JUDGMENT

The Plaintiff commenced the instant action in his capacity as the Head of family of the immediate (maternal) family of the defendants, for and behalf of the principal elders of the family. By the endorsement on his amended writ of summons filed on 13/02/2014, he claimed 1/3 of the sum of GH¢40,000 and 1/3 of the sum of GH¢20,000.00 paid to the Defendants for the disturbance of surface rights in respect of family land occupied by the Defendants.

The Plaintiff’s case as contained in the amended statement of claim is that the land in issue formed part of land which devolved according to customary law to the parties’ maternal family following the death of one Opanin Kwaku Bonsu who originally cultivated the land. The land has been under the control of various heads of family. A decision was taken at a family meeting to the effect that family members in actual occupation will receive 2/3 of any compensation paid in respect of the land whilst 1/3 of the compensation will be paid to the family coffers. It is the Plaintiff’s case that a small scale mining firm with a Minerals Prospecting license paid compensation to the Defendants for the disturbance of surface rights and crops. According to the Plaintiff, other family members who received compensation duly paid 1/3 to the family except the Defendants herein.

The Defendant’s version of the story is that they did not receive any compensation for the disturbance of surface rights but they were compensated for the destruction of their tree crops.

The defendants alleged that the Plaintiff is head of family but not as a result of consanguinity. He was brought into the family by his mother Akosua Nyarko, who came to live with the Defendants’ great grandmother, Fosua (deceased). He was made head of family when there was no male adult in the family and family cocoa farms were entrusted to him. These cocoa farms formed part of a larger piece of land which two children of Fosua, namely Akua Adehye and Opanin Kwaku Bonsu (both deceased), reduced into cultivation as part of Yawkrom stool lands. When Opanin Kwaku Bonsu passed on, Akua Adehye (deceased) remained in effective cultivation. The Defendants are descendants of Akua Adehye through her daughter, Yaa Pokua. They denied the Plaintiff’s story that he permitted them to farm on the land because it was their mother, Yaa Pokuaa, who in her life time allowed them to reduce portions of the land into cultivation. Hence, they are not liable to pay any compensation to the family. It is also their case that the Plaintiff is estopped by collateral estoppel as the same matter had been arbitrated upon before the Manso Nwanta Traditional Council and Plaintiff lost.

By way of Reply, the Plaintiff admitted that the land in issue was originally cultivated by Akua Adheye and Opanin Kwaku Bonsu (both deceased) and that he is in control of the land by virtue of his position as head of family. Further, the Plaintiff stated that there has not been any arbitration in respect of the land in dispute before the Manso Nkwanta Traditional Council. Instead, he summoned the 1^st Defendant in respect of an earlier concession she sold. The 1^st Defendant put up a defence that she sold the land to take care of her sick child so the Plaintiff allowed her to keep the money.

Four issues were set down for trial, namely:

1. Whether or not Plaintiff is the Head of Defendant’s family?

2. Whether or not the land in dispute is Family land or was held in trust by Plaintiff for the Family of Akua Adehye, the grandmother of the Defendants?

3. Whether or not it was a family decision that any member who gave out his/her land for mineral prospecting would pay 1/3 of the compensation for the maintenance of the family?

4. Whether or not the Plaintiff is entitled to 1/3 of the said compensation?

The Plaintiff’s capacity

The first issue set down for trial is whether or not the Plaintiff is the Head of Defendant’s family. In my view, this fact is no longer in contention as a result of the Defendants amended statement of defence filed on 17/12/2013. By paragraph 4 of the said process, the Defendants averred as follows:

“Defendants admit paragraph 2 of the statement of claim but say in addition that plaintiff is their family head not as a result of consanguinity.”

Paragraph 2 of the Plaintiff’s amended statement of claim reads:

“The 1^st and 2^nd Defendants are farmers and members of the family of which the Plaintiff is the Head of Family”.

Both Defendants admitted on oath that the Plaintiff was their head of family and/or caretaker, not of consanguinity, from 1960 until he was removed in the year 2013. DW4, Kwabena Anane Pep rah also told the court that he was appointed Head of Family on 20/10/2013, one week after the Plaintiff had been removed as head of family. Even though the Plaintiff has challenged the said removal as head of family, it is my considered opinion that at the time the writ of summons was issued on 15/03/2013, the Plaintiff was the head of family of which the Defendants are members. Whether or not he has been removed as Head of Family is not an issue before me.

Next, I will determine whether or not the land in dispute is Family land or was held in trust by Plaintiff for the Family of Akua Adehye, the grandmother of the Defendants?

Contrary to the submissions of Defendant’s counsel that there is no land dispute before this court, I hold the view that the basis of the Plaintiff’s claim is payment of compensation in respect of the family’s surface rights. This puts ownership of the land in issue and the court must make a determination to that effect.

