Boamah v Kwadwo and Another (BR/KD/DC/A1/26/2024) [2025] GHADC 227 (28 February 2025)

INTHE DISTRICT COURT HELDATKWAME DANSO ONFRIDAY THE28TH OF FEBRUARY 2025.BEFOREHER WORSHIP CYNTHIA ADEIANDY ESQ. (DISTRCIT MAGISTRATE) SUITNO.BR/KD/DC/A1/26/2024 BOAMAHEDWARD OFBASSA PLAINTIFF VRS. 1.KWADWOMICHAEL BOTH OF BASSA 2.KWAKULASSI DEFENDANTS J U DGME NT Plaintiff is a police officer stationed at Bassa whilst first and second defendants are farmers and natives of Bassa. Plaintiff sued the defendants for recovery of possession of a piece of building plot located at Bassa. The land is described in a site plan attached to the writ of summons. An order compelling the defendants to remove their containers fromthe land. 1 Plaintiff’s case is that, he was approached by Yaw Antwi (PW1) that one Obaapanyin Akosua Agyeiwaa (plaintiff's vendor) is offering her building plot of land for sale. Plaintiff said he expressed interest in the acquisition of the land and therefore went to meet her. At their meeting, plaintiff said he was shown the land which was close to the Bassa chief’s palace. He said he made his potential vendor aware that she had to get the Town and Country Planning Dept. (TCPD) Officers in the District [now Land Use and Spatial Planning Authority, (LUSPA)] involved so that they can do proper demarcation ofthe land. According to the plaintiff this was adhered to and one Emmanuel Owusu, an officer with the Department at Kajaji went to the site to demarcate the plot.Plaintiff said, in the course of the demarcations, it was detected that D2 whose plot shares boundary with the disputed land had entered into the land by four feet. This is so because a foundation he had dug to put up his building had entered into the plaintiff vendor’s land. According to the plaintiff this situation was made known to D2 who became offended and evenhad altercation withPW1. After the demarcations, plaintiff said he paid for the agreed selling price of Four Thousand Ghana Cedis (Gh₵4000) to Obaapanyin Akosua Agyeiwaa in the presence of Nana Obiri Yeboah, the Akyempimhene of Bassa, Yaw Antwi and Madam Adwoa Nkaye. A site plan was subsequently prepared as well as document of transfer of the landwas also executed by theparties. 2 Finally, plaintiff stated that because of the presence of the two structures belonging to first and second defendants, plaintiff’s vendor served ejection notices on them to remove their structures from the land. They have refused to remove the structures and hence this suit. Plaintiff tendered Exhibit ‘A’ which is a site plan dated 15th August, 2023. Exhibit ‘B’ are two ejection notices dated 28th July, 2023. And Exhibit ‘C’ is a statutory declaration. Plaintiff called three witnesses. First plaintiff witness (PW1) was Yaw Antwi. He stays at Bassa and a nephew to Plaintiff's vendor. His evidence per his witness statement was that the land sold to plaintiff was the bonafide property of Obaapanyin Akosua Agyeiwaa. PW1 said, his aunt decided to sell her land, of which he is also the caretaker. He approached the plaintiff and informed him about it. According to PW1, the plaintiff expressed interest in buying same but said he would want the Town and Country Planning Department to be involved. This suggestion was agreed to by his aunt and he was sent to Kajaji for that purpose. Mr. Emmanuel Owusu, an officer from the TCPD came to the site to do the demarcations. It was detected during the process that D2, who had started a building on an adjoining land, had his foundation entered into the disputed land by four feet. D2’s attention was drawn to this, and a misunderstanding ensued between him and the PW1 concerning the boundary, which led to a report of assault against D2 at the Bassa Police Station. Finally, PW1 said, the land was 3 subsequently sold to the plaintiff at a price of GH₵4000.00 in the presence of himself, Nana ObiriYeboahand Adwoa Nkaye. PW2 was Adwoa Nkaye, a biological daughter of Akosua Agyeiwaa. She said her mother told her of her intention to sell her land. PW1, who was the caretaker, was then informed. He brought the plaintiff as a potential buyer. PW2 said she subsequently witnessed the sale of the land between her mother and the plaintiff and that her mother received anamount ofGH₵4000.00asthe purchasing price oftheland. The final plaintiff witness was Nana Obiri Yeboah, the Akyeampinhene of Bassa and a nephew of the Plaintiff’s vendor. He said his aunt informed him some time ago that PW1 who was the caretaker of the disputed land had said he was no longer interested in taking care for the land. The aunt expressed fear of losing the land as such, she decided to sell it and use the proceeds to take care of herself. PW3 said after some time, she was called again to his aunt’s house to witness the sale of the land to the plaintiff. He said he saw when the plaintiff paid an amount of GH₵4000.00 to Akosua Agyeiwaa asthe purchasing price forthe land. Defendant’s denied entering into plaintiff’s land. Both defendants also did not dispute the sale of the land to the plaintiff neither did they challenge the process of the sale. The defendantsare fromthe same family asthe vendor. 