BOADI VRS. AWERE AND ANOTHER (A2/09/2023) [2025] GHACC 11 (28 February 2025)

1 IN THE CIRCUIT COURT JUASO HELD ON FRIDAY, THE 28TH DAY OF FEBRUARY, 2025, BEFORE HER HONOUR NANA ASANTEWAA ATTAKORAH CIRCUIT COURT JUDGE. A2/09/2023 MICHAEL BOADI } PLAINTIFF HOUSE NO. KAT 9 BLK 8 ODUMASI - ASHANTI VRS 1. NANA OHEMENG AWERE 2. OHENEWAA CHARITY } DEFENDANTS ALL OF HSE. NO. OD 14 BLK 3 ODUMASI - ASHANTI ================================================================================== JUDGEMENT =================================================================================== The Plaintiff caused to be instituted this action against the Defendants jointly and severally for the following reliefs; a. An order for recovery from the Defendants the sum of One Hundred and Thirty-Nine Thousand Ghana Cedis (GH¢ 139,000.00) being the cost of the Farmland, Preparatory works and Cost of Litigation. 2 b. Interest on relief (a) from date of judgment till date of final payment. c. Cost of instituting this action including legal cost and d. Such further order(s) as this Honourable Court may deem fit. Upon service of the Writ of Summons on the Defendants, they entered Appearance on the 13th day of January 2023 and filed a Statement of Defence on the 1st day of February, 2023. At the Application for directions stage, the following issues were set down for trial; a. Whether or not by representations made by the 1st Defendant to the Plaintiff, the Plaintiff paid adequate consideration for the acquisition of the farmland from the Defendants. b. Whether or not as a result of a dispute in court on the farmland, the Plaintiff has lost possession of the farmland acquired from the Defendants. c. Whether or not the Defendants supported the Plaintiff during the dispute over the farmland the Plaintiff acquired from the Defendants. d. Whether or not the Plaintiff has lost an amount of about One Hundred and Thirty Nine Thousand Ghana Cedis (GH¢139,000.00) as a result of the dispute over the farmland. e. Any other issues raised by the pleadings. The basis for Plaintiffs action as gathered from the accompanying Statement of Claim, Witness Statement and Cross Examination is that the 2nd Defendant is the daughter of the 1st Defendant and the 1st Defendant by a Statutory Declaration dated 8th February, 2016 caused a transfer of all that piece of farmland which is situate at a place commonly known as "KWAMPONTWOA" on Odumasi Traditional area bounded by the properties of Madam Amma Aninwaa, Kwabena Agyekum, Madam Sakyiwaa and the Odumasi/Agyareago Motor Road to him. He tendered the Statutory Declaration in evidence as Exhibit A. According to him, at all material times, the 1st Defendant represented to him that his daughter, the 2nd Defendant herein is the owner of the Farmland and he had the express permission of the 2nd Defendant to transfer the Farmland to him. He commenced preparatory works on the Farmland including clearing of the land, 3 acquiring a transformer with adjourning neighbours for the supply of electricity, construction of structures among others. He indicated that the cost of the Farmland together with the Preparatory Works is estimated at an amount of about Eighty-Nine Thousand Ghana Cedis (GH¢ 89,000.00). However few months after he took possession of the Farmland, there were adverse claimants to the farmland which led to a court action in this very court titled MICHAEL BOADI VRS KWABENA AGYEKUM & ORSS SUIT NO. A1/09/2018 but the Defendants failed to support him and refused a request by him to testify on his behalf especially when the Defendants were his grantors. The Court differently constituted delivered judgement on September 11th, 2020 against him in favour of the adverse claimants who were the Defendants therein. He tendered the judgment in evidence as Exhibit B. He went on to say that he relied on the representations made to him by the 1st Defendant in respect of the ownership of the Land to acquire the Farmland from the 2nd Defendant who was duly represented by the 1st Defendant. The Defendants knew or ought to have known that the Farmland belonged to someone else for which reason they did not have the authority to deal with same. He indicated that the cost of the above-mentioned suit was about Fifty Thousand Ghana Cedis (GH¢ 50,000.00). He also stated that the misrepresentations and the conduct of the Defendants has cost him a total sum of about One Hundred and Thirty-Nine Thousand Ghana Cedis (GH¢ 139,000.00) being the cost of the land, Preparatory Works and the Cost of Litigation. According to him, the general conduct of the Defendants