Febiri v Morro (A1/31/2024) [2025] GHADC 221 (11 February 2025)

IN THE DISTRICT COURT KINTAMPO HELD ON TUESDAY 11TH FEBRUARY 2025 BEFOREHIS WORSHIP KWAMEADJEI MANUESQ. SUITNO: A1/31/2024 AKUAFEBIRI - PLAINTIFF VRS ISSAHMORRO - DEFENDANT JUDGMENT 1. BACKGROUND Plaintiff’scase 1.1. Plaintiff per her summary of subject matter of claim in this suit makes a case that Plaintiff and Defendant are farmers residing at Ntankoro in the Kintampo South District, and Kintampo in the Kintampo North Municipality respectively of Bono East Region of Ghana. she is the bona-fide owner of a parcel of farmland measuring two (2) acres situated at a place commonly known as 'Nyiyinimu' at Ntankoro in the Kintampo South District. The land according to Plaintiff originally belonged to her father, Kwadwo Manu and devolved on his death in the year 2006. It is Plaintiff’s case that, she has been in peaceful possession of the land until the year 2017, when her relative Papa Kwabena Anane raised adverse claims to the land was defeated in a customary arbitration. Amidst attempt to settle the dispute over the land between Plaintiff and the said Papa Kwabena Anane, Defendant, fully aware the dispute surreptitiously and tactfully cultivated cashew crops on the land and all attempts to prevent her from having Page 1 of 14 any dealing with the land including customary settlement in Plaintiffs favour proved futile. 1.2. Plaintiff states that unless the court intervenes, Defendant will continue to cadversely claim the land tothe detriment ofthe Plaintiff. Plaintiff’s claim against Defendant is asfollows: “(a)Declaration of title to a parcel of farmland measuring two (2) acres situated and being lying at a place commonly known as ‘Nyiyinimu’ at Ntankoro in the Kintampo South District of Bono East Region ofGhana. (b)recovery ofpossession ofthesaid farmland. (c) A Perpetual Injunction order restraining the Defendant, assigns, agents, allies, workmen and any other person claiming through her fromhaving anydealing with thesaid farmland. (d)Generaldamagesfor trespass. (e) Anyfurther order(s)thattheHonourableCourt maydeem fit.” Defendant’scase 1.3. Defendant’s case is that the land she is occupying is situated at Nyinyininmu on Ntankro stool land and bounded by the properties of Kwabena Anane, Kwabena Appiah, Kofi Kyereme, Kofi Boateng and Nyinyini. Defendant avers that she has been in effective possession and occupation of the land for over 40 years ago. Her land was cultivated in its virgin state by her late grandfather Kwadwo Asante and Cocoa. Defendant’s case is that her late grandfather gifted the land to her (defendant's) motherAbena Amobena who is his daughter. 1.4. Amobena presented aseda in the form of Schnapps to seal the gift in the presence of her grandfather's family. Her mother was possessing and occupying the land Page 2 of 14 she is currently occupying until she grew old and became weak. Her mother put her in charge for over four decades without any confrontation from any quarters. According to Defendant she has never met plaintiff on the land during her continousstay onher land foroverfour decades now. 1.5. According to Defendant Plaintiff’s father pleaded for land from Kwabena Anane and was given a portion of Anane's land but the said portion does not share common boundary with Defendant’s land in any way. Upon the death of Kwame Anane Plaintiff's father is claiming the land of Kwame Anane which said matter is before the chief of Ntankoro. Plaintiff also took her to the chief of Ntankoro on thesame subjectmatterbut after the arbitration, Plaintiff was found liable. 1.6. Defendant contends that Plaintiff is estopped by laches, acquiescence, and operationoflaw and the arbitrationaward. Layparties 1.7. Parties to the suit are lay persons. They were also unrepresented, so it was only proper that the Court extended all the necessary indulgences to them. The point of this was to ensure, that all issues arising out of the suit are properly distilled and not tinctured by that technical practice into which they are not initiated. In Mante and Another v. Botwe [1989-90] 2 GLR 479 Taylor J.S.C had this to say of the duty owed to illiterate persons, which in my honest view is extendable to lay personsinCourt: “In this connection, it is worthy of note that our judges have traditionally taken the view that some indulgence should be shown to illiterates appearing before our courts as is illustrated by the editorial note of Hayes Redwar J. in his judgment in Bossom v. Attonie (1897) Red. 199 at 201. See also the judgment of the Full Court (coram Sir William Brandford Griffiths C.J. and Page 3 of 14 Francis Smith J.) in Ansah v. Kwesi Essuman (1898) Ren. 136 and the Fiakpoli Concession (1903)Ren. 281.” 