Yeboah and Another v Boahene (BE/JM/DC/A1/6/2021) [2025] GHADC 219 (11 March 2025)

IN THE DISTRICT COURT KINTAMPO HELD ON TUESDAY 11TH MARCH 2025BEFOREHIS WORSHIP KWAMEADJEI MANUESQ. SUITNO: BE/JM/DC/A1/6/2021 1. AKOSUA YEBOAH - PLAINTIFFS 2. JANETBAFFOWAA VRS AWUAHBOAHENE - DEFENDANT JUDGMENT 1. INTRODUCTION 1.1. Plaintiffsin this suit claim against Defendant asfollow: “(a) Adeclaration of title to about 60 acres of land situate and lying at a place commonly called Maniboa on Nkoranza stool land which shared boundary with Nana Kontoh, Nana Kwadwo Gyan, Nana Kwame Ati and riverSoso (b) An order to set aside the sale of the land mentioned in paragraph (a) above by 2ndDefendantto1st Defendant. (c) Recovery of possession of the land mentioned in paragraph (a) supra Page1of 34 (d) An order of perpetual injunction retraining Defendants, their agents, assigns etc. from having anything to do with the relief (a) supra. (e)General damages for trespass and further orders appropriate in the circumstancesof this case” 1.2. From their summary of subject matter, the facts alleged by Plaintiffs are that together with their uterine brother John Yeboah they jointly owned about 110 acres of land at a place called Maniboa on Nkoranza Stool land. According to them, somewhere in 2015, John Yeboah who was blind and sick requested severance of the joint ownership of the land so that he could sell his portion to look after himself and he was given 43 acres of land which he sold through his nephew Paul Nimako for a consideration ofGHC 25,200.00toApostleOwusu ofJema. 1.3. Somewhere in November 2020, they were informed by their head of family Opanin Ampomah Gyamfi that Defendant had approached him with a document to execute on behalf of John Yeboah who he alleged had sold the disputed land to him for a consideration of GHS 11, 200.00 but he refused since the land is not family property. Plaintiffs confronted the Defendant who confirmed the sale of the land to him and they brought the presentaction. 1.4. This suit when it was originally commenced had Four (4) Plaintiffs namely Akosua Yeboah, Akua Boahemaa, Janet Baffowaa and Mary Gyamia, all uterine siblings. Akua Boahemaa who was 2nd Defendant ceased being a party after her death, and Janet Baffowaa 3rd Defenedant withdrew from the suit as a party. John Yeboah who was also 2nd Defendant in the suit at Page2of 34 its inception ceased being a party after he was struck out as party on failure of attempts to substitute him. This constitutedAwuah Boahene into thesole Defendant. 1.5. Parties were represented by counsel in this suit and pleadings were delivered in this suit, but before I proceed to a discussion of parties’cases in more detail, I will set out first, what the evidential burden on parties was. 2. BURDENANDSTANDARDOF PROOF 2.1. In Memuna Moudy and Others v Antwi [2003-2004] 2 SCGLR 967 at pages 974-975, the Supreme Court explained per Wood JSC (as she then was), that when a fact alleged by a party pleading it is denied by the opponent, an issue arises for determination and the party who has introduced the denied fact has the burden of proving same. The Court explained asfollows: “A cardinal principle of law on proof as enunciated in the age-old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases, including Zabrama v Segbedzi (1991) 2 GLR 221 at 246, is that, a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properlyand safely inferred." 2.2. As explained in Ackah v. Pergah Transport Ltd. & Ors (2010) SCGLR 728, by the Supreme Court, and portions of Plaintiff’s case in this suit having Page3of 34 been denied by Defendant, Plaintiff bears this evidential burden of proving the denied fact which is in issue. The court in that suit explained Plaintiff’sburdenthus: “It is abasic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim will fail. The method of producing evidence is varied and it includes the testimonies of parties and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the EvidenceAct, 1975(NRCD323)” 2.3. Additionally, by Sections 10(1) and 11(1)of the Evidence Act, 1975 (NRCD 323) parties in this suit bear the burdens ofpersuasion being the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact, and the burden of producing evidence sufficient to avoid a ruling against them on an issue. Parties have raised allegations in their case on which the success of their claim or defence depend, so this is important. InIshack v.Praba (2007) 12MLRG 172 at 181, theCourtofAppealexplained thus: Page4of 34 “The general principle of law is that it is the duty of a plaintiff to prove his case, ie. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defendant to lead sufficient evidence to tip the scales in his favour when on a particular issue Plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins, if not he loses on that particularissue.” 2.4. Though it is the party who has introduced a denied fact who has the initial burden of proving the denied fact, as explained in In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-2004] 1 SCGLR 420 the burdens of production of evidence and persuasion which are not static shift from party to party at various stages of the trial, depending on the issues and the facts asserted and or denied. This point is supported by Sections 14 and 17 of the Evidence Act, 1975 (NRCD 323) the first of whichprovides that: "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- existenceof which isessential to the claimor defence he is asserting." 2.5. Section17ofNRCD323particularly alsoprovides asfollows: “17.Allocationof burdenofproducing evidence Exceptas otherwise provided by law, Page5of 34 (a)the burden of producing evidence of a particular fact is on the party againstwhom afinding on that factwould be requiredin the absenceof furtherproof; (b)the burden of producing evidence of a particular fact is initially on the party with the burden of persuasionas to that fact.” Declarationoftitle toland 2.6. Also, having claimed a declaration of title to land, the evidence Plaintiff is required to give to succeed in the suit was clarified in Benyak Company Ltd v. Paytell ltd & 3 ors [2014] 76 GMJ 1, where the Supreme court explained that Plaintiff apart from proving his root of title, mode of acquisition and overt acts of ownership must prove that he is entitled to the declaration sought. In Mondial Veneer (Gh) Ltd v. Amuah Gyebu XV [2011]1SCGLR 466at475the court said this: “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in this instant case, to prove the root of his title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation” 2.7. In this suit, Plaintiffs have puts their title in issue and must prove their root of title, the boundaries of the land in dispute and acts of ownership exercised over same. This position of the law was applied in Ebusuapanyin Yaa Kwesi v. Arhin Davis & Anor (2005) JELR 92075 (SC). The standard of this proof is on the balance of probabilities. In Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. Page6of 34 K. Mbeah and 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018,S.C.