This being a civil suit, the Plaintiff who alleges that the land is family land, bears the evidential burden as well as the burden of persuasion. It is the duty of the Plaintiff to establish that his assertion, which has been denied by the Defendants, is true. See Continental Plastics v IMC Technique GMBH (2009) SCGLR 298 at 307 per Georgina Woode CJ; Yaa Kwesi v Arhin Davies ( 2007-2008) SCGLR 50; In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors ( 2003-2004) SCGLR 420; West African Enterprises Ltd v Western Hardwood Enterprises Ltd. ( 1995-96) SCGLR 153, CA and Adwubeng v Domfeh ( 1996-97) SCGLR 660.

The Plaintiff led oral evidence in discharging this burden. His evidence is that when he became Head of family, he was entrusted with certain properties and that his uncle whom he inherited gave him seven cocoa farms. He continued that members of the family are allowed to cultivate portions of this land provided he is informed. Personally, Plaintiff said he has not cultivated any portion of the land but the family agreed that one of the seven cocoa farms be sold and the proceeds shared in an agreed manner. He tendered exhibit A as evidence of the Family Cocoa farm which was sold. A subsequent oral agreement was made by the family as regards the disposal of family land.

The Defendants traced their ancestry to one Nana Pokuaa. Nana Pokuaa had two children, name, Kone and Fosuaa. Fosuaa is the mother of Akua Adehye (deceased). The said Akua Adehye is the mother of the Defendants herein. The Defendants emphasized that at the time of their mother’s death, Akosua Nyarko (Plaintiff’s mother, deceased), had more or less become part of their family. Since there was no adult male in the line of Akua Adehye, her son, the plaintiff herein, was entrusted with the family’s seven cocoa farms. Continuing, the Defendants testified that the portion of land which they farmed on was given to them by their late mother and did not form part of the land entrusted to the Plaintiff.

From the pleadings and the evidence on record, the following facts are not in dispute: Opanin Kwaku Bonsu and Akua Adehye who were siblings reduced portions of Yawkrom lands into cultivation. The Defendants are the daughters of Yaa Pokuaa, daughter of Akua Adehye and great grandchildren of Nana Pokuaa. Opanin Kwaku Bonsu predeceased Akua Adehye who remained in effective occupation of the land. The Plaintiff was made Head of Family in the year 1960 after the death of

Akua Adehye. At that time, when the 2^nd Defendant was about one year old. Seven cocoa farms were entrusted to the Plaintiff when he became head of family. Part of the land belonging to Akua Adehye had not been cultivated. The Defendants cultivated a portion of the said land.

Coming back to the issue under consideration, I find from the evidence on record that the Plaintiff’s mother, Yaa Pokuaa, had no personally acquired land. The land which she cultivated belonged to her mother, Akua Adehye. In the same vein, the land on which the Defendants were permitted to cultivate their cocoa belonged to their grandmother, Akua Adehye. Apart from the fact that Yaa Pokuaa permitted the Defendants to farm on the land in issue, there is no satisfactory proof that the said Yaa Pokuaa gifted any land to her children. Therefore, both the cocoa farms and the bare land which the Defendants cultivated formed part of the estate of Akua Adehye ,and by customary law, are the property of the immediate family of the late Akua Adehye, of which the Plaintiff was the Head at the time this action was instituted. However, individual members, like the Defendants herein, have a right to cultivate portions of the land.

Having established that the land in respect of which the instant action has been brought belongs to the Akua Adehye family, I will proceed to determine whether or not it was a family decision that any member who gave out his/her land for mineral prospecting would pay 1/3 of the compensation for the maintenance of the family? Again, the onus of proof of this issue lies on the Plaintiff. I have some reservations about this issue but will comment on it later. The Plaintiff’s version of the story is that after the sale of the cocoa farm evidenced by exhibit A, the proceeds were divided into three parts: 1/3 for the head of family, 1/3 for the principal members of the family and 1/3 was to be used to renovate the old family house. PW1, Joseph Owusu, who was a signatory to exhibit A confirmed this agreement reached by the family. This arrangement was corroborated by DW 4, Kwabena Anane, who describes himself as the current Head of Family. DW3, Augustine Gyempe, who signed exhibit 3 on behalf of his mother, Yaa Pokuaa, confirmed the story in part, i.e. the proceeds from the sale were to be used to refurbish the family house. The Plaintiff and PW1 went on to say that the family held a meeting and agreed that in respect of all future sales of family land for mining activities, 1/3 of the proceeds will be paid into the family coffers and the actual occupier of the land will be entitled to 2/3. Indeed, the Plaintiff said in cross-examination that Yaa Manu, Agnes Adiyia and Gyempe sold their lands and paid 1/3 of the proceeds to the family. But, when Gyempe testified as DW3, he denied the Plaintiff’s story. Like the Defendants, he testified that there is no such agreement whereby an occupier of family land is to pay 1/3 of proceeds from sale of land to the family. When asked in cross-examination as regards the money he gave to the Plaintiff, he answered that the money was given to the Plaintiff as a loan but he has refused to repay the same. As rightly argued by counsel for the Defendants, a bare assertion, without more, does not amount to a positive proof of a fact. Thus, it was the duty of the Plaintiff to call the three family members who paid the money to him as witnesses. Indeed, they are material witnesses whose evidence would have been essential to the determination of this issue. Yet, he failed to call them. The Failure to do so is fatal to his case, See Tetteh v The Rep (2001/2002) SCGLR 854 and Gligah & Atitso v The Rep (2010) SCGLR 870. Having failed to call these material witnesses, and in the light of the denial by the Defendants as well as Gyempe (DW3), it is my considered opinion that the Defendants version of the rival stories is to be accepted by the court. I therefore conclude that there was no family arrangement whereby an occupier of family land is required to pay 1/3 of compensation received to the family, through the Head of Family.