1.8. This duty was explained by Adade J.S.C. in Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G.L.R. 314, S.C. and also by the erudite Author Justice S.A. Brobbey (Retired) in his book Practice and Procedure in the Trial Courtsand Tribunals of Ghana,2011thus: “Sometimes the task of deciphering the precise claimfrom "home- made" writs, especially those prepared by letter writers, is no mean one. The best approach is to be guided by the principle enunciated in Atiafu v Dzaka [1962] 1 GLR 280which concerned actions in the erstwhile native courts. In that case, itwas held that in actions where writs have been prepared by semi-literates, one has to look to the issues involved rather than the wording of the writ of summons. Similar views were expressed in Ankrah v Ankrah [1966] GLR 60, SC and Donkor vNkrumah [1964] GLR739,SC.” Issues 1.9. Upon careful contemplation, the issues raised by this court on the parties’ processesfor trial areas follows: i. Whether Plaintiff is estopped by laches, acquiescence or an arbitral award. ii. Whether Plaintiffis owner of the disputedland. iii. Whether Defendanthas trespassed untoPlaintiff’s land. Page 4 of 14 1.10. For logical coherence of this judgment, the first issue is discussed before the remainder since its determination may stop the court from dealing with the rest. Following this, the remaining issuesmay bediscussed by thecourt. 2. BURDENOF PROOF ANDEVIDENCE OF THE PARTIES 2.1. Defendant’s case is logically incompatible with essential parts of Plaintiff’s case. Defendant did not in this suit counterclaim, but he did not also admit Plaintiff’s title or the root thereof. Whereas Plaintiff claimed that the land belongs to Paagor Royal family of Kintampo, Defendant’s contends that the Mo Paramountcy is the original owner of the land. Accordingly, the party who really must establish his case to succeed is Plaintiff. A noteworthy statement of the law was made in Memuna Moudy and Others v Antwi1, where the Supreme Court speaking throughWood JSC (as she thenwas) held as follows: “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 221at 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 whichthe fact or facts he asserts can be properly and safely inferred."2 2.2. This requirement of law is expressed in statute at section 14 of the Evidence Act, 1975(NRCD323) which provides that: 1 [2003-2004] 2 SCGLR 967. 2 AT PAGES 974-975. Page 5 of 14 "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 claimor defence he is asserting." 2.3. The evidential burdenonPlaintiff is discussed in thefollowing. Burden ofproof 2.4. It is a fundamental legal principle that a party asserting a claim to land, and by extension, all parties involved in disputes, must establish their case based on the merits of their own arguments and supporting evidence rather than by pointing out deficiencies in their opponent's case. Section 10(1) of the Evidence Act, 1975 (NRCD323) provides concerning this requirement that: “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning afactin the mindof the tribunalof fact or the Court”. 2.5. Section 11(1) of the Evidence Act 1975 (NRCD 323) also sets out the burden on a partyto produce evidence in amatterbeforethe Courtinthe following terms: “For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against himon an issue”. 2.6. InIshack v.Praba (2007) 12MLRG172 at 181,the CourtofAppeal explained this duty borne initially by Plaintiff herein thus: Page 6 of 14 “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 doingthis, he wins,if nothe loses on that particularissue.” 2.7. In Ackah v. Pergah Transport Ltd. & Ors (2010) SCGLR 728, the Supreme Court explained this duty more extensively. That explanation which I must say expressesthelens throughwhichI view Plaintiff’sevidence is this: “It is a basic principle of the law on evidence that a party who bears the burdenof proof isto producethe requiredevidence of the facts inissue 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 Evidence Act, 1975(NRCD323)” 2.8. In matters such as this, the fundamental principle is that the party making a specific claim holds the responsibility of providing evidence to support that claim. When the opposing party contests the alleged fact, a substantive issue Page 7 of 14 arises that necessitates resolution. As elucidated in all that is discussed in the foregone, it is the party introducing a fact that is challenged who bears the burdenofproving thedisputed fact. 2.9. On this point, it is worth noting that the burden of proof shifts. As provided at Section 17(b) of the Evidence Act, the authorities such as In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & ORS [2003-2004] 1 SCGLR 420 have been diligent in emphasizing that the burden of presenting evidence is not constant, rather, it shifts from one party to another at different junctures of the trial. This shift is contingent upon the specific issue(s) under consideration and the assertions, affirmations, or refutations of facts at hand. For clarity, the entire textofthis section is reproduced asfollows: “17.Allocationof burdenofproducing evidence Exceptas otherwise provided by law, (a)the burden of producing