Dumanya v Dumanya and Another [2025] GHADC 96 (6 February 2025)

IN THE DISTRICT COURT HELD AT NEW TAFO-AKIM, ON THURSDAY, 6TH FEBRUARY,2025BEFORE HERWORSHIP: JOSEPHINE SARFO (MRS) ABUSUAPANINEBENEZERDUMANYA PERHIS LAWFUL ATTORNEY MICHAEL ADJARTEYDUMANYA OF AKIMOBODANSE PLAINITIFF VRS 1. MARY MAKUDUMANYA 1STDEFENDANT 2. SAMUELLARBI 2ND DEFENDANT BOTHOF AKIM OBODANSE PARTIES-PRESENT JUDGMENT The Plaintiff in awrit issued on2/02/2022, sought the following reliefs: a. Declaration of title to Dumanya family land situate and lying at Akim Obodanse and sharing boundaries with Noah Dumanya, Ebenezer Ago Dumanya, Teye Dumanya and Nii Ablormah. b. Recoveryofpossession ofthe said family land. c. Perpetual injunction restraining Defendant, his assigns, privies and agents from interfering withthe disputed land. d. Anyorder(s) the courtmay deemfit. The fifteen paragraphed statement of claim that accompanied the writ can be summarized as follows: that the land in dispute which forms part of the Dumanya family land was acquired by the Plaintiff’s grandfather by name Willaim Dumanya and 1 uponhis death the vast land devolved unto his children. The Dumanya family land as it became was shared among the four nuclear family which formed the larger Dumanya family. Portions were allocated to Laweh Dumanya, Ebenezer Ago Dumanya, Narh Dumanya and the five female children by name Alice Dumanya, Rebecca Dumanya, Stella Dumanya, Mary Dumanya and Felicia Dumanya. Narh Dumanya gave birth to five children namely, Tetteh Dumanya, Teye Dumanya, Noah Dumanya, Bertha Sefa Dumanya and Korkor Dumanya and upon his death his portion of the land was shared among these five children. According to the Plaintiff, all the children of Narh Dumanya except Bertha Sefa Dumanya gave birth in their lifetime. Bertha Sefa Dumanya died on 27th September 2021, and the 1st Defendant who was a helping hand to her has taken ownership of her land which is the land in dispute laying claim to it. The Plaintiff avers that the family approached the 1st Defendant to inform her that since Bertha Sefa Dumanya was not survived by children, the land in dispute reverts to the Dumanya family forallocation to theremaining male children ofNarhDumanya. The Defendants have resisted the claim of the Plaintiff and have set out a cross-action in the nature of a counterclaim which was issued out of the registry of this court on 10/05/2022 asfollows: a. Declaration of title of Narh Kwame’s family land situate and lying at Akim Obodanse and sharing boundaries with Noah Dumanya, Ebenezer Ago Dumanya, TeyeDumanya and NiiAblormah. b. Recoveryofpossession ofthe said family land. c. Perpetual injunction restraining Plaintiff, his assigns, privies, agents, etc, from interfering withthe disputed land. d. Anyorder(s) the courtmay deemfit. It is the case of the defendants that Bertha Sefa Dumanya whose name they gave as Bertha Ofosua Sefa died in September, 2021 and was not survived by a child. The land 2 in dispute does not belong to the Dumanya family but rather the Narh Kwame family. That upon the death of Narh Kwame, the land in dispute was shared among his children namely; Martey, Tetteh Jonas, Teye Opasi, Narh Lokoto, Sefa Bertha and Korkor. According to the Defendants, the Dumanya family land was also divided into three equal parts and shared among his children namely; Lawerh Dumanya, Ebenezer Ago Dumanya and five female aunties. That there is no one by the name Narh Dumanya but ratherNarhKwame who is the father ofBertha Sefa. The following were settled asissues for determinationby the Court: 1. Whetherornot Bertha Sefa is amember ofthe Dumanya family? 2. Whetherornot theland in dispute belongstotheDumanya family? 