ANNOR VRS YARO & ANOTHER (C1/03/2023) [2024] GHACC 280 (31 May 2024)

THE IN THE CIRCUIT COURT HELD AT DUAYAW NKWANTA ON FRIDAY THE 31ST DAY OF MAY, 2024 BEFORE HER HONOUR AKOSUA ASANTEWAA SARPONG ESQ CIRCUIT COURT JUDGE. C1/03/2023 KWESI ANNOR VRS 1. MR YARO 2. OWUSU BOYE ATTA SENIOR J U D G M E N T The plaintiff Kwasi Annor is a retired Teacher and resides at Duayaw Nkwanta. The 1st Defendant Mr. Yaro is a tenant farmer who was given a land by Abena Nsua the mother of the 2nd Defendant to cultivate cocoa on Abunu basis. The 2nd Defendant is also a farmer and lives at Duayaw Nkwanta. The plaintiff states that he bought the disputed land in its virgin state from Kwame Amankwah in the year 2007. He states that the disputed land is situate, lying and being at a place called “BEMA” on Duayaw Nkwanta stool land and shares common boundaries with Kwadwo Donko, Amo’s scrub land, Madam Amma Kwartemah, Op. Amoh scrub land, River Bema and River Bema and Op. Kwame Amankwa. Plaintiff states that he bought the land in dispute from Kwame Amankwah in the year 2007 at the cost of GH₡ 2,500.00 plaintiff stated that Kwame Amankwah (Deceased) 1 published his intention to sell his land to treat himself and plaintiff bought the land to use for farming activities. The plaintiff stated that his grantor caused an indenture and a site plan to be executed evidencing the transfer of his interest in the farmland to the plaintiff. Plaintiff avers that he has been in peaceful possession of the disputed land since he acquired the land until Kwame Amankwah’s death. The plaintiff stated that he had been in peaceful possession of the for more than 14 years now until recently 2nd defendant started with his trespassory acts. The plaintiff stated that after he had acquired the land he erected pillars in the farmland giving constructive notice of his possession of the farmland which is now in dispute. The plaintiff avers that one day Kwame Amankwah’s son was passing by the farm and saw that 1st defendant was weeding on the disputed land he told him that the portion of land he was weeding does not belong to him so he should stop working on the land since it belonged to the plaintiff. The plaintiff further stated that on a different day his brother also saw the 1st Defendant on that disputed land and informed him that 1st Defendant is trespassing onto his land and he visited the farm and realized that 1st Defendant had weeded portion of the disputed land claiming ownership to the disputed land but he did not meet 1st Defendant on the farm. The plaintiff stated that he has planted cocoa and plantain on the disputed land. Plaintiff reported the matter to the police and when he inquired from 1st Defendant he told him that he bought the land from the 2nd Defendant. The plaintiff further avers that the 2nd Defendant went to the farm and removed some of the erected pillars from the original position to a different position to enable him sell portion of his land to the 1st Defendant. The plaintiff confronted the Defendants to desist from dealing with the land but they refused to heed to his advice. 2 The plaintiff avers that he put the matter before so many people including Nana Kokroko and head of family of the 2nd Defendant named Kwame Asante plaintiff further states that the 2nd defendant is trying to change the boundary owners from the original place to enable him sell part of his land. The plaintiff therefore claims against the defendants for Declaration of title and recovery of possession of all that piece and parcel of land situate, lying and being at a place commonly known and called “BEMA” on the Duayaw Nkwanta stool land and shares common boundaries with Kwadwo Donkor Amo’s scrub land, Madam Amma Kwartemah, River Bema and Op. Kwame Amankwah and General damages for trespass. The 2nd Defendant entered appearance for himself and on behalf the 1st Defendant. He also filed his statement of defence on his behalf and on behalf of the 1st Defendant. The defendant denied a lot of the claims made by the plaintiff and stated that he never trespassed unto his land. The 2nd defendant stated that he erected pillars as boundary features and not the plaintiff. The 2nd Defendant stated that the plaintiff reported a case of causing damage to young cocoa trees but when it was inspected by one police officer it was revealed that nothing had been done to plaintiff’s cocoa farm. The defendant stated that the plaintiff is not entitled to the reliefs he seeks. After the plaintiff filed his reply and Application for Directions were taken. The issues that were set out for trial were that (a) Whether or not the plaintiff is entitled to the reliefs being sought (b) Whether or not the plaintiff bought the land from Kwame Amankwah in the year 2007 at a cost of GH¢ 2,500 (c) Whether or not the landlord caused on indenture and site plan to be executed evidencing the transfer of his interest in the farmland