Opoku v Kwaaso (A1/14/2024) [2024] GHADC 796 (12 November 2024)

INTHE DISTRICT COURTKINTAMPO HELDON TUESDAY12TH NOVEMBER 2024BEFOREHIS WORSHIP KWAMEADJEIMANU ESQ. SUITNO:A1/14/2024 OPOKU ALFRED - PLAINTIFF (Suingfor himself andon behalfof hissiblings borntothelateMaameYaaFiri) VRS KWABENAKWAASO - DEFENDANT JUDGMENT 1. INTRODUCTION Plaintiff’scase 1.1. Plaintiff who according to him sues with the consent of his siblings, children of the late Yaa Fri makes the case that his grandfather the late Nana Kofi Toa during his lifetime begat 6 children including Plaintiff’s mother the late Yaa Firi. Nana Kofi Toa acquired and occupied the diputed farmland during his lifetimne being a virgin forest which did not belong to anybody. His grandfather reduccd the forest into a foodcrop farm and enjoyed the proceeds until his death several years ago. The Plaintiff says Nana Kofi Toa before his death gifted the disputed land to all his children and Plaintiff’s mother continued and cultivated her portion intoafoodcropfarmand cashew plantation. 1.2. Plaintiff says that about a ycar ago, Defendant trespassed unto their land and planted food crops. According to Plaintiff, when their mother Page1of15 confronted Defendant over his unlawful act his children put their mother under a cursc which eventually resulted 1o her dcath. Their mother before her death allowed Defendant to possess that same portion but has now decided to lay adverse claim to the entire land and has startcd to plant yam in their cashew plantation which is about 20 years old. On these facts Plaintiff seeksthe following reliefs: “a.Declaration of title, ownership and rocovery of possession of all that farmland situates and lying at a placc commonly known and called Ponpmatifi on Nkoranza Stool land bounded on all sides by the landed properties of the late OpaninKwaku Poku, Kwaku Addo, NanaFei and astrcamlet. b. General damages for unlawfultrespass c. An order of perpctual injunction restraining the defenda its, thcir agents, assigns ctc. from having anything to do with the farmland in disputedescribed inrelief(a) supra” Defendant’scase 1.3. Defendant who admits knowing Plaintiff and his siblings as the children of Yaa Firi his deceased Aunt also makes the case that his late grandfather Opanin Kofi Toah possessed a vast land located at Ponpmatifi. After the death of Opanin Kofi Toah in 1981, the abusuapanyin of the family gave mandate to Kofi Toah’s his nine children to cultivate portions of the vast land. Plaintiff's mother Yaa Firi and Defendant’s father Kwaku Poku were given their portions of the land. Defendant’s father's portion of the land is at Ponpmatifi on Nkoranza stool lands and his father reduced portions of the land to the cultivation of food crops, cashew, teak trees and mango farming. According to Defedant, when his father was alive, he went with Page2of15 himto hisland topick the nuts and alsoclear theland, so he is privy tothe boundariesofhis fathersland. 1.4. Defendant’s case is that his father's land is bounded by the lands of Nana Fei to the right and Plaintiff's mother's land to the left. According to him, there is a boulder-stone situated at the road leading to the two farmlands. From the boulder-stone, moving straight ahead into the farmlands there is a giant coconut tree that precedes three mango trees that serves as boundary marks between Plaintiff's mother's land and his father's land.At the end of bothfarmlands thereis theAhyiresum stream. 1.5. Defendant denies trespassing onto Plaintiff and his siblings’ farmland to fall trees, that his father's land has teak trees of which he fell a few. According to Defendant, it is Plaintiff and his siblings who do not know the boundaries of their mother's farmland and tried to sell a portion of his father's land which he stopped them from doing. He aleges that Plaintiff once trespassed unto his father's land and fell teak trees thereon, a matter he reported to the elders of the family but was impressed upon to let go since they are family. Plaintiff’s mother according to Defendant told his uncle named Isaac without the consent of he and his siblings that she pleads for Plaintiff to be allowed to cut their teak tress and use the proceedsto paint their family house. 1.6. From the foregone, it is clear that that Defendant denies Plaintiff’s claims and joins issue with him more specifically on the allegation of trespass. The questions raised for determination are whether Plaintiff and his siblings own the disputed land and whether Defendant has trespassed untoPlaintiff and his siblings land. Plaintiff’scapacity Page3of15 1.7. Plaintiff’s capacity to institute this action since in essence he is claiming to have inherited the disputed land from his deceased father ought to be considered by the court as a primary issue before any other issues. This enquiry concerning Plaintiff’s capacity is settled since first, Defendant did not join issue with Plaintiff on his capacity. Applying the position of the Supreme Court in Adisa Boya v. Zenabu (CIVIL APPEALNO.J4/44/2017), I am inclined to conclude that Plaintiff does not lack the capacity to bring the instant action. The Court speaking through Gbadegbe JSC in that case said this: “By virtue of the rules on intestacy contained in section 4(1) of PNDCL 111, following the death of the father of the defendants and their mother the original defendant, the property devolved upon the children and as such they had an immediate legal interest in the property. Consequently, they were competent to defend and/or sue in respect of the property and either of them acting together or any of them acting on behalf of the others might seekan order of declaration of title to be made inhis favour.” 