(Unreported),AppauJSC explained this standard thus: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the EvidenceAct, 1975[NRCD323]”. 2.8. It is irrelevant that the claim is for a declaration of title to land. In Adwubeng v. Domfe [1996-97] SCGLR 660, the Supreme Court explained the general absence of such distinctions in the standard of proof of matters incivilsuits thus: “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323)... have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities – no exceptions were made. In the light of the provisions of the Evidence Decree, 1975, cases which had held that proof in titles to land required proof beyond reasonable doubt nolongerrepresented the presentstate of the law...” 2.9. Whatever evidence Plaintiff offers must still be sufficient or satisfactory to secure the grant of the reliefs sought. The test of satisfactoriness or sufficiency of the evidence is the degree of belief that the evidence or its proponent creates in the mind of the trial court concerning the fact or facts in issue. For evidence topass this test, after having assessed the facts onall the evidence adduced, a reasonable mind should conclude that the existence of some fact in issue is more reasonably probable than its non- existence. This position of the law was applied in Ackah v. Pergah Transport Ltd [2010] SCGLR 728, 731 and Faibi v. State Hotels Corp. [1968]GLR 471. Page7of 34 3. PARTIES’ CASES 3.1. Plaintiff’s Statement ofClaim wassimilar in substance to their summary of subject matter of claim, so I will not repeat the facts contained therein. The thrust of Defendant’s case as made out in their Defence is that John Yeboah was the sole owner of the disputed land, having won it in some litigation as alleged, when Plaintiff’s and all their other siblings with the exception of John Yeboah refused to litigate over the land. The nature of the said litigation was never pleaded, nor was any evidence received to establish in themind ofthe courtwhat this “litigation”everwas. 3.2. There is no denying that at the end of pleadings, it was an admitted fact between parties that the disputed land originally belonged to the parents of Plaintiffs and John Yeboah who was Defendant’s grantor and 2nd Defendant in the suit until his eventualdemise.According toparagraph 13 of the Defence, this was what John Yeboah was informed of by Opanin Kofi Fofie, leading him to recover the land. The case that Defendant appears to make tacitly is that Plaintiffs abandoned their interest in the disputed land for so long a period that they have by the operation of laches and acquiescence ceased to be joint owners with John Yeboah thereby constituting him into the sole owner of the disputed land. This is in my view the case, since according to him Plaintiffs decided not to participate in some litigation. Defendant’s case is also that he is a bona fide purchaser for valuewithout notice. 3.3. Defendants denied paragraphs 11 to 15 of the Statement of claim en bloc and offered very little answer thereto. These include allegations of the sale of a portion of the land at the area to one Apostle Owusu and also to Page8of 34 Defendant. Except it is to be accepted by the court that it was denied as well that John Yeboah sold a portion of the disputed land to Defendant, it cannot also be deemed to have properly denied anything else in that paragraph. This is especially the case when Defendant’s own deed as received in evidence partly corroborates those allegations, in that at page 2 of Exhibit B the purchase price alleged by Plaintiffs is stated there as the agreed purchase price ofthe disputed land. 3.4. The alleged sale of a portion of the disputed land, though it was testified of in detail, was not the subject of sufficient credible evidence to the contrary. In fact, as I have explained in the foregone, Defendant’s failure to specifically answer this particular pleading is a matter that cannot be glossed over. At any rate it is partly admitted. It is also noteworthy that Defendant admits the boundaries of the disputed land, so no issue is raised and his description of it differently in his evidence-in-chief is of no moment. There is little question that Defendant Awua Boahene’s land which measures twenty-five (25) acres according to him forms part of the sixty(60) acre farmland at the disputed area subject of Plaintiffs’claims in this suit. 3.5. The principal issues raised for determination on parties’ pleadings are accordingly whether Plaintiffs are the owners of the disputed land, whether Defendant is a bona fide purchaser for value without notice and whetherDefendant has trespassed unto Plaintiffs’land. 3.6. Before proceeding with the discussion, I have read the submissions of counsel on both sides and I must say that I disagree with the point advanced by counsel expressly and arguendo on both sides that the disputed land would have become the property of the entire larger family Page9of 34 of Plaintiffs and John Yeboah upon the death of their father, so that the head of family would be the proper person to deal with the land. The principle of law and custom has always been that when a person dies seised of property which he did not expressly give by way of testamentary disposition, then it devolved on his immediate family. Depending on the circumstances, the property may devolve on the children as a family or prior to the promulgation of PNDCL 111, by custom to his customary successor. The point in relation to a gift to children is elucidated by the erudite judgment of Akuffo-Addo JSC in Mensah v. Lartey [1963] 2 GLR 92thus: “The law relating to a gift by a father to his children as I understand it operates to constitute the children into a "family" for the purpose of holding and enjoying the said property, if it is land (if the gift is of personalty the children share