Adomah v Adu (111/2002) [2025] GHADC 238 (17 June 2025)

1 IN THE DISTRICT MAGISTRATE COURT, HELDAT BEREKUMON TUESDAY 17TH DAY OF JUNE, 2025. BEFORE HIS WORSHIP AUGUSTINE AKUSA-AM (DISTRICT MAGISTRATE) SUITNO.111/2002 THOMASADOMAH : : : ::: PLAINTIFF OFNKROFROSUNSTITITED BYKOFITWUMBEREKUM VRS: JAMESADU : : : : : : :DEFENDANT OFBEREKUM =================================================== Parties-Present NanaMensahBonsuEsq.ForWilliamOrleansOduroEsq.forPlaintiff–Present JUDGEMENT: The plaintiff per his writ of summons filed on 8th March 2002 as claiming against the defendantthefollowingreliefs; 2 (a) A declaration of title and recovery of possession and ownership to building plot number 57 Block B of Sector 4 previously numbered 107 situate at Nyamebekyere in Berekum. (b) Perpetualinjunctionrestrainingthedefendant,hisagents,servants,licencees,assigns, etcfromhavinganydealingswithoronthesaidproperty. (c) Generaldamagesfortrespass. Thedefendantalsocounterclaimsforthefollowingreliefs; (a) Declaration of title to and recovery of possession of that parcel of residential plot number102BlockE,Berekumwhichtheplaintiffhastrespassedunto (b) Anorderofperpetualinjunctionrestrainingtheplaintiff,hisagentsassignworkmen, etcfromenteringonthedisputedland. BRIEFHISTORYOFTHISCASE As indicated supra, this suit was filed on 08/03/2002 before the then Berekum Community Tribunal Chaired by H/W Richard M. Kogyapwah Esq. as he then was (and now Court of Appeal Judge). Following the abolishment of the Community Tribunal system, the matter was inherited by the District Court and same had been adjudicated upon by several magistrates. My brother His/Honour Simon Gaga who concluded the matter and was about to deliver judgment was transferred and I inherited same without taking any evidence thereof save to deliverjudgment 3 THECASEOFTHEPLAINTIFF In his examination in chief on 03/05/2007 the plaintiff said the plot in dispute was originally acquired by his late grandfather Kwabena Kyere. In the life time of Kwabena Kyereh, he giftedtheplottoKwameAppiahandKwameMensahwhowerehisnephews. KwameAppiahpredeceasedKwameMensahandtheformerwassucceededbyYawAsante who later abdicated his successorship. Kwame Mensah thus became the sole owner of the plot in dispute. Kwame Mensah subsequently gifted plot NO. 57 B formerly known as plot No.H107situateatNyamebwkyereBerekumtohim(plaintiff). Since taking possession of the plot, the plaintiff averred that he has been clearing same of weeds had and even given a portion to her niece to put up a metal container for her hairdressingbusiness.Healsogaveportionsoftheplottootherlicensees. According to the plaintiff, he travelled briefly and on his return he noticed that the defendant had tipped sand unto a portion of the plot. He therefore confronted the defendant. The matter was taken to the Town and Country Planning Unit of the Berekum DistrictAssembly.Afterinspectingtheir respectivedocuments, theplaintiff claimedthathis documents were adjudged to be more valid than those of the defendant. That the officials suggested that the land be shared into two equal halves but he refused and rather took the instantaction.Theplaintifftenderedreceiptsevidencingthepaymentofsanitationfees. Kofi Mensah, whose evidence was taken on commission testified as PW1. Witness stated that the late Kwame Mensah left the Plot under his care as he was residing at Akrofro. That anytime the plot was over grown with weeds he sent for the late Kwame Mensah to come and weed it. According to witness when Kofi Mensah passed on, the plot came into the possessionoftheplaintiff. 4 Witness averred that he granted a portion of the plot to Kwame Mensah’s niece to put a kioskthereontopracticethetradeofsewingandhairdressing. Lucy Amponsah (niece of plaintiff) testified as PW2. She averred that it was the plaintiff who gave her a portion of the plot to place her kiosk on. She said the defendant used to comearoundtohaveaconversationwithherbutdoesnotowntheplot. THEDEFENDANT’SCASE The case of the defendant is that the disputed plot numbered H 102 was originally acquired byhislatefatherOpYawBarimah,around1967fromtheBerekumTraditionalCouncil.That his latefather had tripped sand unto theplot until his demise in 1981.After the death of his father Op. Dakwanim who was the junior brother of his late father, succeeded. Op Dakwanimthenhandedtheplot tohimandhissiblings andtheyprovided‘’aseda’’. As Op Dakwanimwasblind,heinstructedhisbrother,thechiefofPepaase