1.8. This ratio was followed by the Supreme in the recent case of Bandoh v. Apeagyei-Gyamfi and Another [2018-2019] 1 GLR 299 where the Supreme Courtspeaking throughMarful-Sau JSCstated thus: “In that case this court speaking through Gbadegbe JSC, held that the defendants who were the children of the estate had immediate interest in the property and for that reason, they were competent to defend or even sue for declaration of title, notwithstanding the fact that they had not obtained any letters of administration. I wish to add that the above proposition of law is only fair and equitable in view of the interest Page4of15 created in the estate of beneficiary children, under the Intestate Succession Act, PNDCL 111. I therefore, entirely agree with the legal proposition enunciated by Gbadegbe, JSC, and hold that even in this appeal the appellant, being a satisfactory child, was a competent party, notwithstandingthe factthat she had noletters of administration.” 1.9. Inthe wordsof Marful SauJSC, being satisfactory children, Plaintiff herein isacompetent party. 2. BURDENANDSTANDARDOF PROOF Generalburden 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) stated the rule in the law of evidence 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 and credible evidence from which the fact or facts he asserts can be properlyand safely inferred." Page5of15 2.2. Aswas explained in Ackah v. Pergah Transport Ltd. & ORS (2010) SCGLR 728, by the Supreme Court Plaintiff bears this evidential burden. The court inthatsuit explained Plaintiff’sburden thus: “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. Parties in this suit are lay persons acting pro se. The Court for this reason extended all indulgences to them as recommended in Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G.L.R. 314, S.C. The duty owed to them as a lay court users and the need to indulge them has been recognized 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] 1 GLR 240. Their respective cases were accordingly gleaned from their processes filed, and the appropriate evidential standards, specifically in relation to evidential admissionswereapplied. Page6of15 Declarationoftitle toland 2.4. In a claim for a declaration of title to land, the evidence Plaintiff is required to give to succeed 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] 1 SCGLR 466at475the courtsaid 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” 2.5. The Plaintiff in such a case, 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 proof under discussion 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 in the following words: “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]”. Page7of15 2.6. 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...” 2.7. However, this evidence when offered must be sufficient and 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 probable and reasonable than its non-existence. This position ofthe law wasapplied in Ackah v. Pergah Transport Ltd [2010] SCGLR 728 and Faibi v. State HotelsCorp. [1968] 471. Oathagainst oath 2.8. The evidence in this suit is of such nature that the circumstances require me to consider it oath against oath and 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 it is the duty of the trial court in such a situation is to consider the evidence adduced to form a judgment as Page8of15 to what version of events was more credible. The determination of crucial facts would then be a question of judicial choice of belief based on the comparative credibility of parties and their witnesses. It is incumbent upon the trial court to examine the evidence before preferring one to the other and give reasons for the preference. The 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 in Lydia Tetteh v. MadamAkweley &Anor (2019)JELR 107108(HC). 3. DISCUSSIONOF THE ISSUES WhetherPlaintiff andhissiblings aretheownersofthedisputedland 3.1. Both parties led evidence by themselves and called witnesses in attempt to corroborate their testimonies. However, some matters stand admitted, for whichh reason no issues were joined and no further proof was required. As held in Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, where a matter is admitted proof is dispensed with. In the case of 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 637 at 656, the court explained this rule of law on admissions which is summed up by the definintion providede the 7th edition of the Black’s Law Dictionary’s as “a voluntary acknowledgment of the existence of facts relevant to an adversary’s case.” 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 Page9of15 factthan by relying on such admission, which is an example of estoppel by conduct.” 