ALBERT CHRIS ADOM FORSON VRS YAW DONKOH NYAKROM (A11/06/2023) [2025] GHACC 52 (28 March 2025)

9 **IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON FRIDAY THE 28****TH****DAY OF MARCH 2025, BEFORE HIS HON. JONATHAN DESMOND NUNOO, CIRCUIT JUDGE.** _**SUIT NO A11/06/2023**_ ALBERT CHRIS ADOM FORSON . . . PLAINTIFF H/NO. 163/4 MANGOASE AGONA SWEDRU. VRS. 1\. YAW DONKOH DEFENDANTS NYAKROM 2\. CHAIRMAN (Discontinued) NANA KHADIJAH 3\. EB. KOBINA ODOOM (Joined on 05/10/2022) 4\. OP. KOJO EDU (Joined on 05/10/2022) BOTH OF AGONA NYAKROM. _**JUDGEMENT**_ The plaintiff per his amended writ of summons seeks the following reliefs; 1. Damages for trespass on land described in paragraph 2 of the statement of claim. 2. An order of the Court directed at the Defendant to pay to the Plaintiff the sum of GHC26,400.00 being the value of the sand unlawfully permitted by the defendants to a third party. 3. Cost including solicitors legal fees. 4. Perpetual injunction. In the Statement of claim the Plaintiff states that he is the owner in possession of a piece of land situate and lying between Nyakrom and Agona Swedru and commonly known and called “Abusu”. Plaintiff states that his land on the north measures two thousand three hundred and seventy nine feet (2379 feet) on the south two thousand five hundred and fifty two feet (2552 feet) on the East Two thousand three hundred and fifty feet (2350 feet) on the west two thousand seven hundred and ninety four feet (2794 feet) more or less and bounded on the north by Kweku Acquah and Kwesi Awukye’s land, on the south by Kobina Ayiah and Osiripi as well as Ntiful cocoa farm on the east by J M Koi’s cocoa farm and on the west by Kobina Eninful Cocoa farm. The Plaintiff states that he acquired the said land by purchase from Kwame Agyei of Agona Nyakrom who was the successor of late Kojo Okyil also of Agona Nyakrom. Plaintiff states that the 1st Defendant on Saturday 3rd September 2022 represented himself to the 2nd Defendant as owner of the parcel of land described in paragraph 2 the statement of claim and offered same to the 2nd Defendant to win sand on the land. Plaintiff state that at all material times relative to the grant of a portion of the land by 1st Defendant to the 2nd Defendant to win sand thereon, the 1st Defendant knew that he did not own the said piece of land but went ahead to grant same to the 2nd Defendant. The Plaintiff will again say that had the 2nd Defendant exercise due diligence he would also had known that the 1st Defendant did not own any land and therefore could not have granted same to him 2nd Defendant. Plaintiff states that on the strength of the representation by the 1st Defendant to the 2nd Defendant. He later went ahead to win sand on Plaintiff’s land without his consent and his authority. The Plaintiff states that the 2nd Defendant has presently carried away twenty two double axel truckloads of sand to his block making factory situate at a place popularly known and called Kadija, Agona Swedru to convert same into sand create blocks for sale. The Plaintiff states that by the conduct of the Defendants he has suffered loss and damage. **Particulars of Damage** 1. Entering Plaintiff’s land with pay loader and winning sand therein and degrading the land. **Particulars of Loss** 1. One double axel load of sand sells at one thousand three hundred (GHC1300.00) Ghana cedis by 22 trips = GHC26,400.00. The Plaintiff say that he is entitled to the said sum of GHC26,400.00 from 2nd Defendant as unjust enrichment by the Defendant. The Plaintiff states that he reported the matter to the police, Agona Swedru who stopped the 2nd Defendant from going on with his unlawful conduct. Wherefore the Plaintiff claims against the Defendant jointly and severally. The 1st and 2nd Defendants entered appearance and later 3rd and 4th Defendants later filed a motion for joinder which was granted. The Plaintiff then filed a notice to discontinue the suit against the 2nd Defendant. The Defendants then filed a new statement of defence in which they denied paragraphs 1 to 12 of the Plaintiff’s Statement of claim. In further denial Defendants state that 3rd Defendant is the head of family of Nana Asona family of Agona Nyakrom and 4th Defendant is the successor in title of the subject matter in dispute and an elder of the Nana Nsona family of Agona Nyakrom. Defendants states that all the people mentioned in paragraph 3 of the Plaintiff’s statement of claim are predecessors of 3rd and 4th Defendant’s. Defendant aver that Kojo Okyil never sold any portion of the family land. Defendant’s further avers that the virgin forest of the land in dispute was broken by their predecessor Nana Adjei. Defendants aver that Nana Adjei was succeeded by Akua Adufoa, then Kojo Asare, Akosua Owubaa then Adjoa Timma. Defendant aver that their land which is in dispute forms part is described as All that piece or parcel of JUDGMENT LAND situate and lying at Agona Nyakrom bounded on the North by Boabeng’s land, Kofi Kuntor’s land, Pampim’s land on the East by Duakwa, land on the South by Kwesi Anfere’s land and on the West by Akrowa and Eyifa’s land. Defendants aver that the land is particularly described in the judgment of the suit between Adjoa Timma vrs Kwa Nyan & others that shall be tendered in evidence. Defendants aver that on the 11th day of September 1902 at the Supreme Court of the Gold Coast Colony, Victoriaborg, the Chief