Emmanuel Ritalford Yaw Opare (suing as Principal Elder of Nana Annor Kwesi Family) v Nana Okatakyie Bekoe II & Wamp Investments Ltd

The Plaintiff, on the 7th day of June 2023 caused a Writ of Summons and Statement of Claim to issue against the Defendants: The Plaintiff claims against the Defendants for the following reliefs:

a) A declaration that, the piece or parcel of land situate, lying and being at Obosomase-Pongpong in the Akuapem North District in the Eastern Region of the Republic of Ghana covering an approximate area of 10.30 Acre (s) or 4.17 Hectare

(s) more or less bounded on the North-East by Vendor’s land measuring (85.00, 221.72, 323.15 and 272.18) feet more or less on the South-West by Vendor’s land measuring 269.01, 209.10 and 150.64) feet more or less on the North-West by Vendor’s land measuring (197.95, 142.93, 171.89 and 92.93) feet more or less on the South-East by Vendor’s land measuring 285.2 feet more or less belongs to the Plaintiff’s family.

b) A declaration that the parcel of land situate lying and being at Obosomase measuring 6.96 Acre (s) or 2.79 Hectare (s) more or less bounded on the North-East by Vendor’s land measuring (258.0, 264.8, (258.0, 264.8, 245.2) feet more or less on the South-West by Vendor’s land measuring (597.0, 330.1) feet more or less on the North-West by Vendor’s land measuring 393.8 feet more or less on the South-East by Vendor’s land

measuring 285.2 feet more or less on the South-East by Vendor’s land measuring 285.2 feet more or less belongs to the Plaintiff’s family.

c) An order of perpetual injunction restraining Defendants from dealing or interfering with Plaintiff’s family land.

d) An order directed at the Lands Commission to cancel and or expunge from its records the 4th March, 2010 deed of lease and any other instruments from the Defendants affecting Plaintiff’s family land herein above described.

e) Damages for trespass.

f) Cost including legal fees.

The 1st defendant was served personally with the writ of summons and statement of claim on the 3/07/2023 and the 2nd defendant was served with the writ of summons and statement of claim through its secretary called Jerry on the 3/07/2023. Subsequently the plaintiff to ensure the 2nd defendant company had been properly served, again served 2nd defendant by substituted service on the 8/04/2024.

An official search conducted at the registry of this honourable court on the 27th June, 2024 indicated that the defendants failed and/or neglected to enter appearance neither did they file statement of defence.

The Plaintiff on the 1st July, 2024 applied to this honourable court for the suit to be set down for trial. The said application on notice to set down the matter for trial was served on the 1st defendant personally on the 9th July 2024. The 2nd defendant was served on 9th July 2024 through Juliana (secretary) at Accra and also through substituted service by posting same on the disputed land.

Subsequently, on 26th July, 2024, the matter was set down for trial. The Trial for the suit was scheduled for 30th October, 2024 with an order of the court to serve all processes on the 2nd Defendant by substituted service as well.

The Defendants in this suit were served with several hearing notices and in some instances court notes especially on 14/03/2025, 13/02/2025, 13/01/2025, 20/11/2024, 25/10/2024, and 9/10/2024, but they failed to attend court. It is trite that the court is empowered in instances where the defendants fail to attend court/trial to defend themselves to allow the plaintiff to prove their claim. This court after the defendants failed to attend court despite having notice went ahead to hear the suit. The court allowed the Plaintiff to lead evidence to proof his case.

The brief background and facts as presented by plaintiff:

The Plaintiff in this suit is Emmanuel Ritalford Yaw Opare, Principal Elder of Nana Annor Kwesi family of Obosomase-Akuapem. The 1st and 2nd Defendants are trespassers laying false claims to two separate portion of the Plaintiff’s family land. The Plaintiff brings this action in his personal capacity and in his representative capacity as a Principal Elder of the Plaintiff’s family. The Plaintiff avers that, the Plaintiff’s family are the owners of all that piece of land situate, lying and being at Obosomase-Pongpong in the Akuapem North District in the Eastern Region of the Republic of Ghana covering an approximate area of 10.30 acres (s) or 4.17 Hectare (s) more or less bounded on the North-East by Vendor’s Land measuring (85.00, 221.72, 323.15 and 272.18) feet more or less on the South- West by Vendor’s land measuring 269.01, 209.10 and 150.64) feet more or less on the North-West by Vendor’s land measuring (197.94, 142.93, 171.89 and 92.93) feet more or less on the South-East by Vendor’s land measuring 285.2 feet more or less on which piece or parcel of land is more particularly delineated on the Plan.

