Asantewaa and Another v Tonto and Another (A1/41/23) [2025] GHADC 234 (12 May 2025)

SITTINGINTHE DISTRICT COURT ATWENCHI IN THEBONO REGION ON MONDAY THE 12TH DAYOF MAY,2025, BEFOREHIS WORHSIP ISSAHABDUL- WAHAB (DISTRICT MAGISTRATE) SUITNO. A1/41/23 BETWEEN: 1. JOYCE ASANTEWAA OF WENCHI - - PLAINTIFFS 2. DANIELABREFA OF WENCHI VRS: 1. KWEKUTONTO 2. SISTERAMA - - - DEFENDANTS OF AKROBI J U DGEME NT The plaintiffs brought this action against the defendants jointly and severally seeking thefollowing reliefs; 1 (a) An order for a declaration of title to and recovery of possession of all that building plot number 66, Block ‘E’ Sector 2and situate, lying and being at a place known and called “Akrobi South” on Wenchi stool lands and bounded by the propertiesofotherplotowners; (b) Generaldamagesfortrespass; (c) An order for perpetual injunction to restrain the defendants their agents, assigns, privies, labourersand allthose who claim throughthemfromentering theland. (d)Costagainst the defendants The defendants denied liability of the claims after same were read and explained to them. From the pleading filed by the parties and the plaintiff’s particulars of claim the following legalissues were set downfortrial; (1) Whether or not the disputed plot number 66, Block ‘E’ Sector 2, is the property of theplaintiffs herein; (2) Whetherornot theplaintiff have any valid title tothe said disputed plot; (3) Whetherornot theplaintiffs areentitle toarecoveryofthe said plot; (4) Whetherornot thedefendants trespassed ontothe said plot; (5) Whetherornot theplaintiffs areentitle toanygeneraldamages, and (6) Whetherornot anorder willlie for aninjunction against the defendantsherein. 2 The evidence of the plaintiffs in proof of their claims consisted of their evidence in chief and the testimonies oftheir two (2)witnesses. The second plaintiff (2nd plaintiff) told the court he is Daniel Abrefa and that he spoke for himself and the 1st plaintiff. That he lives in Wenchi and is a farmer. That he knows the 1st plaintiff as well. The plaintiffs said the disputed land is one (1) building plot lying and situate at “Akrobi South” on the Wenchi stool lands and shares common boundary with the properties of Kofi Ansu, Nana Kwame Atuahene (P.W.2), Mr. Patrickand alane respectively. The 2nd plaintiff said the disputed plot is one of some eight (8) plots that were gifted to him (2nd plaintiff) and seven (7) other people by Nana Akrobihene (Nana Seperepe Opoku Ababio II)at thetime theywere youngand serving inthe palace. That he (2nd plaintiff) and the seven (7) others provided the customary “Aseda” in the form of schnapps to the Akrobihene as custom demands. Plaintiff said he then took immediate possession of his said plot after Nana contracted the Town Planning Office at the time to demarcate same into plots. The plaintiff said he erected pillars on the boundariestodifferentiate it’s fromotherbuilding plots. Second plaintiff said after some years, he then sold his said disputed plot to the first plaintiff (Joyce Asantewaa). That he took 1st plaintiff to the Akrobihene (P.W.1) and he issues 1st plaintiff with the allocation letter/note which was then used for the 3 preparation of the site plan. The site plan and the Allocation letter were tendered and marked as Exhibit ‘A’. That they later went to deposit sand on the plot only to find that someone hadalreadydeposited atripofsand onsame. That, they investigated and found that the 2nd defendant herein (D2) deposited the sand on the plot. That they reported the matter to the Akrobihene and when he invited 2nd defendant she refused to go. That instead, 2nd defendant started digging a foundation on the plot. They (plaintiffs) then told the 2nd defendant to stop the development until the issues are resolved but 2nd defendant did not listen. When they asked 2nd defendant who allocated the plot to her (D2), she said the 1st defendant (Kweku Tonto). They (plaintiffs) again informed the Akrobihene (P.W.1) and when he invited the defendants theyfailed tocome. That the defendants then claimed that the plot in dispute belong to Kweku Tonto (D2) and that 2nd defendant has no issue to resolveat the chief’s palace. That as allthese went on the 2nd defendant continued to develop the plot. Plaintiff stated that when they first confronted 2nd defendant about the plot, 2nd defendant even said 1st defendant was worrying her (D2) as he (D1) had previously shown her (D2) a plot and she (D2) was sacked on the said plot. Plaintiff said this was in the presence of Antwi and Nana Ansu. The plaintiff contended that the disputed plot belongs to them and not the defendants herein. 