to the Plaintiff (d) Whether or not 1st Defendant has Trespassed unto plaintiff's land. 3 (e) Whether or not 2nd Defendant has erected pillars from the original position to different position (f) Whether for not the 2nd Defendant erected the pillars as boundary features but not the Plaintiff (g) Any other issues raised by the pleadings. In resolving the issues for the trial the first issue would be reserved for the last. The issue which would be resolved first is whether or not the plaintiff bought the Land from Kwame Amankwah in the year 2007 at a cost of GH¢2,500. The plaintiff in his statement of claim and witness statement stated that he bought the land from Kwame Amankwah in the year 2007 at a cost of Gh₵2,500. The Plaintiff in his witness statement stated that it was 2nd defendant’s bother who told him that their uncle had a farm land which he wanted to dispose to settle a case that the 2nd defendant had. He first paid an amount of GH¢1,500 which 2nd Defendant, his twin brother and their elder brother Atta Boakye came to the house of Plaintiff to take this money. 2nd defendant twin brother told plaintiff that their uncle sent him to take another GH¢1,000 for his medication since he was sick. The twin and their elder brother went for GH¢1,000 from the plaintiff and the late uncle Op. Kwame Amankwaah confirmed that he sent the 2nd defendant’s twin brother to collect the money making a total of GH¢2,500.00 After this payment the late uncle of 2nd defendant sent 2nd Defendant and his twin brother to go and show plaintiff the land and its boundary owners of which he agreed to purchase. The 2nd Defendant has not disputed this evidence in his case. Under cross examination of the plaintiff the 2nd defendant asked Plaintiff at page 10 of the record of proceedings, this is what transpired Q: when Wofa Amankwah asked us to show you the land who and who went to the bush I went with you and your brother Atta Boye Jnr. to see the land 4 Q. I put it to you that we went with Fantomas and Appiah to see the land. A. When we went with Appiah and Fantomas it was the second time and we were going to demarcate the land. Q. Am putting it to you that when we went to show you the land I went there only once and it’s been eight years now A. That is not correct So per these questions and answers it is clear that the plaintiff paid GH¢2,500.00 to the uncle of the 2nd Defendant that is the late Op. Kwame Amankwah and the 2nd Defendant does not dispute the fact that he went to show the plaintiff the land. This an admission of the fact that plaintiff bought the land from Op. Amankwah and the 2nd Defendant did not dispute same. The law is settled, that when a party makes an averment and the averment is not denied, no issue is joined and no evidence need to be led on that fact or averment. Similarly when a party has given evidence of a material fact and was denied or challenged, it implies admission on the path of the opponent. See. Hammond v Amuah & Another [1991] 1 GLR 89 Fori vrs Ayirebi & others [1966] GLR 627 SC Kusi & Kusi v Bonsu [2010] SCGLR 60 Danielli Construction Ltd vrs Mabey & Johnson [2007-2008] 1 SCGLR Edmund Danso vrs Moses Adjei [2013] 58 GMJ 71 CA In the case of WIAFE VRS KOM (1973) 1 GLR 240 , THE COURT HELD “ where a witness testified on oath on certain vital matter and the opposing side was silent in his cross-examination on those matters he would be taken to have admitted these matters” So here the plaintiff paying an amount of GH¢2,500.00 for the land is a very vital matter and since the 2nd defendant was silent on that and did not dispute that fact then it means 5 that the 2nd Defendant admitted that the plaintiff indeed paid an amount of GH¢2,500.00 to the uncle of 2nd Defendant for the land. The next issue is whether or not the landlord caused an indenture and a site plan to be executed evidencing the transfer of his interest in the farm land to the plaintiff. The plaintiff in his witness statement stated that the late Uncle Op. Kwame Amankwah sent the 2nd Defendant and his twin brother to go and show him the land and its boundary owners of which he agreed to purchase. The transaction was reduce into writing duly executed by the parties and their respective witnesses. The plaintiff tendered an indenture and a site plan to prove that indeed his grantor Op. Kwame Amankwah gave him a document evidencing the sale of the land. The indenture was tendered and marked as Exhibit A and the site plan was tendered and marked as Exhibit B without objection. The indenture and the site plan were not stamped per the stamp ACT. S.A BROBBEY IN HIS BOOK TRAIL COURTS AND TRIBUNALS IN GHANA PAGE 322 states as a general rule a document requiring stamping is inadmissible if it is not stamped in accordance with section 14 of Act 311. It provided that any instrument executed in any part of Ghana or relating, whatsoever executed to any property situate, or to any matter or thing done or to be done, in any part of Ghana, shall not be given in evidence or be available for any purpose whatever, unless it is duly stamped in accordance with the law in force at the time when it was first executed. Section 32 of the stamp Act. 2005 (Act 689) states (1) where an instrument chargeable with a duty is produced as evidence In a court in a civil matter; or Before an arbitration or referee, the judge, arbitrator or referee, shall take notice of an omission or insufficiency of the stamp on the instrument. 