Declaration of title to all that piece or parcel of land situate and lying at Beposo, Ashanti and encompassing an approximate area of 33.76 acres and covered by lease dated 20th April 1989.

General damages for Trespass

An order for recovery of possession of the portion of the plaintiff's land described in relief (a) supra

and unto which the defendant has trespassed

An order of perpetual injunction restraining the defendant herein whether by himself, his agents, workmen, assigns and any other persons claiming through, under or in trust from him from in any way interfering with the plaintiff's right, title to and quiet enjoyment of the land the subject matter instant action or in any way dealing with same.

After issuing out the writ in 2009, the plaintiff abandoned the suit until a notice of intention to proceed was filed on 20/04/11. With leave of the court, the statement of claim was amended on 27/1/12. The defendant filed his statement of defence on 22/05/09 and amended the same with leave of the court on 26/01/12. However, the plaintiff did not amend his reply filed on 20/10/11.

Pursuant to an order of the court dated 26/01/12, the plaintiff filed amended issues for trial and the defendant also filed two additional issues. Put together, the issues for trial are these:

1. Whether or not the plaintiff acquired the disputed land from the Beposo Stool in 1982?

2. Whether or not the Plaintiff went into immediate occupation of the disputed land and constructed structures thereon?

3. Whether or not the defendant has been in undisturbed possession of the disputed land for decades after acquiring same?

4. Whether or not the Defendant's said grandparents acquired the disputed land for farming purposes by customary grant?

5. Whether or not the land in dispute is a stool land or was a virgin forest cultivated by the defendant's ancestors as indigenes?

6. Whether or not the defendant has been in undisturbed possession for decades after acquiring same from his grandparents?

7. Whether or not the plaintiff is entitled to his claim?

8. Any other issues raised by the pleadings.

THE PLAINTIFF'S CASE

The plaintiff's case was encapsulated in a 13 paragraphed amended statement of claim filed on 27/1/12. Acting per its registered trustees, Alhaji Ibrahim Baryeh and Ishaqua Martey, the plaintiff alleged that it acquired the disputed land by customary grant from the Beposo stool in the year 1982, went into immediate possession by constructing structures on the same and eventually obtained a lease which encompasses an approximate area of 33.76 acres. The plaintiff identified its boundaries in paragraph 4(i) of the amended statement of claim and indicated that development of the land into a hospital halted due to financial constraints. Further, the plaintiff alleged that the defendant has trespassed onto a portion of the land and caused to be planted thereon oranges, teak and oil- palm trees.

THE DEFENDANT'S CASE

The defendant in his amended statement of defence filed on 27/02/12 traced his root of title to his grandparent called Ekua Appiadwoa who had been in uninterrupted possession of the land for decades after cultivating the original virgin forest as an indigene. The defendant alleged that he has cultivated tree crops and has been in absolute possession of the 12.2 acres of land claimed by the plaintiff since the middle of the 1970s. He denied that the land on which he has been farming for decades has been leased to the plaintiffs. The Defendant also named his boundary owners in paragraph 5 of the amended statement of defence.

BURDEN OF PROOF.

As the case is in all civil suits, each party bears the evidential as well as the burden of persuasion of his assertions which have been denied by his opponent. The standard of proof is 'proof by the preponderance of the probabilities. The requisite degree and standard of proof applicable to civil suits are provided for under sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 N.R.C.D. 323. In land matters, the person asserting title must prove his root of title strictly, among others. In the case of Mondial Veneer (Gh) Ltd v Amuah Gyebu XV (2011) SCGLR 466 at page 468 (holding 4), the

Supreme Court held that: 

"In land litigation, even where living witnesses involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on who bore the burden of persuasion... to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It is 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"

WHETHER OR NOT THE PLAINTIFF ACQUIRED THE DISPUTED LAND FROM THE BEPOSO STOOL IN 1982

 AND

WHETHER OR NOT THE PLAINTIFF WENT INTO IMMEDIATE OCCUPATION OF THE DISPUTED LAND AND CONSTRUCTED STRUCTURES THEREON?