it out among themselves) irrespective of their several other family affiliations. The concept of family property imports the principles of non-divisibility of the said property except by the consent of the family, of the members of the family having joint interest in the property and of the appointment of a head of the family as "caretaker" of the property. Of family property there is, strictly speaking, no devolution on intestacy for the property remains in the family at all times. There is only a change of the head of the family made necessary by deposition or by death. The only difference between one familyand another isin its composition” 3.7. Inthis suit, not a shred ofevidence beyond the vague mention of dates has been led to aid the court in concluding on the proper path to take on this point, but there is one fact that stands admitted at least in the evidence of Baffowaa Janet Plaintiffs’ sibling and Defendant’s witness DW2, that the Page10of 34 greater family is disinterested in pursuing the matter of the land. Taken with the contention of Plaintiffs that the disputed land was disavowed by their family head as family land, I find collaterally fact that the disputed land is not the property of Plaintiffs’ and John Yeboah’s larger family. At any rate, if the land were the property of the greater family of Plaintiffs then John Yeboah would have pursued the matter through the head of family and not by himself, and his possession of the land would not have received the approval of the chief as Defendant alleges. That would also have made the alleged sale of the land to Defendant by John Yeboah void forwant ofcapacity. 3.8. Also, applying the position ofthe Supreme Courtin Adisa Boya v.Zenabu (CIVIL APPEALNO.J4/44/2017), I am inclined to conclude that Plaintiffs do not lack the capacity to bring the instant action, but that the disputed land initially devolved on all the children of their father assuming he did not make a gift of same and died intestate. Counting 35 years from the filing of the Defence, as contended by Defendant and 40 years as testified by Janet Baffowaa from the date of her testimony, the most likely conclusion is that the Intestate Succession Law,1985 (P.N.D. CL. 111) made on the 14th day of June, 1985 and notified in the Gazette on 5th July, 1985 was already in force. The Court speaking through Gbadegbe JSC in the case just mentioned said this: “By virtue of the rules on intestacy contained in section 4(1) of PNDCL 111, following the death of the father of the defendants and their mother the original defendant, the property devolved upon the children and as such they had an immediate legal interest in the property. Consequently, they were competent to defend and/or sue in respect of the property and either of them acting together or any of Page11of 34 them acting on behalf of the others might seekan order of declaration of title to be made inhis favour.” 3.9. This ratio was followed by the Supreme Court in the recent case of Bandoh v. Apeagyei-Gyamfi and Another [2018-2019] 1 GLR 299 where theSupreme Courtspeaking throughMarful-Sau JSCstated thus: “In that case this court speaking through Gbadegbe JSC, held that the defendants who were the children of the estate had immediate interest in the property and for that reason, they were competent to defend or even sue for declaration of title, notwithstanding the fact that they had not obtained any letters of administration. I wish to add that the above proposition of law is only fair and equitable in view of the interest created in the estate of beneficiary children, under the Intestate Succession Act, PNDCL 111. I therefore, entirely agree with the legal proposition enunciated by Gbadegbe, JSC, and hold that even in this appeal the appellant, being a satisfactory child, was a competent party, notwithstandingthe factthat she had noletters of administration.” Oathagainst oath 3.10. Regarding whether Plaintiffs and John Yeboah’s other siblings informed the latter of their lack of interest in the disputed land which Defendant contends constituted John Yeboah into the sole owner of the disputed land, I deem it proper that this question be settled oath against oath. Parties on this issue rely largely on their own testimonies and those of their witnesses as evidence for their positions. I shall then apply Oxyair Ltd & Darko v. Wood [2005-2006] SCGLR 1057, and Lutterodt v. Commissioner of Police [1963]2 GLR 429, SC, where it was held that the trial court has a duty in such a situation to consider the evidence adduced to form a Page12of 34 judgment as to what version of events was more credible. The determination of crucial facts in such an instance involves judicial choice of belief based on the comparative credibility of opposing parties and their witnesses. 3.11. I repeat for emphasis that this approach is justified by the fact that parties’ cases on that point are supported mainly by the oral evidence of themselves and their witnesses. It is incumbent on the trial court in such a situation to examine the evidence before preferring one to the other and give reasons for the preference. A trial judge cannot be faulted on his decision once it is based on the evidence on record. Her Ladyship Afia Serwaa Asare-Botwe (Mrs.) relied on these rules as explained in the foregone in Lydia Tetteh v. Madam Akweley & Anor (2019) JELR 107108 (HC). 3.12. As long as Plaintiffs did not admit the allegation by Defendant that Plaintiffs had abandoned their interest in the disputed land, the onus rested squarely on Defendant to prove this. In Hilodjie v. George (2005- 2006) SCGLR 974 at 995 Georgina Woode JSC (as she then was) stated as follows: “In any action, cause or matter, a party who disputes an issue does not simply rest the case on formal denials either made in examination-in- chiefor ‘put’ or ‘suggested’ to an opponent under cross-examination. If the opponent does not admit those suggestions, then he or she is deemed to have succeeded in establishing a prima facie case on the disputed fact, and the evidentiary burden shifts on to that party to prove contrary facts if he or she is desirous of avoiding a ruling against himor her on thatissue.” Page13of 34 3.13. For this, Defendant called Baffowaa Janet to testify in support of his contention. She did in fact give evidence to support the case that had been made by Defendant all along. I will discuss in the following the court’s reasons for placing little premium of her evidence, in the discussion of the issues. 