4 2nd plaintiff said the disputed land or plot belongs to the Akrobihene stool and which stool allocated it to him (1st plaintiff) through the chief, Nana Seperepe (P.W.1) and so the1stplaintiff is the ownerand not thedefendants. The first witness for the plaintiffs (P.W.1) told the court he is Nana Seperepe Opoku Ababio III, Akrobihene and a farmer. That he lives in Akrobi. That he knows the plaintiffs as well as the 1st defendant. that as the Akrobihene and the custodian of all the stool lands of Akrobi that all sales of stool lands are done through and by his (P.W.1) office and authorization. That the disputed land/plot is part of Akrobi lands and is at a place commonly known as “Gyan Kwasi”. That the said area originally under the irrigation scheme was demarcated into building plots by the Town Planning Office in the month of June,2015 and so could not have been allocated to anyone in the year 2013 as the land at the time had not been demarcated into residential plots. P.W.1 said after the area was demarcated, he allocated 8 plots to Nana Kwame Atuahene (P.W.2) to be share between himself and his boys. P.W.1 said the allocation was done onhis behalf by the said Nana Atuahene ( The Krontihene of Wenchi Traditional Area) and was witnessed by one Antwi Samuel. The witness (P.W.1) said it was then that2nd defendant herein was allocated plot number 66, Block ‘E’ (The disputed plot). P.W.1 said he never allocated anypot tothe 2nd defendant (D2) in June,2015, and did not also send anyagent to allocate any plot to 2nd defendant. That any document 2nd defendant has which 5 purports to be signed by him (P.W.1) is not from him (P.W.1). That Samuel Antwi was inchargeofhis (P.W.1) land allocationuntil he (P.W.1) sacked him in the year2016. P.W.1said he is the Akrobihene and still remains the chief. P.W.1 said the disputed land belongstothe plaintiffs. The second and final witness for the plaintiffs said he is Nana Okofobour Atuahene Damaoh Attah Gyan III, Krontihene of Wenchi Traditional Area. That he is a farmer and lives in Wenchi. P.W.2 said he knows the plaintiffs and the 1st defendant. that he does not knows the plaintiffs and the 1st defendant. That he does not know the 2nd defendant. P.W.2 said he knows the disputed land. That it is part of Akrobi lands and situate at a place commonly known as “:Gyan Kwasi”. That the disputed land was part of some 120 acres of land at Akrobi which was held by the Irrigation Development Authority. That the Akrobihene (P.W.1) later wrote letters for the release of the said lands. That P.W.1 later wrote to the Town and Country Planning Department to demarcate the lands into building plots, after the land was released by the Irrigation Authority. That the Town Planning Department in June,2015 demarcated the land into plots. That after that the Akrobihene (P.W.1) then allocated 8 plots to him (P.W.2) Yeboah, Bame, Abrefa, Owura, Poku, Kojo, Nana Ansu and Papa Arko and this was witnessed by Antwi Samuel, the then land allocation officer for the Akrobihene (P.W.1). P.W.2 said it was when 2nd defendant was allocated plot number 66, Block ‘E’ (The disputed land). That the allocated wasdone to2nd defendant in June,2015. 