Nsowaa v George (A9/8/2023) [2025] GHADC 249 (4 February 2025)

IN THE DISTRICT COURT KINTAMPO HELD ON TUESDAY 4TH FEBRUARY 2025BEFOREHIS WORSHIP KWAMEADJEIMANU ESQ. SUITNO:A9/8/2023 NANA MINKA NSOWAAII - PLAINTIFF VRS YAWGEORGE - DEFENDANT JUDGMENT 1. INTRODUCTION 1.1. Plaintiff claims inthis suit against Defendant asfollow: “A. Declaration of ownership land possession of 4.75 acres of cashew and mango plantation located at a place commonly known and called kojobi on Kintampo Mo stool land which shares common boundary with the lands of Mohammed a.k.a Maalo, Yakubu Banda Aka Nji, John K. Manu and the Bui power high tensionline. B. Generaldamages for unlawful trespass.and C. An order of perpetual injunction restraining defendant, his assigns, agents, workmen, etc. from trespassing into the remaining 2 acres Cashewplantation of the late John K.Manu. D.Costs including Plaintiff’s expenses” Layparties Page1of29 1.2. At least one party in this suit was lay and unrepresented by counsel, so in setting out their cases as made out in their evidence and processes filed in the suit, I have been guided by the observation of Justice S.A. Brobbey (Retired) in his book Practice and Procedure in the Trial Courts and Tribunals of Ghana, 2011 at page 286 concerning the courts’ required indulgence oflaycourtusers thus: “Sometimes the task of deciphering the precise claim from "home- made" writs, especially those preparedby letter writers, is nomean one. The best approach is to be guided by the principle enunciated in Atiafu v Dzaka [1962] 1 GLR 280 which concerned actions in the erstwhile native courts. In that case, it was 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 v Nkrumah [1964]GLR 739,SC.” 1.3. Defendant acted pro se. The Court for this reason extended all indulgences to him as recommended in Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 GLR. 314, S.C. The duty owed to him as a lay court user and the need to indulge him has received blessing by the courts in cases such as Edun v. Koledoye (1954) 14 W.A.C.A. 642 as relied on in Wiafe v. Kom[1973] 1GLR240. Plaintiff’scase 1.4. Pleadings were not ordered in this suit. The thrust of Plaintiff’s case as advanced in his summary of subject matter and witness statement is that he and Defendant are bothfarmers residing in Kintampo, Defendant being the son of his late brotherKwasi Krahand not the biological son ofJohn K. Page2of29 Manu who was also Plaintiff’s cousin (Aunt’s son). According to Plaintiff, he was gifted a farmland measuring seven (7) acres by one Addo lbrahim who was in occupation of the said farmland since 1974 without dispute from any person, in the year 2002. This farmland is situate at a place called KOJOBI in Kintampo and shared boundaries with the lands of Ali Mohammed aka Maalo, Yakubu Banda aka Nji, John K. Manu and the Kojobistream. 1.5. Plaintiff’s case is that he cultivated Mango and cashew on a portion of the farmland and his Mango and Cashew farm shared common boundaries with the lands of Ali Mohammed aka Maalo, Yakubu Banda aka Nji, John K. Manu and the Bui power high tension line. Before coming into possession of this farmland gifted to him by Addo lbrahim, he was occupying a farmland belonging to his cousin/brother by name John K. Manu who was a military officer and lived in Accra since the year 1982. Plaintiff’s case is that Defendant has trespassed onto Plaintiff's 4.75 acre cashew and Mango plantation farm claiming same to be the property of his late uncle John K. Manu and demarcating same into building plots withoutany justifiable cause. 1.6. Plaintiff’s case is that John K. Manu in his lifetime acquired 11.50 acres of farmland in or around the year 1976, at Kojobi in Kintampo for the purpose of cultivating cashew sharing common boundaries with the lands of Mr. Addo Ibrahim a.k.a Addo to the North, Mr. Kofi Baffoe Driver and Mr. Obeng now deceased to the South, Mallam Zakari to the East and Mr. AddoIbrahim akaAddo again tothe Westinashape ofRectangle. 1.7. Being then his tractor operator, Plaintiff was tasked by his late brother Mr. John Manu to uproot the trees and clear the land to enable the tractor Page3of29 plough the land which he did with the help of some friends at a time Defendant herein was not born. After ploughing the entire farm, his brother was unable to start, so Mr. John K. Manu tasked Plaintiff to occupy the farmland in the year 1982 and he since went and started farming maize and beans on same, which was at a time that all the boundary owners mentioned were in active possession of their farmlands cultivating Tobacco, food crops such as Maize and Beans. He later joined inthe cultivation ofTobacco onthe said land. 1.8. In the year 1997 John K. Manu brought Plaintiff cashew seedlings being of the Brazilian species which Plaintiff supervised in planting on the entire land and erected signposts on the edges of the farmland. After planting the cashew he allowed him to continue his farming activities through the cashew and remained in control of the cashew farm throughout the life of Mr.JohnK. Manu'sand evenafterhis death. 