Owusuaa v Bruce and Another (A11/09/2023) [2024] GHADC 784 (29 October 2024)

INTHEDISTRIC T COURT HELDAT BEREKUMON TUESDAYTHE 29TH DAY OF OCTOBER, 2024. BEFORE HISWORSHIP AUGUSTINE AKUSA-AM THE DISTRICT MAGISTRATE. SUITNO. A11/09/2023 ADWOA OWUSUAA VRS 1. KWAWBRUCE 2. ALEXANDER TUTU Parties Present JUDGMENT The plaintiff herein filed the instant action against the defendants herein jointly and severallyclaiming thefollowing reliefs. (a) An order to compel the defendants to release her share of a farmland which she and the defendants had shared based on an ‘abunu’ tenancy but the defendants have reclaimed her shared portion on grounds that she has no documentary proof. 1 (b) General damages against the defendants for destroying her Cocoa and Cashew which shehadplantedonher portion ofland. CASE OFTHE PLAINTIFF The plaintiff’s case is that she and her late husband, Benjamin Effah were granted a parcel of farmland situate at Asutia near Nsapor by one Kwadwo Nsowah (now deceased) on ‘abunu’ tenancy to cultivate cocoa. A formal tenancy agreement was thus executed on 27th July, 2011 evidencing the tenancy. The tenancy agreement was tenderedin evidence as Exhibit ‘A’. Two and half years into the tenancy, the plaintiff’s husband passed on. Following the death of her husband, the plaintiff averred that the defendants asked one Mame Brago to tell her to remove all her food crops from the land otherwise they would destroy all the crops on the farm. Not quite long thereafter a portion of the Cocoa and Cashew weredestroyed and so she believed it was the defendants who caused thedestruction. After the destruction of the Cocoa and Cashew, the plaintiff caused the arrest of the defendants but prosecution was inconclusive as the trial Magistrate at the time rather asked them to go and divide the farm. That order of the court did not yield any fruitful results, so with the subsequent intervention of her grandmother Grace Badu and Nana Adjei, head of family of the defendants, the land was shared for them by one Nana Amorsah, a Surveyor on 20th July, 2020. After the sharing of the land, the plaintiff 2 prepared a site plan on the portion of her land. The site plan was tendered in evidence and marked as Exhibit B. The plaintiff tendered pictures evidencing the destruction of Cashewand Cocoatrees. (I shalldealwith allthese exhibits later). The plaintiff and PW1, Amankona George testified that during the sharing of the farmland it was one Nana Adjeiwho is the family head ofthe defendants that selected a portion first before the plaintiff took the remaining half. Simon Tabiri, who testified for the plaintiff as PW2 corroborated the testimony of the plaintiff and Pw1 by stating in paragraphs 11 and 12 of witness statement that he was present as witness for the plaintiff when the land was shared into two and the head of family of the defendants Nana Adjeimade the first choice beforethe plaintiff tookthe remaining portion. CASE OFTHE DEFENDANTS Intheir evidence in chief, the defendants denied being responsible for the destruction of the Cocoa and Cashew crops on the disputed land. The first defendant admitted being a witness to the agreement executed by the plaintiff’s late husband and the late Richard Kwadwo Nsowah. They explained that the disputed land belongs to the ‘Yentene’ family ofBerekum ofwhich theyare members. That the said land which is situate at a place popularly called Asutia was under the care of Richard Kwadwo Nsowah. They explained that as caretaker of the family lands, Richard Nsowah alienated a portion of their land to the plaintiff’s late husband and it 3 was the plaintiff who signed as a witness for her late husband. They averred that they do not control the family lands and so the suit filed against them is wrongful and same be dismissed. ISSUEFOR DETERMINATION At the end of the trial, the issue that calls for determination is whether or not the plaintiff is entitled tothereliefs she seeks. BeforeI dealwiththe issue fordeterminationI will briefly touchontheburden ofproof. In Civil matters, the general rule is that the party who in his pleadings or writ raises issues essential to the success of his case, assumes the burden of