suggests that their actions were intentional and intended to deceive him. He continued that he has made persistent demands on the Defendants to refund the cost incurred but they have refused to pay which has caused him to suffer severe hardship which has gravely affected his business. In conclusion he prayed for the Court to compel the Defendants to refund the said amount as he is entitled to all the 4 reliefs endorsed on the Writ of Summons and the Statement of Claim. The Plaintiff called a witness in support of his case. PW1 is Justice Kwame Akrasi. According to him, the 1st Defendant is his nephew and the 2nd Defendant who is the 1st Defendant's daughter is his granddaughter. He went on to say that the farmland in dispute is situate and lying at a place commonly called and referred to as "KWAMPONTWOA" on Odumasi Traditional area farmland bounded by the properties of Mad. Amma Aninwaa, Kwabena Agyekum, Donkom road and the Odumasi/Agyareago Motor Road ("Farmland") and he took over cultivation of same from one Osei Bonsu who cultivated it in the past. He cultivated the Farmland for about Fifteen (15) years until sometime in 2016 when the 2nd Defendant informed him that she had sold it to the Plaintiff so he should vacate same for the Plaintiff to take possession. He went with the parties to the Farmland to show the Plaintiff the boundaries. According to him the Farmland was very bushy and the place was under developed when the Plaintiff took possession of it so he cleared the Farmland and fixed a Transformer for extension of electricity to the location at his own cost and also constructed structures on the land. He stated that he is unaware of the kind of support the Defendants gave to the Plaintiff in defending the Farmland both at Arbitration and at Court but he got to know that the Plaintiff lost the case in Court. He added that he witnessed the sale of the Farmland by the Defendants to the Plaintiff and to the extent that the Plaintiff incurred cost in getting electricity to the place by acquiring a Transformer single-handedly and incurring cost in litigating over it in Court, the Plaintiff is entitled to his reliefs before this Honourable Court. The 1st Defendant gave evidence for himself and on behalf of the 2nd Defendant. According to him the 2nd Defendant is his biological daughter and she had about one (1) acre Farmland situate and lying at a place commonly known and called "Kwapontwoa" on Odumasi Stool 5 Land and bounded by the properties of Kwabena Agyekum, Amma Aninwaa, Maame Sakyiwaa and Agyariago - Odumasi road gifted to her by two of her uncles. However, in the year 2016, the 2nd Defendant authorized him to dispose of the property described above and the Plaintiff expressed interest in purchasing same. After making enquiries from boundary owners including Kwabena Agyekum, it was established that the subject matter belonged to the 2nd Defendant so the Plaintiff agreed to purchase it at an amount of Three Thousand Ghana Cedis (GH¢3,000.00) and the subject matter was transferred to the Plaintiff by a Statutory Declaration dated 8th February, 2016. After taking possession of the farmland, the Plaintiff started developing the subject matter and he trespassed unto the land of one boundary owner called Kwabena Agyekum and the matter was sent to the Odumasi Chief's Palace for arbitration where the dispute was settled and the boundaries set for peaceful occupation and possession. The Plaintiff dissatisfied with the outcome of the arbitration instituted an action before this Honourable court differently constituted and the Plaintiff at all material times during the court proceedings never invited any of them to testify since he trespassed unto somebody's land. According to him, after disposing off the subject matter in dispute, they were not interested in how the Plaintiff was going to develop it so it was during the arbitration at the palace that they got to know that the Plaintiff had developed the subject matter together with Kwabena Agyekum who is an adjoining boundary owner. The 1st Defendant contended that the subject matter in dispute was the bona fide property of the 2nd Defendant and as such she had the right to dispose it off so they never sold any property which does not belong to them. He added that they have not behaved in any way to cause hardship to the Plaintiff as he is claiming hence it is their humble prayer that this Honourable court dismisses the Plaintiff's claim as it has no merit. 