4. THEEVIDENCE AND ISSUES Whether Plaintiffs are owners of the disputed land and Defendant is a bona fide purchaser for value 4.1. All sides gave evidence and called witnesses in attempt to corroborate their evidence, but in this judgment, I will only discuss those relevant portions of the evidence on record. To start with, there is no question that the disputed land belonged toPlaintiffs’parentswho originally acquired it. The Defence admits it. John Yeboah’s root of title could not reasonably be explained as commencing from his alleged litigation, when it commenced as alleged by him because he was informed that the disputed land belonged to his parents. It is only the abandonment of Plaintiffs’interest in the land as alleged by Defendant that could potentially be proved by establishing the truth of the dispute alleged by Defendant as indicating Plaintiffs’ abandonment of their joint interest therein, and Plaintiffs’ attitude towardsthatdispute. 4.2. 1st Plaintiff’sAttorney’s evidence-in-chief appears in form and substance to be the same statement filed on behalf of 1st Plaintiff who eventually gave the Attorney power to represent her. Whether an oversight on the part of Plaintiffs’lawyer or not, the only thing that differed in this statement from the one filed on behalf of 1st Plaintiff was the heading. I do not intend to Page14of 34 place too much weight on this evidence-in-chief, since it is sorely lacking in that regard, notwithstanding the fact that it went into evidence without challenge from Defendant’s lawyer. It is worth noting that the Court has the sole preserve to determine what weight evidence in the trial should have as stated in Peter Nkoom And Nii Ashong Kojo Ababio III v. Eric AdjeiSowatey (2014) JELR67679(CA) thus: “What weight a trial judge gives to a document after admission is the preserve of the judge unless there are fundamental reasons known to the law for which his assessment of the document within the evidence could be impugned. If he has good reasons for questioning the authenticity of the document, so be it. That no issue of authenticity was raised during the trial we are of the opinion does not impose a bar on the trial judge raising the issue at the assessment stage of the evidence. It is his duty to examine every evidence, be it oral or documentary, that has been admitted in the trial and no matter what view the parties have of any such evidence, the final word onanyadmittedevidence is for thetrialjudge.”(empahasis mine) 4.3. There are also some pieces of evidence that I deem necessary to address. Firstly, PW1 testified of a gift of the disputed land to all the children of Plaintiffs’ father and named the witnesses thereto, although this was the subject of challenge by Defendant’s counsel. Defendant said under cross- examination that Owusu actually demarcated the disputed land for him, admitting that John Yeboah was blind at the time of the sale and had been blind for a long time. This raises the question whether the land shown to Defendant was part of the portion of the land which was alleged to have beenagreed by Plaintiffs forJohnYeboahtotakeas his share ofthe land. Page15of 34 4.4. Defendant’s evidence was that he consulted someone else named Boahemaa who I surmise is Akua Boahemaa who was 2nd Plaintiff in this suit until her demise, and not 1st Plaintiff about ownership of the land as contended in the statement of Defence. Beyond being a departure from his own case, I look on this with suspicion as admonished in Akufo-Addo v. Catheline [1992] 1 GLR 377 and Rukayatu Usumanu v. Zongo Naa Kun- Gari & 16 Ors (2021) JELR 107957 (SC). The principle in evaluating assertions made against dead persons is stated in the case of Garnett,In re; Gandy v.Macauly (1885)31Ch D1at9,CA by BrettMRas follows: “The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive, he might have answered the charge, the evidence ought to be looked atwith greatcare;the evidence oughtto be thoroughly sifted, and the mind of any judge who hears it ought to be, firstof all ina state of suspicion.” 4.5. In the case of Mondial Veneer (Gh) Ltd. (supra), the Supreme court stated the principle citing Garnett with approval and explained its importance perGeorgina Wood CJ(as she thenwas) thus: “Our jurisprudence has examined the approach courts must adopt when evaluating charges and assertions made against dead persons. We have firmly established the principle that real danger lies in accepting without questioning or close scrutiny, claims against a dead person. The caution that such claims must be weighed carefully is based on plain good sense and has consistently been applied in a number of cases including Fosua & Adu Poku v. Dufie (Decd) Adu Poku Mensah [2009] SCGLR 310, In Re Krah (Decd); Yankyeraah v. Page16of 34 Osei-Tutu [1989-90] 1 GLR 638, SC and Tabiri [1987-88] 1 GLR 360, SC.” 4.6. DW1 refused to admit that the disputed land was acquired by John Yeboah’s father, a fact is sufficiently established by the evidence on record. He however admitted that Plaintiffs farmed with their father. He also testified that the children know the land but there was an explanation in respect of the disputed land which explanation was never offered. John Yeboah’s mother died in 2000 as admitted by DW1. It is therefore doubtful how while John Yeboah’s mother lived, he would manage to take the complete benefit ofthis land without the knowledgeofhis mother. 4.7. DW2 also admits that the disputed land is family land. This was how cross-examinationofDW2 went: Q:Youwentto alawyer to start this case notso? A:That isso Q: You agree with me that you went with 1st Plaintiff’s Attorney Nana Nimako? A: I went with 1st Plaintiff’s Attorney. Yes. 1st Plaintiff’s Attorney is my son, whereas Owusu is also my son. John Yeboah is my brother and the youngest among my six (6) siblings. We met at a funeral sometime and it came to light that Owusu had sold part of our family land of which we were all aware, so 1st Plaintiff’s attorney suggested that we give the remaining land to a lawyer so that we get something to eat. It was after we had returned that it came to light that John Yeboah had sent1st Plaintiff’s Attorneywho hadsold the remaining land. Page17of 34 4.8. It came to light that 1st PlaintiffAttorney sold the remainder of the land on the instructions of John Yeboah. DW2 Janet Baffowaa in her evidence-in- chief and under cross-examination purports