Kyere v Aboagye (SUIT NO. A1/15/2020) [2025] GHADC 244 (17 June 2025)

INTHEDISTRICT COURT HELDAT BEREKUMON 17TH DAYOF JUNE,2025 BEFROEHIS WORSHIP AUGUSTINEAKUSA-AM DISTRICT MAGISTRATE -------------------------------------------------------------------------------------------- SUITNO. A1/15/2020 KYERESTEPHEN OF H/NO. KTB 212 KUTRENO. 2NEARBEREKUM :::: PLAINTIFF VRS ENOCK ABOAGYE OF H/NO. UNKNOWN BEREKUM ::::: DEFENDANT J U DGEME NT ------------------------------------------------------------------------------------------------ In his amended writ of summons filed on 28/04/2020, the plaintiff herein claims against thedefendant hereinthe following reliefs;- (a) Generaldamagesforconversion. (b) Special damagesrepresenting the amount ofmoney the plaintiff spent in 1 ingathing aheap of filling material on his land plus the prevailing value of thefilling materials the defendant convicts away asfollows:- (1) GH₵1,900.00 being the cost incurred by the plaintiff in living an earth moving machine togatherthe filling material onthe land. (2) GH₵8,000.00 being the value of 20 trips of filling materials the defendant coveted away atGH₵400per trip. THECASE OF THE PLAINTIFF The plaintiff stated that he owned three contiguous plots of land numbered 44A, 45 and 46 Block ‘D’ Sector 13 Mpataasie. The plaintiff caused a bulldozer to level the plots which were sloppy in native for them to become attractive and thereafter heaped excavated soil estimated to be approximately twenty trips which cost him GH₵1,900.00onplot number 44ABlock “D’ Sector 13, Mpataasie. After levelling these three plots of land as described supra, the plaintiff sold plot number 45 to the defendant in2016at the costofGH₵6,00.00. Without, the permission, consent and or knowledge of the plaintiff, the defendant made use of the entire twenty trips of sand he had heaped on plot number 44 ´A´ to fill up the foundation ofa house he (defendant) had put up his plot number 45 hence 2 the instant action for the recovery of the value of the 20 trips of the heaped soil he had appropriated. Amankwaa Franklin Ampomah who is a friend of the plaintiff testified as PW1. He corroborated the evidence of the plaintiff by stating that the heaped soil which the defendant appropriated was on plot No. 44A which is owned by the plaintiff. He said he supervised the levelling of the sloppy plots of land by the earth moving operators and also witnessing the payment of GH₵1,900.00 by the plaintiff to the operators. PW1 was emphatic that the heaped sand was on plot number 44A and notplot number 45which had beensold tothe defendant. THE CASE OF THEDEFENDANT The defendant explained that he purchased plot number 45 Block “D’ Sector 13 Mpataasie from the plaintiff. Before the purchase the heaped soil was on plot No. 45 and it was understood that he was purchasing the plot of land as the cost of GH₵6,000.00 because of the soil that had been heaped on the land. He enclosing that the plaintiff assumed him that he could use the heaped soil hence he used same tofillup the foundation he had constructed. The defendant said the plaintiff after seeing him use the heaped soil, reported him to the police but after their preliminary enquiries they found no criminal conduct on his partso thepolice advice anyonewho was aggrieved toseek civilaction. 3 Pomaa Francisca wife of the defendant testify as PW1. She said she was the one the plaintiff approached when evinced intention to sell the plot of land at Mpataasie. After discussing the issue with her husband (defendant herein) they invited the plaintiff to go and show them the plots of land. During the inspection of the land it was observe that the plaintiff had vast building plots he was disposing of. They however saw two plots of land with heaps of soil thereon. They therefore settled on one of the plots with heaped soil which happened to be plot number 45. They negotiated for the price but the plaintiff insisted on taking GH₵6,000.00 because of the added advantage of having a heap of soil on it. After making payment to the plaintiff they constructed their foundation and made use of the heaped soil as assured but for solve strange reasons, the plaintiff reported them to the police for appropriate the heaped soil with of his consent or knowledge. After the police had listened to their side of the story, the police found nothing acuminating against them so no changes were preferred against them. That the police addressed the plaintiff totakecivilaction. ISSUESFOR DETERMINATION Atthe end ofthe trialtwo issues came upfor determination. (a) Whether or not the plaintiff sold plot 45 Block D Sector 13 Mpataasie together withthe heapofsoilto thedefendant. (b) Whether or not the heap of soil was on plot No. 44A or 45 Block D Sector 13 –Mpatasie. 