Justice Sir W. Brantford Griffith Knight entered Judgment in respect of the land in favour of Adjoa Timma for the Plaintiff’s (Sic) family. Defendants aver that in 1909 Nana Kojo Okyere (Ochere) succeeded Adjoa Timma to the land. Defendants aver that sometime in 1912 Nana Kojo Okyir granted a lease of 99 years of a portion of the land at the southern portion of the land to a predecessor of the Plaintiff. Defendants aver that they are the family Ebusuapanyin and Elder in possession and control of the land on behalf of the family. Defendants aver that the lease granted to the Plaintiff’s predecessor has expired. Defendant prays for the Plaintiff’s suit to be dismissed. The Plaintiff filed a Reply and Application for Direction. In their reply they stated that they join issue with the Defendants generally on their defence. In response to paragraphs 3 of the statement of defence, the Plaintiff makes no admission thereof and Defendant’s put to strict proof. Paragraph 3 to 8 of the statement of defence are denied and Defendants put to strict proof. In further response to paragraph 10, 11 and 12 of the statement of defence which are denied, the Plaintiff says that the transaction was absolutely sale of land not a lease as alleged by Defendants. In further response to paragraphs 13, 14th and 15 of the statement of defence, the Plaintiff stated that by the unlawful grant of portion of Plaintiff’s land to a third party who carried off 18 trips of sand the Plaintiff is entitled to special and general damages. The issues set down for determination which in my view will resolve the dispute are as follows: 1. Whether or not the Plaintiff has capacity to institute this action 2. Whether or not the disputed land acquired by the Plaintiff’s forbears was outright purchase or lease. 3. Whether or not Defendants have trespassed on Plaintiff’s land. 4. Whether or not Plaintiff is entitled to the reliefs endorsed on his writ of summons. Plaintiff is the one who is claiming the reliefs endorsed on the writ of summons and he bears the duty to establish what he alleges. The law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. This position is buttressed by various provisions of the evidence Act 1975 (NRCD 323). Section 14 of the Act provides that “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in 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”. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. In the case **of Ababio V Akwan III (1994-95) GBR 774** the Supreme Court reiterated the point at page 777, Akins JSC delivered the lead opinion of the court thus; The general principle of law is that it is the duty of the plaintiff to prove his case he must prove what he alleges, in other words, it is a party who raises in his pleadings an issue essential to his case who assumes the burden of proving it. The burden only shift to the defence to lead sufficient evidence to tip the scale in his favour when on particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins, if not he loses on that particular issue. The burden of providing evidence as well as burden of persuasion is on both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities” **In Continental Plastics Engineering Co Ltd v IMC Industries-Technic GMBH [2009] SCGLR 298 at 306-307 WOOD CJ stated at page 306** “The learned justices of the Court of Appeal in Zabrama case explained the burden that rests on a party who makes an averment, particularly an averment on a substantial fact, which when it is denied by his or his opponent , and is therefore under legal obligation to prove the fact alleged . In explaining what is meant by proof in law, the learned justices of the Court of Appeal per Kpegah JA (as he then was) stated at (page 246) of the report as follows “I will therefore venture to state that the position to be a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he [page 307] he leads admissible and credible from which the fact or facts he asserts can properly and safely be inferred. The nature of each averments or assertion determines the degree and nature of the burden.” There being no counter claim by the Defendants they have nothing to establish except where there is evidence of the Plaintiff is weighty against the defendants, then the burden will therefore shift to them to also disprove the Plaintiff claims. The case of the Plaintiff is simply that his predecessors acquired the disputed land by outright purchase from the predecessors of the Defendants and they were given documents to that effect which was tendered in evidence. Plaintiff testified and call one witness and Defendants had their case stated on their behalf by the 4th Defendant and tendered a Judgment of the Supreme Court of Gold Coast Colony dated 11th day of September 1902 Exhibit 1. The crux of the case is that their predecessors did not sell the disputed land outright to the Plaintiff’s predecessors but they entered into a lease of 99 years in the year 1912 and that the lease has expired. Whether a not the disputed land was leased or purchased by the Plaintiff’s predecessors is the bone of contention. Before I tackle the issue mentioned above which in my view is germane, I will first look at the issue of the capacity because it has been raised by Counsel for Defendant since capacity goes to the root of the matter and the law is that the dispute cannot be determine on its merits if there is want of capacity by any