2) if the instrument is one which may legally be stamped after its execution, it may on payment of the amount of the unpaid duty to the registrar of the court or to the arbitrator 6 or referee, and the penalty payable on stamping that instrument, be received in evidence subject to just exceptions on other grounds. 3) An instrument which is sufficiently stamped under this Act shall be receivable in evidence although that instrument may not have been stamped or is insufficiently stamped according to the law in force in the place where that instrument was executed. In the case of LIZORI LTD VRS BOYE AND SCHOOL OF DOMESTIC SCIENCE AND CATERING [2013-2014] 2 SCGLR 889. The court stated clearly per Benin JSC that the provisions in section 32 of Act 689 are clear. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in first place and ask the party to pay the duty and penalty after judgment. In the case of WOODHOUSE LTD VRS AIRTEL GHANA LTD [2018] DLSC 4524. It was stated that ‘it is clear from all this that exhibit A in this case, being unstamped ought to not have been admitted into evidence by the trial court even if no objection was raised by the defendant. It is hereby excluded “ In this case even though exhibit A and B were not objected to by the defendant it cannot be admitted because its admission is contrary to Section 32 of the stamp Act 2005 (Act 689) Exhibit A and B are therefore legally worthless. The exclusion of exhibit A and B does not relieve this court of its duty to determine from other evidence led, be it oral or documentary to determine whether the plaintiff can successfully prove his case The next issues to be discussed is whether or not 1st defendant has trespassed unto plaintiff’s land. The plaintiff stated in his witness statement that he bought the disputed land in 2007 and that he is the exclusive owner of all that farm land measuring 15.50 acre approximately situate and lying at a place known and called “BEMA” This land is bounded by the stream called Bema and the properties of Kwadwo Donkor, op. Amoh, Osofo Agyemang’s scrub land (now in possession of Ameyaw Stephen and Madam Ama 7 Kwartemaa. The plaintiff was able to describe the land in dispute. The plaintiff was able to lead evidence as to the identity of the land claimed. In the case of BISSAH VRS GYAMPOH [1964] GLR 81 per holding (1) “ It is the duty of a plaintiff who claims a declaration of title to land to identify clearly to the court the area of land to which his claim relate” The plaintiff stated all his boundary owners and the size of the land . The Defendants did not discredit the plaintiff under cross examination or dispute the boundary owners. The plaintiff after paying for the land as he stated was taken to the land by 2nd defendant which was not disputed under cross-examination. Under cross- examination 2nd defendant asked Q: “when wofa Amankwah asked us to show you the land who and who went to the bush A: “I went with you and your brother Atta Boye Jnr to see the land. Plaintiff stated in his witness statement that he cultivated food crops as well as cash crops (Cocoa) on portions of the land and had been in quiet possession on the land until seven years ago that he instructed his younger brother George Amankwah Larbi to cultivate the land on his behalf owing to his old age and health. Under cross –examination plaintiff stated that he noticed that 1st defendant trespassed unto the land in 2021. In the case of ADJEBI-KOJO VRS BONSIE AND ANOTHER [1957] 3 WALR 257 PC, 260 Lord Denning stated “ where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their beliefs. In such a case demeanor is little guide to the truth. the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the most probable PAGE 218 OF THE BOOK OF DENNIS ADJEI LAND LAW PRACTICE AND CONVEYANCING IN GHANA STATES “the most important factor that is used to evaluate traditional evidence is the acts in living or recent memory and not a witnesses’ demeanor which is also one of the factors used to discredit witnesses in ordinary case. A party’s traditional evidence may, be incoherent or inconsistent and 8 may be rejected but he may still become victorious provided he can prove events and act within living memory, the law is settled that acts in living or recent memory such as overt acts of ownership and possession over the disputed property taken precedence over traditional