Agnes Amma Gyimah v Benjamin Asamoah & Another

On 22nd August 2024, the Plaintiff in this matter took out a writ against the Defendants herein seeking the following reliefs:

a. Declaration of title, ownership, and recovery of possession to four acres of land lying and being at Osaeso-Bomkpo Larteh-Akuapim North District in the Eastern Region of Ghana which plaintiff is legitimate owner. The lan di sounded as follows:

On the north by Akor Kwadwo from Abekyede clan On the eastern side by Otu Bromu land

On the southern part by Agyebiri family cemetery On the western part by the property of Peter Quao

b. Perpetual injunction restraining the Defendants, their agents, assigns, and all those who claim authority from the defendants from entering and having anything to do with the plaintiff’s land.

The Plaintiff complains that the land in dispute has been confirmed as hers through an arbitration of a dispute between herself and one Dr Okanta at the Akuapem Benkum Traditional Council. She subsequently realised that the Defendants are on the land so she reported the matter to Abusuapanyin Kofi Asiedu and Abusuapanyin Atta Sarpong and the Defendants told them they had bought the land from one Kudjo aka Talk to me.

Unfortunately, the said Kudjo passed away before the elders could meet with him over the issue. Defendants have refused to leave the land even though Plaintiff has made it abundantly clear that the land was not Kudjo’s to sell to them.

The Defendants pleaded not liable to the Plaintiff’s claims. They insisted that they were not parties to the arbitration that took place at the Benkum Palace so the award could not be binding one them. They insisted that grantor was the rightful owner of the land in dispute. They also insisted that the person who had shown the Plaintiff the boundaries of her land, Okyeame Kofi, had confirmed to them that the parcel of land they were farming on did not form part of her land.

Issue

The sole issue for determination by this court is whether the Plaintiff is entitled to a declaration of title to the land in dispute.

Evidentiary burden

Section 14 of the Evidence Act, 1975 (Act 323) provides that except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.

In the case of Serwah v Kesse (1960) GLR 227, the Supreme Court stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. They laid down the following tests for who bears this burden: “The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted in Stroud, Judicial Dictionary (3rd. ed.) p. 1996.”

Accordingly, the Plaintiffs bear the burden of proof in this matter. Section 11(1) of Act 323 explains the burden of persuasion as the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue. This being a civil matter, the Plaintiffs are required to prove their case upon a preponderance of probabilities in accordance with section 12 of the Evidence Act, 1975 (NRCD 323).

Whether the Plaintiff is entitled to a declaration of title to the land.

In the case of Adjei Vrs Hosunu & Another [2023] GHAHC 250 (13 February 2023), Owoahene-Acheampong, J. stated the position of the law in an action for declaration of title to land thus:

“in land litigation where claims have been made for declaration of title and an order for perpetual injunction, the claimant is enjoined by law to effectively satisfy three key or major requirements, namely;

i. Acquisition

ii. Identity and

iii. Possession,

in order to be entitled to his/her claim.

The learned judge then quoted the following holding of the Supreme Court in Mondial

Veneer (Ghana) Ltd v Gyebi XV [2011] 1 SCGLR 466.

“In land litigation, even where living witnesses directly involved in the transaction had been produced in Court as witnesses, the law would require the person asserting title and on whom bear the burden of persuasion, as the Defendant’s company in the instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It was only where the party had succeeded in establishing those facts, on the balance of probabilities that the party would be entitled to the claim.”

The Plaintiff did not lead any evidence on how she had acquired the land in dispute, and neither were any documents tendered to prove ownership of the land. The arbitration report which the Plaintiff tendered into evidence does show that a certain parcel of land does belong to Nana Debra’s family. However, the arbitration report does not describe the subject matter land the decision relates to. I am therefore unable to conclude, on the basis of the arbitration report, that the subject matter land of the present dispute is the same as the land that the arbitration decision was in respect of. From the testimony of the Plaintiff’s Attorney and his answers to the questions he was asked under cross-examination, it is clear to the court that neither the Plaintiff nor the Plaintiff Attorney knew the boundaries of their land. This bit of the cross-examination of the Plaintiff Attorney refers:

Q. Were you the one the person who showed you the boundaries of your land showed it to?

A. It was by older brother, Frederick Aryeh that he showed it to. Subsequently Adjei Samuel was also shown the land. When they got to the land, some cocoa and nut neg had been cultivated by the Defendants on the land. He asked about the farms and was told the farms were part of our land.

The said Frederick Aryeh was called by the Plaintiff to testify as PW3. His testimony was a follows:

What I know is that we have land and the Defendants share a boundary with us. Our land was under the control of some people and we went to discuss, so we settled the boundary issue. Nana Kyeame Frimpong showed us our boundary before we went to cultivate the land. Where Nana Frimpong showed us to be ours does not include where the Plaintiff, my siblings are claiming to be ours. The land that Nana Kyeame Frimpong showed us is what was given to us. Plaintiff should have asked me to show him the boundaries of our land but he did not. I am the one tasked with everything concerning our land.”

It is clear from the Plaintiff’s own witness that the land in dispute does not belong to her. This fact was further buttressed by the testimony of the very same Okyeame Kofi Frimpong who had been mentioned as the person who showed PW3 the boundaries of Plaintiff’s land. He testified in favour of the Defendants and that the land in dispute does not belong to the Plaintiff.

Consequently, on the basis of the evidence before me, I find that the Plaintiff has failed to prove her acquisition, identity and possession of the land in dispute. I find that the land in dispute does not belong to the Plaintiff and accordingly, I hold that the Plaintiff is not entitled to any of her reliefs. Cost of GHS10,000 is awarded against the Plaintiff.