Faustina v Kruh and Another (A1/40/2023) [2024] GHADC 801 (11 October 2024)

SITTINGINTHEDISTRICTCOURTATWENCHIINTHEBONOREGION ONFRIDAY THE11TH DAYOFOCTOBER,2024,BEFOREHISWORHSIP ISSAHABDUL-WAHAB (DISTRICT MAGISTRATE) SUITNO.A1/40/2023 BETWEEN TAMEAFAUSTINA(SUINGFORHERSELF - - - PLAINTIFF ANDHERSIBLINGS)OFNJAU-NSAWKAW VRS: 1. NANAKRUHOFKOASE 2. KWADWOACQUAHOFNSAWKAW - - - DEFENDANTS JUDGEMENT Theplaintiffhereinbroughtthisactionagainstthedefendantsseekingthefollowingreliefs; (a) A declaration of title to and recovery of possession of all the piece and parcel of cashew farm and farmland situate, lying and being at a place popularly known and called “CENTRE”atTanosoonNsawkawstool landandboundedbytherespectiveproperties of the late Nana Kwasi Amoah to the North, River Henpene to the South,River AwandedetotheEast,andlateOpaninKwadwoAppiahtotheWest. 1 (b) An order for an injunction against the defendants their assigns, heirs, workmen, agents etcfrominterferingwiththeland; (c) Punitivecost;and (d) Anyfurtherorder(s)asthecourtmaydeemfittomake. The defendants pleaded not liable to the claims of the plaintiff after same were read and explainedtothemintwi. From the pleadings filed by the parties and the plaintiff’s particulars of claim, the following issuesweresetdownfortrial; (1) Whetheror not thedisputed land described bytheplaintiffs in their particulars of claim istheirproperty. (2) Whetherornottheplaintiffshaveanyvalidtitletothedisputedland. (3) Whetherornottheplaintiffsareentitletoarecoveryofthedisputedland. (4) Whetherornotanorderforaninjunctionwilllieagainstthedefendants. The evidence of the plaintiff’s in proof of their claims consisted of her testimony and that of theirtwowitnesses. In her evidence in chief the plaintiff said she is Tamea Faustina a resident of Njau near Nsawkaw and that she is a farmer. That she knows the defendants who are her (plaintiff) relatives, and are farmers to. That she knows the disputed land as described in her particulars of claim. Plaintiff said the disputed land was acquired in its virgin state by her (plaintiff) father Opanin Kwadwo Bedito (now deceased). That their father after he acquired the land built a cottageon it and lived there with they the children and they helped their father to cultivate the 2 land. That during their (plaintiffs) father’s life time he brought his younger brother called Appiah Kwadwo to the cottage and showed him a portion of the land which he also cultivated foraperiodofoverten(10)years. Plaintiff said during his uncle Appiah Kwadwo stay with them he fell sick and later died. Plaintiff said their father also died few years later and one Opanin Kwabena Kumah customarilysucceededhim.Thattheirfather’ssuccessor,OpaninKwabenaKumahbroughtone of their (plaintiffs) cousins, who is the son of their late uncle Appiah Kwadwo called Kweku Appiah to the cottage and showed a portion of the disputed land which was cultivated by his latefatherandthatwhichwascultivatedbytheir(plaintiffs)fatherOpaninBeditoandKwadwo Appiahandimploredeachofthemtotakechangeoftheirrespectiveportions. Plaintiff said she and her other siblings tasked their cousin Kweku Appiah to look for a tenant to take care of their (plaintiffs) lands as they were relocating. That Kweku Appiah later called andinformed her (plaintiff) hehadgiven their (plaintiff) land to some4 tenants on a “crop and share basis or agreement (Abunu). Plaintiff said she consented and Appiah Kwaku gave her (plaintiff) land out and was therefore the caretaker of the land until his unfortunate demise. Plaintiff said after the death of Kwaku Appiah, the defendants herein then trespassed onto the disputedlandandstartedlayingadverseclaimstotheownershipoftheland. Plaintiff said all efforts made customarily and traditionally to get the defendants refrain from their act failed as they continued to lay claim to the land. Plaintiff said she therefore brought thisactionforherselfandhersiblingsasperthewritofsummonsfiled. 