Gyedu v Agyapong (BE/JM/DC/A1/2/2022) [2024] GHADC 803 (23 October 2024)

IN THE DISTRICT COURT KINTAMPO HELD ON WEDNESDAY 23RD OCTOBER 2024BEFOREHIS WORSHIP KWAMEADJEIMANU ESQ. SUITNO. BE/JM/DC/A1/2/2022 YAAAMPOMAGYEDU @JOYCE GYEDU - PLAINTIFF (SUINGPERHER LAWFULATTORNEYMR. KOFI WOREAYOF APAASO -KINTAMPO) VRS MADAMMARTHA AGYAPONG - DEFENDANT (OF KINTAMPO) JUDGMENT 1. Introduction 1.1. Plaintiff in this suit that concerns land on the Kintampo Suamire road, on Nkoranza stool land claims against Defendant as per her writ of summons are as follow: “(a)Declaration of title and recovery of possession of all that plot number 1 Block“F”Sector 4,Extension Kintampo–Suamire Road. (b)General damages for trespass. (c)An order for Perpetual Injunction restraining the Defendant, her agents, assignsetc. from laying adverse claimto the disputed plot.” Page 1 of 14 Plaintiff’scase 1.2. Plaintiff’s case is that she acquired the disputed land from Nana Owusu Pinkra II, Krontihene of Kintampo to put up a school after going through formalities and paying fees. The Nkoranza Traditional Council issued an allocation paper to her after the grant signed by the late paramount chief Omanhene Katakyie Agyemang KudomIVand Owusu Pinkra IIevidencing her ownership. 1.3. The land according to her was rezoned by the Physical Planning officer of the District Assembly, signed by this officer and Nana Owusu Pinkra II. This land according to her measures three (3) acres comprising twelve (12) plots of land, and she has been in effective and quiet possession since the acquisition without hindrance from any person, having erected pillars alongside the boundary to serveasboundary features. 1.4. She contends that Defendant has recently trespassed unto the land and destroyed all the pillars erected on the land by her and deposited blocks and sand on the land with the intention of building a house on it. This conduct she says she reported to the police at Kintampo to no avail, Defendant being determined to continue the trespass. Defendant’scase 1.5. Defendant filed aStatement ofDefence which I will not consider as pleadingsbut rather a Statement in Defence in terms of Order 25 Rule 5 of the District Court (Civil Procedure) Rules 2009 (C.I. 59). In this statement, Defendant disputed Plaintiff’s claim to the land. The first of her grounds for this dispute being that Plaintiff’s alleged grantor is not the bona fide owner of the disputed land, lacking thecapacity tograntsame. Page 2 of 14 1.6. Defendant’s contention is that the disputed land is her bona fide property by reason of a gift made to her by her father inter vivos, that this land was also gifted to her father by her grandfather. She offered Aseda for this gift in the presence of credible witnesses, after which her father also gave customary thanks being the Aseda in the formofschnapps toNana KofiGyabaa. 1.7. She says that the zoning of the land by the Physical Planning officer did not confer title to the land on the Krontihene, she having been in possession of the land since 1979 during which period she never encountered Plaintiff or her agents on the land. She denies the presence of boundary pillars on the land but admits depositing sand and blocks on the land with the intention of building on it. Defendant says that she previously had a cashew farm on the land but instructed her daughter to deposit sand and blocks on the land when the latter found out thatanunknown personhad deposited sand onthe land. 1.8. She contends accordingly that she is not a trespasser being lawfully in possession ofthe land. 2. Burden and standard of proof 2.1. Without attempting to set out in painful detail the whole of the law on this point, it is noteworthy that 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 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 Court explained asfollows: Page 3 of 14 “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 221at 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 whichthe fact or facts he asserts can be properlyand safely inferred." 2.2. Plaintiff as was explained in Ackah v. Pergah Transport Ltd. & ORS (2010) SCGLR 728, by the Supreme Court bears this evidential burden. The court in that suit explained Plaintiff’s burdenthus: “It is a basic 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 Evidence Act, 1975(NRCD323)” 2.3. Plaintiff’s Attorney who conducted her case, is a lay person acting pro se. The Court for this reason extended all indulgences to him as recommended in Nartey Page 4 of 14 v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G.L.R. 314, S.C. The duty owed to him as a lay court user and the need to indulge him has been recognized by the courts in cases such as Edun v. Koledoye (1954) 14 W.A.C.A. 642. as relied onin Wiafe v.Kom [1973] 1 GLR240. Declarationoftitle toland 2.4. 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 her root of title, mode of acquisition and overt acts of ownership must provethat she is entitled to thedeclaration sought. InMondial Veneer (Gh) Ltd v. Amuah Gyebu XV[2011] 1SCGLR 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 exercisedover 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 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 JSCexplained this standard thus: Page 5 of 14 “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975[NRCD323]”. 