MENSAH VRS ANOKYE AND ANOTHER (A1/3/2020) [2024] GHACC 238 (7 May 2024)

IN THE CIRCUIT COURT HELD AT KUMAWU-ASHANTI ON THE 7TH DAY OF MAY, 2024 BEFORE HIS HONOUR JONATHAN ODARTEY, CIRCUIT COURT JUDGE A1/3/2020 BETWEEN: OPANIN KWABENA MENSAH VS. 1. YAW ANOKYE 2. KWAME AMPONSAH JUDGMENT The Plaintiff instituted this action against the 1st and 2nd Defendants before this Court on 15th October, 2019 claiming the following reliefs: 1. Declaration of title of ownership and possession of all that piece of parcel of uncompleted building on plot No. 24 Block EO lying and being at a place commonly known and called “Etia Osuroase” on Kumawu Stool lands bounded by the properties of Plot No. 25, 30, 31 and a street which the 1st Defendant is occupying currently as a squatter in the uncompleted building despite several demands to eject the Defendants. 2. Perpetual injunction Order restraining the Defendants, the assigns, labourers, descendants, relatives etc. from future interferences on the said building. 3. Cost as the Court may deem fit. The Defendants in response to these claims filed their statement of defence and counterclaimed as follows: 1. An Order for a declaration that title in the disputed plot 24 Block EO Kumawu Etia Osuroase formed part of the estate of the late Agnes Amoh and same Page 1 of 9 devolves to him and his siblings under Akan customary law as owners of the disputed plot. 2. An Order for declaration that title in the disputed plot 24 Block “EO”, Kumawu – Etia Osuroase formed part of the estate of late Agnes Amoh and by virtue of PNDCL 111 same devolves to him and his siblings as tenants in common. 3. An Order for perpetual injunction restraining the Plaintiff, his assigns, workmen, servants, agents etc from interfering with the Defendants, their siblings and agents’ quiet enjoyment of the disputed land. 4. Damages for trespass. 5. Cost. Plaintiff’s case The Plaintiff informs the Court through his writ of summons and statement of claim that he is a cocoa farmer at Bogoso in the Western Region whiles the 1st Defendant was his brother-in-law. The Plaintiff never had a child with the 1st Defendant’s sister. The Plaintiff claims to have acquired the building plots somewhere in 1982 or 1983. Plaintiff claims to have acquired plots numbers 24 and 25 Blocks “EO” from the Kumawu Stool and later sold plot No. 25 Block “EO” to one Afia Tiwaah of Kumawu then put up a foundation on the plot No. 24 Block “EO”. According to the Plaintiff he subsequently developed the said foundation on the plot No. 24 Block “EO” to the lentil level. The deceased ex-wife of the Plaintiff had pleaded with the Plaintiff when she was alive to allow the 1st Defendant complete one of the rooms for his use so that the 1st Defendant could take care of the place which the Plaintiff agreed. According to the Plaintiff, the 1st Defendant is now claiming ownership of the plot No. 24 Block “EO”. The deceased ex-wife of the Plaintiff when she was alive threatened the Plaintiff with divorce and later was travelling here and there without any reason Page 2 of 9 which made the Plaintiff then asked the late ex-wife to give him the documents to the land through her family head which the Plaintiff had given to her for safe keeping. The Plaintiff was given the land documents by the deceased ex-wife through Kofi Agyeman who is the brother of the deceased ex-wife. When the Plaintiff later confronted the 1st Defendant to vacate the property in dispute the 1st Defendant resisted and informed the Plaintiff that the property belongs to the deceased sister. Subsequent to this the Plaintiff made several attempts to take possession of the property from the 1st Defendant which proved futile which made the Plaintiff reported the issue to the Chief and Elders of Kumawu Traditional Council. The Kumawu Traditional Council according to the Plaintiff asked the 1st Defendant to produce the documents of the disputed property severally which the 1st Defendant failed to produce the said documents but asked the Plaintiff to go for his property and went further to help the Plaintiff to prepare the documents on the disputed land. The Plaintiff claims that after the preparation of the said documents he has been paying his administrative stool fees for property rate and sanitation rates. Even though the Plaintiff wrote to the 1st Defendant to vacate the property through a letter, 1st Defendant has failed to do so. The case of the Defendants The Defendants herein through their defence and counterclaim informed the Court that they are the siblings and offspring of the late Agnes Amoh and claimed that the disputed property plot No. 24 Block “EO” was acquired by their aunt by name Abena Kwabena in 1953. The Defendants further gave a site plan endorsed by her grantor and the surveyor which the late Abena Kwabena later made a customary gift of the property to the Defendants’ late mother and sister Agnes Amoh in the presence of witness and offered an aseda with a deed of gift executed on the property. The said mother of the deceased was in possession of the said land and with the support of her relatives outside the country put up a building on the said land without Page 3 of 9 any encumbrances. The late sister and mother of the Defendants was the one who granted the 1st Defendant access to the disputed property for over 20 years when she was alive. After the close of pleadings, the Court set down the following issues for trial: 1. Whether or not the Plaintiff acquired the uncompleted building plot No. 24 Block “EO” lying and being at “Kumawu Etia Osuroase” in 1983 as his personal property. 