Manu and Another v Gyapong and Another (E1//HCKO/184/2023) [2025] GHACC 44 (16 September 2025)

JUDGMENT DELIVERED BY H/L JUSTICE EMMANUEL AMO YARTEY SITTING AS AN ADDITIONAL JUDGE AT THE CIRCUIT COURT, ASSIN NSUAEM/KYEKYEWERIN THE CENTRAL REGION OF GHANA DATED 16TH SEPTEMBER, 2025 SUIT № CR/KK/CC/C1/010/25 ABUSUAPANYIN OSAFO MANU -- PLAINTIFF SUING FOR HIMSELF AND ON BEHALF OF THE AGONA FAMILY OF ASSIN BOSOMADWE VERSUS 1. KWEKU GYAPONG -- DEFENDANTS 2. KWAME ANKOMAHENE ALL OF ASSIN BOSOMADWE ------------------------------------------------------------------------------------------------ JUDGMENT ------------------------------------------------------------------------------------------------ Per his writ of summons dated the 23rd day of April, 2025 the plaintiff instituted the instant action against the defendant claiming the following A. A declaration of title to a two plot of land situate and lying at Assin Bosomadwe which shares boundaries with the Assin Bosomadwe road and Kofi Manu family. B. Recovery of possession of same. C. Perpetual injunction restraining the defendants, their assigns, privies and workmen from interfering with plaintiff’s peaceful possession of the land. D. Damages for trespass. E. Cost. The case of the plaintiff as captured by his statement of claim is that the plaintiff is the Abusuapanyin of the Agona family of Assin Bosomadwe. It is the case of the plaintiff that his family are royals who ascend the stool of Bosomadwe and that it was the practice of the elders of his family that any foreigner that comes to live in the town is giving a land to feed on upon request but same is not sold to them. And that the land was given to the foreigners for farming purposes. Plaintiff further stated that it was agreed between the grantors and grantees that when the need arose for those lands to be used for developmental projects, it is the responsibility of the elders of the Agona family to grant same. The plaintiff avers that sometime a large tract of land was granted by his family to the Kona Nifa family to feed thereon. And that presently it is one Kwaku Manu who is farming on the land in dispute. The plaintiff continued that the land in dispute is part of the large tract of land his family granted to the Kona Nifa family. According to the plaintiff the Chief of Assin Bosomadwe, Nana Otenehoase needed a land for a developmental project for which reason in the month of August 2024 he the plaintiff decided to reclaim the portion of land occupied by Kofi Manu. And that the Chief and a member of his family led the reclamation of the land. The plaintiff avers that the necessary compensation was duly paid to Kofi Manu to reclaim the land. The plaintiff says that a recent visit to the land revealed that the defendants who are nephews of Kofi Manu were developing the land without the consent of the plaintiff or the Chief. And that when the defendants were confronted they claimed ownership of the land. Hence the instant action. In contesting the plaintiff’s action the defendants filed an appearance and a defence. At the application for directions stage the following issues were set down for trial. 1. Whether or not the Agona family of Bosomadwe are the custodians of all Assin Bosomadwe lands. 2. Whether or not a large tract of land was granted by the Agona family to the Kona Nifa family to feed thereon. 3. Whether or not the defendants’ family are owners of the disputed land. In prosecuting his case the plaintiff testified that he is the head of the Agona family of Assin Bosomadwe the custodian of all Assin Bosomadwe lands. It is his testimony that in the olden days the practice was that his elders gave parcels of land to strangers to farm on upon request but same was not sold to them. And that there was a further agreement with the strangers that should the land be required for development they will release same to their family for the said development. Plaintiff further testified that sometime ago their family granted a large tract of land including the disputed land to the Kona Nifa family to feed on. And that one Kofi Manu is currently feeding on the disputed land. He continued that the Chief of the town needed a land for developmental project for which reason he directed that the land occupied by Kofi Manu be released for the purpose. It is his evidence that they therefore approached the said Kofi Manu to reclaim the land who told them he has given the land to one Kwasi Kuntuo to cultivate palm fruits and cassava on the same. It is also the testimony of the plaintiff that they paid One Thousand Ghana Cedis (GHS 1,000.00) plus a bottle of schnapps as a farm of appreciation to reclaim the land to an uncle of the defendant. He continued that after the payment of the compensation they graded the land and placed building blocks on the disputed land. However a further visit to the disputed land revealed that the defendants were developing the land without the consent of the Chief, per the reason that the land belongs to them. Hence he instituted the instant action against the defendants claiming per the reliefs. In contesting the claim of the plaintiff the defendants testified that their grandfather by name Bimpong Owusu who was the Nifahene of Assin Bosomadwe of the family and his sisters came to settle at Assin Bosomadwe and requested for a parcel of land to farm on which request was granted by one Nana Yaw Kumi of the Agona Number 1 family. They continued that they farmed on the land till Nana kwenim Atta became the Chief of Assin Bosomadwe. It is their evidence that during his tenure a war broke out between Etse Bosomadwe and Nyankumase Ahenkro and all the