1.9. That in or around the year 2002 when most of the cashew trees were matured, it became difficult for Plaintiff to farm under the trees so he approached Mr. Addo Ibrahim a.k.a Addo whose land share common boundaries with John Manu to the northern and western side for a portion ofhis land to farm onasubsistence basis.Addo made agift of his seven(7) acre land to Plaintiff since he was returning to his hometown with no intention to return to Kintampo in the presence of other boundary owners namely Mr. Ali Mohammed aka Maalo and Mr. Yakubu Banda a.k.a Nji which Plaintiff accepted by performing "Aseda" also accepted by Addo to seal the gift. This Seven (7) acre farmland ofAddo shared boundaries with Mr.John K. Manu's Cashew farmland, Mr.AliMohammed a.k.a Maalo, Mr. Yakubu Banda a.ka. Nji and the Kojobi stream in an L-Shape with one (1) acre onone side and six (6)acres onanotherside. Page4of29 1.10. According to Plaintiff, he took possession of that land and used part of the land to plant food crops such as Yams, Beans, cassava etc. and the remaining portion for cultivation of Tobacco at a time that Mr. John K. Manu was still alive and informed about the gift without dispute over ownership of this portion of land. In or around the year 2007 Mr. John Manu had then retired from the military and was indisposed and sold portion ofhis cashew farmland forresidential purpose when the townwas developing towardsthe said areaforhis treatment. 1.11. Further, in or around the year 2012 when the Government of Ghana was constructing the Bui power, its high tension lines passed through Mr. John Manu's cashew farm through Plaintiff’s farmland and destroyed a portion of John Manu’s cashew farm leaving his two (2) acres of cashew farm, and the Government of Ghana through the Lands Commission paid compensation to the various land owners including Plaintiff and Mr. John K. Manu separately. A copy of a cheque was received in evidence as EXHIBIT A.According to Plaintiff, this was evidence of payment made to him. 1.12. Plaintiff’s case is that after the destruction by Bui power authority he planted Cashew and Mango seedlings on a portion of his remaining farmland which is 4.75 acres, which cashew and mango plantation shares common boundaries with Yakubu Banda a.k.a Nji to the north, the late Mr. John K. Manu to the south, the Bui power high tension line to the East and Mr Ali Mohammed a.k.a Maalo cashew farm to the west. He put in evidence a photocopy of the site plan ofhis Cashew and Mango plantation markedas EXHIBIT "B"). Page5of29 1.13. Mr. John K. Manu according to Plaintiff died in the year 2014, through his illness and after the performance of his final funeralrite, Plaintiff informed the family about his remaining two (2) acre Cashew farm and was told that they would get back to him with a decision. Due to threats received from Defendant he did not hear from them. Defendant has again since six (6) years ago started laying adverse claims to the remaining two (2) acre cashew plantation with threat, alleging that he had been tasked by the late Mr. John K. Manu to take control with power of attorney forcibly taking control of same without showing the said power of attorney. It was after this that Defendant again with threat started claiming Plaintiff’s 4.75 acre Cashew and mango plantation with 1 acre farmland on the same grounds, demarcating it into plots. Defendant’scase 1.14. Defendant’s case as gleaned from the statement in defence made in court and his witness statement is that in February, 1994 his father John Manu also known as John Kingsley Manu acquired ownership of a farmland measuring 11.5 acres situated and lying at Kojobi sharing boundaries with the lands of Kofi Baffoe Sekyi to the North, Kofi Maalor to the West, Moro Nji to the South and Alhaji Zakaria to the East from the then occupant of theMoStoolNana Kwaku DimponII (Deceased). 1.15. On the 22nd February 1994, his father was issued a Cadastral Plan signed by a Licensed Surveyor and Nana Kwaku Dimpon to transfer ownership of the said farmland to his father as customarily required at that time. A copy of this plan was received in evidence marked as EXHIBIT 1. According to Defendant, his father commenced cultivation of crops such as maize and cashew trees on it and later appointed Kwame Nsowaa, now known as Nana Minka Nsowaa II, Plaintiff herein, who is his father's Page6of29 nephew as caretaker of the farmland, which had been developed into a cashew farmthen. 1.16. According to Defendant, Plaintiff and his brother Kwesi Addae took care of the farm until the year, 2011 in which year the government trespassed onto a portion of the farm and compulsorily acquired it for the Bui Power station in Kintampo. The Bui Power Authority marked the portion of the farm affected by the acquisition. Exhibit 2 was received in evidence which according toDefendant was evidence oftheportion ofthefarm affected. 