Sasu v Darkwa and Another (A1/13/24) [2025] GHADC 86 (25 April 2025)

IN THE DISTRICT COURT HELD AT OSINO ON FRIDAY THE 25TH APRIL 2025 BEFORE HIS WORSHIP AYAGIBA SALIFU BUGRI, DISTRICT MAGISTRATE SUIT NO. A1/13/24 YAW AFARI SASU ………… PLAINTIFF OF DWENASE VS 1. KWAKU DARKWA …...…. DEFENDANTS 2. OSCAR ADU SARFO ALL OF DWENASE JUDGEMENT RELIEFS SOUGHT: 1. Special Damages for trespassing and encroachment into plaintiff’s land. 2. Special Damages of GHC500, 000 for destruction of 500 cocoa trees on a three and half acres of farmland. 3. An order compelling Defendants to restore the land to its former state. 4. Costs BRIEF FACTS Plaintiff is a pensioner residing in Dwenase and defendants are miners also residing in Dwenase. Plaintiff owns three and half acres of farmland in Dwenase. D1 approached plaintiff and expressed interest to buy plaintiff’s farmland, but plaintiff rejected the proposal. However, somewhere in June 2024 PW1, a caretaker of plaintiff’s farmland informed plaintiff that some people were mining on it, and investigations revealed that defendants were the perpetrators. Plaintiff’s claim is that defendants have destroyed the entire farmland and cut down over 500 cocoa trees by their mining activity on the said farmland without his consent. Hence, plaintiff claims for damages, reclamation and costs. D1 admits that he approached plaintiff to sell the land under litigation but since plaintiff rejected his offer, he had nothing to do with the said farmland thereafter. Even though plaintiff did not establish for a fact that, D1 was responsible for mining on his farmland, he implied by D1’s conduct that D1 had mined on his farmland without his consent, having refused to sell the said farmland to and D1. However, D1 directed plaintiff to contact D2 to ascertain who is responsible for mining on the said farmland, hence D2 was joined to the instant suit. Plaintiff admits that he agreed initially to sell the land but declined the sale upon PW1’s intervention and non- agreement to the sale. Plaintiff had no idea how many cocoa trees there were on his 3 acres farmland because PW1 is the one who cultivated cocoa on it and in a position to tell. Plaintiff claimed that about 500 cocoa trees lying on about an acre of the 3 acres farmland had been destroyed by D2’s mining activity, which PW1 did not corroborate, even though she claims to have cultivated the said farmland for 20 years. PW1 added that she guessed the number of destroyed cocoa trees at about 500 considering the extent of damage. On the contrary, D2 insisted that the parcel of land he mined on was sold to him by Mr. Yaw Tenkorang (DW1), and Mr. Philip Agyeman (DW2) who are adjoining neighbors to plaintiff’s land. DW1 admitted to selling his land to D2 but indicated that his land is by the main road and only adjoins plaintiff’s land by a boundary tree (ntomi trees). According to DW1, D2 mined to the extent of his boundary and did not trespass/encroach plaintiff’s land. DW2 admitted that he sold a parcel of land to D2 to mine on. He adds that the portion of his land that he sold to D2 adjoins plaintiff’s land. Moreover, he had not cultivated cocoa trees on the part that adjoins plaintiff’s land that is currently under litigation for encroachment. ISSUES FOR DETERMINATION 1. Whether or not Plaintiff is entitled to special damages 2. Whether or not D2 exercised reasonable care that his mining activity will not affect Plaintiff’s land A visit to the locus by the court on two occasions in the presence of the defendants in the first instance and defendants and their witnesses to wit DW1 and DW2 in the second instance who are owners of the adjoining farmlands to the plaintiffs’ revealed distinct boundary marks demarcating each of the farmlands of plaintiff, DW1 and DW2. ‘Ntomi trees’ had been used as boundary marks. The land under litigation is a hill with several farmlands along the slopes with plaintiff occupying about 3 acres as claimed around the apex of the said hill. DW1 and DW2’s respective lands are along the slopes at the base or below plaintiff’s land from the main road connecting Dwenase and Gyampomani. It is evident that the only means by which plaintiff can have access to his farmland is by passing through DW1 and DW2’s farmland. What was amazing is that, notwithstanding the mining activity of D2, the said boundary trees were intact and made the respective boundaries of the parties easy to ascertain from their respective testimonies both in court and at the locus. The fact that land which belonged to DW1 and DW2 had been mined on was determined as matters of fact. There was evidence that, a portion of plaintiff’s land had been affected by D2’s mining activity by about 20-30ft to the north and about the same distance to the east, and not an acre as testified by plaintiff. Under the current prevailing circumstance in respect of the form of the land, it is evident that plaintiff will have difficulty accessing his farmland due to alteration made to the land by the mining activity. A crater has been created as a result of the mining thereby affecting the gradient that afforded the plaintiff easy access to his farmland through DW1 and DW2’s farmlands. To the contrary, there