AWINE VRS AKURIGO & 2 OTHERS (/A1/04/2024) [2024] GHADC 647 (19 December 2024)

*HWMNJ@DC/BO-19/12/2024* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BONGO IN THE UPPER EAST REGION OF GHANA, ON THURSDAY, THE 19TH DAY OF DECEMBER, 2024. SUIT NO. UE/BO/DC/A1/04/2024 ASIRIGE AWINE PLAINTIFF OF AWINE-GURIIGO’S HOUSE, GURIGO-BONGO VRS. 1. ALAHIPOKA AKURIGO 2. AGOMADONGO ADUKO DEFENDANTS 3. AGURIGOPOKA AYAMGA ALL OF GURIGO-BONGO TIME: 09:02AM PARTIES PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT Introduction 1. The Plaintiff commenced this action on 24th July 2024 and claimed against the Defendants as follows: - a. A Declaration of title and ownership of piece and parcel of land about 1½ acres lying and situate at Gurigo being the property of Awine-gurigo’s family. b. An order for Recovery of about 1½acres of land lying and situate at Gurigo being the property of plaintiff from defendants which plaintiff granted to Defendants and their association/group for the cultivation of mangoes about six years ago which project has since failed. *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 1 of 14 *HWMNJ@DC/BO-19/12/2024* c. A perpetual injunction restraining the defendants, their association/group, their workmen assigns, headsmen, their descendants from trespassing onto or interfering in the said land described above. d. Cost occasioned by this action Plaintiff’s Case 2. The plaintiff avers that about 6 years ago, 1st Defendant came to him and inform him that she has found a piece and parcel of land in Gurigo and her investigations indicated that the land is for Plaintiff’s family. Plaintiff avers that 1st Defendant informed him that she belongs to a group and that they are looking for a parcel of land for cultivation of mangoes. Plaintiff avers that after consultations with his family he gave out one and half (1½) acres of land to Defendants and their group for the cultivation of mangoes. Plaintiff avers that nothing in kind and or money was offered by defendants in lieu of the land. Plaintiff says that he told them to go ahead and plant the mangoes and that after they have successfully grown a sharing agreement can then be discussed since it is not easy cultivating such cash crops in this part of Ghana. Plaintiff avers that the whole 1½ acres of land was cultivated with mangoes but after 6 years only about 18 mango trees survived and which are stunted in growth. Plaintiff avers that he has given the group ample time for them to cultivate and grow the mangoes but the project defendants have failed to do so. 3. Plaintiff avers that about two (2) months ago 1st Defendant came to inform him that one of plaintiff brother’s son has come to her and expressed interest in farming on the land to which plaintiff told 1st Defendant that the land belongs to him *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 2 of 14 *HWMNJ@DC/BO-19/12/2024* personally and so no one has the right to farm on it except himself and that he is even making arrangement to cultivate the said land. Plaintiff further says that he told 1st Defendant that at the convenient time he will start cultivating the land since the project could not succeed or materialized. Plaintiff avers that on the 16th July, 2024 he bought maize worth GH₡100.00 weedicides worth GH₡100.00 and hired workmen to plough the land at a cost of GH₡250.00 in order to cultivate the land but the 1st Defendant stopped plaintiff’s workmen from working on the farmland. 4. Plaintiff avers that when his workmen reported the incident to him he personally confronted 1st Defendant as to why she stopped his workmen from cultivating his land but Defendant never gave a word. Plaintiff avers that he reported the action of 1st Defendant to 1st Defendant’s son to caution his mother from interfering in the said land since plaintiff did not sell the land to defendants or their association/group and besides the project too could not succeed and therefore neither 1st defendant nor any other person or group can stop plaintiff from reclaiming and cultivating his land. 5. Plaintiff avers that on 20th July, 2024 he sent his workmen to plough the land but 2nd and 3rd Defendants stopped them claiming that if plaintiff cultivates the maize on the said land, the few surviving mango trees will die off. Plaintiff avers that the land which is the subject matter of this case was not sold out to defendants neither was it gifted to them. That plaintiff avers that as a good citizen of the community who desires development and progress of his community, he granted the land to defendant’s association/group so that after the project is successful, both parties will negotiate on how to share it. Plaintiff says that the project has failed and he could not continue to leave his land lying unused and unproductive *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 3 of 14 *HWMNJ@DC/BO-19/12/2024* and so he decided to cultivate maize on it this farming season. Plaintiff says that the actions of defendants has no legal basis and constitute forceful claim of ownership right over plaintiff’s own property which he inherited from his late father. Plaintiff avers that the actions of the defendants herein has cost him the money he spent on buying the weedicides, maize and hiring of workmen to work on the land. Plaintiff says that defendants are denying him of the benefits of his own land and has demonstrated their unwillingness to stop their interference unless compelled by this Honourable Court not to do so. Wherefore, Plaintiff prays for the above-stated reliefs. Defendants’ Case 6. Defendants vehemently denied Plaintiff’s claims and says that he is not entitled any of the reliefs he seeks. 