3 The first witness for the plaintiff said he is Yaw Tano (P.W.1) and lives at Nsawkaw Tanoso. That he (P.W.1) knows the plaintiff. That plaintiff is his (P.W.1) late uncle Kwadwo Bedito’s daughter.Thathe(P.W.1)alsoknowsthedefendants.That1stdefendantishis(P.W.1)lateuncle Kwadwo Appiah’s son. That 2nd defendant is also late Kwadwo Appiah’s son. P.W.1 said he knows the disputed land which was originally acquired by his (P.W.1) late uncle Kwadwo Beditoinitsvirginstateataplacecommonlycalled“CENTRE”.P.W.1saidhislateuncleBedito tookhim(P.W.1)tothedisputedlandandtheyworkedonit. P.W.1 said he lived on the land together with his uncle Bedito and the uncle’s children including the plaintiff (Tamea Faustina) on the land together with his two (2) wives. That the plaintiff’s three(3)other siblings are alldeceasednow.P.W.1 saidwhiles theywereon theland his (P.W.1) uncle Bedito brought his younger brother called Kwadwo Appiah to live with them at the cottage. That his (P.W.1) uncle gave a portion of his land in dispute now to his brother KwadwoAppiahtofarm.Thattheportionhegavetothebrothertofarmhadabig“Dadie”tree onitandthathe(P.W.1)knowsthelandverywell.Thatthesaid“Dadie”treewastheboundary between plaintiff’s father Bedito and his brother Kwadwo Appiah. P.W.1 said his late uncle Bedito shared boundary with Kwasi Amoah, Kwasi Boakum, herself (Yaw Tano) and the River “Awandeden”. That his (P.W.1) uncle Kwadwo Appiah also shared boundary with the same people.P.W.1saidhislateKwadwoBeditocateredforhisyoungerbrotherKwadwoAppiahfor 6yearsbeforehemarriedAkuaKonadu. That it was after he married Akua Konadu that he gave birth to Kweku Appiah. That after the death of Kwadwo Bedito (plaintiff’s father) and his brother Kwadwo Appiah, the 1st son of KwadwoAppiahgaveallthedisputedlandtopeople/tenantson“Abunu”tenancyagreements. 4 That when he did that they agreed that the proceeds were to be shared to the rightful owners. That even before Kweku Appiah gave the land out to tenants, he informed Bedito’s children (plaintiffs).Thattheplaintiffs showedKweku Appiahtheir landbeforehegavesameout P.W.1 saidafterthedeathofKwekuAppiah,hisbrothers(defendants)arenowclaimingthelands. That the defendants also claim now that Kwadwo Bedito (plaintiffs father) does not have any land. P.W.1 said to the best of his (P.W.1) knowledge the disputed land has been given to the plaintiffsashe(P.W.1)wastoldbyhislateuncleKwadwoBedito. In his testimony, the second and final witness for the plaintiff (P.W.2) also told the court he is Kwabena Anane and that he lives at Centre, a suburb of Nsawkaw and is a farmer. That he knows the parties herein. P.W.2 said the plaintiffs are his landlords and that the plaintiffs are siblings. P.W.2 also said he knows the disputed land which is situate at a place called “CENTRE” at Tanoso near Nsawkaw on Nsawkaw stool lands and bounded by the properties of the late Nana Kwasi Amoah to the North, the Hempene stream, to the south, the Awandede stream to the East, and Opanin Kwadwo Appiah to the West. P.W.2 said the plaintiffs brother by name Kweku Appiah gave a portion of the plaintiffs land to him (P.W.2) to farm on “ crop and share” basis. That he (P.W.2) was given the land to farm and share the produce with the plaintiffs. That the land belonged to the plaintiff’s late father. P.W.2 said after the death of the said Kweku Appiah, the defendants then started laying claims tot eh land when asked by 2nd defendant if it was his (D2) brother Kweku Appiah (now deceased) who gave the land to him (P.W.2) to farm, P.W.2 said yes and that Kweku Appiah introduced the plaintiff herein to him (P.W.2)asthelandownerandthatheshouldsharetheproceedswiththeplaintiff. 