3. Whether or not the land in dispute belongs to Bertha Sefa and by extension Narh Dumanya (NarhKwame)? ANALYSISOF THE EVIDENCE ANDEVALUATIONOF THELAW As there is a claim and a counter claim both parties have obligations to prove their claims and counter claims on the balance of probabilities. The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is very instructivethat: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination 3 to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” In respect of the defendants’ counter claim it is to be viewed with the same scale of measurement as if they were the plaintiff. As far back as the case of AMON v BOBBETT(1889) 22QBD543where Browne LJnoted that: “a counter claim is to be viewed and to be treated for all purposes for which justice requiresit to beso treated asanindependent action”. Dotse JSC came to the same conclusion oncounter claim actions in the case ofJASS CO. LTDv APPAU[2009] SCGLR269at 271that: ‘whenever, a defendant also files a counterclaim, then the same standard or burden of proofwould be used in evaluating andassessing thecase of thedefendant just asit was used toevaluateandassess thecase oftheplaintiff againstthedefendant’ The Plaintiff testified that upon the death of his great grandparents, the larger Dumanya family land was shared among all thefamily members. KorkorDumanya and Bertha Siffah Dumanya were allocated a portion ofthe land which is the land in dispute. The 1st defendant was sent by the father, Noah Dumanya, to live with Bertha Siffah Dumanya because the said Bertha Siffah Dumanya had no children of her own. Bertha Siffah Dumanya died in September 2021 and was buried in November 2021 without any financial contributionfromthe 1st Defendant who has assumed ownershipof the land in dispute claiming title to same. According to the Plaintiff, the 1st Defendant and her siblings are in possession of their father, Noah Dumanya’s land but all efforts by the Dumanya family to recover the land in dispute from 1st Defendant has been abortive. Plaintiff tendered a minute of meeting of the principal members of the family with 1st Defendant as exhibit A, invitation letters from the Legal Aid Commission, Koforidua as 4 Exhibit B series, the funeral poster and booklet of the late Bertha Siffa Dumanya as Exhibit C series, a judgment of the District Court New Tafo-Akim dated 7/08/2015 in suit no:A1/2/15 Intu titled Sefa Bertha per her lawful attorney Mary Domanya vrs Domanya William & Ebenezer Ago Domanya as Exhibit D and a Power of attorney dated 17/01/2022 that vests him with capacity to be in court as Exhibit E. He testified that upon the death of Bertha Siffah Dumanya, per the family laws and customs, the land in dispute reverts to the larger Dumanya family for reallocation and not to the children of Bertha Siffa as, if that was the practice, upon the death of Korkor, the sister of Bertha, the land would not have devolved unto Bertha but to the children of the late Korkor. PW-1, Ebenezer Ago Dumanya, the Plaintiff’s principal, testified that he is the head of the Dumanya family. According to him, the Plaintiff is his son whilst the 1st Defendant is the daughter of his brother Noah Dumanya and the 2nd Defendant is his grandson. That the land was shared among the members of the Dumanya family upon the death of their parents. The father of the 1st Defendant, Noah Dumanya, had a portion which land is being occupied by the 1st Defendant and her siblings. Korkor Dumanya and Bertha Siffah Dumanya whom PW-1 referred to us her sisters also had a portion which is the land in dispute. According to PW-1, the 1st Defendant was sent by his father to live with Bertha Siffah Dumanya since the latter had no children of her own. Bertha Siffah Dumanya died in 2021 and since her death, the 1st Defendant has sought to lay claim to the land in dispute and has resisted every attempt by the family to recover the land from her. That the land in dispute shares boundaries with PW-1, Noah Dumanya, TeyeDumanya and Nii Ablormah. PW-2, Felicia Dumanya stated that she is a sister to PW-1 and the 1st Defendant’s father, NoahDumanya.She corroboratedthe testimony ofthe Plaintiff. 