Osei Kwame v Ofori and Another (A1/05/2022) [2024] GHADC 683 (17 October 2024)

DISTRICT MAGISTRATE COURT SITTING AT NYANKUMASI AHENKRO ON THURSDAY 17TH OCTOBER, 2024 BEFORE HIS WORSHIP PETER ANONGDARE DISTRICT MAGISTRATE SUIT NO. A1/05/2022 ABUSUAPANIN OSEI KWAME VRS 1. KWAME OFORI 2. MAAME BIMAH JUDGMENT The Plaintiff filed a writ against the Defendants for the following reliefs; a. Recovery of all that parcel and piece of land situate at Assin Bosomadwe at a place commonly called MENYINEASENKWANTA which measures about four poles and share boundaries on the North with Afia Nyanta and Esi Mansah, on the East with Kwabena Bafoe and Opanin Brebo on the West with Ama Dufie and on the South with the Bosomadwe-Jakai road. b. An order of perpetual injunction restraining the Defendants, their assigns, workmen, representative and all those claiming through them to have nothing to do with the said land. c. Recovery of One Thousand Ghana Cedis (GH¢1,000.00) being the value of firewood Defendants stole from Plaintiff’s land. The Defendants denied liability to the Plaintiff’s claims. This therefore put every claim in issue. The case of the Plaintiff is that he is Abusuapanin Osei Kwame who lives at Bosomadwe and that the Defendants also live at Bosomadwe. That, his ancestor Kwame Kwanin broke the virgin forest of the disputed land and settled on it. The Plaintiff stated that in 1959 Kwamin gave the land to the Plaintiff’s uncle Akwasi Ayim. The Plaintiff asserted that in 1970 he came to live with his uncle Akwesi Ayim and used to go to farm on the land with him. The Plaintiff testified that his uncle showed him the boundaries as follows; The North of the land is a boundary with Maami Esi Mansa, mother of the second Defendant, to the South is Nana Brefo, to the West is Kwabena Baffoe, and to the East is Papa Boadi’s boundary. The Plaintiff again asserted that when his uncle died, Plaintiff’s mother Akua Mansa became the customary successor but Plaintiff’s uncle’s children were cultivating the land. According to the Plaintiff, before his uncle died, his uncle gave a 1 portion of the land to Akua Nkrumah, and that is the reason for which the Defendants are claiming the disputed land. Akua Nkrumah is later identified as second Defendant’s grandfather’s daughter. PW1 Cecilia Serwaa who testified that her mother Afia Naa gave her a land which shares boundary with the disputed land. And that her land shares boundary with the disputed land which belongs to the Plaintiff’s uncle Papa Ayim. That, she and Papa Ayim started cultivating their respective lands in the same year. And the Plaintiff then inherited the disputed land from his uncle. The case of the Defendants was presented by the first Defendant. The first Defendant testified that his ancestor Nana Asampong broke the virgin forest of the disputed land. Nana Asampong then gave a portion of the land to his daughter Akua Nkrumah. That Akua Nkrumah died before he became an adult. But Mmere Hua cultivated palm on Akua Nkrumah’s land. That, he saw the palm plantation around 2008/2009. The Defendant asserted that Akua Nkrumah was married to Papa Ayim, Plaintiff’s uncle. When Papa Ayim died, the Plaintiff became a customary successor and took charge of the disputed land. The Plaintiff sued for recovery of possession of the disputed land. In his evidence the Plaintiff prayed the Court to declare title to the land in his favour. Be that as it may be one must prove or have title to land to be able to seek recovery of such a land. Consequently, the Plaintiff assumed the burden of proof of title to the disputed land by a preponderance of the probabilities as required by section 12(1) and (2) of the Evidence Act 1975, NRCD 323 which states that “except as otherwise provided by law the burden of proof requires proof by a preponderance of the probabilities” which means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. It is also the principle of law that of 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 Court therefore set down two issues; 1. Whether or not the Plaintiff has title to the land. 2. Whether or not the Plaintiff can recover possession of the land. With reference to the first issue, it is instructive to state that title is the means by which a person establishes his right to land. Title shows the means the person claims to be owner of the land. That may take the form of possession or it may take the form of a document or a 2 series of documents. See Dliman Oil Company Limited v. HFC Bank [2016]2 GMJ per Ackah Yensu J.A as he then was. In the instant case the basis of the Plaintiff’s claim is a historical narration where he traces title to his ancestor Kwame Kwanin who he claimed broke the virgin forest. And he eventually inherited it. The Defendants on the other hand put up a rival assertion that their ancestor Nana Asampong broke the virgin forest of the land. Without documents as a means of proof the Court had to turn to possession in evaluating the rival claims to ownership of the land. In Brown v. Quashigah [2003-2004]2 SCGLR 930 at 951 the Court stated as follows; “Possession is