5 Intheirevidencein-chief,the2nddefendant(D2)toldthecourthewastestifyingforhimselfand the1st defendant(D1).Hetoldthecourtheis KwadwoAppiah(D2)andthatheis afarmerand isanativeof Nsawkaw. Thatheknows theplaintiff,whois thedaughterof hisfather’s brother. 2nd defendant said he knows the disputed land which is situate at a place called “CENTRE” at Tanoso, near Nsawkaw and bounded by the properties of Kwasi Amoah, Yaw Tano, Opanin Duodu, River Hempene, River Asua Tia and Kwame Kyei respectively. 2nd defendant said their latefather acquired the disputed land in its virgin state. Thathe built a cottage on the land and cultivatedmangoesandorangesonthedisputedland. That their father married Akua Konadu and gave birth to three (3) boys, namely Nana Kruh, Kwadwo Acquah and Kweku Appiah. 2nd defendant said they were children when their father died and one Opanin Kwabena Kumah succeeded their father. That in the year 1992, Kwabena Kumahcalledthethree(3)ofthem(sons)tothedisputedlandandshowedthemtheboundaries ofthelandandtheygaveabottleofschnappsas“Aseda”(ThankOffering)tothesaidsuccessor of their late father. ThatOp, Kwabena Kumah showed them the portion of the land their father gave to Yaw Tano (P.W.1), and to the plaintiff’s father, Bedito and others. That they cultivated theland from 1992 to 2003 when one Daniel Mensah trespassed andstarted layingclaims. That thesummoned himandoneTutumDagatiandweregivenjudgement. ThatlateroneKwabenaDagatialsoclaimedaportionandtheysummonedhimincourtandgot judgement. Then later one Victor Kumah summoned them (2nd defendant and Another) and their mother in court between 2016 and 2019 and judgement was entered in their (defendants) favour. 6 2nddefendantsaidtheplaintiffsoldherportionofthelandintheyear2022toadifferentperson. That the person the plaintiff sold to trespassed onto their (defendants) portion. They were then invited by the Ankobeahene of Nsawkaw and elders and they visited the land and the boundarieswerefixed. Thataftertheelders fixedtheboundaries for them, theplaintiff brought themto courtclaiming their(defendants)portionoftheland.Thatiswhatheknows. Thesole witness for thedefendants was one AkuaKonadu and thatsheis a farmerand lives at Nsawkaw. That she knows the parties. That the defendants are her (D.W.1) biological sons whilestheplaintiffisthedaughterofherhusband’sbrother.D.W.1saidsheknowsthedisputed land.ThatherhusbandKwadwoAppiahacquiredtheland. That the husband later told her (D.W.1) he had a brother (plaintiff’s father) and brought him to cultivate a portion of the land. That the husband later fell sick and called one Kwabena Kumah and told him he was going to treat himself. That the said Kwabena Kumah later succeeded her (D.W.1) husband. That Kwabena Kumah took possession of the land after her (D.W.1) husband’s death. That he also took care of the children for them to grow. He later handed it overtothe children. Upon a cursory evaluation of all the evidence, it is important to observe that the plaintiff’s herein in establishing their root of title to the disputed land have contended that the land was originallyacquiredbytheir latefatherOpaninKwadwoBeditoin its virgins stateandthattheir father set up his cottage on the land settled in same with his family including the plaintiffs hereinforfarming. 7 This was the testimony of the plaintiff and which was corroborated in greater detain by the plaintiffs first witness (P.W.1) Yaw Tano, who said the plaintiffs father was his uncle and that he(plaintiff)livedandworkedonthedisputedlandwiththeplaintiff’sfather(hisuncle)aswell astheplaintiffs.P.W.1saidtheplaintiffsarehiscousinsastheyarethechildrenofhislateuncle KwadwoBeditowhooriginallyacquiredthedisputedlandinitsvirginstate. Again, on the identity of the disputed land, it must also be stated that the plaintiff said the disputed land which their father acquired originally is situate and lies at a place called “CENTRE” at Tanoso, near Nsawkaw and it is also bounded by the properties of Nana Kwasi