Gyamera v Afra and Others (A1/16/2020) [2024] GHADC 787 (28 October 2024)

INTHEDISTRICT COURT HELDAT BEREKUMON MONDAY THE 28TH DAYOF OCTOBER, 2024.BEFORE HIS WORSHIP AUGUSTINE AKUSA-AM(DISTRICT MAGISTRATE) SUITNO. A1/16/2020 MADAMESTHER GYAMERAOFACCRA ::PLAINTIFF PER HER LAWFULATTORNEY PHILOMENA DANQUAHOF H/NO. 13,SEIKWA VRS: 1. AGARTHA AFRA ::DEFENDANTS 2. ALEXMENSAH 3. EMMANUEL MANU ALL OFSEIKWA Parties -present. JU D GM EN T: The Plaintiff filed the instant actionclaiming the following reliefs; (a) Declarationoftitle and recoveryofpossession 1|Page (b) Promoter of Seikwa. The power of attorney and the deed of sale were tendered of all that farmland situated at Bethlehem Nkwanta on Seikwa Stool Lands and bounded by the properties of OP Kofi Tano (deceased), Okrah Joseph (deceased) and River Bengele which said farmland belongs to the Plaintiff but the Defendants have trespassed onto it and released same to some individuals to cultivatecashew onabunu tenancy. (c) Generaldamages. The plaintiff initiated this actionperher lawfulattorneyPhilomena Danquah. The plaintiff averred that the disputed land was originally acquired by her late husband Nana Gyamera from one Kwadwo Okrah Joseph alias and marked exhibits A and B respectively. After the demise of her late husband, the disputed land devolved on the Plaintiff who continued the cultivation of same without any interference for six years before relocating to Accra due to ill health. The land in dispute subsequently came into the possessionoftheAttorneyfor theplaintiff who is agranddaughterofher principal. According to the plaintiff, recently the first defendant encroached on the land and began alienating portions to individuals to cultivate cashew on abunu tenancy. The attorney 2|Page subsequently confronted the 1st defendant who in turn invited the 2nd and 3rd defendants from Sefwi. After several attempts had failed to the demarcate their common boundary the matter went to the Dompehene and Mpenoahene of Seikwa respective but the dispute overthe land could notbe resolved. Finally, the matter was reported to the Seikwa Traditional council but the defendants failed tohonour the council’sinvitation and therebystultifying arbitration. The first witness for the plaintiff (PW1) was Nana Kwaku Krah the Atipimhene of the Seikwa Traditional Council. Witness testified that plaintiff’s late husband traditionally know as Nana Oheneba Brako Antwi Dankwa II was his best friend. He revealed that, after the plaintiff’s late husband had purchased the disputed land from Promoter, it was he who cultivated yamthereonfor the latehusband ofthe plaintiff. He reiterated the assertion that the disputed land shares boundary with the late Op Kofi Tannor (defendant’sfather), Promoter,River Bengele and his ownfarmland. He explained that after the purchase of the land from Promoter, the Plaintiff’s late husband used his stool name (Nana Oheneba Brako Antwi II) to prepare the title documents. The 3rd defendant Emmanuel Manu who testified for the 1st and 2nd defendants averred that their late father Op Kofi Tannor owned and gifted the disputed farmland to them in 3|Page the year 1985. They therefore provided one bottle of schnapps, a pot of palm wine and cash of two old Ghana Cedis as “aseda” to their father in the presence of one Mary Asubonteng and MichaelAddae. According to the defendants, their farmland lies at a place called Gboguyokone on Seikwa Stool lands and not Bethlehem Nkwanta as claimed by the plaintiff. According to the defendants, their land is bounded by the farmlands of Kwadwo Lansare (deceased) Op. Kwame Kyeremeh(deceased) KwakuBarimah (Deceased) and the BengeleRiver. Defendants said they met the Dompehene at different times and when they were invited by the Seikwa Traditional Council, they honoured the invitation out of courtesy but they declined toparticipate in any arbitration. Nonetheless they presented bottles of Kasapreko gin. According to the defendant the plaintiff persistently pestered them to resolve their boundary dispute at Bethlehem Nkwanta but that could not materialise until the plaintiff surprised themwith theinstant suit. Michael Addae and Mary Asubonteng who testified as DW1 and DW2 corroborated the evidence of the Defendants. DW1 disclosed that he is nephew to Op. Kofi Tannor (defendant’s latefather)whilst DW2 disclosed that she isthe motherofthe defendants. Allthe witnessfor the defendantssubmitted thatthe farmland in dispute is different 4|Page fromthe one the defendantsare cultivatedand thattheydo notshare common boundary. Atthe end ofthe trialthe issues that callfor determination are; (a) Whether or not the land in dispute which is being claimed by the plaintiff shares common boundary with the defendants land (b) Whether or not the defendants have reallytrespassed untothe plaintiff’s land (c) Whether or not the plaintiffis entitledto relief. Before I deal with the issues for determination I shall briefly the touch on the burden of proof. In civil cases the general rule is that the one who in his writ or pleadings raises issues