to base her belief of John Yeboah’s exclusive ownership of the disputed land mainly on the fact that John Yeboah kept the proceeds from the farm in its entirety. This can be seenfromhercross-examination which proceededthus: Q: You went to the lawyer to institute this action against your own brother John Yeboah for selling your family land? A: He has not sold family land. 1st Plaintiff’s Attorney informed us that my brother John Yeboah had sold part of the land to Nana Nimo so we should go and see a lawyer so that we could also get some of the remaining land. It was later that we heard that mybrother John Yeboah had instructed 1st Plaintiff’s Attorney and he had sold the remaining landto some Pentecostpastor. Q: In paragraph 7 of your evidence you stated that John Yeboah invited you and your sistersin the presence of credible witnesses? A:That iscorrect Q: And he requested for the assistance of you and your sisters to make adverse claimof your parentsfarmland at Manibour? A: I said that but I have an explanation. When my brother informed us about this, neither myself nor any of my sisters knew of the said land. So when 1st Plaintiff’s attorney suggested that we go and see a lawyer, we went there so that we can also get part of the remaining lands, but later, we had information that 1st Plaintiff’s attorney had sold the remaining lands and given the proceeds to my brother John Yeboah. If the land is really family land, 1st Plaintiff’s attorney would have Page18of 34 brought the proceeds to us, knowing that my brother John Yeboah had alreadysold part of the land and kept all the proceeds tohimself Q: I put it to that you came to your lawyer to institute this action becauseyou knewverywell that the disputed landwas notthe personal propertyof John Yeboah? A: When we went to Sunyani and 1st Plaintiffs Attorney made us knowthat my brother had soldpart of the land and later itwas revealed that the remaining land had been sold by 1st Plaintiff’s Attorney per the instructions of my brother John Yeboah. I knew that the land is not family land because if indeed it were family land, the proceeds of the landwould have beenbroughtfor all of us to getsomethingto eat. 4.9. DW2 also admits that her real reason for withdrawing from the suit was due to 1st Plaintiff Attorney’s duplicity as perceived by her, in selling land for Yeboah and joining parties to recover the rest from him, and not a realization that John Yeboah actually owned the land exclusively. This was herresponse under cross-examination: Q: I put it to you that the land you claimed that Plaintiff Attorney sold for John Yeboah was the 43acresyou carved outfor him. A: I do not know the land, but John Yeboah had earlier instructed his eldest Nephew who had sold part of the land, the number of acres of whichI donotknow and later he again instructed his youngestnephew who sold the remaining land and brought the money to my brother. Because it was 1st Plaintiff’s attorney with whom we went to engage the lawyer and I later found out that he is the same person who has sold the remaining land and given the proceeds to John Yeboah, I decidedto withdrawfromthe case. Page19of 34 4.10. She additionally appeared befuddled when confronted with the issue of the alleged meeting at which John Yeboah’s sisters told John Yeboah to take the land entirely in addition to a host of prevarications for which reason as observed earlier in this judgment her evidence especially on the issue of John Yeboah’s personal ownership of the disputed land will carry littleweight. This was what transpired while she wascross-examined: Q: The meeting you claim was held was between you, the other Plaintiffsand John Yeboah, whenwas itheld? A:Iam confused aboutthat Ido notremember. Q: In paragraph 9 of your witness statement, you claim that John Yeboah won the matter over the landover 40years, correct? A:Idonot remember. Q:Youagreewith methat your mother diedin the year 2000? A:YesI agree. Q: You agree with me that at the time you claim John Yeboah won the matter 40years ago, your mother was stillalive? A:Idonot remember. Q: And in paragraph 7 of your evidence, you have stated that the disputedland belongs toyour family? A: If the disputed land was cultivated by my father with the assistance of my mother,Ido notknow as the 6thborn of my parents. What Iknow Page20of 34 is that my parents cultivated a land at Bredi and that was what they usedto survive Q:Youagreewith methat your mother knewthe disputed land? A: I do not agree. If my mother knew, I do not know because I did not livethat muchat Chirehin. Q: So you want this Court to believe that land cultivated by your father and mother, when it was being claimed by another, your mother would notknow? A: I have stated that I do not know when John Yeboah went to the disputed land for me to know whether my mother cultivated it. I am 70 years old and I follow my mother everywhere, so I would know if she cultivated the disputed land? 4.11. Though I find DW2 generally as a witness lacking credibility, it is noteworthy that the entire land measured more than 60 acres as admitted in the Statement of Defence, and as admitted in the evidence, before part was sold it was divided by a water body.As admitted by DW2 as well, the sale ofsome other portion ofthe land was to the knowledge ofmembers of the family. The allegation that a portion of the disputed land was sold for John Yeboah to use the proceeds thereof to cater for himself due to his ailment is admitted and this admission is documented at paragraph 18 of theStatement ofDefence. 4.12. These and other admissions that I have discussed in the foregone need no further proof. An admission is defined in the 7th edition of Black’s Law Dictionary as “a voluntary acknowledgment of the existence of facts relevant to an adversary’s case.” As held in Samuel Okudzeto Ablakwa Page21of 34 & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, where a matter is admitted proof is dispensed with. In In re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III (substituted by) Laryea Ayiku III [2005-2006] SCGLR 637at 656,thecourt explained the effect ofsuch admissions thus: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that factthan by relying on such admission, which is an example of estoppel by conduct.” 