Amoah,theHempeneandAwandedstreamandthenthepropertyof Opanin KwadwoAppiah (the defendants father). These are the same boundaries stated by the witnesses of the plaintiff. Thisreinforcedthepositionoftheplaintiffontheidentityofthedisputedland.Itmustbenoted that the description given by the defendants of the land in dispute exactly corroborated the evidenceoftheplaintiffontheboundariesandeventhefirstwitnessfortheplaintiff,YawTano (P.W.1) who testified for the plaintiff as a boundary owner and a family member was equally mentioned by the defendants also a boundary owner. Indeed, P.W.1 (Yaw Tano) told the court that the disputed land which is situate at a place called “CENTRE” near Nsawkaw was originallyacquiredbytheplaintiff’slatefatherOpaninKwadwoBeditoandwhowashis(P.W.1) uncle.ThatthesaidBedito(plaintiff’s father)tookhim(P.W.1)tolivewithhimatthecottagehe set up on the disputed land and they farmed for years. That his uncle Bedito (plaintiff’s father) had two wives and they lived there with Bedito together with his children including the plaintiffherein. 8 Here it is important to state that this piece of evidence has not controverted by the defendants in anyway exceptthatthedefendants only statedtheir father broughtthesaidKwadwoBedito tolivewithhimafterhegavehimaportionofthelandtofarm. Thistheplaintiffrejectedandinfacttheevidenceasledbythepartiesdoesnotalsosupportthat claimbythedefendants. Thiscouldbegleanedfromtheparagraph9ofthetestimonyofP.W.1,(YawTano)insupportof thecaseoftheplaintiff.YawTano(P.W.1)inthesaidparagraph9statedthat,“whenhe(P.W.1) worked for about 6years on the disputed land he (Kwadwo Bedito) came and took his junior brotherthelateKwadwoAppiah,tothevillage”. Theninparagraph 10,P.W.1(YawTano) statedalsothat“ I knowthatmylateuncle,(Kwadwo Bedito) gaveportion of theland in dispute to his latejunior brother(Kwadwo Appiah) to work onitandtherewasabigtreecalled“DADIE”whichservedasaboundarybetweenthem. It is important to note here and very instructively. So, that the above narration by P.W.1 Yaw Tano, reflected an account of what he saw and witnessed as compared to the evidence of the defendants which is so mush of a hearsay or what they had been told. That is the say the evidence of the plaintiff as corroborated by her witnesses is more probable and concrete as againstthatofthedefendants. Indeed the defendants own evidence even alluded to the fact that they (defendants) did not know the disputed land until 1992 and after the death of their father (Kwadwo Appiah) when they weretakentothelandbytheirlatefather’ssuccessor,(KwabenaKumah)andshownsame. 9 This could be gleaned from paragraph 8 and 9 of defendants in evidence which the 2nd defendant (D2) led before the court. In paragraph 8, the defendants stated that “That we were childrenwhenourfatherdiedandOpaninKwabenaKumahsucceededourlatefather”. Then in paragraph 9 the defendants again stated as follows; “That in 1992 Kwabena Kumah called the three of us and send us to the disputed land and showed us the boundaries on the land and we gave a bottle of schnapps as “Aseda” to Kwabena Kumah, the successor of the their late father”. These ascertions (paragraphs 8 and 9) of their evidence in chief clearly shows that the defendant until the year 1992 did not know the disputed land and same was not or could not have been originally acquired by their late father Opanin Kwadwo Appiah as they claimed. It is equally important to state that the defendants (D2) also said their late father’s successor (Kwabena Kumah) also showed them the portions their father (late Kwadwo Appiah) gave to Yaw Tano (P.W.1) and the plaintiff’s father Bedito. However the evidence before this court shows that Yaw Tano (P.W.1) who testified for the plaintiffs was on the land even at the time the defendants father (Kwadwo Appiah) was alive. So even before the defendants were shown thelandindisputeanditsboundariesas 2nd defendantstated,P.W.1YawTanowasontheland and even indicated that he (P.W.1) was present when the plaintiff’s father brought his brother KwadwoAppiah(Defendantsfather)andgavehimaportiontofarm. Soitcannotbethecase,thatthedefendantswhoonlygottoknowthedisputedlandintheyear 1992andafterthedeathoftheirfatherwouldbewellversedinthehistoryandownershipofthe saidlandthanthosewhohavelivedthroughtheperiod. 