6 The witness (P.W.2) said the disputed land belongs to the plaintiffs and not for the defendants. In their evidence in-chief- the 1st defendant (D1) told the court he is Kwaku Tonto and that he testified for himself and the 2nd defendant (D2). That he is a farmer and lives in Wenchi. That he (D1) know the disputed land. 1st defendant said the disputed land was allocated to the second defendant (D2) in June,2015, on the directive of the WenchI CHRAJ after the second defendant petitioned on grounds of unfair treatment when he (D2) first plot was given to another person by the allocation officer (one Antwi Samuel) then appointed by the Nana Seperepe Opoku Ababio III, who was the Akrobihene at thetime (June,2025) and he (D1) was the witness. 1st defendant said the disputed plot was a replacement of the first plot which was first allocated to the late husband ofthe 2nd defendant (D2) in 2013 by the said plot allocation officer in July,2013. That plots acquired were dully approved by the then Akrobihene (P.W.1). That as at 2015 2nd defendant had blocks and 2 trips of sand on the said disputed land on the 22nd of March,2023. That the plot allocated to the second defendant is plot number 66, Block A’ and notplot number 66,Block ‘E’as theplaintiffs claim. That the 2nd defendant was allocated the said plot in June,2015 whiles the 2nd plaintiff (Abrefa) and the 7 others were allocated their plots in August,2015. That the plot that 7 was allocated to the 2nd plaintiff is plot number 65, Block ‘E’ located at Akrobi South 1st defendant tendered a site plan which is marked as Exhibit ‘1A’, and a copy of an allocation letter marked Exhibit ‘1B’ and dated 7th August,2015. That the said plot number 65,Block ‘E’ has a building onit belonging to plaintiffs and bearing the name of the 2nd plaintiff and that the said plot is separate and district from the plot number 66, Block ‘E’ and that thelocation aredifferent. The defendants contended that plot 65, Block ‘E’ are at different locations and cannot be said to be the plot that has allocated to the 1st plaintiff. That the plaintiffs Exhibit ‘A’ shows the plot number 66, Block ‘E’ was acquired by the 1st plaintiff in December,2021 16th, whiles the other exhibit ‘2B’ shows a date of 24th December,2021. 1st defendant said asat the 5th ofDecember,2021 the Akrobihene, Nana Ansre Sakra IIhas passed on(died) and so the signatureonthe plotallocation lettertoJoyceAsantewaa (1stplaintiff) is fake. 1stdefendant said tothe best of his (D1) knowledge, Akrobi has not had a chief since the death of Nana Ansre Sakra II and therefore the signature on the allocation letter for 1st plaintiff is fraudulent. That 2nd defendant (Ama Rose) and her husband Yaw Dabou were first allocated plot number 2, Block ‘B’ in July,2013 and when the husband died shortly the land was given out to another person by an unknown person and 2nd defendant (Ama Rose) thenpetitioned CHRAJ. 1st defendant tendered a copy of the said petition to CHRAJ which was marked Exhibit ‘3A’ and ‘3B’. That it was then that CHRAJ gave a directive that the disputed land was 8 re-allocated to the second defendant (D2) and which is plot number 66, Block ‘A’ Akrobi South in June,2015. 1st defendant tendered exhibits ‘4A’ and 4B’. That the people who were present and witnessed the allocation of plot number 66, Block ‘A’ Akrobi South in June,2015 were Samuel Antwi, the appointed land allocation officer, Kweku Tonto, (D1), The CHRAJ officer, Ama Rose Dabou (D2) an officer of the Physical Planning Office ofWenchi Assembly and one Willie Brown(D.W.1). That the land markofplotnumber 66,Block ‘A’ and plot number 66,Block ‘E’ cannot be located at one area as the plaintiffs claim. 1st defendant said the plaintiffs’ claim has no basis andsame should not be granted by the court. The sole witness for the defendants (D.W.1) told the court he is William Brown and that he lives in Wenchi. That he knows the defendants. D.W.1 said he knows the disputed landwhich is atAkrobi. That he got to know the land in 2015 when the second defendant (D2) Ama Rose petitioned CHRAJ in Wenchi over an unfair treatment against Antwi Samuel and KwekuTonto. That AntwiSamuelwas the plotallocation and wassupported by Kweku Tonto (D1) at the time D.W.1 said the disputed plot is a replacement plot to the first plot