4.13. Also, I have not found any credible evidence of abandonment as alleged by Defenadant in this suit. Abandonment was explained by the court in Awulae Attibrukusu III v. Oppong Kofi & 4 Ors (2009) JELR 66701 (CA) thus: “Abandonment in law was defined in Kwao II v. Ansah [1975] 2 GLR 176 by Francois JA(as he then was) as follows:—"Land was deemed to be abandoned when the occupier of the land vacated its holding and ceased to exercise any right thereto for an unreasonably long time and didnot showany intention of returning toit".” 4.14. These elements of abandonment were not positively proved by Defendant who alleged it. Theusufruct 4.15. The nature of the usufructuary ownership which appears to be the interest in contention in this suit as the land is admitted in the evidence to have Page22of 34 been acquired by cultivation was explained byAppau JSC (as he then was) in Togbe Lugu Awadali IV v. Togbe Gbadawu IV (2018) JELR 68854 (SC) inthese words: “The word ‘Usufruct’ comes from the Latin phrase ‘usus et fructus’, which means; ‘use and enjoyment’, with ‘fructus’ used in a figurative sense to mean fruits enjoyed from the use, which include; the right to convey, transfer, lease, assign or tax during the pendency of the use of the property concerned. The term stands for a limited real right (or in rem right) found in civil law and mixed jurisdictions that unite the two property interests of ‘usus’ and ‘fructus’; i.e. the right to use and enjoy a thing possessed, directly and without altering it. It connotes the right of enjoying all the advantages derivable from the use of something (not only land) that belongs to another, as far as is compatible with the substance of the thing not being destroyed or injured. The Cambridge English Dictionary describes it as; “the legal right to use someone else’s property temporarily and to keep any profit made”. Black’s Law Dictionary, in its ninth edition, defined it as; “the right of using and enjoying property belonging to another provided the substance of the property remained unimpaired. More exactly, was the right granted to a man personally to use and enjoy, usually for his life...the property of another which, when the usufruct ended, was to revert intact to the dominus or his heir”. The Shorter Oxford English Dictionary; Deluxe Edition, describes it as; “The right of enjoying the use of and income from another’s property without destroying, damaging, or diminishing the property”. In customary law, usufruct means land is owned in common by the people, but families and individuals have the right to use certain plots or portions of the land. Page23of 34 While people can take fruits of the land, they may not sell or abuse it in ways that stop futureuse of the land bythe community.” 4.16. In Mansu v. Abboye and Another [1982-83] GLR 1313-1323 the Court of Appeal per Francois JA (as he then was) also explained the usufructuary interestthus: “...Some of the cardinal incidence of the usufructuary interest were that the usufructuary had exclusive possession of the portion oflandandhe could notcapriciously be divested of that interest … without the prior consent and concurrence of the usufructuary. Thus, the usufructuary interest was potentially perpetual the interest of the usufructuary could be determined only by his consent, his abandonment or upon failure of his successors”.(emphasismine). 4.17. Usufructuary owners in possession of their land can only be dispossessed of their usufruct in land on proven and unrectified breaches of customary tenure, oruponabandonment assettled inAsseh v.Anto [1961] G.L.R. 103, S.C., Amoabimaa v. Okyir (Consolidated) [1965] G.L.R. 59, S.C. and Kotei v. Asare Stool [1961] G.L.R. 492, P.C. The Supreme Court also in Oppong Kofi and Ors v. Attiburukusu III [2011] 1 SCGLR 176 applied Awuah v. Adututu and Anor. [1987-88] 2G.L.R. 191 where it was held that the owner of the usufruct could maintain an action against all adverse claimants and even the allodial owner in defence of the usufructuary title and might impeach any disposition of such interest effected without his consent infavour ofathird party. Defendantasa bonafide purchaser for valuewithout notice Page24of 34 4.18. Defendant seeks to prove his ownership of the portion of the disputed land he purchased from John Yeboah with the deed of conveyance received in evidence as Exhibit B but that deed itself is self-serving. That deed cannot purport to grant to Defendant any title beyond what his grantor had in himself to grant without any fetters. I must also observe that contrary to Defendant’s own evidence-in-chief that John Yeboah was unable to complete his execution of a deed in Defendant’s favour until his untimely death, the deed appears on its face after my perusal to be a complete document purported tohavebeen duly executed in the year 2016 though it was stamped in the year 2022 perhaps for its receipt in evidence. Over four years prior to the commencement of this suit. It is contrary to Defendants own evidence that John Yeboah could not execute a document before his death, and therefore not credible. In keeping with the court’s thinking in Nkoom and Nii Ashong Kojo Ababio III v. Eric Adjei Sowatey (supra), I am of the view that this piece of evidence should be diminished in its weight for these reasons. I am strengthened in my positionby what thecourt saidin thatcase. 4.19. Additionally, this inconsistency concerns an integral issue so it must affect the court’s view of it. Lamptey JA. (As he then was) Obeng v. Bempomaa [1992-93] 3GBRp 1029had this tosay ofthe effect ofinconsistencies: “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and provedfatal tohis claim.” 4.20. It is not every inconsistency that makes a witness a stranger to truth as held in Apaloo v. The Republic (1975) 1 GLR 156 at 173. Conflicts and Page25of 34 inconsistencies in evidence should they matter to the judgment, should relate to material evidence, that is evidence related to the issues in contention. In The Republic v. Adekura [1984-86] 2 GLR 345, CA, the correct position of the law was explained that evidence offered to prove a matter not in issue or not probative of a matter in issue is immaterial and conflictsinsuchevidence can haveno relevant bearing onthe judgment. 4.21. At any rate, the sale of the disputed land to Defendant by John Yeboah is in admission by all sides, so I must out of necessity address the question whether Defendant purchased the land in good faith without notice. The Supreme Court speaking through Adinyira JSC in Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 relying on Awuku v. Tetteh [2011] 1 SCGLR 366 stated this point of law which remains the correct positionofthe law today: “A party who relies on a derivative title must prove the title of his grantor.” 