families at Etsi Bosomadwe assisted Nana Kwenin Atta to defeat the people from Nyankumase Ahenkro. According to the defendants after the war the Chief asked all the tenants on Assin Bosomadwe lands no longer to pay yearly tolls and went ahead to gift those lands to the respective families including their family for assisting him in the war. And that for this reason the defendants family are now the owners of a large tract of land which the disputed subject land forms part. In sum the defendants contend they have been in effective possession of their land without any challenge from anyone for a very long time. They insisted that their family has not granted the subject land to chief once any such grant must be sanctioned by their family. The question is, the plaintiff enlisted to the reliefs he is seeking against the defendants. The law is trite and supported by statute, that to enable a court decide a case one way or the other, each party to the suit must adduce evidence on the issue to be determined by the court (see FEDILIITY INVESTMENT VS ABOAGYE-ATTA [2003-2005] 2 GLR 188 CA) to the prescribed standard as provided by statute. This provision is buttressed by various provisions of the Evidence Act (NRCD 323) section 14 of which provides as follows: ‘’ Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as each fact the existence or non-existence of which is essential to the claim or defence he is asserting’’ In CONCA ENGINEERING (GH.) LTD VS MOSES [1984-86] 2 GLR 319, it was held ‘’ And our adversary system, the plaintiff who sought a declaration of title, had to establish that by clear and acceptable evidence whether or not the defendant against whom he sought the relief was present or absent’’ In the instant case the burden is therefore completely on the plaintiff herein to discharge upon his claim that the land in dispute indeed belongs to his family. The defendants bear no onus of proof of title because they did not counterclaim. Throughout the trial the plaintiff maintained that originally the subject land belonged to his family till they granted same to the defendants’ family for farming purpose. He further claimed that his family has the right to reclaim the disputed land since they have the right to do so if it is for developmental purpose. These were the answers he volunteered when he was cross examined on the issue. Q: The land is dispute belongs to the Kona Nifa family A: Originally the land in dispute was ours. We gave it to you and later we needed a portion which I have reclaimed. Q: If you claim the land belongs to your family how come Nana Gyasi sent a delegation including Nana my uncle to my uncle to ask for a portion of the said land? A: We needed a portion of the land for which reason we went to see your uncle to take it. If I may ask can the said uncle who per the evidence on record is the head of the defendants’ family suo motu grant the disputed land to the Chief without the consent of principal members of the family? In Ghana, a court judgment on family property transfer is generally based on the principle that alienation of family land requires the consent of the family head and potentially other key family members see (Kwan V Nyeini [1959] DLSC 2022. There is evidence before me that originally the large tract of land was granted to the defendants ancestors by the plaintiff’s family for farming purpose. Subsequently the said land was gifted to the defendants ancestors for assisting the then Chief of Bosomadwe in winning a war against the people of Nyankumase Ahenkro. This clearly makes the defendants family, the Kona Nifa family the owners of the land. There is no evidence before me that this piece of evidence was challenged by the plaintiff for which reason same amounts to an admission. The question therefore is, has the Kona Nifa family granted the subject land to the plaintiff’s family or the Chief of the town for which reason any of them could lay claim to the subject land. There were the answers the plaintiff offered during cross examination. Q: You went to clear the land before sending the delegation to see my uncle? A: We informed your uncle before we went to clear the land. Q: I put it to you that my uncle never gave you the right to the land, you did that on your own. A: It was your uncle who told us someone had cultivated palm trees on that portion of the land and that we should go ahead and compensate the person and thereafter take over the land. We paid GHS 2,000.00 to the owner of the farm. Kwaku Kuntuo. DW2, Moses Kofi Manu is the ‘uncle’ referred to supra. A perusal of his witness statement depicts he never granted the land to the plaintiff or the Chief. It is his testimony that even though the Chief sent a delegation to him to inquire about the availability of the subject land, he asked them to give him time to reflect on their request, only for him to hear they have gone ahead to clear the land. And that it was after grading the land that the Chief sent an amount of GHS 1,000.00 plus a bottle of Schnapps to him through a delegation which amount and drink he asked to be sent to the leader of the delegation who has since refused to accept same. He denied granting the land to the Chief of the town. Per my analysis as above discussed I hold that the plaintiff failed to adduce any evidence depicting that the Kona Nifa family of Assin Bosomadwe per their head of family and his principal elders has granted the land in dispute to the Chief of the town or the plaintiff for which reason I accordingly dismiss plaintiff’s claim. Cost of GHS 10,000.00 against the plaintiff in favour of the defendants. (SGD) H/L JUSTICE EMMANUEL AMO-YARTEY.