history” Per the evidence of the plaintiff he had been in possession of this land for over 14 years before he noticed that the 1st defendant had trespassed unto his land. The Defendants did not dispute this fact. The Defendant in his evidence tendered a Deed of Gift which was marked as Exhibit 1. Since this was not stamped it is contrary to section 32 of the stamp Act 2005 (Act 689) which is legally worthless and no weight can be put on it. Even if the Deed of Gift is not admitted in evidence did the Defendant do anything or lead cogent evidence in support of their claim that 2nd Defendant gifted the disputed land to the Plaintiff. The 2nd Defendant stated in his witness statement that he took the plaintiff to his own land but did not lead evidence to establish how he came by the land. 2nd Defendant stated in his witness statement that after he and his brother had gifted the land to the plaintiff the plaintiff provided an amount of GH¢2,500.00 and 2 bottles of Schnapps. The performance or giving of this gift must be done in public and in the presence of witnesses. Throughout the trial the Defendants did not call any witness to testify to the gift that they had given to the plaintiff. 2nd Defendant undercrosss-examination stated “Q; You stated in your witness statement that I presented aseda of 2 bottles of schnapp and GH¢250. “A; It is true “Q ; Who were the witnesses who were there when I presented 2 bottles of Schnapp and GH¢250 “A; Appiah and Fantomas were the witnesses 9 The Defendants should have called Appiah and Fantomas as vital witnesses in support of their case. In the case of MARY OPOKU VRS NANA OPOKU ASENSO NICHOLAS &ANO [2020] 153 G .M. J 51 C.A. The legal import of calling material witness (es) and the implication of failure thereof. Per Welbourne J. A. “The Supreme Court would affirm as good law, the principle of law regarding the support of its case. Also in the case of TOTAL GH LTD VRS THOMPSON [2011] I S C G L R 458 S C; [2011] 34 GMJ 16 SC. In this case the Supreme Court held that it was the responsibility of the parties to call their key witnesses to give evidence in support of their case, failure of which their case could fail”. The 2nd Defendant in his witness statement stated that the Plaintiff presented GH¢2,500.00 after they presented him with the gift and under cross-examination he is saying it was GH¢250. The 2nd Defendant has named Appiah and Fantomas as people who were witnesses to the presentation of the gift but did not call them to testify on their behalf. In the case of YOGUO VRS AGYEKUM (1966) GLR 482, 493-494 stated “A valid gift, under customary law, is an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstance of the case may permit. For purpose of the required publicity, the gift is made in the presence of independent witnesses, some of whom should be members of the family of the donor who would have succeeded to the property if the donor had died intestate and also in the presence of members of the family of the donee who also would Succeed to the property upon the death of the donee on Intestacy. If the 2nd Defendant is saying Appiah and Fantomas where witnesses even if they are his relatives or members of his family, what about the Plaintiff. That means no member of The Plaintiff's family was present. This does not make the gift a valid gift. With all these analyses it can be stated that the Defendants trespassed unto the land of the plaintiff. 10 The next issue is whether or not 2nd Defendant has removed the erected pillars from the original position to different position. Per the evidence that was adduced in Court the 2nd defendant did not admit that he uprooted the pillars that were erected. Again the Plaintiff also did not see the 2nd Defendant uprooting the Pillars. The issue is that before the court is whether or not the defendants have Trespassed unto the land of the plaintiff. Once that issue has been resolved automatically resolves that of the pillars. The next issue is whether or not the 2nd Defendant erected the pillars boundary features but not the plaintiff. Under Cross- examination the 2nd Defendant asked the Plaintiff "Q: When my brother and I showed the boundaries do you remember you put up pillars. A: I put up pillars Under Cross- examination the plaintiff asked the 2nd Defendant" Q: Why did you state in your witness Statement that you erected the pillars “ A. You erected pillars at the pillars at the place I showed to you By these questions and answers it is clear that it was the Plaintiff who erected the pillars and not 2nd Defendant The standard of proof in civil cases has been set and out NRCD 323 Section 12 (2) states as follows : “Preponderance of the probabilities” means the degree of certainty of believe 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 nonexistence. 