6 Section 11(1) of the Evidence Act 1975 (NRCD 323) (hereinafter referred to as the Evidence Act) provides; “For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Under the Evidence Act, the burden is categorized into two (2) heads namely the burden of persuasion and the burden of producing evidence. Under Sections 10(1) and 10(2) of the Evidence Act the burden of persuasion as follows; 10(1) “For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court” 10(2) “The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond reasonable doubt” It is a basic principle of law of evidence that a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality of credibility, short of which his claim may fail. It is also trite that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. See: Section 11 (4) of the Evidence Act (NRCD 323) Ackah Vrs Pergah Transport Ltd & Ors (2010) SCGLR 728 Gihoc Refrigeration & Household Products Ltd. Vrs Hanna Assi (2005-2006) SCGLR 458. Section 12 (1) of the Evidence Act provides that “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” 7 Section 12 (2) of the Evidence Act defines preponderance of probabilities as “that degree of certainty of belief in the 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.” See: Harrison Edward Nartey Martin vrs Barclays Bank (GH) Limited Civil Appeal No. J4/42/2017 delivered on the 13th day of December, 2017. Again, it is the party who alleges who must prove and because the action is initiated by the Plaintiff, it rests on him. It is therefore, the Plaintiff who generally must prove his case on a preponderance of probabilities. Counsel for the Plaintiff filed a Written Submission and argued that the conduct of the Defendants throughout the arbitration proceedings and their decision not to testify for the Plaintiff regarding the ownership of the land in the previous Court Case is what occasioned the decision of the Court to grant judgment against the Plaintiff herein. He argued further that but for the Defendants conduct, the Plaintiff would not have lost the said amount he is claiming for the Land, preparatory works and the cost of litigation. From the evidence, there is no doubt that the Plaintiff acquired the Farm land in dispute from the Defendants except to contend that he purchased it for Four Thousand Ghana Cedis (GH¢ 4,000.00) whilst the Defendants claim that they sold it to the Plaintiff for Three Thousand Ghana Cedis (GH¢ 3000.00). I will therefore not dwell on issue one. I will now deal with issues two and three together and they are as follows; • Whether or not as a result of a dispute in court on the farmland, the Plaintiff has lost possession of the farmland acquired from the Defendants. 8 • Whether or not the Defendants supported the Plaintiff during the dispute over the farmland the Plaintiff acquired from the Defendants. According to the Plaintiff he instituted an action against one Kwabena Agyekum in respect of the Farmland in dispute. He tendered in evidence Exhibit B which is a judgment dated 11th September 2020 delivered by this very Court differently constituted in respect of the subject matter in dispute. According to the 1st Defendant, when he heard about the fact that the Plaintiff had sued the said Kwabena Agyekum, the matter was at the trial stage. Thus, at pages 19 to 20 of the Record of Proceedings when the 1st Defendant was under cross examination, the underneath occurred; Q – You are aware that the Plaintiff being dissatisfied with the decision of the said arbitration panel commenced an action somewhere in 2018 at this honourable court differently constituted to seek redress. A – I heard about it but the Plaintiff did not inform me Q – I am putting it to you that the Plaintiff personally came to your house on about four different occasions to seek your indulgence to testify on his behalf in respect of the ownership of the said land but you refused. A – That is not true. The Plaintiff never came to me. By the time I heard of the matter that was brought to court hearing had already commenced. Q – The reason for your refusal to testify on behalf of the Plaintiff was to the effect that you were part of the arbitration panel and you were also part of the elders that demarcated the boundary of the said land and that because you had already adviced the Plaintiff to let go you did not see the need to testify in Court. I am putting it to you. A – That is true but the advice with regards to the fact that he should let go, I gave it to him on the same day that we demarcated the boundary. 