Noagbe and Another v Osabarima and Others (A1/38/2021) [2025] GHACC 57 (21 March 2025)

INTHECIRCUIT COURT HELDAT ANYINAM ON FRIDAY21ST MAR. 2025, BEFOREHIS HONOURFRANKLINTITUS-GLOVERESQ(JUDGE) SUITNO.A1/38/2021 DANIEL NOAGBE &ANOTHER PLAINTIFFS VRS OSABARIMA OTU DARKO &3 OTHERS DEFENDANTS JUDGMENT The plaintiffs claim the following reliefs: A) Declaration of title and recovery of possession of two plots of land situated at Osino, measuring approximately 100x100fteach. B) Damages ofunlawfultrespass untoplaintiffs’respective lands. C) Order for perpetual injunction to restrain defendants, their agents, assigns and all their associated members from having any dealings with the disputed lands. D) Cost. The defendants onthe other hand filed acounterclaim asfollows: 1. Declaration thatthe disputed landsbelong tothe defendants. 2. Perpetual injunction to restrain the plaintiffs, their agents, assigns and privies fromentering the disputed lands. 3. Legalcosts. 4. Damages. To prosecute their case, the plaintiffs filed separate witness statements and filed another for their common witness, Samuel Amakye Kwanin, as well as exhibits 1 including receipts purportedly issued them when they purchased their respective lands, indenture covering the said transaction, letter received from Ghana Highway Authority instructing them to halt construction on the disputed lands, and photographsintended toevidence their development ofthe lands priorto the alleged instructiontostopworkonthe land. The testimony of Daniel Noagbe is that the plaintiffs obtained the two disputed plots from the then chief of Osino, Osabarima Osampanin III in 2004 and were consequently allocated receipts by the Plot Allocation Committee of Osino, as well as a deed of lease executed by the said chief. 1st plaintiff planted a mango, a pear and some plantain on the land. In 2005, he started developing the land by constructing a foundation of a building thereon. However, they were stopped by Ghana Highway Authority from further development due to alleged government construction of dual-carriage road in that will include the disputed land. He says that though the said construction had not occurred as at the time of testifying in court, they have been in charge of the disputed lands without let or hinderance from anyone until he was summoned before the chief in 2021 to explain why they had not developed the land after severalyears of acquiring same contrary to the terms and conditions of the lease agreement. Consequently, the chief requested them to produce a letter from Ghana Highway Authority proving that they stopped the plaintiffs from further development of their respective lands. However, the Plot Allocation Committee issued them a letter stating that they had repossessed the disputed lands, consequent to which the 3rd defendant entered same a few days later and destroyed the constructionsthereon. During cross-examination, the 1st plaintiff said he paid for the land at the palace. He explained that if a purchaser paid for the land to the chief, the latter knows how to disburse same to the various beneficiaries. Consequently, after the said payment, a certain Papa Yaw Oduro, a native of Osino, came to inform him that he had received his share of the money from the chief. He further admitted that he was aware of the 2 conditionforapurchaser todevelopthe land within two yearsofpurchase otherwise same reverted to the chief. He however explained that in 2005, he had developed his house to his waist level while the 2nd plaintiff had built to the window level, but the 3rd defendant, Kofi Badu, demolished the structures on the land. He insisted that he reported the matter to Osino police who effected the arrest of the 3rd defendant. he subsequently insisted that while he was developing the land within the two-year period that the Ghana Highway Authority stopped him from further development. The 1st plaintiff explained that the letter he obtained from the Highways was dated 15th July 2021 because he obtained same after the 1st defendant had requested proof of his claim that the Highway Authority had stopped his development. Consequently, the said letter was dated when he requested the copy to be given to the chief. He denied that the indenture was defective owing to the signature allegedly signed by Osabarima Osampanin IIandthe 50-year lease term. The evidence of the 2nd plaintiff was a virtual corroboration of the first plaintiff’s to the effect that the plaintiffs acquired the lands in 2004, were in the process of developing them when the Ghana Highway Authority stopped them among other land owners in the area due to a proposed road construction. Her addition to the 1st plaintiff’s evidence was that consequent to the Ghana Highway Authority instruction, the latter took their details for compensation for taking their land for the road project. However, the current chief of Osino invited the plaintiffs to explain their failure to develop their respective lands contrary to terms of the lease agreement. Subsequently the 3rd defendant trespassed on the lands to destroy their structures on same, and together with the other defendants, have prevented them fromfurtherdeveloping the lands. When the 2nd plaintiff was cross-examined, she explained that the dates on the plaintiffs’ respective documents vary even though they purchased their respective plots at the same time was because they secured their individual documentations at different times, owing in hercase tolack offunds to process them. 3 The plaintiffs’ common witness, Samuel Amakye Kwaning, a surveyor, testified that in 2004, the 2nd plaintiff told him about