10 And more importantly, the source of the claim by the defendants as to their late father’s ownership of the land, which is the said Opanin Kwabena Kumah, has not also been corroborated Kwabena Kumah was not called to testify (if he is alive) and there is also no evidence before this court that the said Kwabena Kumah farmed on the disputed land, even thoughthedefendant’ssaidheistheirlatefatherscustomarysuccessor. Itisagainimportanttoobservethatthesecondwitnessfortheplaintiff,KwabenaAnane(P.W.2) whoisatenantfarmerontheland,saidhewasputonthedisputedlandbyoneKwekuAppiah (the brother of the defendants) for and on behalf of the plaintiff’s who are his (P.W.2) land owners. That he (P.W.2) shared the produce from his farm with the plaintiffs as his (P.W.2) landlordfromthetimeKwekuAppiahshowedhim(P.W.2)theland.Hedidthisuntilthedeath of Kweku Appiah(defendants brother) whenthedefendant hereinstarted layingadverseclaim to the land. P.W.2 contended that disputed land is the property of the plaintiffs herein and this was what the said Kweku Appiah told him (P.W.2) at the time Kweku Appiah showed him (P.W.2)thelandtofarm. Itis alsoimportantandinstructivetoobservethatthedefendants statedthattheyweretakento the disputed land and shown the boundaries of the land by on Opanin Kwabena Kumah, who succeeded their (defendants) late father customarily. And that they (defendants) presented a bottle of schnapps to the said Opanin Kwabena Kumsah as “Aseda”. And that he also showed them the portions their (defendants) father gave to Yaw Tano (P.W.2) and the plaintiffs father Bedito, as well as their late father’s family. If the defendants stated they were shown the boundaries of the land in dispute as well as the various portions they claimed their father gave to the plaintiff’s father and P.W.2 among others, then clearly that is an admission that the 11 defendants herein did not know the boundaries and for that matter the identity of the land in dispute. They therefore did not have any personal knowledge of how their father went on the land. All what the defendants know about the land is what they have been told as they them selves admittedintheirevidenceinchief.(Seeparagraphs8and9of2nddefendant’switnessstatement now his evidence). Indeed, it must be noted that the defendants said in paragraph 8 of their evidenceinchiefthattheywerechildrenwhentheirfatherdiedandthatitwasintheyear1992 thattheirlatefather’ssuccessorwentandshowedthemtheland. This means that apart from the fact that the defendants had no idea of how their late father got onto the land, they the defendants also did not know the disputed land and infact had never farmed on same until the year 1992 when they claimed one Kwabena Kumah showed them the land. It is again important to state that, even if granted that the defendants father acquired the disputed land and farmed on same, there are boundary owners on those who share boundary onthelandwiththeirlatefather.Noneoftheseboundaryownerswascalledbythedefendants. As a matter of fact one of such boundary owners named by the defendants, who is Yaw Tano was rather called by the plaintiff and who infact testified that the disputed land is the property of the plaintiffs. So obviously, it could not have been the case as claimed by the defendant that theirlatefathergavetheportionthatYawTano(P.W.2)isontohim(P.W.2). Finally, it must be stated that the court judgement that the defendants mentioned in the 4th paragraph of their evidence