9 Q – Can you tell this honourable Court how you got to know about the case regarding the land involving the Plaintiff and Kwabena Agyekum? A – I heard it from the Secretary at the palace because the secretary informed the panel that the Plaintiff had requested for the arbitration proceedings. Q - You are aware that the Plaintiff called the 2nd Defendant on several occasions informing her about the pending suit in Court over the land and the Plaintiff went ahead to speak with you to convince the 2nd Defendant to testify for him. A – I cannot tell if the Plaintiff called the 2nd Defendant when he instituted the action before this court differently constituted. As I have stated I only heard about it from the palace. Q – Did you ever contact the Plaintiff when you claimed to have heard about the Court case. A – I never contacted the Plaintiff in respect of the matter that was brought to Court because he did not accord me the respect. Q – You will agree with me that because you felt disrespected you did not see the need to assist in anyway regarding the Court case when the contention was on the ownership of the said land. A – That is not true. My reason for saying so is that the Plaintiff ought to have informed me about his decision to institute the action before doing so. Q – Before your retirement you were a professional teacher. Is that correct? A – That is true. Q – And you have been served with a copy of the Plaintiff’s witness statement that contains exhibit B which is the judgement of the Court in respect of the land. Is that correct? A – That is true. 10 Q – In that judgement the whole of the said parcel of land which you and the 2nd Defendant granted to the Plaintiff was declared for Kwabena Agyekum. Are you aware? A – That is true. I got to know about it from the judgement that is the exhibit B but I was not privy to the proceedings of the Court. It can be gleaned from the extract of the cross examination of the 1st Defendant that the Defendants did not participate in the trial between the Plaintiff herein and the Defendants therein and that was obviously as a result of the 1st Defendant’s resentment towards the Plaintiff stemming from the Plaintiff’s refusal to accept the outcome of the arbitration. It is noteworthy that the Defendants did not also participate in the arbitration though they sat through the proceedings and though the 1st Defendant was the Manwerehene at the palace. The question to be asked is; what was the Plaintiff supposed to do when he felt his rights were being abused or an award was forcefully being shoved down his throat. His only remedy was to resort to the Court for redress. Having said all that I wonder why the Plaintiff chose not to join the Defendants herein to that action after they had evinced a clear intention not to support him both at the arbitration and in that suit culminating in the decision of the Court in Exhibit B. Be that as it may the fact that the Plaintiff’s action was dismissed and the Defendant therein’s counterclaim for declaration of title to the land was upheld is captured at the last page of the judgment as follows; “The defendant counterclaimed for declaration of title and an order enforcing the arbitration award. I am satisfied from the evidence led by the defendant and his witnesses that the defendant’s family had been in possession and exercised authority over the land in dispute. The arbitration award was also conclusive of the ownership of the defendant’s family land and the dimensions of same. I find the arbitration valid enforceable. 11 The Plaintiff rather than succeeding on the strength of his case was focused on the weakness of defendant’s case. I find that the plaintiff has not been able to establish his title to the land in dispute. His claim in its entirety is hereby dismissed. The defendant’s counterclaim is granted as prayed. Cost of GH is awarded in favour of the defendant.” Exhibit B is indicative of the fact that the Plaintiff herein has lost the land that the Defendants sold to him. I will now deal with the last issue which is as follows; • Whether or not the Plaintiff has lost an amount of about 139,000 as a result of the dispute over the farmland. As stated above apart from the purchase price which was given as Four Thousand Ghana Cedis (GH¢ 4,000.00) and the cost of the litigation, the Plaintiff did not quantify or specify any of the expenses that he claims to have incurred on the land. In respect of the purchase price the Defendants contended that it was Three Thousand Ghana Cedis (GH¢ 3,000.00) but counsel for the Plaintiff failed to cross examine him on it. The purpose and the need for a party to cross examine his opponent was considered in the case of Republic vrs High Court (Criminal Division 1), Accra; Exparte Stephen Kwabena Opuni (Review Application) (2021) 174 GMJ 338 S.C. where the Supreme Court held “it is also a well-established and settled legal concept that cross examination has two main purposes, first to advance the case of the cross examiner and secondly to undermine his opponent’s case. Apart from advancing the case of the party cross examining, another purpose of cross examination is to undermine the case of an opponent and this is done usually in three ways; by limiting the testimony of the witness, by discrediting the testimony of the witness and by attacking the credibility of the witness on good grounds.” 