Yeboah v Amasu (A1/12/2024) [2025] GHADC 253 (21 March 2025)

INTHEDISTRICT COURT SITTINGATWAMFIE ONTHE 21ST DAY OF MARCH,2025 BEFORE HISWORSHIP EUGENE OBENGNTIM,ESQ. SUITNO.:A1/12/2024 PAULYEBOAH ------ PLAINTIFF Amasu PerHis LawfulAttorney ISSAHMOHAMMED VRS ABENANIYENNA ------ DEFENDANT Amasu JUDGMENT Introduction The plaintiff, Paul Yeboah per his Lawful attorney Issah Mohammed filed a writ seeking thefollowing reliefs: a) Declaration that the plaintiff had a valid contract with the defendant that plaintiff should cultivate the defendant’s land on Abunu basis for cocoa plantation which the land situate at a place known as Wamagya on Dormaa Page1of19 stool land the said land share boundary with Op. Kwaku Francis, Maame Yaa Benewaa and Rephica all ofAmasu; b) An order of the Honourable court to compel the defendant to engage a surveyor to share the disputed cocoa farm into two(2) equal parts for the parties; c) Perpetual injunction to restrain the defendant her assigns, labourers, workmen,etc. having anything to doonthe disputed farm. The defendant, on 9th January, 2024, denied liability to all the reliefs sought and the court ordered pleadings to be filed by the arties which were duly complied with. Then on the 27th February 2014, the court ordered parties to file their respective witness statements. Case Management Conference was conducted onthe 24th of June, 2024therebysetting the stagefor ahearing. Hearing commenced on 20th August by Plaintiff, acting per his attorney holder, adopted his witness statement filed on the 26th February, 2024 as his evidence in chief. He also tenderedthepower ofattorneywhichwas marked Exhibit“A”. The attorney holder stated in his witness statement that in 2009, plaintiff in the presence of Oppong Zakaria, Pw1, one Simon and Janet Konama concluded an agreement with the defendant for plaintiff to cultivate her 20 acre land with cocoa to be shared on Abunu basis. Plaintiff paid GH¢300to defendant to sealthe agreement Page2of19 while GH¢ 50 was paid to one Owusu who was cultivating the land. Plaintiff continued that he cultivated cocoa as agreed and where portions of the land was not suitable for cocoa cultivation, parties agreed for plaintiff to cultivate cashew. According to plaintiff, when the cashew had reached fruition, defendant did not consider the agreement and carved half an acre tothe plaintiff and sold 19.50acres to onebrotherAtta. Plaintiff concluded that defendant told the purchaser to report the plaintiff to the police if he takes even foodstuffs from the farm, which the purchaser did when he reportedplaintiff’s wife tothepolice. Plaintiff called twowitnesses. Pw1, Zakaria Oppongfiled awitness statementwhich he relied onas hisevidence inchief. He statedthat in 2009,plaintiff, oneJanet Konamaand Simonthe parties entered in toan agreement forplaintiff tocultivate cocoaondefendant’sland onAbunu basis, where plaintiff paid GH¢300to defendant asconsideration while GH¢50was paid to oneOwusu as compensation. The other witness, Pw3, Frimpomaa Linda, the wife of plaintiff, stated in her witness statement that She and plaintiff entered in to a contract with defendant to cultivate cocoa on defendant’s land on Abunu agreement for which GH¢ 300 was offered as consideration to seal the contract. They worked on the land for thirteen years. Portion of the land was not suitable for cocoa cultivation so parties agreed that plaintiff should cultivate cashew. According to Pw1, five acres of cashew had Page3of19 reached fruit bearing stage but defendant informed them he had sold the entire 17 acre cocoaand cashew farmwhile plaintiff received half anacre. The defendant per herwitness statementgaveevidence thatshe initially gave the farmin issue measuring seventeen(17)acres toone KwasiOwusu ofTechimanwho cultivatedcocoa, plantain, cassava and othercropsonAbunu basis. Plaintiff later showed interestand afterinspection oftheland, he paid GH¢350.00to sealthe agreement. Defendant gave fifty Cedis GH¢ 50.00 to plaintiff to prepare Abunu agreement before commencement of farming but he ignored and went ahead to cultivate the land. Defendant continued that when she visited the land after two years, she observedthat plaintiff had cultivated plantain, cassava and other foodscrops instead of the agreed cocoa. The reason provided by plaintiff was that the land was not fertile for the cultivation of cocoa and suggested that cashew be cultivated instead