was no evidence of damaged cocoa trees on the affected portion of plaintiff’s land. In the opinion of this court, since the mining activity involved the scooping of top soil to a certain depth, it is possible that if cocoa trees belonging to the plaintiff were affected at all, they might have been scooped away with the top soil. On the other hand, considering the size of the land affected, there could only have been a few cocoa trees but obviously not up to 500. Whereas, Justice must be served, the court will not allow any unjust enrichment but rather ensure fairness. Thus, from the conduct of the locus Inquo this court concludes on the basis of the boundary marks that plaintiff’s land has been encroached upon. However, the portion encroached is not to the extent of an acre as indicated by plaintiff. Moreover, there is no evidence of destroyed cocoa trees which must be determined as a matter of fact or a semblance of same. Thus, from the evidences adduced by the parties and their witnesses, the instant court determines that even though D1 initially approached plaintiff to sell the land under litigation for mining purposes, plaintiff rejected the offer. Notwithstanding an initial agreement to sell at GHC10,000 cedis, the intention to accept the offer was stalled by PW1. The evidence further suggests that D1 had nothing to do with the land and did not direct D2 to trespass or encroach the land under litigation, even though he works for D2. D2 has also not given any contra evidence that D1 is responsible for entry into and mining plaintiffs land. Accordingly, the instant court does not find D1 Liable for trespass and encroachment. On the other hand, in the absence of evidence that D2 deliberately destroyed plaintiffs land, it is obvious that D2 did not exercise reasonable care in the conduct of his mining activity, as a result of which a portion of the Plaintiffs land was destroyed. In the opinion of the court, it does not matter whether or not cocoa trees were affected. The use of earth moving equipment for the mining activity obviously affected the plaintiffs land. To the extent that plaintiffs land adjoined DW1 and DW2’s land, D2 ought to have exercised reasonable care and supervised the activity to ensure that plaintiffs land is not affected, especially so when the boundary marks were visible. Indeed, reasonable care is the extent of care or caution that a person will exercise either for himself or others, given certain circumstances or performance of a task. The extent of reasonable care exercised assists a court of law to determine whether or not the person was negligent in the performance of a duty, task or having found himself under a prevailing circumstance. In the opinion of this court there was some amount of negligence on the part of D2 in ensuring that plaintiffs land was not affected by his mining activity. Additionally, D2 ought to have known, that to the extent that an attempted sale of the said Plaintiffs land stalled, any act done by D2 either deliberate or by accident to affect plaintiff’s land could be construed by plaintiff as an act of bad faith. Accordingly, reasonable care should have been exercised in the conduct of the mining activity which is not the case after evaluating and analyzing the evidence before this court. The determination of a civil case is based on the preponderance of probabilities of the evidences adduced. Additionally, it is trite law that he who asserts must prove. Thus, in the instant case, the burden to prove that D2 destroyed 500 cocoa trees on plaintiff’s land is on the plaintiff. It is evident from the evidence before this court and locus inquo conducted that there was no such evidence or same has not been proved. On the other hand, plaintiffs claim that a portion of his land was destroyed has been established as a matter of fact. However, the claim that about an acre was destroyed is not credible and same not established by law or fact. What is evident per the locus conducted is minimal and not an acre. To the extent that the boundary marks are intact, the portion destroyed remains the property of plaintiff except that the form and substance of the land has been altered by the scooping of the surface soil by the mining activity of D2, thereby creating a seeming crater. Plaintiff is advised to plant trees at the destroyed portion at the base of his farm to arrest any future erosion or landslide. It is the opinion of this court that when that is done in addition to the forces of nature, the destroyed portion shall restore by itself. To this extent, I order GHC50,000 for plaintiff, for the acquisition of tree seedlings of the plaintiff’s choice to be planted and nurtured to serve the purpose. An order for restoration of Plaintiffs land will in the opinion of the court be an order in futility considering the nature of the land under litigation. An order to restore a slope may require scooping soil from the top of the hill to fill the base, which in the instant case will affect plaintiff’s farm. On the other hand, for trespassing and encroaching plaintiffs land, I award general damages of GHC50,000.00 Costs of GHC5000 awarded to Plaintiff -SGD- HIS WORSHIP AYAGIBA SALIFU BUGRI, MAGISTRATE 6