2.6. In determining what standard the proof in this suit which is civil must be, 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 ofsuch distinctions in the standardofproofofmatters in civilsuits 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 no longer represented the presentstate of the law...” 2.7. However, this evidence when offered must be sufficient. The test of satisfactoriness or sufficiency of the evidence is the degree of belief that the evidence or its proponent creates in the mind ofthe trial court concerning the fact or facts in issue. For evidence to pass this test and be deemed satisfactory, 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 of the law was applied in Ackah v. Pergah TransportLtd [2010]SCGLR 728,731and Faibiv.State Hotels Corp. [1968]471. 3. Theevidence and the issues WhetherPlaintiff is owner ofthedisputed land Page 6 of 14 3.1. The principal issue from which all others flow is that of Plaintiff’s ownership or otherwise ofthe disputed land. Asheld 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 laid down the rule of law on admissions which is congruent with the 7th edition of the Black’s Law Dictionary’s definition as “a voluntary acknowledgment of the existence of facts relevant toanadversary’scase.”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 fact than by relyingon such admission, whichis an example of estoppel by conduct.” 3.2. Defendant called two witnesses who essentially corroborated her ownership and possession of the disputed land as well as her cultivation of cashew on it. Their evidence remained largely unsoiled under cross-examination, so I will not belabour discussing themanyfurther. 3.3. Plaintiff’s own witness PW1, who is also his grantor, admitted under cross- examination that Defendant’s predecessor in title did cultivate the disputed land. this was what transpired while PW1 was under cross-examination on 7th August, 2024: Q: The land in dispute at the time it was a virgin forest was originally cultivated by Nana Gyabaah, Nana Danso and Nana Kwabena Minka then Kintampochief? Page 7 of 14 A: It istrue for NanaGyabaah and NanaMinka whom Iknow. Q: So you agree with me that the said Nana Gyabaah and Nana Minka who you agree originally cultivated the disputed land didso as natives and subjects of the land? A: Nana Gyabaah was not a native of Kintampo Nwoase. He was a native of Kyeremankoma near Nwoase and also subsequently became the chief of Kyeremankoma. Q: And that was after he originally cultivated the disputed land as you have justagreed notso? A: That iscorrect. 3.4. Concerning ownership of the cashew that all parties admit was planted on the disputed land, I am compelled to find on a balance of the probabilities that it was cultivated by Defendant. Though Plaintiff alleges this cashew to have been planted by some other persons who are allegedly the cousins of Defendant, no credible corroboratory evidence was in my view led to establish this claim, or the root of their title to the disputed land. The trite learning of the law is that a party who claims a declaration of title to land puts the title of his grantor in issue and where it is denied, he cannot succeed unless credible evidence ofthis title is given. 3.5. I am unable to lend any credibility to PW1’s evidence since in his evidence he contradicted much of the evidence on record comprising admissions from both sides thatthe disputed landhad cashew onit. PW1 allegedthat thedisputed land as granted to Plaintiff had no cashew on it. PW1’s evidence is also inconsistent Page 8 of 14 with that line of evidence led by Plaintiff to the end that the disputed land was completely vacant at the time Plaintiff purchased it. He testified that this land was taken over by the stool as part of a 24-acre land cultivated by one Opanin Damoah and his siblings. Surely, land that is cultivated could not at the same time be completely vacant. This brings the court to a general disbelief in Plaintiff and his witness’evidence. 3.6. I consider the evidence in this suit one that should be considered 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 that it is the duty of the trial court 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 involving judicial choice of belief based on the comparative credibility of opposing 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. This position of the law was applied by Justice Afia Serwaa Asare-Botwe (Mrs.) in Lydia Tetteh v. Madam Akweley & Anor (2019) JELR 107108 (HC). I find Defendant’s evidence in this suit more believableand preferable. 3.7. It is in my view sufficiently established on the record that Defendant not only possessed the land but had planted cashew thereon which farm interest was attempted to be evacuated to make way for the sale of the disputed land to Plaintiff. This being so, two things are clear. The first of these is that Plaintiff cannot be considered a Bona fide purchaser having had knowledge of the likelihood of some rival interest in the land, and when he admits on the record that he relied only on his grantor’s assurances as to ownership of the land Page 9 of 14 without any further enquiries. The second is that Defendant's claim of usufructuary ownership is thereby corroborated even by Plaintiff's own witnesses. 3.8. It is noteworthy that Plaintiff’s own witness as set out in the foregone admitted under cross-examination that Defendant’s predecessor in title cultivated the disputed land before he became chief of Kintampo subsequently. This would mean that any interest he acquired in the land was not because of his occupancy of the stool, but rather personal to him. It did not merge with stool property. It is a matter so ubiquitous that I see no need to set out a litany of authorities legal and factual that Kintampo Nwoase and Kyeremankuma near Nwoase of which Plaintiff’s predecessor subsequently became chief, are all natives and subjects of the Nkoranza paramountcy, which is the allodial owner of the disputed land, represented by caretaker chiefs at the area. I find collaterally as a fact that this is the case. This leaves the court little latitude in respect of the issue of ownership. This would mean that Defendant’s predecessor personally acquired the usufruct in that land and as the trite learning supports, is capable of being gifted or inherited. 