2. Whether or not the Plaintiff developed the plot No. 24 Block “EO” to the present state with his personal resources (money). 3. Whether or not the Defendant has a transferred document dated 1973. 4. Whether or not the Plaintiff married the late Abena Kwabena in 1976 after the alleged transfer of the document. The Court will take each of the issues set down for trial one after the other and address them to resolve the dispute before it. To start with, the first issue had to do with whether or not the plaintiff acquired the uncompleted building plot No. 24 Block “EO” lying and being at Kumawu Etia Osuroase in 1983 as his personal property. From the facts and evidence on record it is trite to understand there was Judgment in favour of Tweneboah Koduah in 1960 which reference was made by this Honourable Court in ascertaining the issue raised by the Defendant that the land in dispute was acquired by one Abena Kwabena who divorced the Plaintiff. In the ruling the Tweneboah Koduah lands was subsequently denoted by the Kumawu Traditional Council. The Court averted its mind to decision in this ruling when PW2 in his cross examination made reference to that Judgment when he was posed with the question of acquisition of the said the disputed property in 1953. It is important to explain the parties and their relations in this suit for clarity to be brought to the determination of the matter. Per the information on record the Plaintiff Page 4 of 9 married one Abena Kwabena (deceased) whom she divorced. The said Abena Kwabena is a sister to the 1st Defendant and Agnes Amoh. Agnes Amoh was the mother of the 2nd Defendant. It is important to note that parties indeed admitted that the plots were two however plot No. 25 has been sold by the Plaintiff and the Defendants or their relatives had not contested the sale of this plot which has been described herein. The law is well-settled that in criminal cases, the prosecution is required to prove its case beyond all reasonable doubt; whilst in civil cases the plaintiff must produce sufficient evidence on "a preponderance of probabilities" a phrase which has been statutorily defined 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." I am tempted to look at a 1989 Court of Appeal decision in Banga v Djanie with a view to determining whether there is a higher burden of proof beyond the balance or preponderance of probabilities in a claim for declaration of title to land. The question that we should be interested in is whether there is higher burden of proof in immovable property suits? In Banga v Djanie the plaintiffs claim for declaration of title to a tract of land as family property was controverted by the defendants. Both parties led conflicting evidence of traditional history as to acquisition of the disputed land. The plaintiff also sought reliance on certain acts of the defendants as constituting estoppel such as the first defendant co-operating with the plaintiff in surveying the disputed land and also appearing at the office of the lawyer of the plaintiff’s witness to execute some documents in favour of some members of the plaintiff’s family. The trial court gave judgment for the plaintiff. The Court of Appeal (coram: Francois JSC and Ampiah and Lamptey JJA) allowed the defendants' appeal from the decision of the trial court. It found, on the evidence, that Page 5 of 9 the plaintiff failed to produce evidence of her right of title, possession and user. The Court of Appeal, however, found that there was unchallenged evidence that the ancestors of the defendants had been in possession of the disputed land and had exercised acts of alienation of portions of the land for decades. It therefore held (applying the decision of the West African Court of Appeal in Kodilinye v Odu) that since the plaintiff had sued for declaration of title, he must rely on the strength of his own case but not on the shortcomings or weakness in the 'defendants' case; and that having failed to produce evidence of her root of title, possession and user, she could not rely on the acts of the defence which at best could only constitute weaknesses in the defence. Francois JSC in his opinion in support of the unanimous decision of the Court of Appeal, made some further pronouncements. His Lordship said: "Since a declaration of title is sought, it is essential that the usual burden of proof should be satisfactorily discharged for success. That burden was clearly laid in Kodilinye v Odu (1935) 2 WACA 336. That burden . . . ensures that the plaintiff should win on the strength of her own case which must not be propped up by weaknesses in the defence's case. The principle has for several decades been the fulcrum for determining ownership in land matters in our courts. In recent times a dangerous trend has been erupting of equating this burden with the normal burden in a civil case of measuring success by a balance of probabilities. In my view the requirement of a higher burden of proof in land matters cannot be