The Plaintiff further avers that the Plaintiff’s family are the allodial owners of a parcel of land situate lying and being at Obosomase measuring 6.96 Acres or 2.79 Hectare (s) more or less bounded on the North-East by Vendor’s land measuring (258.0, 264.8, 245.2) feet more or less on the South-West by Vendor’s land measuring (597.0, 330.1) feet more or less on the North-West by Vendor’s land measuring 393.8 feet more or less on the South- East by Vendor’s land measuring 285.2 feet more or less on which piece of parcel of land

is more particularly delineated on the Plan. The Plaintiff avers that, the Plaintiff’s family acquired the aforementioned family land first by discovery. The Plaintiff avers that the Plaintiff’s family generally farms on the land. The Plaintiff’s family have been in effective possession and occupation of the family land and exercised right of ownership over same.

At the trial the plaintiff himself testified and called one witness. Plaintiff witness (PW1) was Stephen Asamani.

The Plaintiff testified that the 1st Defendant caused the Lands Commission to register a deed of lease dated 4th March, 2010 in favour of the 2nd Defendant. The Plaintiff avers that, the Lands Commission registered the 4th March, 2010 deed of lease by mistake. That, the 1st Defendant without any authority from Plaintiff’s family, by two separate deed of lease dated 4th March, 2010 and dated 8th April, 2010 respectively, have alienated the land described in the first and second schedules to the 2nd Defendant. The Plaintiff also testified that, the Lands Commission registered the 4th March, 2010 deed of lease by mistake. The Lands Commission was not aware that 2nd Defendant’s grantor had no interest in the land in dispute to give to the 2nd Defendant and exhibited the said lease and the search report as Exhibit “A1” and “A2” respectively. Also, the Lands Commission was not aware that the Plaintiff’s family is in possession of the disputed land. Further, the 1st Defendant's alienation of the disputed land to the 2nd Defendant is fraught with fraud. This is because the 1st Defendant is aware that he has no interest in any portion of the Plaintiff’s family land which includes the disputed land which was granted to the 2nd Defendant.

The Plaintiff’s case is that, the 1st Defendant again has fraudulently alienated the disputed land to the 2nd Defendant. It is also the Plaintiff’s case that his family acquired the land by first discovery. The Plaintiff further says that, his family generally farms on the family land and have been in effective possession and occupation of the family land and exercised right of ownership over same and same has been handed over from generation to generation for farming. The Plaintiff’s Exhibit ‘C’ shows photos of farming activities ongoing by family members.

In support of the Plaintiff’s case, PW1, Stephen Asemani, testified that he is the head of Nana Otopa Kwao family of Obosomase-Akuapem. He further testified that he has known the Plaintiff’s family as a neighbor and that, the Plaintiff has been in possession of their land for generations and their family members farm on the disputed land.

LAW

Section 10 - 12 of NRCD 323 defines the Burden of Persuasion as:

10 “(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.

11(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.

(3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt.

(4) 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 existence of the fact was more probable than its non-existence.

12 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2)  "Preponderance of the probabilities" 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.”

The law relating to standard of proof in civil matters without exception is proof by preponderance of probabilities having regard to sections 10, 11 and 12 of Evidence Act, 1975 (NRCD 323). Section 11 states among other things that, for the purposes of the Act the burden of producing evidence mean the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. Section 12 instructs that unless otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities which means the 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.

See: ADWWUBENG v DOMFEH (1996-97) SCGLR 660.

See also: AVADZINU vrs. NYOONA (2010) 27 GMJ 132CA

The Supreme Court in the case entitled DON ACKAH VRS PERGAH TRANSPORT LTD (CIVIL APPEAL NO. J4/51/2009) 21st April 2020 held as follows:

“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 may fail. The method of producing evidence is varied and it includes the testimonies of the party 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 learning 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 reasonable than its non-existence.”