1.17. The Bui Power Authority according to Defendant agreed to pay monetary compensation to his father for the destruction of cashew trees affected by development of the land as the owner of the farm affected and in the course of processing the claims of the monetary compensation from the Bui Power Authority, Plaintif as the caretaker of the land did not use Defendant’s father’s name to receive the compensation but rather wanted toclaim the compensationinhis ownname and forhimself. 1.18. Defendant’s case is that his father realized the conduct of Plaintiff and decided to appoint Defendant by the execution of a power of attorney to take over the affairs of the farm from Plaintiff to claim the compensation. Defendant put a copy of this power ofAttorney in evidence as EXHIBIT 3. By this appointment, he took charge of the compensation processes from Bui PowerAuthority and received the money on behalf of his father in the year 2014, but despite Plaintiff's removal from his caretakership position over the farm, he did not desist from visiting the remaining portion of the fam not affected by the acquisition. Defendant insisted that it was this same land thatis in dispute in this suit. Page7of29 1.19. Defendant’s case is that Plaintiff sometimes goes to the farm to harvest the produce of the cashew farm and when this came to his notice, he told Plaintiff tostopharvesting the cashew since he was no longer thecaretaker of the farm. He realized later in the year 2020 upon inspecting the farm that Plaintiff had sold twelve (12) cadastral plots of land out of the farm since during that time the farm had become outskirt land. He confronted Plaintiff and informed him that he could not sell the land since he was not the owner.According to Defendant, parties family met and it was resolved that Plaintiff should refrain from selling the farmland but Plaintiff did not accept the decision of the family. Further attempts at an amicable settlementfailed. 1.20. The two principal issues raised for determination in this suit are whether Plaintiff is owner of the disputed land and whether Defendant has trespassed untothedisputed land. 2. BURDENANDSTANDARDOF PROOF 2.1. In Memuna Moudy and Others v Antwi [2003-2004] 2 SCGLR 967 at pages 974-975, the Supreme Court speaking through Wood JSC (as she then was) explained the point of law 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 Courtexplained 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 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 Page8of29 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 Plaintiff’s case in this suit having been denied by Defendant, Plaintiff bears this evidential burden. 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. This is especially important when parties have raised allegations in their case on which the Page9of29 success of their claim or defence hinges. In Ishack v. Praba (2007) 12 MLRG172at181,the CourtofAppealexplained thus: “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 shift from party to party at various stages of the trial, depending on the issue(s), and the facts asserted and or denied. This point is supported by Sections 14 and 17 of theEvidence Act, 1975(NRCD323) thefirst ofwhichprovides 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, (a)the burden of producing evidence of a particular fact is on the party againstwhom afinding on that factwould be requiredin the absenceof furtherproof; Page10of29 (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, 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. Plaintiff in this suit, puts his title in issue and must prove his 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. K. Mbeah and 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S.C. (Unreported), Appau JSC explained this standard thus: Page11of29 “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 not relevant 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 in the view of the court, 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 to pass this test, after having assessed the facts on all 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. Oathagainst oath Page12of29 2.10. I deem it necessary in settling the issue of ownership to consider the evidence in this suit especially in respect of the ownership of the disputed land before Plaintiff came unto it properly evaluated oath against oath. Parties on this issue rely largely on their own testimonies and those of their witnesses as evidence for their positions on the issue. 