4 First defendant (D1) said he received a complaint from the plaintiff to remove his beer bar from where it is located and that the land has been sold to him. He said he refused to do so because the land where the bar was located belonged to his late father, George Adams. According to D1, when he was growing up, he saw his parent’s kitchen on that spot and thatthey wereusing thatkitchen until he turnedit into adrinking bar. First defendant called Alex Nabi, his uncle as his witness. DW1 said he succeeded D1’s father as the head of their family. He and D1’s father were brothers. He said when he was also growing up, he saw D1 parent’s kitchen at the location where the beer bar is currentlylocated. He was also present when D1 was granted permission by his father to change the kitchen to a beer bar. Finally, DW1 said his late brother stayed on the land forover sevendecadeswithout any inference fromanyone. Second defendant (D2) defence was that the disputed land is a family property and that the vendorhas no right to sell it. He gave history about the acquisition of the land in the area. According to him, the land was originally acquired by six siblings all late, Kwame Oduro, Koniam, Kwabena Gyan, Kofi Nyarko, Kwadwo Yeboah and Bam Kwabena. He said all six siblings occupied various portions of the land by putting up their houses on same and lived together as one family. That currently, the original houses built had become ruined and D1 and D2 being descendants of Koniam have provision and beer bar on portions of the land. Furthermore, D2 said some time ago, plaintiff served an ejection notice on him to vacate the land. That on receipt of the notice, he made a 5 complaint to their head of family, Nana Oduro. That a family meeting was called and was resolved that a descendant of Kwadwo Yeboah alone could not sell the land as such, the purchased money should be refunded to the buyer which is the plaintiff herein. D2 called Samuel Antwi as his only witness (DW2). He is the family secretary. In his witness statement, DW2 stated that three months prior to the filing of his witness statement on 9th October, 2024 a complaint was made by D1, D2, Kwame Kyere, Yaa Asiamah and Yaa Comfort against PW1, PW2 and PW3 for selling a family land without the consent of the rest of the family. That a meeting was summoned to that effect and after the deliberations, it was found that the plaintiff’s vendor had no capacity to sell family land as such it was resolved that the purchase price must be refunded tothe plaintiff, the buyer. From the facts and evidence adduced so far, the issues that fall for determination are as follows: 1. Whetheror notObaapanin Akosua Agyeiwaa hasthe right tosell theland 2. Whetheror notthe land sold toplaintiff isafamily land 3. Whetheror notplaintiff canevict 1stand 2nd defendantsfromthe land. In every case that comes to court, any fact alleged which is relevant to the case must be proven. Proof in law as defined by Ollennu in the case of Majolagbe V Larbi (1959) 6 GLR 190 is proof in law is the establishment of a fact by proper legal means, in other words, the establishmentof an avermentbyadmissible evidence. The person who carries the burden to provide proof of the allegations depends on the natureof thecase and the facts. The burdensare oftwo kinds; persuasive andevidential burdens. The burden of persuasion is the obligation of a party to meet the requirement that a fact in issue be proved or disproved, in accordance with the requisite standard of proof.See section 10 of the Evidence Act, 1975, (Act 323). In acivil case such as this one, the plaintiff assumes the persuasive burden. On the other hand, evidential burden is defined in section 11 of Act 323. In discharging the burden placed on one in a case, there are legal standards that must be met. The standard of proof in civil cases such as this has been provided for under section 12 of Act 323, and it is by preponderance of probabilities. Section 12(2) of the evidence Act explains preponderance of probabilities to mean that degree of certainty of belief in the mind of the tribunal of fact or the court by which itisconvinced that