In an action for a declaration of title to land, the burden of proof and persuasion remained on the plaintiffs to prove conclusively, that on a balance of probabilities, he was entitled to his claim of title. This he could do by proving on the balance of probabilities the essentials of their root of title and method of acquiring title to the area in dispute. The expression burden of persuasion can therefore be interpreted to mean the quality, quantum, amount, degree or extent of evidence the litigant is obliged to adduce in order to satisfy the requirement of proving a situation or a fact. See: AGO SAI & OTHERS v KPOBI TETTEH TSURU III [2010] SCGLR 762 at 779. See also: Fred Obikyere in his Book, Legal Resource Book: The Law as Decided by The Superior Courts in Ghana pages 150,151, 164.

It therefore means that in assessing the balance of probabilities, all the evidence of both the plaintiff and defendant must be considered and the party in whose favour it tilts is the person whose case is more probable of rival version and is deserving of a favourable verdict. See: Takoradi Floor Mills vrs Samira Faris (2005-2006) SCGLR 682 @ 900.

I have considered section 10, 11 and 12 of Evidence Act, 1975 (NRCD 323) and arrived at this finding of the facts as stated below. In arriving at these findings of facts, I have also taken into consideration written address filed on behalf of the plaintiff. From the entire evidence before the court, I make the following findings of fact: -

• The Plaintiff’s family generally through his agents have been farming on the disputed parcel of land.

• The 1st Defendant together with heads and lawful representatives of Asona, Aduana Abrade and Asona families respectively of Odumase per the records at Lands Commission has registered a deed of lease dated 4th March, 2010 in favour of the 2nd Defendant.

• There are two search reports from the lands commission dated 21st November 2022 respectively which confirm that the said 1st Defendant, Okatakyie Bekoe II & ORS as lessors have alienated to the 2nd Defendant as lessee the disputed lands within a deed of lease dated 4th March 2010 and a second deed of lease dated 8th April, 2010 respectively.

• The Plaintiff has not exhibited/tendered any formal/and or registered document and or site plan in their name save to state that the Plaintiff’s family acquired the aforementioned family land first by discovery. That the Plaintiff’s family have been in effective possession and occupation of the family land and exercised rights of ownership over same.

ANALYSIS

The established principle of law requires the plaintiff to lead clear evidence as to the identity of the land claimed. In declaration of title to land the plaintiff apart from the identity and the limits of the land is also to prove the following:

a. Root of title must be disclosed

b. Incidence of purchase if acquired by sale or tradition of acquisition if inherited.

c. Evidence of acts of unchallenged possession.

See: Odoi v Hammond (1971) 1 GLR 375

Antwi v Abbey (2010) 27 MLRG 89 SC

The Plaintiff, desirous of proving his case testified that, the 1st Defendant without any authority from his family, by a lease dated 4th March, 2010, has alienated the land described to the 2nd Defendant who has received the said deed of lease. The Plaintiff also testified that, the Lands Commission registered the 4th March, 2010 deed of lease by mistake. The Lands Commission was not aware that 2nd Defendant’s grantor had no interest in the land in dispute to give to the 2nd Defendant and exhibited the said lease and the search report as Exhibit “A1” and “A2” respectively. Also, the Lands Commission was not aware that the Plaintiff’s family is in possession of the disputed land.

Further, the 1st Defendant's alienation of the disputed land to the 2nd Defendant is fraught with fraud. This is because the 1st Defendant is aware that he has no interest in any portion of the Plaintiff’s family land which includes the disputed land which was granted to the 2nd Defendant.

It is the Plaintiff’s case that his family acquired the land by first discovery. The Plaintiff further testified that, his family generally farms on the family land and have been in effective possession and occupation of the family land and exercised right of ownership over same and same has been handed over from generation to generation for farming. The Plaintiff’s Exhibit ‘C’ shows photos of farming activities ongoing though it does not explicitly depict the said farming activity is by the plaintiff’s family members and agents.