which defendant agreed. According to defendant, plaintiff continued to cultivate food crops for seven years to the detriment of defendant because there was no agreement note prepared. After plaintiff had cultivated the land for sixteen years (16), defendant and her siblings went to plaintiff to inspect the farm but he failed to do so and they therefore told him not to set foot on the farm. Defendant further stated that they decided to sell the land and therefore approached plaintiff but he could not buy. They went to plaintiff after securing a buyer and plaintiff agreed to the sale. Defendant concluded that since plaintiff failed to cultivate the land for the Page4of19 intended purpose and also failed to prepare the Abunu agreement, the portion of the land which had been earlier cultivated by Kwasi Owusu was given to plaintiff as his share which he accepted. Defendant called one witness herson, OppongEmmanuel, whose evidence is a recitationofthe evidence ofdefendant. Applicable laws andcases. Section11(1) and (4)ofthe Evidence Act 1975(NRCD323)also provides asfollows: ‘(1) for the purposes of this Act, the burden of producing evidence means the obligation of a party to introducesufficientevidence to avoid ruling on the issue againstthat party. (4) In the other circumstances the burden of producing evidence requires a party to produce sufficientevidence sothat all the evidencea reasonable mind couldconclude that the existence of the factwas more probable that its non-existence’ Further, section 14 of the Evidence Act, 1975 (NRCD 323) states as follows: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is ascertain. Proof in civil proceedings is established by the principle of the preponderance of probabilities or balance of probabilities. Section 12(2) provides that except as otherwise provided by law the burden of persuasion requires proof by Page5of19 preponderance of probabilities. This position is supported by the Supreme Court in Adwubeng v Domfeh [1997-98] 1 GLR 282 where it was held at page 295 that: sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities-no exceptions are made. Similarly, the Supreme Court in the case of Odonkor and others v Amartei GBR 1993-94 VOL 1 held that the Evidence Decree 1975 (NRCD 323) sections 11(4) and 12 provided that in all civilcasesjudgmentmightbe giveninfavour of a party on the preponderanceof probabilities. Whatis required by the court is toassessthe evidence ofthe parties, including their witnesses, and drawaconclusion that,onthe preponderance orbalance of probabilities, thecourt isinclined to accept the evidence ofone partyrelative tothat ofthe other. Evaluation of evidence and application ofrelevantlaws. Whatis cropsharing andwhat are thelaws governing it? Crop sharing (abunu and abusa) is a customary land tenancy practised which under customary law. It may be “Abunu” where the farm is shared equally or “abusa” where the land owner is entitled to one-third while the tenant farmer takes two- thirds share of the cultivated farm. The Supreme Court further explained the abunu and anusa tenancy in the case of Lamptey Alias Nkpa v. Fanyie And Others [1989- Page6of19 90] 1 GLR 286-307 at p.299 that abusa and abunu are mere terms, i.e. names given to any arrangement between parties whereby one side gets one-third and the other party gets two- thirds of a subject matter, i.e. abusa; or the subject matter is split equally between the parties, i.e. abunu. It does not matter what the subject matter is nor which of the parties gets the one- third and whichgets the two-thirds. The West Africa courtofAppealin the case ofAKOFI v.WIRESI ANDABAGYA [1957]2WALRat p.259explains the nature and incident ofcropsharing customary tenancy (Abunu and Abusa) asacommon formoftenurethroughoutthe country for alandowner who has unoccupied virgin orforestland, which he orhis peopleare unable to cultivate,tograntthe same toastrangertoworkonin returnfor afixed share ofthe cropsrealized fromthe land. Insuch acase thetenant-farmer, although he has noownershipin the soil, has averyrealinterest in the usufruct ofthe land. The arrangement may be carried on indefinitely, even by the original grantee's successor,so longas the original termsofthe holding areobserved. The position of customary law has been that the tenant farmer is only entitled to the shared proposed of the farm whether abunu or abusa and did not extend to possessory of any other