4 BURDENOF PROOF Before I deal with the issues supra it is important to state that in civil matters such as the instant one, the plaintiff who in his writ, pleading and evidence has raised issues essential tothe success ofhis case assumes the burdenofproof. SeeFAIBI V STATE HOELS CORPORATION (1968) GLR 471, ASANTE APPIAH V AMPONSAH (2009) SCGLR 90 and section 12 of the evidence Act 1975 (NRCD 323) The civil onus is on the balance of probabilities only. See SERWAA V KESSE (1960) GLR 227 @ 228 AND Section 12 (2) of NRCD 323. The burden of proof may shift from the plaintiff to the defendant to prove any assertion he makes in defence to the plaintiffs case. See section14ofNRCD 323. The plaintiff in his evidence testified that the heaped soil on his plots of land before selling to the defendant and that this heap ofsoil, was gathered on plot no 44A Block “D”Sector 13Mpatasie which was plotpartofthe plotsold tothe defendant. This piece of evidence was corroborated by pw1 in paragraph 12 of his witness statement thus “I emphatically stated that the heap offilling materialwas on plot No. 44A Block“D’Sector 13Mpatapo. Whilst the plaintiff had stated that his plot of land is situated at Mpatapo, his own witness statedthat the plotis situate at Mpatapo. 5 Assuming without admitting that it was a typographical error, when pw1 was under crossexamination, on04/04/23 thefollowing ensued. Q. Do youknowplotnumbers44,45and 46? A. YesIdo. Q. Which plotwas sold tome? A. Iwas not there during transactionso I cannot tell. Q. Areyouthe one who cleared the land? A. Yesand the plaintiff paid me GH₵900.00. Q. Areyouthe one who tripped thegravelsonplotnumber 44? A. NotonplotNo. 44whichis yours. I don’tknowtheplot numbers. From the above, it is clear that pw1 is not a credible witness. How could he have stated emphatically in hiswitness statementthat the heaped soilwas onplot number 44A and during cross examination which is very crucial respond that he does not know the plot numbers. In fact pw1 had even responded to a question that he knows plot numbers 44,45 and 46when asked which plot was sold to the defendant, he responded thathe was not presentduring thetransaction so he could nottell. In paragraph 5 of his witness stating which was tendered in evidence on oath PW1 states as follows:- “ plot numbers 44A and 46 belongs to the plaintiff and the 6 defendant owns plot number 45 which the plaintiff sold to him or around 2016 “ for pw1thenaround say he doesnotknowthe plotnumberssaucesofmischief. Inparagraphs7and 8ofhis witness statementpw1 statesasfollows” I co-supervised the work the operators of heavy duty earth moving vehicles executed on the land in 2016 where upon on the earth gathered by the vehicles was heaped onplot No.44A Block D Sector 13Mpatapo,estimated tobe 20 truck-loads by a10wheeler tipper truck”. I witness the payment of the total hiring fee of GH₵1,900.00 by the plaintiff to the bulldozer and Caterpillar afterthey had executed thejob” From the above responses by PW1 it is evident that it was the operators of the heavy duty earth moving vehicles who levelled the land and gathered the earth and heaped same onthe plot ofland. Howeverduring crossexamination ofPW1 thefollowing ensued; Q. Areyouthe one who cleared the land? A. Yes and the plaintiff paid me GH₵900.00. In his witness statement the star witness for the plaintiff deposed that two operators levelled the land and afterwards used their machines to heap the soil. So at what stage did Pw1 also clear theland andwas paid GH₵900.00. 