their interest to purchase the disputed lands and requested an indenture from him. Consequently, he surveyed the respective lands of the plaintiffs and prepared a site plan and indenture for them to send to the vendor, the late Osabarima Osampanin III to sign and same was executed. He states further that the 3rd defendant led a group offamily members who approached him to survey a larger tract of land which included the plaintiffs’ land. As a result, he confronted the 3rd defendant on the fact of the plaintiffs’ land being part of the land assigned for survey, but the 3rd defendant told him to ignore that and go ahead with the assignment because he had already met the plaintiffs. Consequently, he went ahead to prepare a site plan as the 3rd defendant had showed him. While surveying the land, he saw that the plaintiffs had building structures on their respective lands but was later informed by the 2nd plaintiff’s mother that the said structures had been destroyed by the3rd defendant. In his cross-examination, the plaintiffs’ witness who prepared their respective indentures corroborated 2nd plaintiff’s evidence that he did hers later due to her lack of funds. Explaining why 2nd plaintiff’s indenture was for 99 years whiles 1st plaintiff’s was for 50 years, the witness said a former plot allocation member instructed him to do so because she is a woman educating her children. He argued that if thechief did notapprove ofsame, he would have rejectedit. The 1st defendant’s testimony was that the norm in Osino over the years regarding persons purchasing land was for them to develop same within two years, failure of which the land reverted to the stool for reallocation to another. However, in 2015 he revised the norm to include informing the purchaser of the condition to develop the land to window level within two years, failure of which the purchaser is given the option of renewing the transaction for another two years or to vacate the land. If the purchaser fails again to construct within the second two years, ownership and all interestsin the land thenrevertstothe stool. 4 It was the further evidence of the 1st defendant that sometime in 2019, the Plot Allocation Committee reported to him that they had realized that there was some long stalled or abandoned development on the disputed lands below the window level. Consequently, he asked his linguist to invite the plaintiffs to the palace but they refused to honour the invitation. They rather presented an indenture purportedly given to them by the late former chief of Osino, Osabarima Osampanin III. The 4th defendant showed the said indenture to him but he detected same not to be authentic, explaining that the signature on the indenture was not the late chief’s. He also detected that the interest assigned to the plaintiffs was for 50 years which could not be the case at the time the alleged lease occurred because the 50-year lease agreement commenced only some two or three years ago, following a declaration to that effect at a State Council meeting over lands in the Akyem Abuakwa Traditional Area. Consequently, he started leasing lands for 50 years instead of the previous 99 years. The chief of Osino stated furtherthat he again invited the plaintiffs to the palace, and though they complied this time, they brought copies of the same defective indenture and some receipts. He consequently rejected the documents again but the plaintiffs informed him that the Ghana Highway Authority had intentions to acquire the disputed lands which stopped them from further construction or development of the lands. He asked the plaintiffs to show proof of their claim but they got angry and threatened tosue themin court. Concluding his evidence, the chief said it was during that time that he realized that the disputed land belongs to the 3rd defendant’s family who had no record of having beencompensated. Explaining the process a person goes through to acquire a land at Osino in crossexamination, 1stdefendant and current chief ofOsino said as follows; 5 “Ifsomeone needsaland, theyapproachthe plotallocation committee…andthey will dealwithyou.” He also said the chief of Osino, with the consent of his elders, can also grant lands to individuals. He explained that when the chief gets involved, it means the developer is engaged in a project, but for individuals it is the plot allocation committee that engages them. He disagreed that his revised norm of acquiring land in Osino should not affect the plaintiffs since they did not acquire the disputed lands during his tenure because they were not developing the land when he resumed rulership of the stool. He confirmed that the members of the plot allocation committee told him that the structures on the plaintiffs’ lands were only two layers of block work on the foundation. Though the chief confirmed he demanded and received evidence from the plaintiffs that the Ghana Highway Authority had written to stop them from further developing the land due to the impending road construction, he said he did not believe the said construction was the reason the plaintiffs stopped their respective developments. He insisted that in the case of the 2nd plaintiff, lack of funds was the reason she stopped further developing her land. He admits the is currently aware of the road construction but he is reclaiming the land from them because of their inability to continue. He also realized that the alleged signature attributed to the formerchief onthe indenture did not belong tohim. The 2nd defendant told the court that sometime in 2021, a certain Nana Akua was at the palace requesting to buy land whereupon the