1st defendant says it is true she went to see Plaintiff’s family for a piece of land six (6) years ago but she initially met Plaintiff’s elder brother who told her that he will consult the other family members and get back to her. 1st Defendant further states that when she went back the second time she did not meet plaintiff’s elder brother but rather met plaintiff. 1st Defendant says that when she met plaintiff and informed him of her earlier discussion with plaintiff’s elder brother in respect of the said land, plaintiff told her that he is not the sole owner of the said land and that there are other two families who own the place and directed 1st Defendant to consult the other two families. 1st defendant says that she contacted the other two families and they also agreed to release their portion of the land. 7. Defendants say that the land in dispute is not for plaintiff alone but other two families/people namely Awalga’s family and Agurogo’s family who also have *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 4 of 14 *HWMNJ@DC/BO-19/12/2024* their respective portions. Defendants state that no compensation was given by the group to the owners of the land because the whole project which included the drilling of borehole is for the benefit of the whole neighborhood including the three families that released their land. Defendants say that two grinding mills were also provided by the group about a year for the benefit of the community. Defendants say that on the first day of installation of the grinding mill, grinding was done free of charge for all the community members; and that the leaders of the group which includes Plaintiff’s wife do not pay when any of them come to use the facility. 8. Defendants state that there was no agreement among them that a Sharing Agreement will be discussed after the mangoes have grown. Defendants say that it is true that the whole 1½ acres were cultivated and only 18 survived but the mangoes died due to the activities of termites and other unfavorable weather conditions and that the sponsors have promised to come and have a look at it in September, 2024. 9. Defendants say that the project has not failed because they have plans to replant all the mangoes that died and that they are taken care of the 18 mangoes that survived. 1st Defendant says when plaintiff elder brother’s son wanted to farm on the land she asked plaintiff to caution his son to rescind his intention of farming on the land since the ploughing is likely to affect the roots of the remaining mangoes. 1st defendant says that it is true that plaintiff made his intention of farming on the said land to her but she did not agree because the farming will affect the mangoes. However, plaintiff proceeded to plough the land himself with the intention of cultivating on the said land. *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 5 of 14 *HWMNJ@DC/BO-19/12/2024* 10. . Defendants say that they are not aware of the items plaintiff claims to have bought but it is true that they prevented the workmen from working on the land. 1st defendant states that when plaintiff confronted her she told him that she had earlier discussed the issue and told plaintiff that ploughing the land will damage the mangoes that was why she stopped his workmen but plaintiff was not happy. Defendants say that plaintiff did not give the group time frame within which the group must work on the land. The land was released to the group voluntarily by three different owners for the benefit of the community. 11. Defendants say that plaintiff and the other land owners voluntarily gave out their respective portions of the said land for the development of the community but they did not agree to enter any sharing agreement. It is the Defendants’ case that the project has not failed since there are mangoes on the land, the borehole is still in use by the community and the grinding mill is also in place. Again, plans are in place to re-plant those mango trees that died off. Defendants state that they are not aware of any expenses incurred by plaintiff and besides 1st defendant had cautioned plaintiff not to plough the land and therefore defendants cannot be blamed for his action. Defendants wish to state that plaintiff herein is not the sole owner of the said parcel of land and his claim that he owns the whole piece of land on which the mangoes are planted is false. They therefore pray for plaintiff’s action to be dismissed for lack of merit. Issues for Determination 12. The issues for determination in this case are as follows: a. Whether or not the land in dispute was given to the defendants as a gift. *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 6 of 14 *HWMNJ@DC/BO-19/12/2024* b. If so, whether or not the gift of the land is revocable. Burden of Proof 13. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. The law is that he who alleges must prove. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows: 11(1) For purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 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 claim or defence he is asserting.” 14. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023. *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 7 of 14 *HWMNJ@DC/BO-19/12/2024* 15. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus: “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 evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the 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. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff.” 16. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows: “It is a basic principle of 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 may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witness, 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 minds 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 reasonable that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 8 of 14 *HWMNJ@DC/BO-19/12/2024* 17. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the Witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” See also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G.M.J, page 177, Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537 Evaluation of Evidence, Discussion of Issues and Legal Analysis 18. Plaintiff testified himself and called two (2) witnesses. The Defendants testified through the 1st defendant and called four (4) witnesses. The evidence of the parties in effect is the same or similar to the brief facts of their cases as stated above. 19. The fundamental duty of a trial judge or magistrate is to make up his mind one way or the other on the primary facts and when he has made up his mind, he should state his findings and then proceed to apply the law. See the case of Quaye V. Mariamu [1961] GLR 93-96. The duty of this court is to make up its mind, states its findings of facts from the evidence on record and applies the law. From the evidence on record, the court found the following facts: the Plaintiff’s family and others gave a piece of land to the defendants for Mango plantation project. The *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 9 of 14 *HWMNJ@DC/BO-19/12/2024* Defendants planted mango trees on the land. Some of the mango trees have died living eighteen (18) of them. Plaintiff wants to farm on the land because he claims 1st Defendant informed him that someone wanted to farm on the land; and that since the mango trees planted have died the project is deemed to have failed. 20. I will now proceed to determine the following issues together: (a) whether or not the land in dispute was given to the defendants as a gift and (b) If so, whether or not the gift of the land is revocable. What then is a gift? The Black’s Law Dictionary (8th ed. 2004), page 2026, defines Gift as “The voluntary transfer of property to another without compensation.” See also the book entitled Ghana Land Law and Conveyancing by B J Da Rocha and CHK London, 2nd edition at page 460 where a gift was defined as a voluntary transfer of title by the owner of a property to another person for no valuable consideration. 21. In Barko V Mustapha (1964) GLR 78, the Supreme Court held among other things that the burden of proof is on an alleged donee to prove the existence of a customary gift. The Court outlined the ingredients of a customary gift as follows (i) publicity, (ii) acceptance and (iii) placing the donee in possession. This standard of ascertaining a customary gift was also applied. In Asare v Kumoji (2000) SCGLR 298 at 302 per Aikins JSC: His Lordship stated thus: “With regard to customary gifts inter vivos, our courts have stressed that the acceptance of gift, especially land, "must be made by the presentation to the donor of some token acknowledgement and gratitute in the presence of witnesses.” There are two ways of making such valid gift, either by a conveyance where a deed of gift is granted to evidence the transaction, or orally where it is governed by customary law.” *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 10 of 14 *HWMNJ@DC/BO-19/12/2024* 22. From evidence the Plaintiff claims his family did not give the land to the defendants as a gift. Plaintiff however admitted the land in dispute was given to the Defendants for free or without financial consideration. It is worthy of note from the evidence that the land in dispute was not leased to the Defendants for a specific number of years, there is no agreement that the mangoes will be shared. Since the land was given to the defendants without consideration or for specific number of years, the inference that could be made is that the land was given to the Defendants forever as a gift for the purpose of cultivating mangoes. As a result of the land given to the defendants for the project, a borehole