Even if such an agreement was made by the family, what would be the legal effect? This will be discussed in the ensuing paragraph.

I must add that for the destruction of surface rights, the owner of any piece of land is entitled to compensation by law. The persons in possession, like the Defendants, are also entitled to crop compensation by law. The caveat is that the transaction in respect of which compensation is to be paid must be in consonance with the Minerals and Mining Act, 2006 Act 703.

Section 1 of Act 703 reads:

“ every mineral in its natural state in, under or upon land in Ghana, rivers, streams, water-courses throughout the country, the exclusive economic zone and an area covered by the territorial sea or continental shelf is the property of the Republic and is vested in the President in trust for the people of Ghana.”

The evidence before me shows that the land which was occupied by the Defendants was given to small scale miners. Small scale mining is legal only when it is done in consonance with the relevant provisions of Act 703. Sections 82 to 99 of the Act apply to small scale mining. By section 89, the minister, after consultation with the minerals Commission, may designate an area for small scale mining operations. A small Scale mining Committee is established in every Designated Area and the District Chief executive or his Representative is the chairperson of the committee. A person engaged in or wishing to undertake a small scale mining operation is mandated to register with the District office of the Designated Area (section 91). Before a small scale mining operation can be commenced, the Applicant must obtain a licence granted by the Minister of Mines or an officer authorized by the Minister (Section 82). But what is the situation in the instant case? Are the activities on the Defendants farmland in line with Act 703?

In the Plaintiff’s own words, “the Defendants have sold the land they were cultivating to ‘Galamasey’ operators”. PW1 who obviously gave evidence in support of the Plaintiff’s claim spoilt the broth. He said:

“The family has ever given out land to small scale miners. We prepared a document on this transaction. Exhibit A is the agreement which was executed…”

Then, in cross-examination PW1 stated:

“The family land which the Defendants cultivated has been mined by illegal miners or ‘Galamasey’ miners. The agreement is that 1/3 is to be given to the family and they keep 2/3. The Defendants failed to give 1/3 of the proceeds to the family…”

In Ghana, the word ‘Galamasey’ is synonymous with illegal mining. By the Plaintiff’s own showing, the land in issue is being used for ‘Galamasey’ operations which in my view, is contrary to law. Even though the question of illegality was not raised by the parties, the court is not to turn a blind eye to it. Indeed, the courts are not precluded from considering unpleaded pleas of illegality or violation of statute where all the facts relating to the point are before it and no element of surprise will occur.

In the instant case, the Plaintiff, who alleged that the defendants received compensation for surface rights as well as crop compensation, ought to have called the entity which carried out the mining operation, i.e. the ‘Galamasey miners’. It appears that the plaintiff thought it wise not to call the said ‘illegal’ miners to further complicate his case. On the totality of the evidence on record, I find that the activities on the land in issue are contrary to statute.

In Mensah v Ahenfie Cloth Sellers Association (2010) SCGLR 680, Brobbey JSC made the following statement at page 703 as regards illegal contracts:

“An illegal contract is one which is null and void; it is of no effect whatsoever and is clearly unenforceable. It affects both parties to the contract and none of them can enforce it.”

His Lordship gave examples of illegal contracts on the same page:

“A typical instance of an illegal contract is agreement by drug dealers to trade in drugs. Another instance of such transaction was considered in the case of Addy v Irani Brothers (1991) 2 GLR 30 where the Plaintiff sued for money allegedly acquired illegally by selling goods above the legally- controlled price and for foreign money acquired through changing it at “black market”. It was held that the subject -matter in that case, like drugs, were illegal and therefore irrecoverable through the court.”

Applying these principles to the facts of the case before me, it my considered opinion that no claims whatsoever arising from the illegal mining activity can be validly made in a court of law. If the small scale mining had been done in accordance with Act 703, the owners of the land would have been entitled to compensation. In that case, if the compensation for surface rights had been wrongly paid to the Defendants, the court could have considered the Plaintiff’s case. This is a court of law and equity. It is said that ‘he who comes to equity must come with clean hands’. The Plaintiff has soiled his hands. As head of family, he sat by for family land to be taken by illegal miners and he now wants to benefit from the illegal gains. Must he be protected by the court? Obviously not! In the eyes of the law, both parties are in pari delicto. As such, any contract arising from the illegal activity cannot be enforced in a court of law.

In the circumstance, the Plaintiff’s action fails. The parties are to bear their own cost.