interest in the land. This position was affirmed in the Court of Appeal case of MANU v. AINOO AND ANOTHER [1976] 1 GLR 457- 464 at p.462 thus customary tenancies like abunu and abusa do not derive their validity from a possessory title. Indeed abunu and abusa tenancies are created in respect of the share of Page7of19 proceeds only. "The ownership of the land remains always in the landlord. It is trite learning that beingmerely physicallyon land, does notcreate a possessory title. The position under customary law and which is supported by the cases referred supra that a tenant farm under crop sharing arrangement cultivates land and only share produce not land, seems to be no longer good law. Thus the Supreme Court per Sowah, CJ., (as he then was) in the case of Lamptey Alias Nkpa v. Fanyie And Others referred to earlier first explained the terms “abunu” and “abusa” and continued at p.299 that When applied to farm tenancies as they normally are, the subject matter may be either the harvest; or the cash value of the harvest; or the physical farm itself at an agreed stage of development. The LANDACT, 2020(ACT 1036)hasgiven statutoryrecognitiontothe crop sharing (abunuand abusa) asit exists under customarylaw. Section7(c) statesthat a customary tenancy(c) may involvethe paymentof rent, the sharingof the produceof a farm or the physical partition or severanceof the farm or land. The act has not only codified customary law tenancy relating to crop sharing but has affirmed decision of Lamptey Alias Nkpa v. Fanyie And Others that crop sharing also includes physical partition or severance of the farm or land, thereby over ruling earlier judicialdecisions limiting cropsharing tothe sharing ofonlycropscultivated. Page8of19 The parties, pertheir evidence agreethat therewas anoralagreement for theplaintiff tocultivate cocoaonthe land ofdefendant to be shared onabunu basis for which it wassealed by the offering ofGH¢300to thedefendant land owner by plaintiff. The areasofdispute relate to,first, whether plaintiff ordefendant was responsible for the preparationthe documents forthe oralagreement. While plaintiff claims that defendant, being the landowner, was topreparethe documents, defendant onher partclaimed thatplaintiff agreed topreparethe document. The second dispute concernsthe use oftheadditional GH¢50.00offeredby the plaintiff, in addition to theGH¢300toseal theoralagreement. Thus, while plaintiff allegesthat theGH¢50 wascompensation toone Owusu who workedonthe land beforethey took possession, defendant allegesthat it was for thepreparation ofdocuments for the abunu agreement. Iwould proceedto dealwiththe twodisputes, namely, the purpose forwhich the GH¢50.00 was paid and which ofthe parties was responsible for the preparationof document covering the oralagreement. The usual practice is thatthe land owner is responsible for preparing adraftdocument for the examinationby the tenantand the cost is borne by theland owner.Where the tenantapprovesofit, the document is finalised and duly executed. The land owner may, however, agree that the tenant should prepare the document for approval by that land owner and subsequent execution by the parties. The evidence of plaintiff and Pw1 were that the GH¢ 50.00 was paid as compensation to Page9of19 one Kwasi Owusu who had earlier cultivated the land. Although plaintiff was silent onwho was responsible for the preparation ofdocument in his witness statement, he insisted under cross examination that defendant, being the owner, was responsible forthe preparationofthe document. This is what transpired. Ques: Icollected GH¢350as drink toseal it and I gaveyousome fordocumentation? Ans:Not true. The sealing of the drink was GH¢ 300.00. The compensation for Kwasi Owusu wasGH¢50.00 Ques: Have you prepared the documents covering the agreement since we visited thefarm? Ans: Itoldyou,youhave toprepare thedocument since youare theowner. Plaintiff under crossexamination by defendant maintained that defendant was to preparethedocuments. The dispute overwhat theGH¢50.00paid was intended, was finally settled whenthe defendant crossexamined Pw3, the wife ofplaintiff, who was presentduring the negotions. Page10of19 Ques: I requested for GH¢ 350 but later agreed with you that you pay GH¢ 300 while youuse theGH¢50.00for documentation? Ans: It is true you requested for GH¢ 350 but we pleaded and you reduced it to GH¢ 300.00onthe conclusion thathe would