evidence of a particular fact is on the party against whom a findingon that factwould be required inthe absence of further proof; (b)the burden of producing evidence of a particular fact is initially on the party with the burdenof persuasion as to that fact.” 2.9.1. Plaintiff’s reliefs in this suit include a declaration of title and recovery of possession. Accordingly, he bears the heavy burden of proving, but on the balance of probabilities his root of title, mode of acquisition and possession. In Rukayatu Usumanu v. Zongo Naa Kun-Gari & 16 Ors (2021) JELR 107957 (SC) where relied on the case of Mondial Veneer (Gh) Ltd. v. Amuah Gyebu XV [2011] 1 SCGLR 466 the Supreme Court per Georgina Wood CJ held at page 474 that “In land litigation even where living witnesses who were directly involved Page 8 of 14 in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whomthe burden of persuasion falls … to prove the root of title, mode of acquisition and various acts of possession exercised over thesubject matter oflitigation.” 3. DISCUSSION OF THE ISSUES WhetherPlaintiff’saction isestopped orstatutebarred 3.1. In Asare v. Brobbey (1971) 2 GLR 331, CA at 338, Archer J.A. (as he then was) delivering thejudgment ofthe Court ofAppealsaid: “In Phillips v. Copping (1935) K.B. 15at 21, CAScrutton LJsaid: ‘it is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it.” 3.2. In Ebusuapanyin Yaw Stephens v. Kwesi Apoh (2009) JELR 68079 (CA) the Court stated that it is not procedure sanctioned by law for the Court to proceed to deal with the whole case on the merits, where a defence of estoppel, statute of limitation, lack of locus standi any of which is pleaded to show that the cause of action is wanting in a legal manner is raised and the Court finds it made out. The courtstated thus: “This is the rational for determining such preliminary matters first in the course of proceedings. It is therefore the law that if an action succeeds on a plea of statute of limitation, lack of jurisdiction or lack of locus standi, the trial court and for that matter an appellate court should not proceed to determine the meritsof the case, irrespectiveof the evidence.” Page 9 of 14 3.3. Though in Plaintiff’s summary of subject matter of claim she said that her father died in the year 2006 and in her evidence-in-chief that it has been twenty years since her father died, she admitted under cross-examination that her father died in 2003 since which time Defendant has been in possession of the disputed land. This was what transpired whilst Plaintiff was under cross-examination by Defendant’s counselinitially: Q:When didyour father die? A: He diedin 2003. 3.4. She later admitted in unequivocal terms Defendant’s long possession of the disputed land thus: Q: So you agree with me that since the year 2003 when your father died till this year, Defendantis the person inpossession of the disputed land? A: Yes Iagree. 3.5. I have cautioned myself that the admission under cross-examination being an evidentiary admission and not a formal one, it ought to be assessed in light of all other evidence and processes on the record and not to be accepted as being final and conclusive. Still, even if I take the most recent of these reported times of Plaintiff’s father’s death to be the most accurate, it does not help her case. It would mean that Defendant has been in unchallenged possession of the disputed land well over the statutory time period allowed, so that all claims by Plaintiff Page 10 of 14 even if the court found her to be the true owner of the land in dispute would be estopped orin clearertermsstatutebarred. 3.6. The Limitation Act, 1972(NRCD54)provides as follows: “Section- 10-Recovery ofLand. (1) No action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person. (2) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run(in this sectionreferredto as "adverse possession"). (3) Where a right of action to recover land has accrued, and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the rightof action shall nolonger be deemed toaccrue until the land is again taken intoadverse possession. (4) For the purposes of this Decree, no person shall be deemed to have been in possession of any land byreason only of having made aformal entry thereon. (5) For the purposes of this Decree, no continual or other claim upon or near any landshall preserve any rightof action to recover the land. (6) On the expiration of the period fixed by this Decree for any person to bring an action to recover land, the title of that person to the land shallbeextinguished.”(emphasis mine) Page 11 of 14 3.7. It is clear from Plaintiff’s own admissions that twelve (12) years have elapsed since Defendant begun occupying the disputed land. As stated by the Supreme Court in Network Computer System and Marketing Limited v. Intelsat Global Sales and Marketing Ltd [2012] 1 SCGLR 218 speaking through Atuguba J.S.C. “A court cannot shut its eyes to the violation of a statute as that would be very contrary to its raison d’être. If a court can suo motu take up the question of illegality even on mere public policy grounds, I do not see how it can fail to take upillegalityarising fromstatutoryinfractionwhich hasduly come to its notice.” 