12 The position of the law is also that when a party admits an assertion made by his opponent, the opponent need not lead further evidence on it. By failing to cross examine the Defendants on the said amount, it means that the Plaintiff has admitted the sum quoted by the Defendants as the cost of the Farmland. Therefore, the court pegs the purchasing price at that amount which is Three Thousand Ghana Cedis (GH¢ 3,000.00). The Plaintiff also contended that he did some preparatory works on the land including getting a transformer for electricity and his evidence was corroborated by PW1. However, I am of the view that though he claims that he does not have evidence of receipts as he did not anticipate any litigation, I still believe that he could have provided some form of evidence to assist the court in quantifying the amount he used for the preparatory works. This he could have done by calling any of the people who cleared the land or who are involved in such business to give an estimated cost of the work as at that time as well as someone who could give an estimated cost of the transformer as at that time. Proof in law is the establishment of fact by proper means, in other words, the establishment of an averment by admissible evidence. It is not enough for the Plaintiff to mount the witness box to repeat on oath what they said in their Pleadings. When a party makes an averment which is denied by his opponent, he does not prove it by simply mounting the witness box to repeat it on oath. A party proves his case by producing other things; circumstances to establish that what he avers is true. See: Majolagbe Vrs Larbi (1959) GLR 190 Attorney General V Faroe Atlantic Co. Ltd (2005-2006) SCGLR 271 Courage Adonoo V Fan Milk Ltd (2006) 8 MLRG- 211 CA T. K. Serbeh V Mensah (2005-2006) SCGLR 341 Frabina Ltd. V Shell Ghana Ltd (2011)1 SCGLR429 Having said that the court is not only one of law but also of equity. Equity looks on as done that which ought to have been done and a party will not suffer a wrong to be without a remedy. 13 To the extent that that the Plaintiff took steps to legally acquire the subject matter but ends up not having access to same by virtue of the 1st Defendants dispassionate contention that he did not heed to his advice not to litigate over same, I believe he is entitled to general damages for breach of contract. From the foregoing I hold that on a balance of probabilities the Plaintiff’s case appear more probable than that of the Defendants hence his claim is upheld in part. It is hereby ordered for the Defendants to refund the sum of Three Thousand Ghana Cedis (GH¢ 3,000.00) being the purchase price of the land to the Plaintiff and interest on the said amount from 8th February 2016 to date of final payment. They are also to refund the sum of Fifty Thousand Ghana Cedis being the cost of litigation in respect of suit numbered A1/09/2018 at the prevailing bank rate from 2018 till date of final payment. I award general damages of Fifteen Thousand Ghana Cedis (GH¢ 15,000.00) in favour of the Plaintiff against the Defendants. Cost of Four Thousand Ghana Cedis (GH¢ 4,000.00) awarded in favour of the Plaintiff against the Defendants. SGD. NANA ASANTEWAA ATTAKORAH (CIRCUIT COURT JUDGE) COUNSEL RICHARD ADU DARKO FOR PLAINTIFF DEFENDANTS IN PERSON 14 REFERENCES: ACKAH V PERGAH TRANSPORT LTD & ORS (2010) SCGLR 728 GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD. V HANNA ASSI (2005- 2006) SCGLR 458. HARRISON EDWARD NARTEY MARTIN VRS BARCLAYS BANK (GH) LIMITED CIVIL APPEAL NO. J4/42/2017 DELIVERED ON THE 13TH DAY OF DECEMBER, 2017. REPUBLIC VRS HIGH COURT (CRIMINAL DIVISION 1), ACCRA; EXPARTE STEPHEN KWABENA OPUNI (REVIEW APPLICATION) (2021) 174 GMJ 338 S.C. MAJOLAGBE VRS LARBI (1959) GLR 190 ATTORNEY GENERAL V FAROE ATLANTIC CO. LTD (2005-2006) SCGLR 271 COURAGE ADONOO V FAN MILK LTD (2006) 8 MLRG- 211 CA T. K. SERBEH V MENSAH (2005-2006) SCGLR 341 FRABINA LTD. V SHELL GHANA LTD (2011)1 SCGLR429 15