toshowtheplot tohim and his siblings. The defendant explained that his late father used to pay sanitation fees in respect of the plot and when same came into their possession they continued the payments inthenameoftheirlatefather.Hetenderedseveralreceiptstocorroboratehisevidence. Adu Mensah testified as DW1. He corroborated the evidence of the plaintiff by asserting that their late father Op Yaw Barimah, acquired the disputed plot from the Berekum Traditional Council and after his demise his blind brother Op. Kwabena Dakwanim succeededandtookpossessionoftheplotofland. Witnesses averred that his siblings including the defendant herein were invited to the palace of the Pepaase chief where Op Dakwanim officially handed over the disputed land to them whereupon ‘they provided ‘’aseda’’. He disclosed that Nana Pepaase told them that 5 therewas akioskon thelandandthathehadhadprior discussionwiththeowner(PW2)to removesame.DW1statedthatthedefendant wentuntotheplotandfoundthattheplaintiff was on the land and making adverse claim thereto. Following this confusion the defendant sent the matter to the Berekum District Assembly and all of them produced their respective documents and after examination of same the officials handling the issue advised them to share the plot into two but the plaintiff ignored that suggestion and instituted the instant action. ReginaAnkamahAma,sisteroftheplaintiffalsocorroboratedtheevidenceofthedefendant and DW1. She said she was present when Op Dakwanim officially handed over the dispute plot to them in the presence of some family members such as Op. Yaw Mensah, Akua Brenya and Kwame Krah all deceased. She revealed that she used to go onto the plot with her late father anytime it was weedy. That she knew the plot long before it was eventually giftedtothembytheirfather’scustomarysuccessor,OPDakwanim. ISSUESFORDETERMINATION After carefully examining the facts and evidence on the record, I am of the considered opinionthattwoissues comeupfordetermination.Theseare. (a) Whether or not the plaintiff’s plot number 54 Block B Sector 4 (previously number H 107) situate of Nyamebekyere–Berekum is the same as plot number 102 Block E Berekum being counterclaimedbythedefendant. (b) Towhichofthepartiesdoesthedisputedplotbelong? 6 BURDENOFPROOF BeforeI dealwiththeaboveissuesseriatimI shallfirsttouchon theburdenofproof.Incivil cases,thegeneralruleisthattheonewhoinhiswrit,pleadingsandorevidenceraisesissues essentialtothesuccessofhiscaseassumestheonusofproof.SeeBankofWestAfricaLtdV Ackun(1993GLR176.Thecivilonusisonthebalanceofprobabilities.SeeSection12ofthe EvidenceAct,1975(NRCD323)ordinarily, theplaintiffhereinwouldhavesolelybornethe burden of persuasion to adduce sufficient credible evidence to succeed. But in the instant case,since the defendant herein alsocounterclaimedfora declaration of titleto plotnumber H102Berekumhealsohasanequalburdenofproofastheplaintiffherein. EVALUATIONOFEVIDENCE Whereas the plaintiff describes the plot in issue as plot number 57 Block B Sector 4 (previously number H 107) the defendant in his counterclaim describes the plot in issue as numbered102 Block E Berekum. The question thatrequires immediate answer is that, is the plot in issue the same as differently described by the parties? The answer is yes. The issue oftheidentityofthedisputedplotwassettledwhentheplaintiff’sfirstwitnessKofiMensah wascrossexaminedon08/04/05. The following ensued during the cross examination of PW1 by the then counsel for the defendant. Q. Youareallegingthatthedisputedplotbearsthenumber57,BlockBSector4notso? A. Thereare manynumbersontheplotindispute.Idonotpaythepropertyrates.Howeverthe plaintiffdoesthat. Q. Itisnotcorrectthatthe plot indisputeisnumbered57BlockB57sector 7 A The plots here have been re-numberedover and over again byBarkley, thenDartey, another manfromMpatasieetc.Thenumberhoweveronthepropertyratereceiptisthenumberofthe plot. Q. WereBarkleyandDarteysurveyors. A. YesBarkleypreparedthegenerallayoutofBerekumTownship. Q. I am putting it to you that the disputed plot bears the number 102 Block H in the scheme of things A. Ihavesaidthatthenumbershavebeenchangedseveraltimesover(Emphasismine) From the foregoing, I have no doubt in my mind that howsoever numbered or described theplotindisputeisthesamebutdifferentlynumberedasalludedtobyPW1. It has to be emphasised that this matter is being tried on the basis of pleadings filed by the parties. The star witness for the plaintiff, Kofi Mensah (PW1) testified