3.9. The evidence compels the court tofind thatDefendant is in law and fact owner of the disputed land. Considering all the evidence onrecord, the substance ofwhich has not been discredited under cross-examination, nor controverted by credible contradictory evidence, I find conveniently that Defendant is the usufructuary ownerofthe disputed land. Ususfructuaryownership Page 10 of 14 3.10. The nature of usufructuary ownership was explained by Appau JSC (As he then was) in Togbe Lugu Awadali IV v. Togbe Gbadawu IV (2018) JELR 68854 (SC) inthese 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 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 rightto usecertain 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 future use of the land by the community.” Page 11 of 14 3.11. In Mansu v. Abboye and Another [1982-83] GLR 1313-1323 the Court of Appeal perFrancois JA (as he thenwas) explained the usufructuaryinterestthus: “...Some of the cardinal incidence of the usufructuary interest were that the usufructuary had exclusive possession of the portion of land and he could not capriciously be divested of that interest by the stool neither could the stool alienate that portion of land to any other person without the prior consent and concurrence of the 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”.(emphasis mine) 3.12. Additionally, the Supreme Court in Ebusuapanyin Kweku Asema v. Nana Akwa III & ORS. (2021) JELR 109677 (SC), restated the unchanged position of the law on the relationship between the allodial title which is paramount, and the usufructuary interest, and at custom between the usufruct and the allodial, usufructuary owners in possession can only be dispossessed of their usufruct in land with their consent or on proven and unrectified breaches of customary tenure, or upon abandonment as held in Asseh v. Anto [1961] G.L.R. 103, S.C., Amoabimaa v. Okyir (Consolidated) [1965] G.L.R. 59, S.C. and Kotei v. Asare Stool[1961]G.L.R. 492,P.C. 3.13. Even under Sections 50(21) and (22) of the Land Act 2020 where now the allodial owner may somewhat unilaterally take over bare land or farmland subject to the usufruct, thereare adequate safeguardsfor the owner,in the provision ofsuitable alternative land or compensation by the allodial owner. The sections provide thus: Page 12 of 14 “(21)A holder ofanallodialtitle may (a)in furtherance ofthe expansion ofa townor settlement; and (b) for the purpose of serving the communal interest of the beneficiaries of the allodial interest, take over bare land or farm land which is the subject of a usufructuary interest within the areacovered bythe allodialtitle. (22) The holder of an allodial title shall not take over land under subsection(21) without (a) prompt payment of fair and adequate compensation which in any case shall not be less than forty percent of the plots of land or the market value of the plots of land being taken over, or (b) providing suitable alternative land, where possible, to the holderoftheusufructuary interest in respect oftheland.” 3.14. If it is the case that this law were applicable and I hold that by Plaintiff’s own case it is not since her alleged grant was made before it came into force in 2016 according to her evidence, and even the allodial owner of the disputed land cannot dispossess Defendant without her consent or appropriate compensation, then it follows that no substool, caretaker chief or individual can unilaterally and capriciously enter the land of their own accord and purport to demarcate it into building plots or make grants of it to other persons. Any such grant would be, and I find thatany purportedgrantofthe landtoPlaintiff is accordingly void. WhetherDefendant has trespassed untoPlaintiff’sland Page 13 of 14 3.15. Any entry unto land without the permission of the true owner including his agents, servants, or one in possession thereof amounts to trespass. It is a wrong against possession as stated in Chegu v. Dagomba [1977] 1 GLR 412, and as explained by Wiredu J, once a court has found trespass it is bound to award damages but in awarding such damages there must be a basis for awarding more thananominalsum. 3.16. Having found Defendant to be the true owner of the disputed land, it would be perverse for me by any stretch to conclude that she has trespassed unto her own land, when there is no evidence of some valid subsisting rights over the land that would prevent her from immediately exercising her right to possess the land. plaintiff’s case has at this point failed beyond saving. If she is not owner or has no valid rights over the land, then she cannot maintain an action in trespass against Defendant. Conclusion In conclusion, Plaintiff’s action fails and same is accordingly dismissed. Having considered the length of time this suit has taken, counsel’s industry and the expenses incurred and likey to have been incurred in this suit, I assess Defendant’s costsinthis suit at GHS 10,000.00against Plaintiff. SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Parties present Plaintiff unrepresented Simon Abledu Esq. for Defendant Page 14 of 14