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 judgment as to what version of events was more credible. The determination of crucial facts in such an instance involved judicial choice of belief based on the comparative credibility of opposing parties and their witnesses. This conclusion is justified by the fact that parties cases on that particular point are supported mainly by the oralevidence ofthemselvesand witnesses. 2.11. 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) JELR107108(HC). 3. THEEVIDENCE AND ISSUES WhetherPlaintiff is owner ofthedisputed land 3.1. 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 & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, where a matter is Page13of29 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,the court explained theeffect 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.” 3.2. Both parties testified and called witnesses in attempt to corroborate their evidence, one of these witnesses the court had to take the benefit of as court witness. This witness had filed a witness statement proposing to testify for both sides. The Court on discovery of this fact exercised its discretion since this witness’ testimony appeared relevant and key to the determinationoftheissues incontention. 3.3. The Court witness CW1 testified that he used to farm on the disputed land and when he was going to the land he would meet Plaintiff who was also working on the land alleging that his brother John had purchased the land for him to be used to plant trees. According to the witness he did not know the boundaries of the land, but subseqently a boy calledAddo came tocultivate aland behind the disputed land. 3.4. According to CW1, when Addo was leaving for his homeland in Fante land, he did not inform him that he had giventhe land to either Plaintiff or Defendant. Defendant at one time came to him and asked him about the land and he narrated to him just as he had done and he agreed to come and testify on his behalf. Defendant brought him and his statement was Page14of29 taken.After this, Plaintiff also came to ask about the land, and he told him that he had already testified for Defendant so he cannot do same for him, but Plaintiff told him that he was only coming to tell the Court what he knowsabout theland. 3.5. CW1 claims that as to when the land was allegedly given to Plaintiff, he was not there, neither were his brothers who are all sick and bedridden and this is allhe knows about the land. It is noteworthy that CW1 stated in no uncertain terms that he did not know the boundaries of any of the disputed lands or when Addo’s land was allegedly given to Plaintiff. So, from this, there are two things already in admission, firstly that Addo owned land at the disputed area distinct from John Manu’s land and secondly that Addo has left this land for his hometown. This corroborate Plaintiff’s case. Defendant did not challenge any of this testimony so he is deemed tohaveadmitted it. 3.6. In assessing evidence led by parties, this Court is mindful of the settled rule of law as applied in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 by Ansah JSC at page 890 referring to Tutu v. Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC76,where OllenuJAsaid that: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and mustbe accepted by the court.” Page15of29 3.7. In Ashanti Goldfields Company Ltd v. Westchester Resources, (2013) 56 GMJ 84 the Court ofAppeal stated the correct position of the law on such afailure tochallenge thus: “the law is that where the evidence of a witness is unchallenged in cross-examination, it is deemed to have been admitted by the other side.” 3.8. Additionally, under Section 80(2) of the Evidence Act, NRCD 323 in determining the probative value to give to a witness’ testimony the Court may consider the credibility of the said witness and in ascertaining the credibility of the witness pay due mind inter alia to “the existence or non- existence of a fact testified to by the witness or a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial.” In Obeng v.Bempomaa [1992-93] 3GBRp1029 Lamptey JA. (Ashe thenwas) had this to say ontheissue ofinconsistencies in aparty’sevidence: “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.” 3.9. However, 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, and conflicts and inconsistencies in evidence that have a relevant bearing on a judgment must relate to facts in issue as held in The Republic v. Adekura [1984-86] 2GLR345,CA. Page16of29 3.10. Defendant as can be seen from his evidence and responses while under cross-examination, is hardly a credible witness. He continuously prevaricated, departed from his own evidence and contradicted himself so much that I cannot hold his evidence to have any real probative value. He contradicted himself onwhen the disputed land was allegedlyacquired by his uncle, among other things. This is quite apart from his own witness’ contradiction on the this point. DW1 testified that the disputed land was acquired in 1992 whereas Defendant claimed same to have been acquired in 1994. This is quite apart from Defendant’s own contradiction under cross-examination that the land owned by Mr. Manu was acquired long before this date. This was what transpired while Defendant was under cross-examination: Q: You agree with me when Mr. Manu your alleged father acquired the disputed land,you were notborn? A: Iwas born, butI was a child. Q: I am putting ittoyou that Mr.Manu acquired his land in1977? A: What my father told mewas not1977so itis nottrue. Q: When didyour father tellyou he acquired the land? A: He told me he acquired his land in 1982. At the time he was in the military. 