proof. See [BANK OF WESTAFRICA LTDVRS ACKUN [1968]GLR176]. The Civil onus is on a balance of probabilities. See Section 12 of the Evidence Act, 1975 (NRCD 323). Therefore, in the instant case, the burden lies squarely on the plaintiff to adduce sufficient credible evidence to convince the court that she is entitled to the reliefs she seeks. Firstly, I shall deal with the tenancy agreement both parties relied on. The plaintiff relies heavily on Exhibit ‘A’ and stated that the lease agreement was entered into by her and her late husband of one part and the late Richard Kwadwo Nsowah of the other part. The plaintiff told the Court that she took this action against the defendants because she is a party to the agreement save that her husband’s name was used as 4 grantee because he is a man. This assertion by the plaintiff is not supported by the contentsofthetenancy agreement. The first paragraphofthe tenancy agreement statesasfollows: “This agreementis made and entered intothis 27thday of July, 2011between Richard Kwadwo Nsowah of House No. D.2, Dominase-Berekum (hereinafter referred to as the landlord) of the first part and Mr. Benjamin Effah of House No. I.29, Amangoase-Berekum (hereinafter referredto as the contractor of the second part)”. By this opening statement in the agreement, it is palpably clear that the agreement was exclusively between the contracting parties Richard Kwadwo Nsowah and Benjamin Effah and no oneelse. In the interpretation of documents, it is trite that words must be given their ordinary language in context and the intentions of the parties must be put to effect. The implicit meaning ofthe opening paragraph ofExhibit A is that the lease agreement was between Richard Kwadwo Nsowahand Benjamin Effah. Mostlease documents aswe knowareexecuted by partiestothe agreement and witness (es) oftheparties attesttosame. OnExhibit A thereforethe first defendant and one Koo Manu signed as witnesses for Richard Kwadwo Nsowah whilst the plaintiff and one IsaacGyabaa also signed aswitnesses forBenjamin Effah. 5 In paragraph 1 of the terms of agreement, it was stated that, “Mr. Richard Kwadwo Nsowah have allocated his land at Nsapor a place called Asutia with boundaries, Yaa Nkyimena, Kwadwo, Teku and Kwaw Bruce to Mr. Benjamin Effah to transform into cocoafarmofwhich it agreed toshare equally aftercompletion” The understanding of this passage is that the subject matter of the instant action is the personal property of Kwadwo Nsowah (the Lessor). The said land shares boundary with the farmlands of Yaa Nkyimena, Kwadwo Teku and Kwaw Bruce (1st defendant herein). And the agreement was to the effect that the farm will be shared equally after “completion”tomy understanding means the time set by the parties toshare theland. If the subject matter of the instant action is the personal property of the lessor why should the first defendant whose land merely shares boundary with the disputed land and who only signed asa witness to the transaction be the one tobe sued in this matter? According to the plaintiff, it was the head of family Nana Adjei who took half share of the land when it was purportedly shared. Clearly, it is either he or the successor of the Lessorwho oughttohave beensued in this matter. The tenancy agreement between the Lessor and Lessee was to end on 27/7/2018 but unfortunately the Lessee (Benjamin Effah) died after two and half years into the agreement. The interest held by the Lessee until his demise was only possessory because the tenancy had not determined to trigger the sharing. After the demise of her 6 husband the plaintiff ought to have approached the Lessor (Richard Kwadwo Nsowah) ashaving subrogatedher deceased tenant but she failed todo so. During Cross examinationofthe plaintiff by the1stdefendant the following ensued. Q. Whomdid I introduce yourhusband toasthe Landowner. A. Richard Kwdwo Nsowah, Op. Koo Manu and elder brother of Richard Nsowah. Q. When your husband was giving the money to Nsowah did he pass through me orhe gavesame to himdirectly. A. My husband gave Nsowah GH¢300.00 initially and later paid GH¢400.00 directly tohim. Q. Do you remember at Amangoase I advised you that since Nsowah was alive you should approach him to renegotiate the tenancy so that he could change theagreement inyourname? A. Idon’t remember. Q. Do youremember I eventold Kwame Nsapor yourfriend to advise youto see Nsowahtochange your husband’sname into yours? A. Idon’t remember. Q. Do you remember in 2016 Nsowah told you that you could not maintain the farmasagreed so youshould harvestyourfoodcropsandleave theland? A. Idon’t remember. 