chief asked them to lookfor one for her. The Plot Allocation Committee informed them that there was an abandoned land that could possibly be sold to the said woman. They inspected the said land, obviously the instantly disputed ones, and returned a report on same to the chief, being 1st defendant. The rest of the evidence was a corroboration of 1st defendant’s information that at the invitation of the plaintiffs, they submitted defective documents in support of their lease agreement, which documents the 1st defendant rejected for the reason of the alleged defects, the plaintiffs’ explanation that Ghana 6 Highways Authority had stopped them from further development of the land, and the plaintiffs’ expression of anger when they were asked to produce evidence of their explanation. The 2nd defendant denied selling the land to the 3rd defendant since he did nothavethe authority todo so. The 2nd defendant admitted in cross-examination that he was aware the land in dispute was takenover by Ghana HighwaysAuthority for road construction. He also confirmed that he saw a foundation on the plaintiffs’ land when the chief sent him to inspect same. The 3rd defendant told the court that the disputed land formed part of a 6-acre land that originally belonged to his Agona family of Osino, having been in occupation of same forsome 200years. His further testimony was that sometime in 2021, the 2nd defendant who is his older cousin, and acertainOpaninAyim instructed him to engage asurveyortosurvey the entire parcel of land. Subsequently he heard the plaintiffs laying claim to the disputed land, alleging that Opanin Yaw Oduro had sold the lands to them, but which claims he denies. The subsequent evidence repeated the sequence of 1st defendant requesting the plaintiffs to produce evidence of their purchase, the rejection of same by the 1st defendant upon his detection that the documents were fake, defective or invalid. He further denied destroying any construction on the plaintiffs’ land, nor has he and the 4th defendants bought the plaintiff’s respective lands. When DW3 was cross-examined, he admitted that when a land is granted to an individual by the chief, the family in possession of the land deals directly with the chief but not with the individual purchasing the land. he admitted that Opanin Yaw Oduro is his uncle, but could not tell if his said uncle received compensation from the chief in respect oftheplaintiffs’lands. 7 The 4th defendant informed the court that as part of the Plot Allocation Committee duties (he was appointed chairman in 2017) they occasionally went fishing out for abandoned parcels of land for the stool to reclaim, one of which occasions they identified the plaintiffs’ respective lands. He said he was the one to whom the plaintiffs brought their land documents for onward handing over to the chief. He believed that the former chief would not have signed an indenture without a site plan, as was the case of the plaintiffs’ in the instant case. The rest of his evidence was a virtual repeat of the chief’s evidence; the change of norm for purchasing land in Osino and related conditions, the plaintiffs’ invitation to the palace and the subsequent rejection oftheir documents etcetera. During cross-examination, the 4th defendant admitted that the plaintiffs’ original receipts were indeed Osino plot allocation committee receipts, consequently admitting that the previous administration had granted them the lands. He further admitted that the plaintiffs had constructed structures on their lands but he denied that the said projects reached window level. He explained that he personally became aware of the road construction when the plaintiffs submitted evidence of same in court. He finally admitted that there is a road construction currently going on at the site designated for the plaintiffs, explaining that it is not only the plaintiffs herein who had beenaffected by the said construction. Theissue to resolve iswhether or notthe plaintiffs are entitled to recoverthe disputed lands, or same are to revertto the defendants. Sections11(4) and 12(1) oftheEvidence Act, 1975(NRCD 323)as emphasized inthe case ofADWUBENGV.DOMFE [1996-97] SCGLR 660@670clearly provide thatthe standard ofproofinallcivil cases without exception,is proofbyapreponderance of probabilities. The legal position that either party in a dispute such as the instant one proves title, mode of acquisition and various acts of possession exercised over the subject matter 8 of dispute on the balance of probabilities, is a time-tested principle. See MUNDIAL VENEER (GH) LTD V. AMUAH GYEDU XV (2011) 1 SCGLR 466. It is also trite that, for a stool, family or individual to succeed in an action for a declaration of title, it must prove its method of acquisition CONCLUSIVELY (Caps mine), either by traditional evidence, or by overt acts of ownership exercised in respect of the subject matterofdispute. See ODOI VRS. HAMMOND [1971] 2GLR375and FOSUA ADU-POKU VRS. DUFIE (DECEASED)&ADU POKU MENSAH[2009]SC GLR310. While the plaintiffs claim that beyond acquiring their respective plots of land legitimately from the former chief of Osino per existing terms and conditions, but had to abandon their respective projects thereon due to notification to them by the Ghana Highways Authority that the said lands had been designated for road construction, the defendants on the other hand assert that per subsequent terms and conditions implemented by the current chief of Osino, they have reclaimed the disputed lands from the plaintiffs. It will however appear to the court that with the obvious acknowledgement of the fact that Ghana