3.2. In assessing evidence led by parties, this Court is mindful of that particularly useful and settled rule of law as applied in Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 by Ansah JSC at page 890 referring toTutu v. Gogo,Civil Appeal No 25/67,dated 28April 1969,Courtof 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.” 3.3. It is admitted by both sides in this suit that the land claimed by Plaintiff lies at the area claimed by him and is owned by him and his siblings essentially,being infact bounded by land claimed tobe thatof Defendant’s father,with a wild coconut tree asthe boundary feature between these two lands. The record is littered with admissions of this fact, and I so find that the boundary feature between Plaintiff and his siblings’ land and that of Defendant and his siblings is the wild coconut tree. There is therefore little question concerning the additional fact that the land as claimed by Plaintiff in this suit is the property of his siblings and himself owning the usufruct therein Ususfructuaryownership 3.4. The nature ofusufructuary ownership which appearsto the courtto be the interest of Plaintiff and his siblings in this suit was explained by Appau JSC (As he then was) in Togbe Lugu Awadali IV v. Togbe Gbadawu IV (2018)JELR 68854(SC)in these words: Page10of15 “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 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.” Page11of15 3.5. The facts as admitted on both sides leaves very little doubt that it is the usufruct in the land at the disputed area that was acquired by parties’ original ancestor by first cultivation of the virgin forest. In all, I lean favourably towards Plaintiff’s evidence and find as a fact that Plaintiff and his siblings arethe ownersofthe usufructin thedisputed land. WhetherDefendant has trespassed untoPlaintiffs’land 3.6. 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, once a court has found trespass it is bound to award damages although there must be a basis for theaward morethananominal sum. 3.7. It is clear from the evidence on record that Defendant has dealt with the disputed land without the concurrence of Plaintiff and his siblings. Beyond Defendant’s evidence that he did not trespass unto Plaintiffs’land, his own witness testified that he did not at some point know the boudaries of the land he worked on until that witness had shown him that it was the coconut tree in the middle of the farms that was the boundary marker. This was after Defendant as admitted by that witness had already entered the land to pick cashew nuts. Defendant also offered no useful challenge to Plaintiff’s Exhibit 3, which was a picture of the area specifically alleged to have been cleared by him in trespass. Defendant also offered no evidence contraryto thatofPlaintiff, so he is deemed toadmit it. 3.8. Having found therefore, that the disputed land belongs to Plaintiff and his siblings, it ought to follow, and I find, that Defendant having dealt with thatland withouttheir permission, hastrespassed thereunto. Page12of15 Damages 3.9. Havingfound that Defendant has trespassed unto Plaintiff and his siblings land, I apply Chegu v. Dagomba (supra). But I must add that when a Court determines that an award of damages is appropriate for a determined breach of rights, the purpose of such an award 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 damages is to give Plaintiff compensation for the damage, loss or injury suffered. In this suit no evidential basis for more than a nominal sum has beenestblished, so damagesshall be nominal. 3.10. Additionally, by the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C.I. 52) it is provided at Rule 1 that If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, 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 betweenthe parties specifies a rate ofinterest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner. Rule 2(1) of C.I. 52 provides that Subject to subrule (2) 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. I have in this suit decided that is fair that all sums of money ordered to be paid must attract the appropriate interest. 3.11. 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 Page13of15 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 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 damages in this suit at the statutory rate of 26.8 % 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 and his siblings against Defendant: a. A declaration of Plaintiff and his siblings’ usufructuary ownership of all that farmland lying at a place known as “Ponpomatifi” on Nkoranza stool land, bounded on all sides by the landed properties of the late Opanin Kwaku Poku, Kwaku Addo,Nana Fei,and the Ahyiresu stream. b. Recoveryof possession of the land described inorder (a) above. c. Nominaldamages for trespassin the sumof GHS 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 2500.00 Page14of15 f. Defendant shall pay interest on the sums mentioned in orders (c) and (e) at the statutory rate of 26.8 % per annum from judgment till final payment. SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Parties present (unrepresented) Page15of15