In support of the Plaintiff’s case, he also called PW1, Stephen Asemani, who testified that he is the head of Nana Otopa Kwao family of Obosomase-Akuapem. He further testified that he has known the Plaintiff’s family as a neighbor and that, the Plaintiff has been in possession of their land for generations and their family members farm on the disputed land. Where a party’s right is infringed upon for a long period and he fails to protest culminating in the one who infringed upon his right to believe that he would never complain, equity in such circumstances would grant protection against such stale claims. Also where Members of family stand by without raising any objection and another party or family acts or expends money the family is estopped from laying claim to the land as developed.

See: QUANSAH v. ADADEIWA [1966] GLR 184-194.

One of the questions this honourable court is graveling with is this; that should the Plaintiff be able to successfully establish ownership would their interest in the land the subject matter in dispute, if any, not have been extinguished by virtue of the Operation of Acquiescence and laches and/or estoppels by conduct. This is because plaintiff family members and their agents have watched the 1st defendant and others take possession of the land, duly registered same and have since alienated the land to a third party being the 2nd defendant herein for over 12 years without challenging their claim.

Fraud: It is trite law that fraud vitiates all dealings. Section 13(1) of the Evidence Act 1975 (NRCD 323) provides that, in any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. In the case of NANA ASUMADU II (DECEASED) AND NANA DANYI QUARM IV (DECEASED) vs. AGYA AMEYAW [2019] DLSC 6295, Appau JSC

explained the law on fraud as follows:

“In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a criminal wrong. Fraud, be it civil or criminal, has one connotation. It connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact, does rely to the harm of the victim. It is therefore criminal in nature even where it is clothed in civil garbs…”. Also in the case of AIKINS v. DARKWA [2013] 58 GMJ 187 at 209 & 211 explains the point in this regard. Ayebi JA stated in this case as follows: “Fraud it is known is a serious crime to be charged against another. That is why the law requires in section 13(1) of NRCD 323 that if fraud is alleged even in a civil suit, what amounts to fraud has long been settled IN DERRY v PEEKS (1889) 14 Appeal cases 337. At page 37, Lord Hershell said: “Fraud is proved when it is shown that a false representation has been made (i) knowingly or (2) without belief in its truth or recklessly, careless whether it be true or false...”

In the case of OKUDZETO ABLAKWA (NO 2) & ANOTHER v ATTORNEY GENERAL & ANOTHER (NO 2) [2012] 2 SCGLR 845 the Supreme Court stated that as follows: “What this rule literally means is that if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted…”

It is the view of this honourable court that the plaintiff failed to lead any cogent evidence to support their assertion of fraud against the defendants save to aver that the 1st Defendant is aware that he has no interest in any portion of the Plaintiff’s lands inclusive the disputed land to grant to the 2nd Defendant. That the Defendants have evinced the intention to deprive Plaintiff’s family of a portion of their lands.

Sections 5 (2)(3) and 10 (1) of the Limitation Act, 1972 (NRCD 54) provides as follows: Section 5—Actions Barred after Twelve Years.

“..… (2) An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable.

(3) An action shall not be brought to recover proceeds of the sale of land after the expiration of twelve years from the date when the right to receive the money accrued…”

Section 10—Recovery of Land.“…

(1) No action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person….”

Per section 10 (1) of the Limitation Act, 1972 (NRCD 54) no actions may be instituted to recover land after the expiration of twelve years commencing from the date on which the right of action accrued.

The Rules specifically state that any limitation provision, fraud, or any fact showing illegality must be specifically pleaded and the evidence based upon the burden of proof be weighed and considered.

Order 11 rule 8(2) of C.I. 47 states: “Matters to be specifically pleaded

8. (1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality

(a) which the party alleges makes any claim or defence of the opposite party not maintainable; or

(b) which, if not specifically pleaded, might take the opposite party by surprise; or

(c) which raises issues of fact not arising out of the preceding pleading.

(2) Without prejudice to subrule (1), a defendant to an action for possession of immovable property shall plead specifically every ground of defence on which the defendant relies, and a plea that the defendant is in possession of the immovable property in person or by a tenant shall not be sufficient.”

