Achiaw v Henneh and Another (A1/14/2025) [2025] GHADC 254 (26 March 2025)

IN THE DISTRICT COURT HELD AT BEREKUM ON WEDNESDAY 26TH DAY OF MARCH, 2025BEFORE HIS WORSHIP AUGUSTINE AKUSA-AM DISTRICT MAGISTRATE SUITNO. A1/14/2025 MR. PHILIP OWUSU ACHIAW PERHIS LAWFUL ATTORNEYMR. EFFAH THOMAS OF H/NO. BR :: PLAINTIFF 155BEREKUM VRS 1. JOHNSONOWUSU HENNEH OF H/NO. UNKNOWN BEREKUM ::: DEFENDANTS DEFENDANTS 2. FRANCIS ATTASEKEREOF H/NO. UNKNOWN-BEREKUM 1 J U D G M E N T The plaintiff per his lawful attorney instituted this action against both defendants jointly and severally for declaration of title and recovery of all those plot numbers 63 - 66 Block ‘C’ Sector 15, Jamdede extension which said plots belong to the plaintiff of which the first defendant has sold plot number 64 to the second defendant and is developing same. The second reliefbeing sought isfor generaldamagesfor trespass. The defendants repudiated liability BACKGROUND Before the commencement of trial, a motion for interlocutory injunction was granted by the court differently constituted. All parties and their agents assigns etc, were injuncted from interfering with the disputed land until the final determination of the matter. This restraining orderwas issued on24/09/19. On 27/07/20 one C.S.T Amankwaa made an oral application to the court to have the matter settled out of court. The court magnanimously granted the prayer for settlement. However on 05/01/21 the intervener announced to the court that settlement had broken down so the matter took its Judicial course whereupon trial commenced on15/01/24. 2 THEPLAINTIFF’SCASE The plaintiff’s case is that in or around 2005, the Jamdede plot Allocation Committee hereinafter referred to as the committee with the consent and concurrence of Nana Effah Asiedu the then chief of Jamdede started demarcating the general area into building plots because same had become an outskirt land. Following the demarcation of the area into building plots, it was decided that all those who had farmlands that had been earmarked for demarcation into building plots would be entitled to three plots and the remaining seven vesting in the stool. Apart from the three plots that each farmer was entitled to, any farm owner who wanted additional plots could acquire same from the stool by offering a consideration of GH₵500.00 (then₵5,000.00). The committee demarcated the first defendant father’s (Kwabena Boakye) farmland and realised fifty plots. Upon instructions from Nana Effah Asiedu the first defendant’s father was allocated 15 plots. Following the grant of the 15 plots to 1st defendant’s father, he brought a list of his family members whom he had granted his portion to. The committee thus issued receipts to each of the grantees evidencing title and ownership of same with the value of the plots stated on their respective receipts. The said receipts were tendered and marked as Exhibits C1-C 9. Upon the issuance of the receipts, each beneficiary went into immediate occupation and possessionofthesaid fifteenplotsintheir respective names. 3 Inor around 2009 the plaintiff authorised his attorney toacquire plot numbers 63, 64, 65 and 66 Block ‘C’ Sector 15 from the committee for a valuable consideration. The landso acquired was tobe used for theconstructionofahotel. Somewhere in 2018 it was detected that the second defendant had trespassed unto plot number 64 and developing same. Investigation revealed that it was the first defendant who had alienated same to the second defendant. The matter was thus reported to Nana Boakye Adjei II, the current chief of Jamdede who testified as pw2. P w2 acted immediately by writing to the physical planning officer of Berekum District Assembly (as it then was) that plot number 64 had ceased to belong to the family of the first defendant by reason that they had been given 15 plots which did not include plot number 64 which after the demarcation had now vested in the Jamdede stool. The letterwrittento the Assembly by pw2 was tendered and marked as Exhibit ‘D’. Exhibit ‘D’ sought to inform the Assembly that the interest of the first defendant was strictly limited to the 15 plots allocated to his deceased father and that should he purport to grant any other plot of land to anyone, the Assembly should not endorse it. Those who testified for the plaintiff are Kusi Joseph (pw1) who was secretary to the committee from 2005-2010, the period within which the farmlands were demarcated into building plots and Nana Boakye Adjei II, the currentchief ofJamdede who is the custodian and caretakerof all landsinJamdede. 4 THEDEFENDANTS CASE In brief, the first defendant who testified for himself and on behalf of the 2nd defendant testified that the disputed plot number 64 Block ‘C’ Sector 15 Jamdede belonged tohim before selling it tothe second defendant in November 2012. That after the sale, he directed the second defendant to contact the committee for a receipt and the Assembly for a land use plan (site plan). The second defendant also paid ground rent to the Administrator of stool lands on 18/11/15. These documents weretendered and markedExhibits 3,1and 2respectively. According to the 1st defendant after the sale of the plot number 64, pw2 (Chief of Jamdede) ordered all those who had acquired plots of lands in Jamdede to produce their respective documents for confirmation. That after inspecting the documents of the second defendant, pw2 issued him with a new receipt and authorised him to developthe land only fortheplaintiff to initiate this action. Defendants averred that whilst this matter was pending before this court, one C.S.T Amankwaah who testified as Dw1 intervened and withdrew the matter for an out of courtsettlement. The defendants submitted that it was agreed during settlement that they pay the plaintiff an amount of GH₵8,000.00 through pw2 for a new plot to be given to the plaintiff. 