which was earlier allocated to 2nd defendant and her husband, Yaw Dabuo in 2013 by Antwi Samuel. That after the death of 2nd defendant’s husband the first plot allocated to 2nd defendant and her husband was accidentally allocated to another person (William Brown) by Antwi Samuel ( The plot allocation officer). Then in 2015 CHRAJ then 9 directed Antwi Samuel to allocate the disputed to 2nd defendant, in June,2015. D.W.1 said he was present at the site when Antwi Samuel allocated the disputed plot to 2nd defendant in June,2015. That the Town Planning Officer at the time was also there together with the officer from CHRAJ, then 2nd defendant and Kweku Tonto (D1). That the documentationwas thenprepared by AntwiSamuel and endorsed for 2nddefendant. The witness said he was therefore sorry that the ownership of the plot became an issue incourtagain. Having carefully evaluated the evidence, it is important to observe that the plaintiffs’ are in court seeking an order for the declaration of ownership in respect of building plot number 66, Block ‘E’ Sector 2, Akrobi South, Wenchi and which said plot the plaintiffs contended was one of eight (8) plots which were gifted to the 1st plaintiff herein (Daniel Abrefa) and 7 others person, including P.W.2, (Nana Kwame Atuahene) by the Akrobihene (Nana Seperepe Opoku Ababio III). This indeed was the testimony of the 1stplaintiff, DanielAbrefa, who testified for himself and the 2ndplaintiff herein. Again, the plaintiffs clearly identified the plot which they stated is situated and lies at AkorbiSouth, Wenchiand numbered66ofBlock ‘E’ Sector2. This was then corroborated by the plaintiff’s two (2) main witnesses ( ie P.W.1 and P.W.2) who are Nana Kwame Atuahene (P.W.2) and Nana Seperepe Opo ku Ababio III, the Akrobihene. P.W.2 told the court he is the Akrobihene and that the disputed plot is part of track of land which was initially acquired by Ghana Irrigation Development 10 Authority but was later released to him upon a demand. P.W.1 said he then allocated eight (8) plots including the disputed plot to the 1st plaintiff and 7 others including P.W.2 (Nana Kwame Atuahene) and this was witnessed by the then plot allocation officer for his (P.W.1) palace, one Antwi Samuel. That the 1st plaintiff then later transferred his interest plot number 66, Block ‘E’ Sector 2 in dispute now to the 1st plaintiff herein. It is therefore instructive that the 1st plaintiff herein traces her title to the disputed plot number 66, Block ‘E’ Sector 2 to the 2nd plaintiff who is Daniel Abrefa, and Daniel Abrefa also traced his title to P.W.1, Nana Seperepe Opoku Ababio III, who is his (2nd plaintiff) grantor. Indeed the said P.W.1herein has corroborated the fact ofstated by the plaintiffs that, he granted the disputed plot which was part of some eight (8) plots he allocated to some eight (8) persons including the 2nd plaintiff and P.W.2, (Nana Kwame Atuahene). However, upon careful assessment of the evidence of the defendants’ it is their contention that the disputed plot was granted to the 2nd defendant, Rose Ama Dabou in June, of 2015 on the directive of the office of the Commission on Human Rights and Administrative Justice (CHRAJ) for what the defendant state was “ on the ground of unfair treatment. This is contained in paragraph 5 of the evidence of the 1st defendant, Kwaku Tonto who testified before this court for himself and the 2nd defendant. The 1st defendant further 11 noted that the said plot allocated to the 2nd defendant was a replacement plot for an earlier one which had been allocated to the 2nd defendant’s late husband, one Yaw Dabuo. Indeed, this was the testimony of the defendants sole witness (D.W.1) one William Brown, who also testified forthe defendant in court. It is however important to observe that the defendants’ did not state, the number of the earlier plot they claimed was allocated to the 2nd defendant’s late husband and who did the said allocation. Neither the 1st defendant, Kweku Tonto nor their sole witness, William Brown, mentioned the number