of the parties. In Asante-Appiah v Amponsah Alias Mansah [2009] SCGLR 90 at 95 Brobbey JSC stated: “The relevant rule applicable to the instant case, is that where capacity of a person to sue is challenged, he has to establish it before his case can be considered on its merit. In the instant case the defendant challenged the plaintiff right from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defence and in the cross examination of Nana Twum Barima. The plaintiff had to establish his capacity before he could expect the court to have considered his case on its merits. He woefully failed to establish the capacity in which he sued by his reliance on the invalid power of attorney.” Counsel for Defendant should have raised the issue of capacity at the onset if the matter for it to be determined but since the issue of capacity goes to the root of matter it can be raised at any time even on Appeal. Mozama Disco Christo Church v Jehu Appiah [2010] 27MLRG 56 at 75& 73 Kusi- Appau JA stated “It is trite law that the issue of capacity or locus standi is appoint of law which can be raised at any time or stage of the trial even after judgment. See also Kwame v Seriwaa & Others [1993-94]1GLR at 250 ... [page 73] A plea of locus standi is in the nature of an objection _limine._ It strikes at the very root of the writ of civil summons. It is like a plea as to jurisdiction. If it is sustained that must be the end of the matter. This plea connotes that the capacity of the plaintiff to bring this action is challenged…in such a situation the plaintiff cannot succeed without proving the relevant capacity to sue.” Be that as it may the Plaintiff evidence is that he was the former head of family but due to ill health he is no longer the head of the family. Per the writ and the evidence the Plaintiff is not saying the disputed land is a family land for which reason his head of family will be the one to take the action but he sues as successor in title to the disputed land, meaning he has the capacity to bring the action to protect the family property as customary successor The 4th Defendant who testified for and on behalf of the Defendants avers that he is also a successor in title of the subject matter in dispute and an elder of the Nana Nsona family of Agona Nyakrom. The only difference regarding the Defendants case is that the 3rd Defendant has joined the suit as the head of the family. If the Plaintiff and the 4th Defendants are successors in title to the land, then they can sue and be sued. The Plaintiff has not stated anywhere in his pleadings that the land is a family land. He claim the land was purchased by his predecessor Nana Gurey and he is now the successor in title and if there is an issue over the land he succeeded to the customary law entitle him to sue and be sued. Being the customary successor in title he is in control and in charge of the land on behalf of the beneficiaries, as a beneficiary himself I think he can bring this action. In Fosua & Adu- Poku v Pokuaa (Deceased) & Adu-Poku Mensah [2009] SCGLR 310 at 337-338&344 Dotse JSC said; “It is apparent that the second plaintiff was customary successor of the late Kwaku Poku and this was admitted by the defendants in their defence and testimony. Want of capacity is a point of law which if raised goes to the root of the action. The law on the position of a customary successor must then be examined to determine whether or not the second plaintiff is clothed with the capacity In Akrofi v Akrofi [1965] GLR 13-15 **Head Notes** The plaintiff, a native of Buem state, brought an action against the defendant, her paternal uncle, for a declaration that she was entitled to succeed to her late father's properties. She contended that succession in the state was patrilineal and that females, could, in the absence of males, succeed to the self-acquired properties of their father. Since she was the only child of her father, she submitted that she was the rightful person to succeed to his properties. The defendant, though admitting that succession in the state was patrilineal, denied that a female was entitled to succeed to her father’s properties. He maintained that he had been appointed a successor to the properties by the family. **Held:** (1) a successor to the property of a person who dies intestate is appointed by members of the family of the intestate at a meeting convened for that purpose. On the evidence, the defendant had not been appointed by the family to succeed to the properties of the plaintiff's father. (2) Succession to property in Buem state is patrilineal and male children take in preference to female, but where there are no male children, female children are not excluded but are within the range of persons entitled to succeed. (3) Succession to family property does not confer an absolute title but, at most, a determinable life interest; if the successor was still in possession of the property on his death, it goes to the person appointed by the family at a meeting of members of the family convened for that purpose. In Tetteh v Mensah And others [1987- 88]1 GLR 471-485 CA the court had this to say: “Who the customary successor is, is a question of fact. In this action there was ample evidence from the plaintiff and his witnesses that the plaintiff has been appointed to succeed E. Tetteh Adjietor. The defendants not being members of Adjietor’s family could not effectively displaced the