the existenceof afactis more probable than its non-existence. On the resolution of issue one and two together, in Ghana, ownership of land could be corporate or individual basis. Corporate ownership include stool/skin, clan or family. A particular land may also be accumulation ofvarious interests. Section 1of the land Act, 2020, Act 1036 gave the various interests in land as the Allodial title, common law freehold, customary Freehold, usufructual interest, lease and customary tenancies. For example, a stool or family may own the allodial title in land whilst individual members 7 may have the free hold, lease hold and other lesser interests. In order to get a good title, it is important for a potential purchaser of land to investigate the root of title or the type of interest a vendor has in a land and that will determine how such a land can be dealt with. There are various modes of acquisiton of the various types of interests that has been outlined in Act 1036. For instance, a customary free hold per section 3 is an interest whicharises from a transaction under customary lawand itis a. An absolute interest in land which is not subject to any proprietary obligations but is subject to the jurisdictional and cultural rights of the stool or skin, or clan or family whichholds the allodial title. b. Acquired when a person or a group of persons where the law permits, purchase land outright from the stool or skin, or clan or family which holds the allodial title or acquired by giftor inheritance, c. Of perpetual duration and is inheritable and alienable without the consent of or payment tothe stool or skin,or clanor family. Usufructuary interestpersection 5is aninterestin land, which is a. acquired in the exercise of an inherent right by a subject or a member of a stool or skin, or family or clan which holds the allodial title through the development of an 8 unappropriated portion of the land of the stool or skin, or family or clan or by virtue of an expressgrant: or b. acquired through settlement for a period of not less than fifty years, with the permission of the holder of an allodial title by a non-indigence or group of non-indigence or the descendantsof the non-indigence, exceptwhere the settlementis or agreed terms:and 1.Inheritable and alienable 2.Where the alienation of the usufructisto aperson who a. Is nota memberof the stool, skin, clan or familywhich holds the allodial title, or b. Is not a non-indigence. The alienation is subject to the written consent of the stool or skin, or clanor familyor group and the performanceof established customary obligations. Unlike the customary freehold for instance, a person holding a usufructuary interest will need the written consent of the stool/skin, clan or family before the land can be alienated toanon-indigene ofthe locality. Inthe case before us, the plaintiff’s case was that his vendorinherited the land fromher late father thereby it was her property. This was an answer to a question posed to him under cross-examination. All his witnesses alluded to this. However, PW2 and PW3 said they were told later at a family meeting which meeting was convened a couple of months after the death of the vendor that the land was not the personal property of the vendor and that other members of the family also had interest in it. No further evidence 9 was given by the plaintiff concerning his vendor’s root of title apart fromwhat has been mentioned above. For instance it is not clear how plaintiff vendor’s late father acquired the land. It is evident on record that apart from the defendants being members of the same family as the plaintiff’s vendor, the defendants and other family members are occupying buildings adjourning the disputed land. This goes to show that the land in thearea has some family character asalluded to by thedefendants. Again, as indicated earlier, members of families that hold the allodial title can also hold lesser interests such as usufructuary interest, a lease, a pledge, customary freehold etc. in a family property. The land Act, Act 1036 gave the mode of transfer by a member of family that holds the usufructual interest in a land. A usufructual interest as defined above, is an interest a member acquires as of right by occupying an uncultivated or unoccupied portion of a stool or family that holds the allodial title in a land. In such transfers, if the transfer is to a non-indigene or member, then it must be done with a written consent of the head of family or the stool. No such provision was made for a member of a family or stool that acquired an interest in land other than the allodial interest. Second defendant in his witness