5 That a new plot of land was replaced for the plaintiff in the presence of Dw1 (CST Amankwaah) and one Opanin. KusiFrimpong Paul. The defendants state in paragraph 26 of their witness statement that “since we have replaced the plaintiff with a new plot which cost GH₵18,000.00 we are of the view thatthereis nolitigation again”. The two witnesses for the defendant corroborated his testimony by stating that they witnessed the acquisition of a new plot of land for the plaintiff at the cost of GH₵18,000.00. BURDENOF PROOF It is a settled principle in law that he who alleges must prove in order to succeed. The burden of producing evidence is provided for by sections 11 (1) and (4) of the Evidence Act 1973, (NRCD 323). And in the Supreme Court case of Bank of West Africa vrs Ackun (1963) 1 GLR176, it was held that the onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises issues essential to the success of his case assumes the burden of proof. Thus, in the instant case the plaintiff bears the burden of proving assertions made by him to this honourable court. 6 ISSUESFOR DETERMINATION Atthe end ofthe trialthe following issues call fordetermination. a) Whetherornot thedisputed plotsbelongto theplaintiff. b) Whether or not settlement succeeded and the plaintiff was given new plots in place of those trespassed upon by the defendants. The Land Act 2020, (Act 1036) gives various interests in land that can be acquired. The following are theinterestsinland: Section1ofAct 1036provides asfollows:- a) Allodial title (b) common law freehold (C) customary law free hold (d) Usufructuary interest (e) leasehold interest and (f) customary tenancy. Section 2 of Act 1036 describes the allodial title as the highest or ultimate interestin land. It is held by the stateor a stoolorskin, or clan or family or an individual and may be acquired through compulsory acquisition, conquest, pioneer discovery and settlement, gift, purchase or agreement. See Ohimen vrs Adjei and Annor (1957) 2 WALR 275. With the allodial title being the hightest interest, all the other interests are subservient to it and can therefore notoverride it. Since the committee with the consent and concurrence of Nana Effah Asiedu in 2005 commenced the demarcation of the farmlands within the area into building plots, the stool of Jamdede thereby acquired the allodial interest through compulsion or by agreement with the farm owners. This resulted in thestooltaking sevenplotsoutofeverytenplotsdemarcated. 7 The evidence adduced in court clearly shows that the father of the first defendant was given his share of the plots demarcated which did not include those in dispute before this honourable court. Therefore the sale of the plots in dispute by the first defendant to the second defendant is void because the Jamdede stool had acquired the allodial title and it is the only institution that could lawfully transfer its interest. The sale of the disputed plots to the second defendant cannot therefore stand because ofthe principle ofnemo dat quod non habet. It hasto be notedthat when the plaintiff acquired the four plots, he erected pillarson same to identify the boundary of the said plots. This act reflects animus possidendi tosolidify apossessionclaim. See AmpaduVDadzie (1982-83) GLR 123. The defendants claim that the matter had been settled out of court and therefore to the best of their knowledge there ought not to be any litigation again. This assertion by the defendants is palpably false and it’s not supported by the record of proceedings. On the record, leave was granted for settlement out of court on 27/02/20 when one C.S.T Amankwah who later testified for the defendants intervened. On the record it was announced on 05/01/21 that settlement had broken down hence the subsequent. Commencement of full trial. If settlement were indeed successful this matter would have ended without trial. Since the defendants had claimed that there had been settlement so there was no need for further Judicial enquiry, they had the burden to provide sufficient proof to corroborate their assertion. They should have provided the terms of settlement for the adoption by this court. This, they failed to do. 8 Section 63 (1) Of the Alternative Dispute Resolution Act, 2010 (ACT 798) provides an instance where parties to an agreement or dispute may consent to mediation in resolvingtheir dispute. Section 64 (5) of Act 798 provides that where a reference leads to settlement of the dispute or part of the dispute, the settlement shall be (a) drawn up and filed in the court. (b) Recorded by the court asa judgment ofthe court. (c) enforced by the court as its own judgement. On the record of proceedings none of these statutory imperatives were done. I hold therefore that there was no settlement as the defendantswant thecourt tobelieve. Assuming without admitting that there was even a settlement, the mere fact that the defendants initiated the failed settlement and claimed that they had allegedly paid GH₵8,000.00 to the plaintiff through Nana Boakye Adjei II for replacement of the plots in dispute is a clear manifestation that they had admitted their wrongdoing. That istosay theyhad admitted trespass. It is instructive to state that the first defendant had opened his defence and was under cross examination on 22/03/24. The first defendant subsequently stopped coming to court and several hearing notices were served on him and the second defendant but theyfailed tocome to courttodefend orbe heard. On the totality of evidence adduced in court, I am of the candid opinion that the plaintiff had made out his case on the balance of the probabilities to be entitled to relief. 9 In the result, the plaintiff is entitled to recover possession of all those plot numbers 63-66 Block ‘C’ sector 15 Jamdede extension. The injunction order restraining the parties from interfering with the disputed land until the final determination of the suit is according vacated to enable the plaintiff to take the necessary legal steps to recoverpossession. I ward GH₵10,000.00 in damages for trespass against the defendants jointly and severally CostsofGH₵7,000.00awarded infavour oftheplaintiff. AUGUSTINEAKUSA-AM (MAGISTRATE) 10