evidence of the plaintiff on the issue. There was convincing evidence that the plaintiff is the customary successor of E.T Adjietor. Why the plaintiff and not any other person was appointed the customary successor was not in issue for the trial judge to decide, there are so many reasons why as apparent successor could not be passed over…” The plaintiff as a customary successor was therefore on the authorities cited above, clothed with capacity to litigate on the house which had been alleged to for the late ET. In this case the defendants are not saying that the plaintiff is not the customary successor and as stated in Tetteh v Mensah and others supra, it does not lie in the defendants’ mouth to say that plaintiff is not the customary successor of his predecessor. In applying the laws to the evidence adduced, Kwan v Nyieni [1959] GLR 67 set the general principle and it does not strictly apply to the instant case as the facts of this case can be said to be an exception to the general rule. My conclusion is that the Plaintiff has the Capacity to bring this action per customary law and I so hold. Now to the issue at stake whether or not the disputed land was leased or outright sale The Plaintiff evidence in chief is that the disputed land was sold to his predecessor Kofi Burey by Kojo Okyil absolutely and he paid the sum of Forty one pounds being the purchase price of the said land which was receipted. He contended that Kofi Buray cultivated cocoa on the land and when he died he was succeeded by Kwaku Sam and after Kwaku Sam came Kofi Akwatu and after Kofi Akwatu he succeeded the cocoa farm and he has tenants on the farm who accounts to him. PW1 said he has been farming on the land and accounts to the Plaintiff. The Defendants are saying that their forebears entered into 99 years lease with the Plaintiff’s predecessors which has expired and that the transaction was not an outright sale. The Plaintiff tendered in evidence Exhibit “A” which is the document covering the land and the receipt for the money paid. Counsel for Defendants attempted to cast doubt on the Exhibit ‘A” but I have looked at the document and I cannot see how counsel for Defendants was able to cast doubt on Exhibit ‘A”. The document Exhibit “A” pass to me as genuine document evidencing the transaction between Kofi Burey and Kojo Okyere. I have looked at the Exhibit “A” over and over again and I am convinced that it emanated from Defendants predecessors. The case of the defendant I must say is weak because they did not show evidence of the lease apart from saying it in the pleadings and repeating it in the witness box. That allegation is unsubstantiated, since they doubt Exhibit “A” as emanating from their predecessor, their best bet is to call contrary evidence but not to repeat the averment in the witness box. They pleaded that their forbears did not sell the disputed land outright to the predecessors of the plaintiff so they bear the onus to establish this allegation which is the crux their case but they failed woefully. **In Re Ashalley: Botwey Lands, Adjetey Agbosu & Others Kotey & Others [2003-2004]1SCGLR 420at 444 Wood JSC (as she then was) stated: ** “It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323) the burden of producing evidence in any case is not fixed but shifts from party to party at various stages of the trial, depending on the issues asserted and denied.” In Abbey & Others v Antwi V [SCGLR 2010] 17 at 25-26 Ansah JSC said at [page 25] As stated, the co- defendant pleaded in paragraph (11) of his amended statement of defence that; “In answer to paragraph (13), (14) and (15) of the plaintiff’s statement of claim the co-defendant says that the purchase price of the land was not solely furnished by Ofiman but because Ofinam was the elder brother and educated he acted as the leader and consequently his name was used in all transactions and documents.” By this pleading, the issue who acquired the disputed land was thrown into issue to be resolved by evidence. That was more so as the Plaintiff denied this paragraph 11 of the amended statement of defence in his [page 26] reply to the co-defendant amended statement of defence. The onus was on the plaintiff to prove his assertion of sole purchase whilst the defendants bore the onus of proving their case of joint purchase by Ofinamand Osimpo his predecessor in title.” And in Bakers-Woode v Nana Fitz [2007-2008] 2 SCGLR 879 at Holding (2), The Court stated thus; “Since the defendant claimed that the admitted oral contract between himself and the plaintiff had been rescinded by mutual agreement, the persuasive burden clearly was on him to prove that assertion, _ei incubit probatio qui dicit, non qui negat_. This burden of persuasion, defined under section 10(1) of the Evidence Act, 1975 (NRCD323) as meaning “the obligation of a party to establish a requisite of degree of belief concerning a fact in the mind of the tribunal of fact or the Court” remains on the defendant, even if the evidential burden shifts as a result of any assertion made by the plaintiff in response of his claim. The common law has always followed the common sense approach that the burden of persuasion in proving all facts essential to any claim lies on whoever is making the claim. The defendants did not show any documentary proof neither did they call any tenant of theirs who also got such lease from their forbears. They challenge the assertion