7 From the foregoing I am convinced that the first defendant advised the plaintiff to do the needful but she paid no heed and this has brought this perilous consequences on her. Eventhoughabunu tenancy isinheritable (See AKOFI V. WIRESI(1957) 2WALR25. Custom however dictates that the death of the tenant-farmer must be reported to the landlord immediately. His successor is thus introduced to the landlord and if the landlord is satisfied that he can supplant the deceased tenant, he would either accept himor rejecthim. In the instant case, this did not happen. The plaintiff is claiming that since her husband was a party to the tenancy agreement and she, having signed as a witness, her husband’s share devolves unto her automatically. That is a wrong interpretation of customary law regarding “abunu” tenancy. In any case the plaintiff did not tender any lettersofAdministrationin respect ofher latehusband enable her administerhis estate. Paragraph 4 of the Tenancy agreement states that “The Contractor shall form the land within a period of Six years from 27/7/2011-27/7/2018 and if within a period of two years there is no sign of improvement, the landlord has the right to dissolve the agreement which was agreed between both parties”. 8 As I have stated earlier, the plaintiff’s husband died about two and half years after signing the agreement. It is obvious that he could not improve the farm before his demise. That meansthe Lessor had had the right torepossess the farmland. Since there is no evidence that the plaintiff renegotiated with the Lessor to replace her late husband, her continuous presence on the land is unlawful. The interest of the plaintiff‘s husband in the leased land extinguished upon his death and his successor or anyone claiming through him ought to have met the Lessor (or if the Lessor had also died) his Successor in-title for the right things to be done in accordance with custom, usage orpractice. It must be emphasized that the agreement between the parties was for the cultivation of cocoa. The Lessee could cultivate food crops on the land to enable the cocoa to grow. I cannot fathom the plaintiff’s decision to plant cashew against the clear terms of the tenancy agreement (Read Agreement). In fact the title of the Tenancy Agreement actualizes the intent of the parties. It reads “CULTIVATION OF A COCOA FARM IN ADIVISION TWOABUNUBASIS SYSTEM”. By planting cashew, the plaintiff had clearly violated the terms of the agreement and thatact alone suffices forher forfeiture ofthe land. Onthe issue of the destruction ofthe Cocoa and Cashew, the plaintiff could not provide a scintilla of evidence against the defendants. The pictures she provided only showed 9 destruction of crops but did not show the defendants or anyone actually causing damage to any crops. He who alleges, they say, must prove in order to succeed and a multitude ofsuspicions donot amount toproofin law. The plaintiff filed a site plan which was admitted into evidence as Exhibit B. I shall not place any probative weight on same because the columns created for the signatures/stamps were not duly signed by the respective signatories. For instance, the plaintiff mentioned one Nana Amorsah as having prepared the site plan for her. The surveyor’s signature and stamp are conspicuously missing on Exhibit B. The Commissioner for oath and the chief of Nsapor whose signatures were required on Exhibit B were equally missing. Exhibit B was also not stamped as required by the StampDuty. Act, 2005(Act689). In all departments of this suit, the plaintiff has failed to provide sufficient evidence in proof of her case. The court cannot therefore find for her. The suit is therefore dismissed with. No costsordered. SGD H/W AUGUSTINEAKUSA-AM (MAGISTRATE) 10 11