and which judgement they said was rendered in a land case 12 involving one Victor Kumah (as plaintiff) Vs Appiah, Akua Konadu and Kwadwo Acquah appearsnottobeexactlyaboutthesamelandastheoneindisputenow,fromthedescriptionof thelandaspertherelief@inthesaidjudgement. Again, the plaintiff in that case (Victor Kumah) has not been described by the defendants as having any relationship with the plaintiff herein. Therefore this court struggles to see any relevance of that judgement to this instant case. From the evidence therefore, I found the followingasfacts; (1) Thatthepartieshereinarerelatedastheyarecousinbecausetheirfatherswerebrothers. (2) Thattheirfatherwhowerebrothers farmedintheareadescribedbytheplaintiff intheir particularsofclaimwiththeoriginallyacquiredbytheplaintiff’sfather. (3) Thattheplaintiff’sfathergrantedaportiontothedefendantsfathertofarmasabrother. (4) Thattheportionindisputewaspartoftheplaintiff’sfather’slandandhefarmedon. In a civil trial including that involving land, the party who in his/her writ of summons or pleadingsraiseissuesthatareessentialtothesuccessoftheircaseassumesoftheonusofproof: SeeFaibiVsStateHotelsCorp{1968}GLR,176. This law as stated above is a reinforcement of the provisions of sections 11 (4) and 12 (1) of the EvidenceAct,1975(NRCD323)ontheburdenofprove. Section11(4)statesthat; “ In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existenceofthefactwasmoreprobablethanitsnon-existence”. 13 Then Section 12 (1) states that “Except as otherwise provided by law, the burden of persuasion requiresproofbythepreponderanceofprobabilities”. In assessing the balance of the probabilities therefore all the evidence adduced is considered and the party in whose favour the balance tilts ought to be adjudged as deserving of a favourableverdict. This case being a land case, the law appears settled, that where a party claims ownership of land,thatpartymustproofthefollowing; (a) His/herrootoftitletotheland; (b) Incidenceofhis/heracquisitionoftheland; (c) Provideevidenceofactsofunchallengedpossessionofthedisputedland. See:herethecaseofNanaAnuaGyebuXVVsMondialVeneerCo.Ltd{2011}32MLRG,84SC. The Supreme Court has also held in the case of Ogbamey Tetteh Vs Ogbamey Tetteh {1993-94} GLR, 353, that “in an action for the declaration of title, a plaintiff who failed to established the rootoftitlemustfailbecausesuchdefaultwasfataltohiscase”. In relating the law as statedabove to the evidenceas led beforethe court, it must be stated that the plaintiff herein has proved her root of title to the land and has led sufficient evidence to show their been in continuous possession of same until recently when the defendants herein triedtolayadverseclaimtotheland. It is therefore the conclusion of this court, having regard to the law and the evidence that the plaintiffhasprovedherclaimsandjudgmentisherebyenteredfortheplaintiff. 14 Thereasonsfortheaboveconclusioninclude; (1) Thatthedisputedlandwasacquiredbytheplaintiff’slatefather; (2) Thathesetuphiscottageonthelandandfarmedonsamewithhisfamily. (3) Thateventhoughtheplaintiff’sfatherlatergrantedportionsofthelandtootherpersons including the defendants late father who was his brother the disputed portion was cultivatedbytheplaintiffsfather. (4) Thatitisnotthecasethatthedefendant’sfatheracquiredthedisputedland. (5) That the plaintiff proved her claims on the preponderance of the probabilities and as requiredbylaw. Thefollowingorders/declarationsaremade; (1) The disputed land described by the plaintiff in their particulars of claim, is the property oftheplaintiff. (2) Thattheplaintiffshalltakepossessionofsame. (3) That the defendants their heirs, assigns, workmen, labourers etc are henceforth restrainedperpetuallyfrominterferingwiththesaidlandinanywayorform. (4) CostofGH₵2,000.00isawardedagainstthedefendantsandfortheplaintiff. …………SGD……………… ISSAHABDUL-WAHAB (MAGISTRATE) 15 16