5 PW-3, Gladys Fianko testified that she is the sister of the Plaintiff and the 1st Defendant while the 2nd Defendant is the son of her sister, Felicia Ama Dumanya. She also corroboratedthe evidence ofthe Plaintiff. The 1st Defendant in her testimony, stated that her name is Mary Abodo but she was formerly known as Mary Maku Dumanya because she was born in the house of Lawer Dumanya. She testified that she lives at Obodanse likewise the Plaintiff and his Principal, PW-1. That his grandfather, Narh Kwame and Plaintiff’s father, William Akpakli each acquired their respective lands and thus their lands share a common boundary. She added that Narh Kwame and William Akpakli Dumanya were not biological brothers but were only good friends. Her grandfather, Narh Kwame gave birth to Martey, Tetteh Jonas, Korko, Bertha Ofosua, Teye Okepse and Narh Noah who is her father and upon the death of the grandfather, his land was distributed among all these children. She tendered a sketch of how the land and its various demarcations were done among the children as Exhibit 1. She stated that William Akpali Dumanya also gave birthtoLawer Dumanya, AttaaDumanya, Alice Dumanya, Nuekie Dumanya, Ebenezer Ago Dumanya, Mary Dumanya, Lawer Bio Dumanya and Felicia Dumanya. That Lawer Bio Dumanya and Nuekie Dumanya predeceased their father and upon the death of William Akpakli Dumanya his land was also shared among his surviving children. She stated that since the aunt, Bertha Ofosua had no child she adopted 1st Defendant from her infancy and lived with her till she passed on. That the said Bertha Ofosua/BerthaSefa in her lifetime neverused the name Dumanya because she was not a member of the Dumanya family. She tendered into evidence a receipt from Anfoega Catholic Hospital which bore the name Sifah Bertha to buttress her assertion as Exhibit 2. According to the 1st Defendant, the name Sifah was the name of Bertha Ofosua’s husband which she adopted upon marriage and that none of the children of Narh 6 Kwame uses the name Dumanya. That it is the Plaintiff who is seeking to associate the name Dumanya withthe daughtersofNarhKwame. The 2nd Defendant testified that the Plaintiff is the uncle while the principal is the grandfather. That he was given the land in dispute to take care of by Sefa Bertha subsequent to a litigation between Sefa Bertha and his uncle William Dumanya over the land in dispute. According to 2nd Defendant, Sefa Bertha told him that the land belonged to her and her late sister so he was not to allow any member of the Dumanya family to lay claim to it. Some time ago, as a caretaker of the land in dispute, he caused the arrest ofthe grandsons ofPW-1 who went to the land to harvestproduce from it. He stated that Bertha Sefa is not a member of the Dumanya family and in her lifetime, she caused the 2nd Defendant to render accounts of the produce of the farm to the 1st Defendant who used to take the proceeds to Bertha Sefa at Vakpo in the Volta region. Furthermore, Bertha Sefa pawned the land in dispute to one Cabo for five years at a fee ofThree Thousand Ghana Cedis before she died. DW-1, Felicia Dumanya testified for the Defendants. She stated that the Plaintiff is her cousin whilst his principal is a father. The 2nd Defendant is her son and caretaker of the land in dispute. That her grandfather, William Akpakli Dumanya shared his land to his children which included Lawer Dumanya (her father) on one stretch of the land, all her aunties (Attaa, Alice, Mary and Felicia Dumanya ) also on one portion of the land and Ebenezer Ago Dumanya(PW-1) on another portion of the land. That the land of PW-1 shares a common boundary with the land in dispute. She corroborated the evidence of the Defendants that Sefa Bertha is not a member of the Dumanya family. That Bertha Sefa is the daughter of Narh Kwame and Narh Kwame’s land is different from that of William AkpakliDumanya. What this court can surmise from the evidence so far is that the land in dispute belongs to Bertha Sefa Dumanya and her late sister Korkor who acquired title to the land from 7 their father, Narh Dumanya whose land upon his demise was distributed among his children including Noah Dumanya whom the Plaintiff alluded to as the 1st