that the plaintiff’s uncle, KwameMensah (whoallegedlygiftedthedisputed plottotheplaintiff) placedthedisputed plot under his care because Kwame Mensah was then living at Akrofro. He averred that anytime the plot was weedy, he as caretaker would inform Kwame Mensah to come over and clear the weeds. The failure of the plaintiff to include the fact that PW1 has ever been caretaker in his amended statement of claim fatally destroys his case. In HAMMOND v ODOI(1982-83)GLR1215theSupremeCourtstatedasfollows: “Pleadings are the nucleus around which the case, the whole case revolves. Their very nature and characterthusdemonstratetheirimportanceinactions,asforthebenefitofthecourtaswellasforthe parties.A trial judge can only consider the evidence of the parties inthe light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and 8 circumscribe the parities and place fetters on the evidence that they would lead. Amendment is the coursetofreethemfromsuch,fetters.Thepleadingsthus manifestthetrueandsubstantivemeritsof the case. And the reply is very much a part of the pleadings’’ [IN AGYEIWAA V P & T CORPORATION [2007-2008] 2 SCGLR 985 @ 994 WOOD CJ STATED THUS. “ It is trite learningthatpleadings aremeantfortheparties toknowbeforehandtheissueincontroversybetween thepartiestoenablethempreparetheircaseadequatelytomeetthecaseonhand” In the instant case, the plaintiff filed his statement of claim on 21/05/02 and subsequently filedhisamendedstatementofclaimon13/02/03. That is nine clear months and the amendment he filed could not capture the fact that PW1 had once been a caretaker of the disputed plot. Clearly the invitation of PW1 as a witness wasanafterthought. Even when the plaintiff himself was under cross examination on 07/04/10 by counsel for the defendant, my brother the trial learned magistrate of blessed memory H/W Pius E Kugblene Esq recorded that he was being evasive to the questions posed. To most of the questionsposedheanswered“Notcorrect’’ The evasive and uncertain answers made in cross-examination by the plaintiff instead of elaboratingfurtherprobablycreatedreasonabledoubtsinthemindofthetrialmagistrate. The Defendant had stated unequivocally that the disputed plot was acquired by his late father from the Berekum Traditional Council in and around 1967. (See paragraph 6 of his statement of claim).The plaintiff on the other hand states in paragraph 3 of his statement of claim that his late grandfather, Kwabena Kyere originally acquired the disputed plot. He could not however state who the grantors of his grandfather were. In OGBARMEY TETTEHV OGBARMEYTETTEH(1993-94)I GLR SC 353,itwas heldthatinan action for 9 a declaration of title to the land, a plaintiff who failed to establish the root of his title must failbecausesuchdefaultwasfataltohiscase. I have taken judicial notice of the factthat this matter was first sent to the Berekum. District Assemblyforresolutionbytheplaintiffherein, WhereastheplaintiffclaimsthataftertheinspectionoftheirrespectivedocumentstheTown andCountryPlanningofficertoldhimthathisdocumentsweremorevalidthanthoseofthe defendant, the report from theDistrict Town Planning Officer dated 12/02/02 andsigned by one K.K. Nyame (the Planning Officer) says something to the contrary. The report marked ExhibitCT2statesasfollows. Myinvestigationshaverevealedthefollowing; 1 ‘’thecomplainantanddefendanthavenoallocationdocumenttosupporttheirclaims. 2 Theydonotalsopossesssiteplans. 3 The building plans they tendered as proof of their evidence supporting their claims are also notreliablebecausethereareelementsofalterationonthem 4 Theirnames have been registeredagainst two different plot numbers in1967and1969 at the DistrictAssemblyPropertyRateOffice 5 HoweverthenumbersandtheBlockaredifferentfromwhatisavailableattheTownplanning office 6 Thefactsavailabledonotgiveanyclearindicationoftheownershipoftheplot. 7 SincetheTownplanningandtheDistrictAssemblyhavenojurisdictionoverlandownership. ThematterisbeingreferredtotheBerekumTraditionalcouncilforarbitration.’’ 