Highways Authority is indeed undertaking a road project at the said site, the interest of the respective parties in claiming ownership of the disputed lands is merely to determine which party is entitled to the anticipated compensation to be paid by the Government or Ghana Highways Authority as the case may be. The said condition characterizing plaintiffs’ alleged acquisition, according to 1st defendant’s witness statement, (and same corroborated by all the defendants’ respective witness statements) required purchasers to develop their lands within two years of purchase, in the absence of which the land reverted to the stool for reallocation. It appears to the court that the consequence was that the purchaser outrightly lost the land to the stool without any opportunity of reallocation if they failed to wholly develop same within the stipulated two years. There did not appear a definition constituting “developing” the land, which could suggest that a whole building project, irrespective of its size or 9 value, was to be completed within two years. If it was indeed the case, it would be quite a harsh condition for the average purchaser of a land in Osino. That could be, in the estimation of the court, part of the consideration the current chief took, having obviously noticed the harshness, to revise the said conditions to include the opportunity for renewal of the acquisition for another two years, after which if the situation remained the same, the purchaser then lost the land to the stool. It is also significant to note that another reform the new norm birthed was specifying the definition of “development” of the land to mean the building project must at least reachwindow level. The court finds however that the otherwise commendable and innovative initiative is not extended to the plaintiffs in the instant case in which the “reforms” are eliminated in the defendants’ quest to reclaim the plaintiffs’ respective plots without giving any reasons. The evidence adduced before the court shows that the said plots of land were recently “discovered” by the plot allocation committee when a certain Nana Akua wanted land to buy and the committee then went fishing for abandoned plots of land. That was when they realized that the plaintiffs’ plots had been “abandoned” and they sought to reclaim same, but which effort the plaintiffs resisted, culminating in the instant suit. The question is, despite the amount of time that had elapsed between 2004 when the plaintiffs allege they acquired the plots, and the recent determination of defendants to reclaim same, why will the defendants not implement the reforms in the instant case to include the opportunity for plaintiffs to renew their acquisition, on the assumption without necessarily admitting that the 1st defendant had the right toreclaim them? The court realizes that despite the seeming brilliance of the intended reforms by the current chief, there still remain implementational absences that will confine same to the realm of resistance from purchasers who may for good reason be unable to attain unto the window level minimum limit, particularly if the condition to renew the acquisition appearsdeliberatelywithheld fromthem. 10 In the light of the plaintiff’s claim that they were aware of the condition attached to their acquisition, and for which reason they actually commenced their respective projects on the acquired lands but abandoned them because of the notification by Ghana Highway Authority, is the 1stdefendant’squest toreclaim the land reasonable? The 1st defendant admitted in court that the plaintiffs provided evidence to prove the alleged notificationfromGHA, and has in fact subsequently become aware thatthere is indeed a construction of the said road where the disputed lands are, which situation should have closed any efforts by 1st defendant further pursuit of the lands. However, it appears he has discarded that in favour of alleged discrepancies or unprovedallegationoffake signature ofthe formerchief. The court finds that the said allegations must be proved, which proof unfortunately are absent in the instant case. Since the defendants were the ones alleging that the plaintiffs’ documents were fake or defective, it was for them to prove same. But assuming without necessarily admitting that there was proof of the alleged discrepancies, a burden rested still rested upon the defendants to prove that the said discrepancies were attributable to the plaintiffs, i.e., that they are or were responsible for same, with or without fraudulent intent. It would even be better if fraudulent intent could be established, since as themaxim goes, fraud vitiates everything. In the absence of any concrete counter proof by the defendants that the plaintiffs merely failed to meet the conditions of their acquisition, for which the court must deemthemto have abandoned the disputed land, and in the absence ofa reasonwhy plaintiffs are not entitled to implementation of conditions of the new norm, (i.e. renewal of purchase instead of the stool reclaiming same), the court will uphold the plaintiffs’ evidence that their inability to continue was due to the instruction by GHA to halt development owing to the impending road construction. The court does not accept the 1st defendant’s mere disbelief that the GHA instruction is the reason the plaintiffs failed to develop their respective lands. The court also rejects 1st 11 defendant’s unsubstantiated assertion that the 2nd plaintiff failed to develop her plot because of financial difficulties. If indeed it was for financial difficulties that she was unable to continue developing her