3.11. It is admitted by Defendant by his failure to challenge or to lead credible contrary evidence, that he is not the biological child of Mr. John K. Manu. He is accordingly not entitled to inherit him in that regard. It is not also established in evidence credibly beyond what is clearly an afterthought and remedial attempt by Defendant, that any portion of Mr. Manu’s estate devolved unto him. There is also no credible evidence of a gift inter vivos Page17of29 to Defendant. It appears to the court that Defendant is no more than an interloper who has extended himself beyond the powers that he alleges were given to him by his Exhibit 3 At any rate, if any such gift of the deceased’sproperty were made tohim, there would be evidence ofit. 3.12. Defendant did not lead any such evidence. I will apply the rule in Faibi v State Hotels Corporation (supra) that “Where a party would not produce evidence whichevidence is available and withinhis peculiar knowledge, itcouldbe inferred in law that that evidence is against him” to infer that it either did not exist or that any attempt to lead such evidence would have been against Defendant. This is especially so, when he alleged that there were witnesses but he failed to call any such witness. Additionally, the cases of Akufo- Addo v. Catheline [1992] 1 GLR 377 and Rukayatu Usumanu v. Zongo Naa Kun-Gari & 16 Ors (2021) JELR 107957 (SC) the Courts cautioned that in evaluating the evidence led against dead persons, the law enjoins the Court to exercise great care and examine the evidence with suspicion. The principle in evaluating assertions made against dead persons is stated in the case of Garnett, In re; Gandy v. Macauly (1885) 31 Ch D 1 at 9, CA by Brett MRasfollows: “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.” 3.13. In the case of Mondial Veneer (Gh) Ltd. v. Amuah Gyebu XV [2011] (supra), the Supreme court stated this principle citing Garnett with Page18of29 approval and explained its importance per Georgina Wood CJ (as she then was)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. Osei-Tutu [1989-90] 1 GLR 638, SC and Tabiri [1987-88] 1 GLR 360, SC.” 3.14. It is quite clear that Defendant’s only real responsibility in relation to the land owned by Mr. Manu was to collect the compensation cheque and present it to him, which he did according to his own testimony. There is also no credible evidence on record to corroborate Defendant’s allegation that Plaintiff was removed from his caretaker position. The power of attorney can surely not suffice as that evidence since no such declarations were made on that deed if this court considers it to have any probative value. 3.15. It is most notable that Defendant did not manage to challenge or impeach any part of Plaintiff’s evidence, so I will not linger on a discussion of the events of cross-examination. He did not also lead any credible evidence to contradict Plaintiff’s evidence. Additionally, Defendant’s only witness when he was under cross-examination either prevaricated or departed from his own testimony so much that I must say that his evidence ought Page19of29 not to have pride of place in this judgment, beyond those admissions he made thatare inconsonance withadmissions made by otherwitnesses. 3.16. Apart from Plaintiff’s clear long possession and control of the land as admitted by parties and the witnesses in this suit, there is clear evidence that two different payments of compensation were made in respect of lands at the disputed area. One in respect of Mr. Manu’s land and another in respect of Plaintiff’s own land. though Defendant initially denied this, he eventually circled back and admitted it under cross-examination. To say that there is ample evidence of Plaintiff’s personal ownership of land at the disputed area would be an economical expression of what is overwhelmingly clear fromthe evidence onrecord. Ususfructuaryownership 3.17. The evidence in this suit points to the usufructuary ownership of Plaintiff’s predecessor in title of the disputed land which Plaintiff acquired by way of grant. It is also clearly in admission by both CW1 and DW1 not only that Addo cultivated land at the disputed area, but that since Addo departed the area in dispute, Plaintiff has occupied the same land previously occupied by Addo. This evidence of CW1 was