and two grinding mills were provided for the benefit of the whole community including the Plaintiff‘s family and other families that released their land. The land was given the Defendants in the presence of witnesses and the Defendants were also put in possession of the land. This court therefore found as a fact and holds that the in dispute was given to the defendants as a gift. 23. Having found or held that the disputed land was given to the Defendants as a gift. The question is to ask whether a valid customary gift is revocable. The answer to this question is no. It is a fundamental principle of law that customary gift cannot be revoked except in gifts between parent and child, which could be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declaration. See Okai v Okoe (2003/2004) SCGLR 393, Sese v Sese (1984) 2 GLR 166 at 174, CA and Kwantreng v Amassah & Others (1962) 1 GLR 241, SC. The gift of the land in the instant case is not a gift between parent and child. That being so, the parcel of land gifted to Defendants by the Plaintiff’s family and others is not revocable. *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 11 of 14 *HWMNJ@DC/BO-19/12/2024* 24. Moreover, the Plaintiff also claims he agreed for the defendants to plant the mangoes and that after they have successfully grown a sharing agreement can be discussed as it is not easy cultivating such cash crops in this part of Ghana. Defendants however denied that there was an agreement among them that a Sharing Agreement will be discussed after the mangoes matured. The onus is on the Plaintiff to satisfy the court with credible and cogent evidence that they agreed on how the mangoes will be shared when they matured. Unfortunately, from the evidence, the Plaintiff has failed to convince the court that they agreed that they would enter into an agreement on how to share the mangoes after they matured. Besides, this court is of the view that Plaintiff’s assertion that a Sharing Agreement will be discussed after the mangoes matured is an afterthought. 25. Furthermore, the Plaintiff claims 1st Defendant told him that his brother’s son wanted to farm on the land and that was why he wants to farm on the land himself. He also argued that the land was given to the defendants to plant mangoes and since the mangos trees planted have died leaving only eighteen (18) of them, the project is deemed to be unproductive hence he needs his land back to farm on it. The Defendants on the other hand maintains that they informed the one who wanted to farm on the land that farming on the land will affect the tender mango trees and is why they do not want the plaintiff to farm on the land. They also claim that the projects has not failed and that new mango trees will be planted to replace those that have died. Analyzing the evidence of the parties on the balance of probabilities, this court is of the view that the defendants’ evidence is more probable than that of the Plaintiff. 26. Finally, plaintiff claims that on the 16th July, 2024 he bought maize worth GH₡100.00, weedicides worth GH₡100.00 and hired workmen to plough the land *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 12 of 14 *HWMNJ@DC/BO-19/12/2024* at a cost of GH₡250.00 in order to cultivate the land but 1st Defendant stopped plaintiff’s workmen from working on the farmland. Defendants on the other hand stated that they are not aware of any expenses incurred by plaintiff and besides 1st defendant had cautioned plaintiff not to plough the land. From the evidence, Plaintiff was informed not to plough the land for farming as it will affect the root of the remaining tender mango trees on the land but he refused. Accordingly, this court is of the view that the defendants are not liable for any expenses made by the plaintiff in buying maize, weedicides and hiring of workmen. 27. For the forgoing reasons, this court holds that Plaintiff action lacks merit and it is hereby dismissed in its entirety. Conclusion 28. Having examined the whole evidence adduced by the plaintiff and the defendants on record in accordance with the foregoing authorities as well as the analysis, the court holds as follows that: a. Plaintiff’s action fails and it is accordingly dismissed. The land in dispute was not leased to the defendants for a specific number of years. Neither is there agreement that the mangoes will be shared nor was the land given to the defendants for a consideration. The land in dispute was therefore given to the defendants as a gift and for the purpose of cultivating mangoes and the said gift is irrevocable. The defendants are to use land for the purpose for which the land was given to them -thus, to plant mango trees. The defendants are however at liberty to return the land to the owners if they do not intend to plant the mango trees any longer. *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 13 of 14 *HWMNJ@DC/BO-19/12/2024* b. There will be no order as to costs. The parties are to bear their respective cost incurred in pursuing this matter. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-ASIRIGE AWINE VRS. ALAHIPOKA A. & 3 OTHERS (SUIT NO. A1/04/2024) * Page 14 of 14