essential to the success of his case assumes the onus of proof. See West Africa Ltd v Ackun (1963) GLR 176. The civil onus is on the balance of probabilities. See section 12 of the EVIDENCE ACT, 1975 (NRCD 323). Whilst the plaintiff insists that the land in dispute is situate at a place called Bethlehem Nkwanta on the Seikwa Stool land, the defendants also claim their land is situate at a place called Gbogugokome and that they do not share common boundary to warrant any allegation of trespass against them. And whereas the plaintiff claims “Promoter” who originally owned the land and sold same to the grandfather (Nana Gyamera aka Nana Oheneba Brako Antwi II) Shared boundary withthe defendants father(river Bengele), the defendantsonthe otherhand denied this. 5|Page In NUAMAH V. ADUSEI AND OTHERS [1989-90[I GLR 457-473 it was held that where a party was claiming a declaration oftitle to land and the defendants gave evidence showing that they themselves were not boundary owners of the land being claimed, and on the evidence the controversy was not strictly a boundary dispute but where the disputed land was situated, the best way out is to rely on traditional evidence as to how the parties or their respective ancestors acquired the land, overt acts of ownership and testimonies of people who knew the facts and who could be either boundary owners of farmers on the land. In the instant action, the plaintiff fortified her case by calling Nana Kwaku krah the Atimpimhene of the Seikwa Traditional council to corroborate her testimony. This star witness submitted that he was a best friend to the late husband of the plaintiff and that he was the one who cultivated yam on the land for him. Being a traditional leader, I think his evidence on the disputed land which is within his traditional area is unquestionable creditable when he submitted that the disputed land is situated at BethlehemNkwanta. During cross examination of the defendants 1st witness (Michael Addae) the following ensued; Q. Has your uncle(Opanin Tannor)ever litigated on this land with us when hewas alive? A. No Q. Doyou know heshared boundary with Promoter? A. Idon’tknow 6|Page The expression “I don’tknow”meant that witness doesnotevenknowthesubject matterofthis action. The plaintiff had corroborated herevidence with adeed ofsale ofthe land. Inthe said instrument, theland is said to be situated andlying at aplace called Bethlehem Nkwanta, a village near Seikwa and which shares boundary with Opanin Kofi Tannor (Defendant’s late father) River Bengele and Okrah Joseph (Promoter). This instrument was duly stamped in accordance with the stamp Act 2005, Act 689 thereby making it valid. The deed of sale was not discredited by the defendants and in so far as it described the defendants father (Op KofiTannor) as boundary neighbour, they cannot be heard denying thefact thattheir landsharesboundary withthe subjectmatterofthe instant action. Relying on the deed of sale and the evidence of the plaintiff’s witness, I am of the considered opinion that the defendants are trying to throw dust into the eyes of the court by lying that their land is situated at a place called Gboguyokome and not Bethlehem Nkwanta. 7|Page Having convinced myself that the defendants share common boundary with the plaintiff their denialofthis fact smacks ofmischief. I am tempted to believe that the defendants refused to appear before the Seikwa Traditional Council because they feared that they would be exposed by the plaintiff’s witness who is a member of the traditional council and has unimpeachable knowledge of theland indispute. Allthe witnesses called by the defendantswere close family members who simply came to court to support their kith and kin. The Defendants had mentioned that their land shares boundary with the following deceased persons; Kwame Kyeremeh, Op Lansere, Kwaku Barimah and the Bengele River. The failure of the Defendants to invite at least one of the relatives of these deceased adjoining owners who are currently working on their respective lands to testify for them clearly showed that they had something to hide. In Nana Akoto III v Agyemang (Consolidated) (1962) I GLR 524 @ 532 It was held fact “the evidence of adjoining owners is very essential when deciding ownership of land” Considering the whole evidence including particularly the deed ofsale executed by “Promoter” I am ofthe candid view that the defendants shares common boundary with the plaintiffs land at BethlehemNkwanta onSeikwa Stoolland. Coming under Section 12(1) of the Evidence Act, 1975 (NRCD 323), I am convinced that onthe balance ofthe probabilities, the plaintiffis entitled to relief. 8|Page Declaration of title to the disputed land as described in the writ of summons is hereby made infavour ofthe plaintiff. The interlocutory injunction placed on the plaintiff is hereby vacated to allow her to freely cultivatethe land GeneraldamagesofGH₵4,000.00against thedefendants fortrespass CostsofGH₵2,000.00for thePlaintiff. ...………SGD………… H/WAUGUSTINE AKUSA-AM (DISTRICT MAGISTRATE) 9|Page 10|Page