preparethe documents. Ques: You and your husband has been on the land for 16 years, where is the documentation covering it? Ans: It is not true we were on the land for 16 years. On the documentation, you refused toprovide us withthe namesfor the documentation. Ques: Isthere an agreement covering the land since you failed to prepare documents? Ans: since you refused to provide names for the documentation, we could not prepareit. Fromthe crossexamination, it isapparent that theplaintiff-tenant was taskedto preparethedocuments with theGH¢50.00outofthe GH¢350paid tocoverthe abunu agreement but he failed todo so. The reasonprovided by Pw3, the wife of plaintiff thatdefendant did notprovide thenames for thedocumentationis total falsehood. I wouldtherefore rejectsame. The reasonbeing thatit is inconceivable for defendant-land ownerdesirousofobtaining documents tocoverher oralagreement withplaintiff to,at the same time, refuse toprovide names for thatpurpose. Indeed, herinsistence onthe failure ofplaintiff topreparethe document as thebasis ofher Page11of19 allegationthat therewas no contractbetween theparties, give credence tothefact thatplaintiff was taskedprepared thedocument but refused. Itherefore find asafact that plaintiffagreed toprepare thedocument tocoverthe oralagreement but he refused or failed. Ihave earlier statedthat therewas an oralagreement betweenthe parties forplaintiff to cultivate cocoa on the land of defendant to be shared on abunu basis for which it was sealed by the offering of GH¢ 300 to the defendant land owner by plaintiff. While plaintiff insisted in his witness statement and during his cross examination and under cross examination that there existed a valid abunu agreement, the position of defendant land has been ambivalent. While she emphatically rejected the existence of a valid agreement because plaintiff failed to prepare the document, she admitted under cross examination by plaintiff that she gave it to plaintiff upon his plea and has beenontheland for16 years. This is what transpired when plaintiff crossexamined defendant. Ques: Howlonghas plaintiff cultivate theland? Ans: 16years. Ques; Have youinstituted anactionagainst him in relationtohis cultivationofyour land? Ans: No, Igaveit tohim. Page12of19 Ques: Iput it to youthat youconsented to plaintiffcultivating the landAns: I gaveit tohimto farmuponhis plea and he has beenonit for16years. The questiontopose is, hasthe abunu oralagreement beenrendered void due to absence ofwrittenagreement? The Contracts Acts 1960(ACT 25)provides that contractsneed notbe in writing except in certaincases. Section 11 states that subject to the provisions of any enactment, and to the provisions of this Act, no contract whether made before or after the commencement of this Act, shall be void or unenforceable by reason only that it is not in writing or that there is no memorandum or note thereof in writing. The contract act recognises oral contracts as valid. Therefore, despite the failure or refusal of plaintiff to document the oral abunu agreement, and considering the fact that defendant had permitted plaintiff to cultivate the land for 16 years, I would find asafact that there existed avalid oralagreement betweenthe parties. Iwould proceedto ascertain whetherthe sale ofthe farmby defendant while the oral abunu agreement wassubsisting was valid. The evidence by plaintiff ofthe sale of thefarm bydefendant was corroboratedby his wife. Theyadded thatdefendant gave themhalfanacre which was theportion earlier cultivatedby one Kwasi Owusu. Defendant did not deny the sale but alleged thatfor over16years,plaintiff failed to preparedocument to coverthe oralagreement but cultivated cassava, plantain and Page13of19 otherfood cropscontrary totheagreed cultivationofcocoa. Defendant made these allegationsin herstatement ofdefence filed on11/1/24 atparagraphs 19,21and 27. Sherepeated same inher witness statement.Plaintiff, who bearstheevidential burdentoprove hisclaim as statedabove, failed to challenge herallegation and did notattachany pictorialevidence showing thecultivation ofcocoa and cashew. Defendant also gaveevidence that plaintiff, for16years, refused tovisit the farm withdefendant when requested ontwooccasions and she thereforetold him notto setfoot onthe farm. She again notified plaintiffofthe sale andgavehimthe first optionofpurchase but he declined since did nothave the funds. Defendant also introduced