3.8. Again, in Republic v. High Court (FastTrack Division) Accra; Ex parte National Lottery Authority (Ghana Lotto Operators Association and Others Interested Parties) 2009SCGLR390at 397the learnedJudge again said: “It is communis opinio among lawyers that the courts are servants of the legislature. Consequently any act of a court that is contrary to a statute is, unlessexpressly or impliedly provided, anullity.” 3.9. Date-Bah JSC in Ex parte National Lottery Authority (supra) at page 402 made the statement which has become a staple in the quiver of all in this our sublime professionthus: “No judge has authority to grant immunity to a party from consequences of breachingan Act of Parliament.” 3.10. Date-BahJSC continued thus: “The judicial oath enjoins judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders. The end of the judicial oath set out in the Second Schedule of the 1992 Constitution is as follows: “I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana.” This oath is surely inconsistent with any judicial order that permitsthe infringementof an Actof Parliament.” Page 12 of 14 3.11. I have also considered closely the other preliminary issue that could have estopped this court from adjudicating this suit on the merits, that is whether the subject matter had already been adjudicated by an arbitral panel as alleged by both sides. I am of the considered opinion that there is no such estoppel. Plaintiff’s own witness Nana Appiah Kubi, PW1 who was a member of the arbitral panel testified under cross-examination that the panel did not decree in favour of Plaintiff. It appears that the panel rather recused itself from the matter. This was what transpired while PW1was under cross-examination: Q: Your evidence that Defendant used deceptive means to cultivate cashew is alsonot correct? A: My evidence is correct. Q: The cashew Plants on the disputed land have all matured and you saw them? A: It is true. It is because of this the panel which sat on the matter gave a verdict that Plaintiff has sat unconcerned for Defendant to cultivate cashew on the land which is grown, so we do not have authority to give possession of the land to Plaintiff, therefore if Plaintiff was minded, she could recover possession of the land incourt. 3.12. What is clear fromthe foregone is that not only did Plaintiff not obtain an arbitral award in her favour as she would have the court believe, but that Defendant’s long possession of the disputed land and her cultivation of it with crops which are matured is well documented in the evidence. I find with much ease that this court was never estopped by any arbitral award from dealing with this suit, especially when the law is that parties could have resubmitted the dispute in whole or part for afresh determination as concluded in Dzasimatu and Others v. Dokosiand Others [1993-94] 1GLR463thus: “although there is no right in the parties to resile from an arbitration: see Kwasi v. Larbi (1952) 13 WACA 76, PC: affirming (1950) 13 WACA 81: the parties may, after the award, resubmit the whole, or a part, of the dispute to a further arbitration, just as they may do after a judgment: see Tetteh v. Ndamquaye (1947) DC (Land) ‘38-47, 261 and Yardom v. Minta III (1926) Page 13 of 14 FC‘26-’29, 76.Where the proceedings fall short of an arbitration, but meetthe requirements of a negotiated or amicable settlement, the decision becomes binding only if it is accepted by the parties: see Mensah v. Esah [1976] 1 GLR 424,CA. Thereafter, neither party can resile from the compromise: see Zogli v. Ganyo[1977] 1GLR297,CA.” 3.13. However, from the myriad authorities recounted in the foregoing, Plaintiff’s action is clearly statute barred and her title in the disputed land extinguished since neither herself nor any other person preceding her in title took any steps to challenge Defendant’s adverse possession of the land. So, assuming arguendo that Plaintiff owned the land, her title would be extinguished. The court is accordinglyprecluded fromdealing withthe suit beyond this point. CONCLUSION The Court must remain resolute in its fidelity to the enforcement of the law, ensuring its true ends are met and not swayed by any other considerations beyond this. Plaintiff’s action is statute barred and same is accordingly dismissed. I assess costs in favour of Defendant in the sum of GHS 6000.00 with interest at the statutory rate of 27.98% per annum, being the Bank of Ghana 91-day Treasury Bill interest rate in terms of Rules 2(1) and 4ofthe Court(Award of Interest andPostJudgementInterest) Rules, 2005(C.I. 52). SGD. H.W. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Parties present (Unrepresented). Page 14 of 14