ofthat earlier plot they said was allocated to the 2nd defendant and her husband. What they have told this court is the fact that it was at the CHARAJ office in Wenchi that the Officer in charge instructed or directed that the 2nd defendant be given a replacement plot. The questions to ask are; A replacement plot fromwhere? And by who? These pertinent questions have not been addressed by the defendants. It must again be noted that even though 1st defendant and D.W.1 both claimed that the 2nd defendant was given a replacement plot on the directions of CHRAJ, D.W.1 William Brown, never mentioned the number of the plot that was purportedly given to the 2nd defendant. He (D.W.1) only claimed the allocation was made in June,2015 and he was present. However, 1st defendant Kweku Tonto in paragraph 9 of his evidence said the 2nd defendant was allocated plot number 66, Block ‘A’ and not plot number 66, Block ‘E’. 12 This claim by 1st defendant obviously has not been corroborated by their sole witness (D.W.1) as he did not state the specific plot that was purportedly allocated to the 2nd defendant. That granted without even admitting that the 2nd defendant was granted plot number 66, Block ‘A’ as 1st defendant claims, then it means her (D2) plot is at a different location somewhere and not where the disputed plot which is plot number 66, Block ‘E’ Sector 2, is situate. Indeed by the submission of the defendants themselves if their plot number 66, Block ‘A’ then it means that the said plot is district from the disputed plot number 66, Block ‘E’ Sector 2, which the plaintiff’s argued is the property of the 1st plaintiff, JoyceAsantewaa. It is important to state that where you have two separate and district building plot with the same number, for instance No. 66, then the Block and/or Sectors, will definitely be different. This is because no two (2) district plots on the same block and same Sector, canhave the same number. So the admission by the defendants herein that the 2nd defendant’s plot is number 66, Block ‘A’ means that the disputed plot is not for the defendants’ (See paragraph 9 of the defendants’ evidence in chief). And as opposed to the claim by the defendant’s therefore,the plaintiffsherein, have consistently maintained in their particulars ofclaim, as well as in their statement of claim and in their evidence in chief that their plot is plot number 66, Block ‘E’ Sector 2 Akrobi South, Wenchi and which said plot in dispute now 13 was sold by the 1st plaintiff to the 2nd plaintiff and after same plot was validly granted by P.W.1(Nana Seperepe OpokuAbabio III)tothe 1stplaintiff. Finally, it must be noted that the defendants’ also sought to challenge the claim by the plaintiffs that the disputed plot was validly granted to the plaintiff’s when they contended that the 2nd defendant was allocated a certain plot number 66, Block ‘A’ as a replacement. Plot allocated to 2nd defendant late husband was given to another person. And that this second purported allocation was done on the instruction of the officer in chargeofCHRAJherein inWenchi. Having already discussed and pointed out the inconsistencies in the above claim relative tothe said purported plot number 66,Block ‘A’,I wish to also question the legal and factual basis for the purported instruction by the CHRAJ office for the allocation of the plot to the 2nd defendant who was that instruction by the CHRAJ directed to? And who did the said purported second allocation? And why did the defendants not call the said grantor to come and corroborated their claim? Why again was the CHRAJ office in Wenchi not also called by the defendants’ to corroborate their claim? I find the lack of answers to these pertinent questions above troubling and that clearly is fatal to the case ofthe defendants’. Fromthe evidence thereforeI found the following facts; 14 (1) That the disputed plot number 66, Block ‘E’ Sector 2 was granted to the 1st plaintiff as part of some 8 plots which were gifted to 1st plaintiff and others by P.W.1. (2) That the1stplaintiff later