thebuyer toplaintiff. This was admittedunder crossexamination. Ques: Youwere incharge oftheland but youcultivatedonly halfan acreofcocoa? Ans: Nottrue. Ques: LaterIcame toyouso thatwe inspect the farm, didyouagree? Ans: Nottrue. Ques: Do you recall I introduced the buyer to you and informed you that we have documentsfor the sale and whether youhad any objection? Ans: it is true you came but I told you that there was Abunu agreement with you so he should notpurchase it. Page14of19 Quest: we came toyour house on two occasions to informyouwhether youhave any objection? Ans: Itwas only once. The evidence shows that defendant notified plaintiff of her intention to terminate the agreement by informing him not to set foot on the farm since he refused on two occasions toaccompany her and her othersiblings toinspect the farm. From the totality of the evidence, I find defendant to be truthful and credible and haveno reasontodoubt herevidence. The court,fromthe evidence, finds thefollowing asfacts: a. That there existed an oral agreement between the parties for the plaintiff to cultivate cocoa and cashew on the land of defendant to be share onabunu basis. b. That plaintiff breached the agreement by cultivating cassava, plantain and other food crops contrary to the agreed cultivation of cocoa and cashew. Page15of19 c. That the breach was brought to the notice of plaintiff but no steps were takentoremedy it. d. That defendant notified plaintiff of her intention to terminate the agreement and offered him the first option of purchase but he rejected it due tolack offunds. e. That defendant introduced the buyer and informed plaintiff of the documentationsurrounding the sale. Plaintiff, under section 11(1) and (4) of the Evidence Act, bears the evidential burden to produce cogent evidence to convince the court that he had a valid abunu agreement withdefendant for thecultivation ofcocoaand case tobe shared. Apart from his proof of the existence of the abunu agreement, he failed to prove that he cultivated cocoa and cashew in line with the agreement. In fact for 16 years, plaintiff cultivated cassava, plantain and other food crops contrary to the agreed cultivation of cocoa and cashew. Plaintiff would have continued to have possession of the land of defendant and cultivate crops of his choice, if defendant had not terminated the agreement and exercised her right ofsale as landowner. Furthermore, plaintiff instituted the action only after the sale and would not have done so if he wasstill in possession. Therefore, the decision of defendant to exercise her right as owner of the land to terminate theagreement upon notice toplaintiff was validly done. Page16of19 The court, after the evaluation of the evidence of the parties and per section 12 of the Evidence Act, 1975, NRCD 323 and the case of Adwubeng v Domfeh on the preponderance or balance of probabilities, is inclined to accept the evidence of defendant relative to that of plaintiff and hold that the plaintiff breached the oral agreement between the parties for the cultivation of cocoa and cashew to be shared onabunu basis. Reliefs soughtbyPlaintiff: a) Declaration that the plaintiff had a valid contract with the defendant that plaintiff should cultivate the defendant’s land on Abunu basis for cocoa plantation which the land situate at a place known as Wamagya on Dormaa stool land the said land share boundary with Op. Kwaku Francis, Maame Yaa Benewaa and Rephica allofAmasu; b) An order of the Honourable court to compel the defendant to engage a surveyor to share the disputed cocoa farm into tow(2) equal parts for the parties; c) Perpetual injunction to restrain the defendant her assigns, labourers, workmen,etc. having anything to doonthe disputed farm. Page17of19 Relief granted a) The court hereby declares that there existed a valid contract between the parties for plaintiff to cultivate cocoa and cashew on land of defendant tobe shared onAbunu basis. The reliefs (b) and (c) ofplaintiff aredismissed. Cost. The award of cost is at the discretion of the court. Considering that the action was commenced in 2023 and defendant has expended her resources and time to defend theaction, the courtshall exercise itsdiscretionand award her cost. CostofGH¢2,000is awarded against plaintiff in favourofdefendant. Relief(a) ofplaintiff isgranted. Reliefs (b) and (c) are dismissed. Sgd. EugeneObeng-Ntim (District Magistrate) Page18of19 Page19of19