land, then that is all the more reason that the stool must relookat theconditions forfurtheramendments. The defendants’ own admission that there were building structures on the plaintiffs’ respective plots at various stages is ample evidence that they each commenced building projects on the land. Further, the defendants’ own description depicting that the said structures were commenced long ago is testimony ofwhen the plaintiffs could have started the said projects. Consequently, between the parties respective evidence, it appears to the court more likely that the plaintiffs were at various stages of construction when they were halted by the GHA. If the defendants had been diligent or had a more structured way of monitoring purchasers and the implementation of the accompanying conditions, it would not have taken them the number of years it did to notice that the plaintiffs lands had not attained the standard warranting same to be reclaimed by the stool. If indeed the 3rd defendant tempered with the structures on the plaintiffs’ lands, that circumstance will quite clearly make it difficult to determine the true levels which the structures attained. In any case, since it appears the plaintiffs were not accorded the benefits of the reform in the defendants’ effort to reclaim their plots, it was irrelevant to use the level of their respective stages of development in any assessment. It should not appear that the defendants went shopping for a reason to take the plots from the plaintiffs at all cost when the former discarded the plaintiffs’ proof per letter from GHA and pursued the allegation of fake land documents as well as questions of right or wrong signature oftheformerchief thereon. The effort of the 1st defendant to prove that the signature of the former chief as appeared on the face of the plaintiffs’ documents was discredited involved the submitting documents purportedly signed by the said chief for comparison with the one on plaintiffs’ documents purportedly authored by him. Unfortunately, that 12 would amount to an invitation to the court to make the said comparison by ocular observation. The court however thinks that, that kind of observation may better be done by expertanalysis ratherthanby this court’s mereobservation. This court finds that the plaintiffs submitted receipts evidencing their purchase, and has no reason to question their authenticity or purpose in respect of the instant matter. In fact, the current Chairman of the Osino Plot Allocation Committee identified and acknowledged the said receipts as authentic documents from the said committee at the time the plaintiffs purchased their respective lands. The surveyor testified to preparing their respective indentures, explaining why they were prepared at different times though the plaintiffs purchased the lands at the same time. He also testified to alerting the 3rd defendant that the plaintiffs had purchased the disputed lands when the former engaged him to do some work on a larger piece of land that engulfed the disputed lands. On the question of compensation, the 3rd defendant admitted in cross-examination that the said Op. Yaw who plaintiff alleged informed him of taking his share of the sale amount from the former chief is his family member. He again told the court that if indeed the said family member took a compensation, he wasnot in aposition tosay so orotherwise. Considering all the evidence adduced, this court finds that the plaintiffs have demonstrated per oral and documentary evidence that they did not only purchase the disputed lands, they also started construction of buildings on them. Their assertion that they only stopped construction at the instruction of GHA, particularly because they intimate that they were aware of the condition to develop the land within a specified period or risk losing the lands, is reasonable to the court. As has been mentioned above already, the reform by the current chief was to ease the burden of purchasers having to complete their building projects within two years, but who have genuine reasons for not completing on schedule. It must therefore not appear in this instance, despite the long lapse of time, that the 1st defendant is only interested in reclaiming the disputed lands. In this instance that it is obvious that a 13 road construction has consumed the disputed land, same cannot be reallocated to the said Nana Akua whose request for land led to the “discovery” of the land in the first place. The only interest left is the one to receive compensation likely to be paid by the construction company. As has been determined already, the plaintiffs herein have adequately demonstrated their occupation and possession of the disputed land over time, compared to the defendants. Consequently, thecourt finds forthe plaintiffs as follows: 1) Declaration of title and recovery of possession of the two disputed plots of land situated atOsino, measuring approximately 100x100fteach. 2) The court makes no orders as to damages of unlawful trespass unto plaintiffs’ respective lands since it is obvious that the alleged trespass, if indeed same occurred, was subsequent to the instruction from GHA, at which time the plaintiffs already had notice that the land will be taken by the road construction. 3) Similarly, the order for perpetual injunction to restrain defendants, their agents, assigns and all their associated members from having any dealings withthe disputed landsalso appearsmoot. 4) Cost ofGhC5000.00 isawarded against each defendant for theplaintiffs. Consequently, theentire counterclaimofthe defendantsis dismissed. I so order. H/HFRANKLIN TITUS-GLOVER 14 15