not mention is her evidence in chief what the boundary mark was before the trespass. Neither did PW1. They both did not mention what they used as boundary mark for somebody new in the area to easily identify the boundary. PW1 did not also mention to court the basis he transferred the land to Kwesi Boateng alias Ottoyo for him to also transfer it to a third party. It is my respectful view that under such confusion galore and human frailties, it is not strange for the defendant to behave the way he did to warrant the present action. It is incumbent upon PW1 to bring the defendant to order. On the evidence before the court on preponderance of probability. I am inclined to believe the story of the plaintiff. In that regard, I hereby enter judgment in favour of plaintiff and against the defendant on the claim. There is no order as to costs. The reason being that there was no clearly existing boundary prior to the sale prompting the present action as well as other reliefs. SIGN; B. B. ATTABRA DISTRICT MAGISTRATE 28 – 12 – 2022