It is apparent from the above that the Plaintiff has failed to establish the right to the land considering the scanty/and or no traditional evidence adduced by the Plaintiff. The court is therefore of the considered view that the Plaintiff cannot be granted the reliefs he seeks. The court arrived at this conclusion on the basis that, granted without admitting, the lands in dispute was acquired by the aforementioned Nana Annor Kwesi family of Obosomase-Akuapem the Plaintiff’s family by discovery; the Plaintiff would be caught by Section 26 of the Evidence Act 1975 (NRCD 323) on Estoppel by conduct. In the case of AGO SAI & OTHERS v KPOBI TETTEH TSURU III [2010] SCGLR at 797 the Supreme Court per Rose Owusu JSC (as she then was) emphasized the circumstances under which section 26 of the Evidence Act applies and stated as follows;

“If the La stool stood by and did not challenged the acts of Ogbojo chief who was dealing with the land owner, even if the land did not belong to him and his people, then I agree with the trial judge that the stool is caught by laches and acquiescence and is therefore estopped by conduct from laying claim to the whole of but not only some grants of Ogbojo lands. It is pertinent to refer to section 26 of Evidence Act, 1975 (NRCD 323)”

In applying Section 26 of the NRCD 323 as espoused in the AGO SAI case to the instant suit where plaintiff is asserting that the Nana Annor Kwesi family of Obosomase- Akuapem acquired the land by discovery, The Plaintiff led no or very little traditional history in his bid to establish their ownership of the land. The PW1 in his testimony said the portion of the land that the Defendant has trespassed onto is part of the larger portion of the Plaintiff’s family land located at Obosomase–Pongpong in the Akuapim North District in the Eastern Region. PW1 further testified that he is the head of the family of the Nana Otopa Kwao family of Obosomase-Akwapim. That his family land shares boundary with the Plaintiff’s family on the South–West and on the North-West. PW1 testified that he has known the Plaintiff’s family as a neighbor. The Plaintiff’s family have been in possession of the land for generations and their members’ farm on the disputed land as a neighbor.

In measuring the success of a case in which traditional history as evidence is adduced the courts are to use the evidence of living or recent memory to satisfy itself that the party has been able to prove his case by a preponderance of probabilities. Thus, the best way is to test the traditional history by reference to the facts in recent years as established by evidence.

The court must in assessing Traditional evidence examine the events and acts within living memory established by the evidence, paying particular attention to undisputed acts of ownership and possession on record;

See: Dennis Dominic Adjei: Land Law, Practice and Conveyancing in Ghana, 2nd Ed page 148-149

See also: In re Taahyen & Asaago Stools: Kumanin II (substituted by) Oppong vrs Anin [1998-99] SCGLR 399.

In this instant suit the Plaintiff in his testimony to proof ownership merely mentioned that the Plaintiff’s family are the allodial owners of both parcels of disputed lands. He however fell short to lead any evidence to support this assertion thus failed to lead sufficient evidence to establish same by way of showing documentary and things (often described as real evidence) or leading traditional evidence to show the history of the land and its acquisition. Such cogent evidence in recent memory to support the assertion of Plaintiff on the traditional evidence was required by the Plaintiff so he could largely be relied upon by Plaintiff was necessary for the proof of the credibility of the testimony of the Plaintiff. This was significantly absent.

The Plaintiff in this instance therefore has not succeeded to establish the requisite degree of credibility concerning the facts of their case in the mind of the Court. Suffice to state that section 48 of NRCD 323 gives the presumption that the person in possession is the owner. This rebuttable presumption places the duty to discharge the burden of proof of title on the Plaintiff.

The person in possession of property is presumed to be the owner of the disputed land and or maintains an action against everyone except the true owner. For the person claiming to be the true owner to be adjudged the owner of the land by the court, he must adduce evidence to rebut the presumption that even though he is not in possession, he is the owner of the property. In this case even though the Defendant failed/neglected to show up in court to give a contrary or conflicting evidence, the burden to proof ownership was on the Plaintiff.

In conclusion, considering the evidence before the court, the Plaintiffs failed to lead sufficient evidence to prove beyond preponderance of probability his claim before the court. The court from the scanty evidence adduced presently is not able to adjudge who the true owner of the said lands describes in the schedules above are for now.

I therefore would dismiss Plaintiff case and make no orders as to the ownership of the land.

No order as to costs.