also not challenged by Defendant. CW1 was however a witness who showed himself under cross-examination as ready to prevaricate or supress the truth. This was what transpired when CW1 was under cross-examination by Plaintiff’scounsel: Q: Per your testimony, you agree with me that Addo had a land which lay behindMr.Manu’s land? A: Addo did not own a land. If you own land, you possess documents on it. Page20of29 Q: Do you agree with me that Addo was farming on a separate land fromMr.Manu’s land? A: Ihave already said Ido notknow the boundaries of the land. 3.18. As a matter of fact, no part of CW1’s evidence was challenged by Defendant. The credible evidence on record is that Addo occupied that land without challenge and Plaintiff has since his departure occupied this land and cultivated it without challenge until Defendant’s more recent dispute. Abandonment as is clearly what Addo did in this suit was explained by the court in Awulae Attibrukusu III v. Oppong Kofi & 4 Ors(2009) JELR66701(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".” 3.19. At any rate, if Addo who the admitted evidence shows was not an indigene departed the land or abandoned it and Plaintiff took possession of the land as a subject of the stool, he was entitled to enjoy the usufruct therein subject to the usual limitations. CW1 who admitted that he is family toPlaintiff admitted under cross-examination that members oftheir family were entitled to such arrangements without need for a formal grant evidenced by documentation from the Paramount chief. Concerning this, this waswhat transpired while CW1was undercross-examination: Q: Do you agreewith me thatyoudonot knowhowAddocame intopossession ofthesaidland? Page21of29 A: I know. Q: HowdidAddocame into possessionofthelandhefarmed? A: At the time if you are cultivating a land and another person comes tocultivate, youbothcultivatetheland. Q: Per your answer you agree with me that at the time you allege, onecomes into possession ofthelandby cultivation? A: It would not come into the persons possession. The land belonged to the Mo. So if you need the land for farming, you go and beg for the land from the Mo. So if you are cultivating the land and another person comes to beg to cultivate a part of the landandyou agree, youbothcultivatethe land. Q: Per the answer you have just given, do you agree with me that nobody can cultivate the land unless it is expressly given by the Mo or through somebody who had been given express permission bytheMo stool? A: Not true. That is because when I am given a land and someone comes to beg for it and I realize I cannot cultivate the landalone, Igive theperson permission tofarm. Q: Per your answers given so far, I am putting it to you that Addo was farming on the land per the express permission of the Mo Traditional Council or somebody who had been given permission? A: If it were the Mo Traditional Council that gave the land to Addo,theywould haveprepared documentsto coverit. Q: You have said in this Court that you personally were also farming there? A: Even asoftoday, I still havemy farmthere. Q: Do youremember thedateyoustarted farming there? A: I donotremember thedatebutit was in 1970. Page22of29 Q: You’ve said in this Court that before a land was given at the time, documentswould begiven. Isthatcorrect? A: It only applied to somebody who was not a family member. At thetime, my father’selder brother was theOmanhene. Q: IsPlaintiff in thissuit your relative? A: Heis my brother. Q: So you agree with me that Plaintiff being a member of the Mo family, when he took possession of a land cultivated by a stranger, heneedsnodocumentto cover it? A: I disagree. Q: So are you telling the Court that some members of the family when they take possession of land need documents while othersdo not need documents? A: I knowaboutmine. I donotknowabout others. 3.20. Although CW1, clearly did not want to admit the usufruct held by either Plaintiff or Addo, it is clear that the lands held at the area by himself and the others were all under the usufruct. The nature of the usufructuary ownership which appears to be the interest Plaintiff acquired by reason of his uncontradicted gift and unchallenged possession was explained by Appau JSC (as he then was) in Togbe Lugu Awadali IV v. Togbe Gbadawu IV(2018) JELR68854(SC)in these 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 Page23of29 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. 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.” 3.21. 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 interest thus: “...