statement, stated that the land was acquired by six members of their same family. They all built on various portions and various descendants including the defendants occupies portions of the same land. It is safe to say here that,each family member has their owndemarcated portions they can calltheir 10 property. As a matter of fact, First defendant stated so. He stated in paragraph 6 of his witness statement which statement was also corroborated by DW1 that where his structure is located was the bonafide property of his late father George Adams. What this means thereforeis that each sectionwithin the same family has their own portion of the land that they can call their property. A look at the defenses of the defendants indicated that theyrespect this understanding within the family. A careful look at the defence of second defendant indicates that he is alleging that some persons within the plaintiff’s vendor’s part of the family may have interest in the disputed land. This can be likened to fighting for the interest of those other persons. This case has been on for some time now and the majority of the family including the head, I believe, has become aware of. Any member or group of members who believed that they have interest in the land the subject matter of the dispute, such individuals or groups must have applied to join the case. See the case of Robertson v Nii Akramah II & Ors [1973] 1 GLR 445, CA. This was not done either by the head of the family or the individuals claiming interest in the land. It therefore do not lie in the mouth of the second defendant toclaim thattitle belongstosome otherpersons. From the above considerations therefore, I hold that the disputed land though may have a family character, members who occupies portions passed on to them by inheritance and have been in undisturbed possession either by themselves or through a caretaker have the right to dispose off such portions without recourse to the head of 11 family by way of consent either writtenor otherwise. Plaintiff vendortherefore have the capacity to sell or transfer title in the land. The attempt by the family to stop the sale afterthe deathofObaapanyin Akosua Agyeiwaa cannot thereforehold. On the final issue as to whether or not plaintiff can evict D1 and D2 from the land, plaintiff sued for recovery of possession. The defendants admits he has some building materials in the form of trips of sand, stones and cement blocks on the land. This indicates that he is in possession of portions of the land except for the portions where the defendants have their structures. The structures were on the land before the sale. According to plaintiff, he inquired about them and he was told Akosua Agyeiwaa consented for them to be there. This assertion of the consent was denied by the defendants. D2 admitted in his witness statement, particularly, paragraph six of being served with eviction notice signed (thumprinted) by plaintiff’s vendor. D1 however, denied receipt oftheevictionnote. First defendant justified his presence onthat portion of the land as due to long use. That it was hisparents who first had akitchen there. That his father permitted him toconvert the kitchen into a beer bar. This was confirmed by DW1 who testified of seeing the old kitchen and also witnessed when D1’s father gave the permission for the conversion of thekitchen into the beerbar.I found this evidence ofD1 credible andconsistent. 12 Second defendant on the other hand could not justify the presence of his structure on the disputed land. He could not satisfy the court why he placed his structure there. This structure on the land is different from the house he built on an adjoining land. Plaintiff and his caretaker only complained of trespassing onto the disputed land by four feet. They however have no issue with the entirety of that land he is putting up his building. The issue of the trespass with respect to the building is not before me so I am not going toderive intoit. Since there is no evidence on record justifying D2’s structure on the disputed land, I find that plaintiff is entitled to an order evicting the second defendant from the disputed land. In conclusion, plaintiff per the findings above have been able to prove his case against thesecond defendant and judgmentistherebyenteredas follows: 1. Second defendant is ordered to remove his structure from the land. He is giventwo monthswithinwhich todo so. 2. CostofGH₵1500.00against the D2 3. CostofGH₵1000.00against plaintiffto the benefit ofD1 Plaintiff failed toprove his case against the first Defendant. 13 …… ……………..……………… H/W CYNTHIA ADEI ANDY ESQ. (DISTRICTMAGISTRATE) 28-02-2025 14