4.22. This flows directly from the principle of law that “nemo dat quod non habet” that is to say that no one can give what he does not have. In Saanbaye Basilde Kangberee v. Alhaji Seidu Mohammed (2012) JELR 66777 (SC), the Supreme Court explained that this principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time ofthe conveyance. The Court of Appeal in Adiza Mohamadu v. Ali Adamu and Haruna Amidu (2014) JELR 63944 (CA) explained the true position of a bona fide purchaser for value asfollow: Page26of 34 “The equitable doctrine of purchaser without notice provides that a legal right may be enforced ‘against all the world’ by a purchaser for valuable consideration who takes property without knowledge of any defectin title. Thus wherea person purchases alegal estate for valuable consideration and, at the time, is without notice of an equitable interest in that land, the legal estate will pass to him free from the equitable interest. On the converse, the doctrine provides that an equitable interest may be enforced against the entire world except a bona fide purchaser for value of the legal estate who has taken without notice of the existence of that equitable interest, and against one who claims through him. The equities are said to be equal in this case so the maxim ‘where thereareequal equities the lawprevails’ comes intoplay.” 4.23. The success of this plea relies on three conditions, namely that the party claiming to be bona fide purchaser must obtain a legal estate, he must have given value and he should have no notice of the equitable interest. In Hydrafoam Estates (Gh) Ltd v. Owusu (per lawful attorney) Okine & Others (2012-2014) SCGLR 1117, the court explained the onus on a bona fide purchaser as follows: “Where a party had put up a plea of bona fide purchaser for value without notice of any adverse title, the onus will squarely be on that party who had pleaded the same. Since the plea was to be considered as an absolute, unqualified and unanswerable defence, if upheld by a court of law, the law will require that evidence in support of the plea mustsatisfy the court..........” 4.24. The Supreme Court applying Hydrafoam Estates (Gh) Ltd v. Owusu (supra), held in Bank of Africa Ltd. v. Gracefield Merchants Ltd. & Ors. Page27of 34 (2020) JELR 80041 (SC) that in assessing whether a purchaser of land had acted prudently, and for that matter entitled to take benefit of the plea of bona fide purchaser for value without notice, each case must be determined on its peculiar circumstances. As admitted by Defendant himself, 1st Plaintiff Attorney questioned Defendant at the time that John Yeboah had directed 1st Plaintiff Attorney to prepare documents for Defendant and asked Defendant why he had not approached the elder of John Yeboah’s siblings concerning the land he sought to purchase. 1st Plaintiff Attorney is the same Paul Nimako who is admitted in the statement of Defence and by Defendant under cross-examination to have sold portions of the land at the area as directed by John Yeboah. This is what transpired whilst Defendant wasunder cross-examination: Q: I put it to you that it is never correct that the sisters of John Yeboah confirmedthe disputed land as the personal property of John Yeboah? A: Maame Boahen told me plainly that the land belonged to John Yeboah. When I went to see her, they were preparing groundnuts and I assisted them. Q: I putit to you that you are making the said assertion that Boahemaa confirmed the disputed land as property of John Yeboah because she is dead today? A:Nottrue. 1st Plaintiff’s attorney evenquestioned me about why Idid not consult his mother who was the eldest. At the time, 1st Plaintiff’s Attorneyhad beendirected by hisuncle topreparedocuments for me. 4.25. There is from this a clear line of evidence that even at the initial stages of the purchase of the land sold to Defendant, questions of the propriety of Page28of 34 the transaction emerged. In my opinion, any diligent purchaser would have pursued further enquiry concerning these developments. There is also the matter of Defendant admitting having been invited to the Chirehin palace regarding the sale of the land to him among others. This waswhat transpired while Defendant wasunder cross-examination: Q: It is never correct that 1st Plaintiff’s Attorney said that he saw you on the land in2015. A:It istrue. He said itin this very Courtand he was asked what he did about it when he saw me on the land in 2015. He responded that he reported to the Assemblyman and when I failed to respond to the Assemblyman’s invitation he again reportedto the chief of Chirehin. Q: You agree with me that when you were invited before the Assemblymaninrespectof the land,you refused toappear. A: Not true. The Assemblyman is my friend. He was only informed butnotcomplainedto, and that was in2021. Q: I put it to you that you were invited before the Assemblyman but you said you have no issue to discuss with Plaintiffs so they can take it wherethey want? A:Nobody invitedme Q: Again you were invited before the chief of Chirehin in respect of the disputedland and you failed toappear? A:Nottrue. I went. Iinformedmy grantor and he said that his nephew did not know about the land, that they showed same to his nephew before he granted it to the Pentecost church, so if 1st Plaintiff has any Page29of 34 issue in respect of the disputed land, he should rather summon him, that is my grantor, because he was owner of the disputed land and not me. 4.26. There is sufficient evidence on the record that Defendant has always had knowledge of some other interest in the land before, during and after his purported purchase of it. I cannot find him to have been a purchaser in good faith. There is no evidence tosupport such afinding. 