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 Page24of29 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) 3.22. Before I conclude on this point, I must add that when the burden of proof shifted unto Defendant at the end of Plaintiff’s case and I hold that it did, he failed to leadcredible evidence in support of his ownallegations offact. Of course, he could not have succeeded in doing any of this, because it would have been exponentially difficult for him to succeed in proving the negative of what was admitted by his own witness and CW1 to have been the facts ofthe matter, one such fact, beingAddo’s prior ownership of land atthe disputed area. 3.23. There is no doubt that Defendant in this suit, has no valid interest in the disputed land to have purported or purport to deal with it in any way. If there is any person who should be able to take any steps towards recovery of the remainder of Mr. Manu’s property, then it should be his proper successors in title and not just any person who holds himself capable of raising objection to how that property is dealt with. Plaintiff remains the caretaker of Mr. Manu’s two (2) acre farmland which remains in his possession, but since he is not the owner of that parcel of land, his relief “C” must fail and same accordingly fails. Plaintiff’s caretakership may be terminated by hisprincipal’s properrepresentativesif theyso desire. 3.24. In all, I lean favourably towards Plaintiff’s evidence and find that Plaintiff is the owner of the disputed land described in his relief “A” by way of the usufruct therein. Page25of29 WhetherDefendant has trespassed untoPlaintiff’sland 3.25. 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 the law remains the same that it is actionable per se. However, as stated by Wiredu J, once a court has found trespass it is bound to award damages but there must be abasis forawarding more thananominalsum. 3.26. Again, Defendant did not deny having purported to sell portions of the disputed land. Though I must say first of all that any such attempts to sell a portion of that land by him would end in a nullity, it is a sordid incursion into land that does not belong to him and any damages awarded ought to be punitive in its quantum. Defendant, and in this suit sets up a claim inimical to that of Plaintiff, alleging his own personal ownership of the entirety of Mr. Manu’s estate, and the disputed land so he cannot be considered at any rate Plaintiff’s tenant or as having been let unto the land by Plaintiff. Having found in the foregone, that the disputed land belongs to Plaintiff, it can only follow naturally that Defendant having dealt with that land without Plaintiff’s permission is in trespass and I find so accordingly. 4. DAMAGES 4.1. Having concluded that Defendant has trespassed unto Plaintiff’s 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 close thereto as possible. As held in Cornelius Ogbu v. Access Bank (Gh) Ltd (2015) JELR 69870 (CA) the object of an award of Page26of29 damages is to give Plaintiff compensation for the damage, loss or injury suffered. In this suit no evidential basis has been established for more than nominalgeneraldamages, so damagesinthat sense shall be nominal. 4.2. However, damages will additionally be punitive in this suit, because the court takes the view that Defednant’s conduct is of such reprehensible character that it must be punished by such order. The purpose of this award is to reform and deter Defendant against whom it is awarded and others from engaging in the reprovable conduct forming the basis of the award, in excess of actual or substantial damages and also to make an example of Defendant as held in Ayisi v. Asibey III & Others [1964] GLR 695SCand Mahama v.Kotia &Others [1989-90] 2GLR24. 4.3. 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. 4.4. 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). I fall on the reasoning of the Page27of29 Supreme Court in Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC), since to my mind Rule 4(2) of C.I. 52 is applicable in computing interest in this suit at the statutory rate of 28.41 % per annum, which I have taken notice of as the Bank of Ghana 91-day treasury bill interestrateasat judgment. CONCLUSION Plaintiffs’actionsucceeds, theCourt makesthe following ordersin favourofPlaintiff against Defendant: a. Declaration of Plaintiff’s usufructuary ownership of all that 4.75 acre cashew and mango plantation lying at a place commonly known as kojobi on Kintampo Mo stool land sharing boundaries with the lands of Mohammed a.k.a Maalo, Yakubu Banda a.k.a Nji, John K. Manu and the Buipower high tensionline. b. Recoveryof possession of the land described inorder (a) above. c. Damages for trespass including punitive damages in the sum of GHS 2,500.00. d. An order of perpetual injunction restraining Defendant and all those claiming through him from laying adverse claim to or dealing adversely with the land describedin order (a) above. e. Iassess Plaintiff’s costs at GHS 7000.00 f. Defendant shall pay interest on the sums mentioned in orders (c) and (e) at the statutory rate of 28.41% per annum from judgment till final payment. Page28of29 SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Page29of29