Defendant’s father. From the plaintiff’s testimony, it can be gleaned that Narh Dumanya also acquired his land from his father, Jonas Dumanya. Jonas Dumanya is the father of both William Dumanya and Narh Dumanya. The Plaintiff in his reply and defence to the counterclaim of the Defendants asserted that Narh Dumanya is a member of the Dumanya family and that the said Narh is a title like Tawiah is in Akan given to the fourthmale bornin every family in Kroboand that the said Narh Dumanya was brother to their great grandfather, William who was a second born in his family. PW-3, Gladys Fianko during cross-examination also confirmed that William Dumanya and Narh Dumanya aresons ofJonas Dumanya who originally acquired the vastDumanya land. This is what ensued between PW-3 and 1st Defendant during cross-examination on 16/09/24 at page24ofthe ROP: Q: Can You Tell the Court the Name Of the Great Grandparents Who Purchased The LandAnd Gave It ToNarh Kwame? A:JonasDumanya. ……………….. Q: I Put It To You That Dumanya Akpakli Acquired The Land In Dispute At Obodanse-Akim. ThisLand Shares ABoundary With Narh Kwame. A:What I Know Is That Dumanya Akpakli Is A Son Of Jonas Dumanya. It Was Jonas Dumanya Who Acquired The Land In Dispute Which Was Shared Among His Children. …………… 8 Q:I Put It To You That Narh Kwame Came From Ningo To Acquire The Land In Dispute And NotJonasDumanya A: We Do Not Know Narh Kwame. We Know Of Narh Dumanya Who Is The Father Of Bertha And KorkorDumanya. Narh DumanyaWas ASon Of JonasDumanya. From this exchange it is deducible that, Jonas Dumanya indeed acquired the vast land which was shared among his children including William Dumanya and Narh Dumanya. Thus, William Dumanya and Narh Dumanya each had their respective lands which subsequently devolved unto their children upon their demise. In the earlier suit which the Plaintiff tendered as exhibit D, the court came to a finding that, the Plaintiff’s grandfather and the defendants’ grandfather were siblings and both acquired their separate lands and each had been inherited by their respective descendants. It further found that Plaintiff’s grandfather who was the father of PW1 acquired the land in dispute and same was inherited by PW1 and her siblings and that the farm was the share of PW1 and her late sister Korkor. Plaintiff in that case is the 1st Defendant in the instant case. She was the lawfulattorney ofPW-1 therein. PW-1 was Bertha Sefa. The 2nd Defendant therein is PW-1 in this instant suit. Since Narh Dumanya and William Dumanya each acquired their respective lands from their father, Jonas Dumanya, I hold that the land in dispute which was originally vested in Narh Dumanya is different from theland whichwas vestedin WilliamDumanya. The defendants in their testimony gave a different version of the family tree. They both stated that Bertha Sefa’s father whom they referred to as Narh Kwame and PW-1’s father, William Akpakli Dumanya were not biological brothers but only good friends who individually acquired and cultivated their separate lands. To them, there is no blood relationship between Narh Kwame and William Akpakli Dumanya. They stated forcefully that even though the land belongs to Bertha Sefa, she is not a member of the Dumanya family, as her father, Narh Kwame was not a member ofthe Dumanya family. 9 They tendered exhibit 2 which is a receipt fromthe Anfoega Catholic hospital dated 26th October 2021 and argued that Bertha Siffa never identified as a Dumanya as per the exhibit. This testimony of the Defendants that Bertha Sefa is not a member of the Dumanya family is not only flawed but inaccurate. Exhibit D clearly does not support this assertion of the Defendants. The court therein found that Bertha Sefa and Ebenezer Ago Domanya who were PW-1 and 2nd Defendant respectively as per Exhibit D were siblings but not from the same father. There is also unchallenged evidence before this court that Ebenezer Ago Dumanya, PW-1 herein is the sister of Bertha Sefa. Inthat same judgment, the court found that the