whittled away by glosses on the principle. This quality of proof has sometimes even been equated with proof in criminal matters, i.e. proof beyond reasonable doubt. Suffice to emphasise that a high measure of proof is necessary to sustain victory in a plaintiff seeking a declaration of title to land . . . [He must] lead positive evidence to merit victory, and not merely to rely on the shortcomings of a defendant in the discharge of his obligations. Again per the evidence on record, this dispute has been before the Kumawu Traditional Council where Orders were made on the second issue of whether or not the Plaintiff developed the plot to the present with his personal resources (money). In Page 6 of 9 addressing this important issue set down for trial, the Defendants in their witness statement again never contested the fact that they occupy the disputed property when it had been developed to the lentil level. Assuming without admitting that the Defendants had done the development from the scratch, the Court is more interested in who owns the said land. He who owns the land owns the building. This Court is further interested in finding out whether that development to the lentil level during the subsistent of the marriage between the Plaintiff and Abena Kwabena. From the evidence on record this development was done but during the subsistence of the marriage. This is amply seen in the witness statement of the Plaintiff where he indicated that it was at the lentil stage where started threatening him with divorce issues that the entire development was stalled. At this stage, what the Court is interested in is to determine who owns what as far as spousal property distribution is concerned. The law is definite on matters of this nature. The laws governing marriages in Ghana are the Constitution of the Republic of Ghana, 1992, customary laws, judge made laws or precedents and enactments made by or under the authority of Parliament namely, the Matrimonial Causes Act, 1971 (Act 367). These laws regulate marriages and all that are incidental thereto, especially distribution of marital assets. Constitution of the Republic of Ghana, 1992. The Constitution makes provision for fundamental human rights. In its Article 22, it provides: “22. Property Rights of Spouses 22(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will. (2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses. (3) With a view to achieving the full realization of the rights referred to in clause (2) of this article- Page 7 of 9 (a) spouses shall have equal access to property jointly acquired during marriage; (b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.” The Supreme Court has made an effort to interpret Article 22(3) for purposes of clarification. In the case of Tony Lithur v. Nana Oye Lithur (2021) SCG, the Court stated thus: ‘This Court should be deemed as having interpreted marital property in Article 22 (3) in Arthur v Arthur [[2013 – 2014] 1 SCGLR 543] …. As follows: – “Marital property is thus to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition. … What this means in substance is that, the Article 22 (3) provisions of the Constitution only become effective upon dissolution of the marriage when the distribution of properties are being considered.”’ The third issue has to do with whether or not the Defendants have the transferred document dated 1973. Per the evidence on record the Plaintiff got married to Abena Kwabena in 1976 and according to the Plaintiff the disputed land was acquired in 1983 during the subsistence of the marriage. However Defendants claim that the disputed land was a family property which was acquired through a gift from Abena Kwabena who acquired it as far as 1973 when she was 22 years and selling tomatoes. From the fact of this case and the records before this court both parties are claiming declarative reliefs as owners of the disputed property. It is also important to state that the defendants through their counterclaim are relying some aspect of traditional evidence to support their claim. The court will therefore direct some of its attention to the law on traditional evidence in the resolution of immovable properties such as this. The present case could be related to the statement made by Wiredu JA, as he then was, in the case of In Re Adjancote Acquisition; Klu Vs. Agyemang II [1982 – 83] GLR 852, is that “(w)here there is a conflict of traditional history, the best way to find out Page 8 of 9 which side is probably right is by reference to recent acts in relation to the land”. From the evidence on record this traditional history provided by the defendant witness will not be relevant in the determination of this dispute. This is premised on the fact that there are inconsistencies in the evidence before this court. From the above analysis the court has decided as follows. The ownership of the plot No. 24 Block “EO” is declared as belonging to the plaintiff. Defendants are herein restrained from dealing with the disputed property Plaintiff to compensate the defendants for the resources spent by the defendants and ownership rights of Abena Kwabena as the spouse of the plaintiff during the pendency of the marriage as per the estimate of a qualified valuer. SGD H/H JONATHAN ODARTEY CIRCUIT COURT JUDGE Page 9 of 9