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 establishes the existence or non - existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt 11 BROBBEY IN HIS BOOK ESSENTIALS OF THE GHANA LAW OF EVIDENCE at page 28 explains the burden of producing evidence " In the normal run of affairs , since the plaintiff is the one asking for something from the Defendant, he should be the one who will start the proceedings by giving his testimony . That testimony will show what he wants from the defendant and why he wants the court to order the defendant to give it to him. If he drags the defendant to court but he fails to lead evidence to establish his claim and the basis of the claim, he cannot have the assistance of the court to get what he wants " If the plaintiff is able to perform his side of his case in court by adducing evidence, the Defendant may then be called upon to put his defense across. The defendant does that by adducing evidence that he believes will provide adequate answers to or rebut the claims of the plaintiff The Supreme court summarized the position of the Defendant in the case of BARIMA GYAMFI VRS AMA BABY [1963] 2 GLR 596 holding as follows: " In a claim made by plaintiff, there is no onus on the defendant to disprove the claim so that however unsatisfactory or conflicting the Defendant's evidence may be , it cannot avail the plaintiff. The evidence of the defense only becomes Important if it can upset the balance of probabilities which the plaintiff's evidence might have created in the plaintiff's favour or if it lends to corroborate the plaintiff's evidence or tends to show that evidence led on behalf of the plaintiff was true “, Brobbey in his book quoted supra at page 36 states " Ordinarily, the evidence must be led before it can be weighed. Unlike the burden to produce evidence, all the evidence must be before the court before there can be consideration for the burden of persuasion. In effect, the burden of persuasion is determined at the end of the trial after all evidence has been adduced in court. This implies that the issue of the burden of persuasion will arise only after the full evidence of the plaintiff and that of the defendant have been put before the court. It is then that the court will set out to evaluate the evidence to determine whether the quality of the 12 evidence led is such as to convince the court to decide the case in favour of the evidence which has more or better merits. The standard of proof in civil cases has been emphasized in Section 12 of NRCD 323 as 12 (1) Except as otherwise provided by law the burden of persuasion requires proof by preponderance of probabilities (2) " Preponderance of probabilities means 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’’. The “Preponderance of probabilities” which is used synonymously with “balance of probabilities" is the standard of proof required in all civil trials. The two expressions simply mean that the existence of the fact is more likely than its non existence . It is referred to in some text books as the " more likely than not " test. Sometimes it is rendered this. The fact is more likely to be true than being untrue. In evaluating the full evidence before the court, it can be said that the evidence of the Plaintiff has better merits. The plaintiff was able to tell the court about how he acquired the land. The 2nd defendant admitted that he and his twin brother went to show him the land and the plaintiff erected Pillars. He cultivated the land and enjoyed peaceful occupation from 2007 - 2021 when he noticed that the 1st Defendant, had trespassed. He was able to describe the land and proved that he had been in possession for 14 years The Defendant on the other hand said that the land belongs to him but could not produce documents or lead sufficient evidence to prove that he was the owner. He said he gifted the land to the Plaintiff for the love he had for him. This testimony of the Defendant is not likely to be true because the procedure for gifts were not satisfactorily performed as the Defendent wants the court to believe. If indeed the Defendant has gifted the land to the Plaintiff, then the Plaintiff is the owner of that land. 13 So in answering the first issue whether or not plaintiff is entitled to his reliefs, the court is of the opinion that the case of the Plaintiff is more likely to be true than being untrue. Plaintiff is therefore entitled to all the reliefs he seeks. A Declaration of title and recovery of possession of all that piece parcel of land situate, lying being at a place commonly known and called “BEMA " on Duayaw Nkwanta Stool land and shares common b. General Damages for trespass is assessed at GH₵1,000 c. An order of perpetual injunction restraining the Defendants, their agents assigns, workmen, privies etc and all persons claiming through them from having anything to do with the disputed land. Cost of Gh₵1,000 is awarded in favour of the Plaintiff. SGD H/H AKOSUA ASANTEWAA SARPONG ESQ (CIRCUIT COURT JUDGE) 14 15