7 From there going, I am left in no doubt that the evidence of pw1 has been so discountedunder cross examinationand cannot thereforebe relied upon. In the case of FOFIE V 2 ANOR (1992) 2 SCGLR 475 Francis JSC held thus” The law, here again is that were the evidence of a witness in chief is subsequently contradicted by him in cross examination the effect of the contradiction is that the whole of the evidence of the witness on the particular issue should be discredited” Indeed the issue of the location of the heaped soil at the point of sale is crucial tothe determinationofthis case. Whilst the evidence of DW1 was discreted during cross examination, the plaintiff and his witness were consistent that the heaped soil was on plot number 45 which was sold to them. They said it was even the heaped soil thatmotivated themtopurchase the building plotatGH₵6,000.00 Thus the following ensued during cross examination of the defendant by the plaintiffs’ counsel on07/07/23. Q. Plaintiff sold plotnumber 45Block ASector 13toyou. Isthatnot so. A. That isso. Q. When you went to the plot there was no heap of sand on the plot. Is thatnot thecase? 8 A. They had cleared the plotand heaped sandonit. Then on 29th August, 2023, counsel for the plaintiff cautioned with his cross examination ofthe defendant. Beloware excerpts. Q. I am suggesting to you that the heaped sand was obtained from all the twoplotsofthe plaintiff beforehe sold plot number 45toyou. A. There were only two plots ie 45 and 46. He heaped the sand on plot No.45and same was added to it when I was purchasing it. He told me that he had cleared the land and that he would not reduce the price because the heaped sand waswait ofthe land sold tome. On 27th November 2023, counsel for the plaintiff cross examined DW1 thatis thedefendant’swife. The following are excerpts. Q. Which ofthe two plotsdid youand your husband settle on? A. We close the plot that had been cleared. There were two plots. One had not beenlevelled. Q. So it confirms paragraph 11 of your witness statement that you settled onthe one withheaped earththereon. A. Yes. Q. You want the court to believe you that plot number 45 had heaped soil onit. 9 A. Yes. There washeaped soil onit. Q. The plaintiff sold plotNo.45without any heapsoilonit. A. There was a heap soil on it. Before then I called the plaintiff to confirmed if he were paying for the heap soil and he confirmed before he paid him. Q. From the foregoing, it is clear that the evidence of the defendant was corroborated by his wife, DW1 herein who actually inspected the contiguous plots of land and settled on plot number 45 which had soil heaped onsame. In the case of MANUKURE V AGYEKUM (1992-93) 2 GBR 888 CA, it was held that as a settled rule, where the evidence of a party on an issue has been corroborated, that part’s case ought to be preferred to that which had not been corroborated unless there were good reasons tobe clearly statedin thejudgment” I have taken judicial notice of the fact that the plaintiff lodged an official complained with the police regarding this same judge ofmatter. In his address to the court counsel for the plaintiff sought to find out why the plaintiff would lodge a complaint with the police if the defendant had not converted his (plaintiff’s) heaped sand. The 10 question I also ask is had the police found the defendant culpable would they have left him off the hook? I believed the police found nothing incinerating hence their inaction. Now, what is the tort of conversation? Conversion may be defined as an intentional interference or dealing with the clialttel……., which is seriously inconsistent with possession or right to immediate possession of another. See street on Torts stredition. adition Page 46. In similar vein the supreme court of Ghana stated in the case of STANDARD CHARTERED BANK (GHANA) LTD v NELSON (1998-99) SC GLR 810 @ 817 THUS… Conversion, then is the wrongful possessionofgoods orchattel belong to another and the use thereof by that other. This case concluded that an action in convince cannot succeed if the interference doesnot lend itself to the conclusionthat the defendant is setting uparival claim. In the instant the defendant is not setting up a rival claim. All he say’s is that the heaped sand was on plot number 45 and that motivated him to pay GH₵6,000.00 for the plot of land when the plaintiff refused to reduce the purchase price 11 12