10 The contents of the report are so clear and requires no judicial interpretation. No where in the report was it stated that the plaintiff’s documents were more valid than defendant’s documents? The plaintiff on this score was very economic with the truth and fruitlessly attemptedtothrowdustintotheeyesofthishonourablecourt. Thedefendant hadtestifiedthathis latefatheracquiredthedisputedplotfromtheBerekum Traditional Council somewhere in 1967. This statement was confirmed in serial 4 of the reportthus ‘’Their names havebeen registered against two different plot numbers in 1967and1969 at the District Assembly property Rate office’’ Per this statement, this court is of the considered opinionthattheplaintiffsfatherregisteredhisplotin1967withtheAssemblyandbeganthe paymentofsanitationfeesfromthen. The Planning Officer who could not resolve the ownership of the plot smartly referred the mattertothecustodiansoftheland,theBerekumTraditionalCouncilforresolution. Instead of going before the traditional council, the plaintiff took the instant action. What was he afraid of? Much as arbitration is voluntary I think the failure of the plaintiff to submit to thecustodiansoftheland(BerekumTraditionalcouncil)smacksofmischief. In her evidence in chief on 27/08/10 Lucy Adomah (PW2) niece of the plaintiff herein, testifiedonoathasfollows. ‘’Iknowtheparties.Plaintiffismyuncle. IpracticemytradeatNyamebekyereBerekumonMpatasie road.I knowwhy thusaction.Itis aboutthe plot onwhichI amplyingmytrade.Plotno.57Block B sector 4formerlyknownas No.H107Nyamebekyere. The plot wasgivento mebyThomasAdomah- plaintiff. Ihavebeenontheplotforthepast16years’’. ThefollowingensuedduringcrossexaminationofPW2bycounselforthedefendant Q. Youdonotknowanythingabouttheland. 11 A. Iknowthatitisformyuncleandhemademe toremainonit. Q. Youconstructedacontaineronthelandwhilstthecasewaspendingincourt. A. It was a kiosk and defendant came to put up sand there and this made the kiosk to be out of usesoIerectedthecontainer. Q. Atthetimeyouputthecontainerontheplotyouknowthematterwasbeforecourt. A. My originalplacewasspoilt bythedefendantandIhadtowork. From the foregoing, it is clear that PW2, put up her container on the land during the pendency of the suit. The purpose was to create the impression that the plaintiff was in possession.Thecross-examinationcontinuedasfollows. Q. Sometimeago,thePepaaseheneservedanoticeonyoualettertoleavetheland. A That is so. It was not addressed to me so I refused to acknowledge same and informed the plaintiffaccordingly. This response by PW2 convinces me that the Pepasehene who was acting on behalf of his blind senior brother Op Dakwanim had the animus possedendi that was why he authoritativelyissuedevictionnotice toPW2. Kofi Mensah alias Joseph Kofi Mensah who at the time of testifying for the plaintiff on 08/04/05 was said to be 107 years averred on oath that as caretaker of the plot, the defendant who lived opposite his house and close to the plot in dispute never laid claim to theplotatalltimesmaterial. Herevealedthatthedefendantoncecausedsanitaryinspectors to summon the owner of the plot because he had seen a scorpion on the land. That he was theonewhoevenpleadedwiththesanitaryofficerstodropthematter. 12 Ifatthetimeofsummoningthe“owners”oftheplotthedefendanthadnotlaidanyclaimto same,itisreasonablyprobablethatatthetime,hedidnotevenknowthatthelandbelonged to his late father. The defendant had explained that it was after the demise of his father in 1981 that Op Dakwanim who succeeded his late father, informed him and handed over the plottohimandhissiblings. Andbecausehewas blindatthetimeOp Dakwaniminstructed his younger brother Nana Adu (Pepasehene) to show them the plot. It was after they were shownthedisputedplotthatlitigationcommenced.Itis instructivetorepeatthatthematter was sent to the Town and Country Planning Department of the Berekum District Assembly and a report was filed on 12/02/02. A month later on 08/03/02 the plaintiff instituted the instant action. It appears the plaintiff capitalised on the blindness of OP Dakwanim to contesttheownershipofthedisputedplotwiththedefendant. In alldepartments of this caseI find thedefendants evidencemoreprobablethanthatof the plaintiff. For the reasons stated supra and on the balance of the probabilities I dismiss the plaintiff’sclaimsandratherfindforthedefendantasfollows; (a) Title is declared in favour of the defendant of plot differently numbered as 57, Block B, Sector 4 (previously number 107) and 102 Block E Nyamebekyere Berekum. (b) The interlocutory order restraining all parties, their assigns privies agents, workmen,etcisherebyvacatedtoenablethedefendanttotakepossessionthereof. (c) The plaintiff, his agent’s privies, licensees and anyone claiming through him are perpetuallyrestrainedfrominterferingwiththeplotasdescribedsupra. (d) CostsofGH₵8,000.00againsttheplaintiff. 13 SGD H/WAUGUSTINEAKUSA-AM (DISTRICTMAGISTRATE) .