Plaintiff’s grandfather and the defendants’ grandfather were siblings. Evidently, being siblings means that they were brothers. It is trite that family is acquired through birth, marriage or adoption. This Court finds that NarhDumanya is thesame persontheDefendant refersto asNarhKwame. Since Narh Dumanya hails from the Dumanya family as per the evidence on record, I find that Bertha Sefa is a member of the Dumanya family. This finding is further rooted inthe fact that uponthe demise ofBertha Sefa Dumanya, her funeralposter and booklet, Exhibit C series, bore the names Bertha Dumanya Siffah and Madam Bertha Akosua Dumanya Siffah respectively. On the funeral poster, as part of the names listed as the Chief mourners were the names of Ago Dumanya-head of Dumanya family Dodowa(Vitor), Mary Dumanya, and Felicia Dumanya. As important as funeral rites are in the Ghanaian society, being a significant rite of passage in the life an individual, the family of Bertha Sefa would have protested vehemently about the inclusion of the name Dumanya or members from the Dumanya family in the performance of the funeral rites of Bertha Sefa if she was not a member of the Dumanya family. It is therefore disingenuous on the part of the Defendants to distort historical facts to their advantage when they knew very well that Bertha Sefa is a member of the Dumanya family as it is borne out by the evidence on record that she only adopted the name Sefa 10 upon her marriage. I find that Bertha Sefa Dumanya is a member of the Dumanya family through the Narh Dumanya lineage. Despite being a member of the broader Dumanya family, Bertha and her sister Korkor acquired their interest to the land in dispute throughtheir father,NarhDumanya. Notwithstanding the disingenuous attempt by the Defendants to sway the court that Narh Dumanya who is the same person as Narh Kwame was not a member of the broader Dumanya family, I find and so hold that the descendants of William Dumanya whichincludes the Plaintiff cannot claim the land in dispute as belonging to the broader Dumanya family since the evidence on record shows that the land belonged to Bertha Sefa and her sister Korkor who acquired title to the land through their father, Narh Dumanya. It is only the descendants of Narh Dumanya who may contest the title to the land in dispute. Though both brothers belonged to the broader Dumanya family, the evidence shows that the descendants of William Dumanya and Narh Dumanya have each exercised rights of possession and ownership over their respective ancestors’ land. The land in dispute which originally belonged to Narh Dumanya cannot therefore be claimed by the descendants of William Dumanya to the detriment of the descendants of Narh Dumanya. It is only the descendants of the Narh Dumanya branch of the Dumanya family who have interest in the land in dispute and can legitimately lay claim to it. Clearly, the Plaintiff and his principal, PW-1 have no business seeking to recover the land in dispute as they are descendants of William Dumanya whose land was also distributed among his children who are exercising ownership and possessory rights oversame. In view of the foregoing, I hold that the Plaintiff’s claim to the land in dispute being the property of the Dumanya family remains unsupported and I accordingly dismiss their claim as being unmeritorious. I however enter judgment in part in favour of the Defendants asfollows: 11 1. The land in dispute belonging to Bertha Sefa and Korkor Dumanya (both deceased) is the property of the immediate family of Narh Dumanya, son of JonasDumanya. 2. The surviving descendants of Narh Dumanya, i.e. the children are entitled to exercise possessoryand ownership rightsover the landindispute. 3. The Plaintiff, his agents, assigns, workmen, descendants and any person claiming title through the Plaintiff is perpetually restrained from dealing with or interfering withany portion oftheland in dispute. 4. The Defendants shall recoverfromthe Plaintiff, cost ofGHC 3,000.00. SGD H/W.JOSEPHINE SARFO(MRS) 12