4.27. Defendant also failed to lead any corroborating evidence of the persons who witnessed his enquiries concerning the disputed land. The rule as applied in Faibi v State Hotels Corporation (supra) is that where a party would not produce evidence which evidence is available and within his peculiar knowledge, it could be inferred in law that that evidence is against him or simply that this evidence does not exist. The effect of the failure of a party to call material witnesses has been the subject of discussion in a litany of cases. However, I deem the court’s explanation in John Daniel Otoo v. Godfred Tetteh Adams & Others (2013) JELR 65213 (HC) most enlightening. The Courtinthatsuit had this tosay: “In civil proceedings, the consequences of a party’s failure to call a material witness depend on the onus of proof placed on him by the facts of the case. If a party has to establish his case and, therefore, assumes the onus of proof, he must call witnesses material to establish that case. In that event his failure to call a material witness may result in a ruling being given against him for the reason that he has failed to establish his case. See Section 11(1) of the Evidence Act (supra). Also see Owusu v. Tabiri [1987-88] 1 GLR 287 in which the defendant Page30of 34 contended that the issue before the court was res judicata as it had been resolved by a chiefat a valid arbitration. The plaintiffon the other hand argued that what took place before the chief was anegotiated settlement. The chief who alone could have established that there was a valid arbitration was not called to testify. The court held that since the onus of proof was on the defendant who asserted that there was a valid arbitration, his failure to call the chief was fatal to his allegation that therewas avalid arbitration.” 4.28. Defendant failed to lead credible evidence of many things of which I have outlined in the foregoing, so on the preponderance of probabiities I am inclined to accept Plaintiffs’ evidence. I find first, that 1st Plaintiff’s Attorney sold John Yeboah's portion of Plaintiffs and John Yeboah's land after the latter requested same thereby dividing the land. In the absence of any credible evidence that Plaintiffs and all their sisters abandoned their interest in the disputed land, I am inclined to conclude which I do, that no such abandonment occurred and they own the usufruct in the disputed approxiamately 60 acre land as their share of parties’ family land. I conclude also, that after the sale of John Yeboah's portion of the land as agreed by parties, he had no land at the area to to divest to Defendant so the purported sale of the land described at paragraph 12 of Defendant’s evidence isaccordingly set aside. WhetherDefendant has trespassed untoPlaintiffs’land 4.29. Rgarding the question of trespass, any entry unto land without the permission of the true owner or those authourised by him amounts to trespass. It is a wrong against possession as explained in Chegu v. Dagomba [1977] 1 GLR 412, and is actionable per se. As explained by Page31of 34 Wiredu J, once a court has found trespass it is bound to award damages but theremust be abasis forawarding morethananominal sum. 4.30. Defendant admits having farmed on the disputed land. According to him, this has gone on for many years and I can only hope to compensate Plaintiffs for the number of years for which they have lost use of their property. I am of the view that Defendant could have attorned tenancy to Plaintiffs upon discovering their interest. This would have been the easier pathtowalk,but hepreferred thepaththathas broughthim heretoday. Damages 4.31. Having concluded that Defendant has trespassed unto Plaintiffs’ land, I apply Chegu v. Dagomba (supra), to the end that damages are in order. The purpose of such an award of damages is to compensate the injured party and to place him in the same position as if the breach had not occurred or as near thereto as possible. Cornelius Ogbu v. Access Bank (Gh) Ltd (2015) JELR 69870 (CA) explained that the object of an award of damages is to give Plaintiff compensation for the damage, loss or injury suffered.I amofthe view that in this suit damages cannot be nominal. 4.32. Damages in this suit ought to be exemplary and in excess of actual or substantial damages. As explained in Ayisi v. Asibey III & Others [1964] GLR 695 SC and Mahama v. Kotia & Others [1989-90] 2 GLR 24. This is the proper nature of damages to award where the subject of the order has by his actions caused some other person to suffer protracted loss of use of some property rightly theirs. Defendant in this suit has been in possession of the dispsuted land to the exclusion of Plaintiffs for an extended period, Page32of 34 for the significant period of about a decade taking the exclusive benefit therefrom. 4.33. Additionally, by the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C.I. 52) each judgment debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment as provided in Rule 2(1). By Rule 1 that interest shall be calculated (a) at the bank rate prevailing at the time the order is made, and (b) at simple interest, but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner. In this suit, there is no agreement or some other applicable statutesetting outthe applicable interest. 4.34. The statutory or prevailing bank rate as provided under Rule 4(1) is the bank rate prevailing at the time the judgement or order is made by the court and where there is doubt as to the prevailing bank rate, the 91 days Treasury Bill interest rate as determined by the Bank of Ghana shall be the prevailing bank rate as provided by rule 4(2). Applying Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC), since to my mind Rule 4(2) of C.I. 52 is applicable, interest in this suit shall be computed at the statutory rate of 17.7 % per annum, which I have taken notice of as the Bank ofGhana 91-day treasurybill interestrate asat judgment. CONCLUSION Plaintiffs’ action succeeds, the Court makes the following orders in favour of Plaintiffsagainst Defendant: Page33of 34 a. Declaration of Plaintiffs’ and their siblings usufructuary ownership of all that land situate at Maniboa on Nkoranza stool land sharing boundaries with the lands of Nana Kontoh, Nana Kwadwo Gyan, Nana Kwame Ati and riverSoso. b. Recoveryof possession of the land described inorder (a) above. c. Damages for trespass including exemplary damages against Defendant in the sumof GHS8,000.00. d. An order of perpetual injunction restraining Defendant and all those claiming through him from dealing adversely with the land described in order (a) above. e. Iassess Plaintiffs’ costs at GHS 10,000.00 f. Defendant shall pay interest on the sums mentioned in orders (c) and (e) atthe statutory rate of 17.7%per annumfromjudgmenttill finalpayment. SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Partiespresent (Defendant unrepresented) James NdehEsq. holding brief ofIsaac Richmond Mensah Esq. for Plaintiffs Page34of 34