by the plaintiff that they bought the land outright and they claim they have such tenants as the plaintiff who’ they are renegotiating with but they fail to call any of such tenants to testify in proof of such a significant assertion in the absence of any documentary evidence of the 99 years lease. The position of the Defendant had been more appropriately described by Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS. VRS. KOTEY & ORS. [2003 – 2004] SCGLR 420. In his supporting opinion Brobbey JSC stated of a Defendant at a trial in Holding 5 as follows: “The effect of Sections 11(1) and 14 and similar Sections in the Evidence Decree 1975 may be described as follows: 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 realize 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 …” Majorlagbe v Larbi (1959) GLR 190 as follows-: “… a person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden” They claim the lease as expired per my estimation the lease allegedly expired in 2011. Since the 99 years was entered into in 1912. If that allegation were to be true that the lease has expired, why have they waited all this while to recover the land? It can be inferred from the evidence adduced that the defendants only want to test waters to see what may come out of their action and not that they honestly believe that their predecessors entered into a lease of 99 years agreement with the Plaintiff predecessor. Base on the above analysis and application of the law I prefer the Plaintiff’s case to that of the Defendants and I find as a fact that the disputed land was sold outright by the predecessors of .the defendants to the plaintiff’s predecessors and I so hold. Let me turn my attention to the issue of trespass and damages; The Plaintiff alleges that the 1st Defendant granted the land to the 2nd Defendant whom they discontinued the case against and said they are entitled to GHC26,400.00 which in their pleadings they particularized as one double axel load of sand at one thousand three hundred (GHC 1300.00) and multiplied by 22 trips. The Defendants denied in paragraph 2 of their statement of defence all the allegation made by the Plaintiff from paragraphs 1 – 12. The Plaintiff I must say did not support their claim in respect of the above with any cogent evidence. They said they reported the matter to the police yet they did not tender in any such report they also discontinued their claim against the 2nd Defendant (the alleged sand winner) but they fail to call him to come and give evidence and they did not show why they failed to call him but the reason why they failed to call him can be guessed. The law is that specific damages unlike general damages must be established since it is not at large. Let me say that I do not know where the plaintiff’s got their figures from which they relied on since they did not call any one with knowledge in sand winning or block manufacturing to testify, and they did not tender any invoice showing the cost of the sand per axle load so that part of the claim will be dismissed for lack of cogent evidence demonstrated above. The evidence adduced clearly shows that the defendants indeed went onto the disputed land unlawfully since they have not been able to persuade the court that their predecessors had 99 years lease with the plaintiff‘s predecessors which constitutes trespass. The plaintiff said the land has been degraded because of the sand winning activities that was caused by then 2nd defendant due to the unauthorized or illegal grant made by the other defendants but again was unable to show the extent of the degradation. Apart from the Plaintiff not able to establish his claims in respect of specific damages as I have said already, he described the conduct of the defendants has unlawful and criminal. Having described the conduct of the defendant acts as unlawful and criminal this court cannot make an order compelling the defendant to account to the Plaintiff for an unlawful acts which he reported to the police. In my view the rights of the Plaintiff may lie in the damages caused to his land by way of trespass which he can be compensated for but not the proceeds from the sand winning activities in case the miner has no licence to mine as the case may be. Reference is made to article 257(6) of Constitution, 1992 and Mineral and Mining Act 703 as amended. Sections 72-75 of Act 703 deals with compensation and resettlement issues and it states that compensation is payable to owner or lawful occupier of land for disturbances of surface rights… So if the other defendants gave the then 2nd defendant permission to mine the sand illegally then it is the State responsibility through its agents to stop the illegality and exact punishment against the perpetrators of the illegality against the State that has the mineral rights and not for the plaintiff to benefit from that illegality by seeking to recover the money that accrued from that illegality. In view of the foregoing I will award general damages of GHC10,000.00 and cost of GHC10,000.00 in favour of the plaintiffs. Plaintiff claim succeeds in part and the Defendants, their privies, workmen, assigns and anyone claiming through them are hereby perpetually restrained from interfering with the Plaintiff’s peaceful enjoyment of the disputed land. Kojo Anan for the Plaintiff. Victor Yankson for the Defendants. (SGD) H/H JONATHAN DESMOND NUNOO (CIRCUIT COURT JUDGE)