a matter of law but it is established by physical acts. Possession is generally regarded as implying physical control; but physical control cannot mature into possession in law unless accompanied by other acts… Finally the intention to possess must be manifested by external or visible signs appropriate to the property being taken possession”. The question then is of the two parties who demonstrated possession by ways of external or visible signs appropriate to the disputed land. At the end of the evidence for the Defendants both parties prayed the Court to visit the land. When the Court visited the land both parties were given the opportunity to show their boundaries or describe their lands. The Plaintiff described the land showing the boundaries which forms a rectangular shape. Cecilia Serwah was present and testified for the Plaintiff. The Plaintiff showed a cocoa farm on a portion of the land towards the East which the Plaintiff claimed ownership and confirmed by witness for Plaintiff Cecilia Serwah. The Defendants showed their boundaries which appeared to be what the Plaintiff described. However, the Defendants did not claim ownership of the cocoa on the land. Considering the fact that possession must be accompanied by physical acts appropriate to the property being taken possession it is the considered view of the Court that the Plaintiff established possession by virtue of being the owner of the cocoa on the land. On the contrary, the Defendants did not prove ownership of any visible signs of possession appropriate to the land. Section 48 of NRCD 323 provides that “the things which a person possesses are presumed to be owned by him. So with the Plaintiff having a cocoa farm on the land, the Plaintiff is presumed to be the owner. What it means is that the Defendants could have rebutted the presumption by providing alternative credible evidence”. This, the Defendants failed to do. 3 It would therefore appear to me that the fact that the Plaintiff has title to the land by virtue of possession is more probable than not. The second issue is whether or not the Plaintiff can recover possession. Recovery of possession of land means the process regaining control and possession of a piece of land that was occupied or taken over by another person without permission. The Court found as a fact that the Plaintiff has title to the land. Consequently, recovery of possession of the land is a lawful remedy to seek. In conclusion, the Plaintiff’s case succeeds. Title of the land in dispute is declared in favour of the Plaintiff. The Plaintiff can recover the land in dispute. The Defendants, their agents, assigns, workmen, privies and all those claiming through the Defendants are hereby perpetually restrained from having anything to do with the land. The claim for the recovery GH¢1,000.00 being cost of firewood Defendants stole from the Plaintiff’s farm and sold is dismissed. The reason being that, the Plaintiff failed to lead evidence to prove the said claim. Costs against the Defendants is assessed at GH¢2,000.00. SGD H/W PETER ANONGDARE 4 DISTRICT MAGISTRATE COURT SITTING AT NYANKUMASI AHENKRO ON FRIDAY 26TH JANUARY, 2024. BEFORE HIS WORSHIP PETER ANONGDARE DISTRICT MAGISTRATE SUIT NO. A1/05/2024 ABUSUAPANIN OSEI KWAME VRS 1. KWAME OFORI 2. MAAME BIMAH CROSS EXAMINATION OF THE PLAINTIFF BY THE 1ST DEFENDANT ON BEHALF OF THE DEFENDANTS Q: I put it to you that the boundary between us at the North is the Yankuma tree and not the Konkroma. A: That is not true. It is the Yankuma Q: In your description of the boundary to the East you said the symbol is flowers but that is not true because there are pillars in addition. A: It was only flowers, you put the pillars there then the dispute. Q: I put it to you that the boundary between us to the South is a road and not Okrᴐ tree. A: That is not true, the road is not boundary. End of Cross Examination CROSS EXAMINATION OF 1ST DEFENDANT BY THE PLAINTIFF Q: I put it to you that at the South is the Konkroma and not a palm tree as you stated in your description. A: At the South is the palm tree Q: I put it to you that at the West the boundary sign is the Konkroma tree and not Yankuma. A: I do not share boundary with you to the East, I share the Eastern boundary with Serwaa. Q: You do not share boundary with service. 5 A: We do and on the basis of that we and serwaa, put the flowers at the East. End of Cross Examination PW1 – At the scene – Cecilia Serwaa Sworn on Bible in Twi I am Cecilia Serwaa. I share boundary boundaries with the Plaintiff’s Northern and Eastern side. The boundary symbol at the Northern side is a palm tree. CROSS EXAMINATION BY 1ST DEFENDANT Q. If you share boundary with the Plaintiff at the Eastern side why is it that we planted the flowers at the Eastern side with you. A: I came with you because I sued you in Court Q: We share boundary with you at the Eastern side. A: That is not true, I share boundary at the Eastern side with the Plaintiff End of Cross Examination First Defendant tells Court that their boundary owners are the Plaintiff and Cecilia Serwaa. SGD H/W PETER ANONGDARE 6