sold thesaid plot tothe2nd plaintiff. (3) That the claim by the defendants’ that the disputed plot was given to the 2nd defendant on the instruction of CHRAJ in Wenchi as a replacement plot has not beenproved. (4) That P.W.1, has testified in support of the plaintiff’s case that he indeed granted thedisputed plot tothe1stplaintiff. In a civil trial, t he law imposes the burden of proof on the plaintiff or the party who in his/her pleadings or writ of summons raise issues that are essential to the success of their claim. This is a principle of law set out in the decided case of Faibi Vs State Hotels Corp{1968} GLR, 176. This legal principle is founded on the law relating to the evidential burden in civil trials as provide for in Section 11 (4) of the Evidence Act, 1975 (NRCD 323). The Section 11 (4) provides that; “ In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that onalltheevidence areasonable mind could conclude that the existence ofthefact was more probable thanits non-existence”. 15 It is therefore trite learning that the law requires the party carrying the burden to produce sufficient evidence to make out a claim on a preponderance of probabilities as defined in Section12(1) ofNRCD323Section 12(1)stated that; “Except asotherwise provided by law, the burden ofpersuasion requiresaproof by the preponderance of probabilities”. This persuasive burden is defined in Section 12 (2) as “ the degree of Certainty of belief in the mind of the court by which the court is convinced thatthe existence ofthe fact has moreprobable thanitsnon-existence”. Apartywho in awrit ofsummons claim ownership ofland, must proof; (a) His/her rootoftitle to the land indispute. (b) The incidence ofhis orher acquisitionofthe land in dispute, and (c) The evidence of hisacts ofunchallenged possessionofthe said land. See,here the case ofNana Ama GyebuXVVs Mondia Iveneerco Co.Ltd (2010) MLRG,84SC. The plaintiffs herein contended that the disputed plot number 66, Block ‘E’ Sector 2 was gifted by P.W.1 to the 1st plaintiff and intend sold same to the 2nd plaintiff. This therefore has been the root of the 2nd plaintiff’s title to the said plot. The witness (P.W.1) corroborated the claim by the 1st plaintiff that he is his grantor. This therefore means that the plaintiff successfully proved their root of title to the disputed plot as the defendants’ have notdislodged the said evidence ofthe plaintiffs’. 16 The plaintiff have thus discharged the evidential burden on their relative to their claim ofownership ofthedisputed plot. From the evidence as adduced before this court and the law as stated it is my valued conclusion that the plaintiffs have proved their claims and Judgement is hereby entered forthe plaintiffs. The reasonsfor theaboveconclusion include; (1) That the disputed plot was part of some eight (8) plots originally owned by P.W.1and which he latergifted to the 1stplaintiffand 7otherpersons. (2) That P.W.1testified insupport ofthe plaintiffs as1stplaintiff’sgrantor. (3) That the 1st plaintiff later sold the said plot number 66, Block ‘E’ Sector 2 to the 2ndplaintiff who also took possession ofsame. (4) That the defendants claim that the disputed plot was allocated to the 2nd defendant asareplacement is notsupported by any evidence. (5) That the plaintiffs proved their claims on the preponderance of the probabilities and as required by law. The following orders/ declarationare consequently made bythe court; (a) That the disputed plot number 66, Block ‘E’ Sector 2 is the property of the plaintiffs and they shall takepossession ofsame. 17 (b) That an amount of GH₵2,000.00 is awarded to the plaintiffs and against the defendantsin generaldamagesfor trespass (c) That the defendants, their agents, assigns, privies, workmen, labourers and anyone claiming through the defendants, are restrained forthwith from entering orinterfering withthe said plotnumber 66,Block ‘E’ Sector2.Perpetually. (d)CostofGH₵2,000.00isawarded for theplaintiffs and against the defendants. …………SGD……………. ISSAHABDUL-WAHAB (MAGISTRATE) 18