Going by the principle of proof in civil suits generally, and in land matters in particular, as stated above, the onus of proof of these issues rest on the plaintiff. The plaintiff sought to discharge this burden through their lawful attorney, Mohammed Akwasi Kyerapem and one witness, Nana Boama Kobi IV.

The plaintiff's lawful attorney told the court that the Ghana Muslim Mission acquired the disputed land measuring approximately 33 acres in 1982 from the chief of Beposo for a hospital project. After putting up the hospital, he indicated that they run out of money and therefore gave the premises to Alhaji Ameen Bonsu to operate the hospital. Whilst operating the hospital, the plaintiff said it realized that the defendant had started encroaching on part of the land by growing plantations of palm, teak and cashew. When confronted, the defendant claimed ownership. The lawful attorney of the plaintiff tendered an allocation paper dated 25/10/82 and a lease executed in plaintiff's favour on 20/04/89 as exhibits B and C respectively.

Continuing, the attorney identified the boundaries of the plaintiff's land by indicating that they share boundary with Opanin Kwaku Afriyie, Kofi Ntem, Beposo Twafohene Stool land and Beposo-Banko road. He went further to state that the plaintiff planted teak trees along its boundaries and denied the defendant's assertion that it has occupied the land since the 1970s.

During cross-examination, counsel for the defendant put to the plaintiff's attorney that the land the plaintiff purchased from Beposohene has no relation to the allocation note tendered as exhibit B , but this was denied. Counsel further suggested to the witness that various clans in Beposo own land and before a chief leases out any of these lands, he has to seek the consent of that clan. Counsel again suggested that the plaintiff did not follow the proper procedure in acquiring their land because it belongs to the Aduana family of Beposo of which the defendant is the Abusuapanin/Kontihene. Counsel also challenged the stated boundaries of the plaintiff's land but the witnesses stack to his position as per his evidence-in-chief.

The evidence of PW1, paramount chief of Beposo and the plaintiff's grantor, relative to the acquisition of the and by the plaintiffs is very short and any attempt to summarize it will not be helpful. He stated as follows:

I am Nana Boama Kobi IV. I live at Beposo. I know the plaintiff in this suit and the defendant as well.

In 1982 the plaintiff came to me and requested for land to put up a hospital. I gave them the land. I also gave them documents. Exhibit 'B' is the allocation note I gave them. I also gave them exhibit 'C', a lease covering the land. I am the custodian of all the lands at Beposo. I have released various lands tofamilies for farming purposes. I gave the plaintiff about 33 acres of land and the boundary owners include Twafohene's land, Kwaku Afriyie, Kofi Ntem and the main motor road- Banko to Beposo.”

Whilst under cross-examination, PW1 said he has given lands to the 12 divisional chiefs under him for farming but whenever he needs any of those lands, he informs the Abusuapanin of that land who in turn communicates the same to his family members.

The Defendant took his turn to testify. He told the court that sometime in the year 2008 whilst in office as a District Chief Executive for Sekyere Central, Alhaji Ameen Bonsu, one Alhaji Adam,(Imam of Beposo, now decd) and Alhassan Mohammed came to his office to congratulate him on his appointment. They also informed him that the land on which he was farming had been acquired by the Ghana Moslem Mission but they had not come there to disturb is farming.

The Defendant traced his root of title to his grandmother Akua Appiah Adwoa who cultivated the 12.2 acres land in its original virgin forest state. According to the defendant, his grandmother reduced the forest into kola nuts plantations as a native of Beposo and never acquired the land from the Beposohene or the Beposo stool. Thereafter, she cultivated the same for over a century without disturbance from any quarter. The defendant added that he used to follow his grandmother to the farm as a young boy and she gave the land to him in the year 1971. Then in 1975, he cultivated oil palm plantation on the land. In 1986, the defendant said he cultivated cashew and teak; and added citrus fruits in 2008. His position is that ever since he acquired the land, he has been in undisturbed possession of the same.

Moving on, the defendant named his boundary owners as Obaapanin Ajuuku on the northwest; Opanin Kwame Boama to the northeast; Opanin Adusei to the southeast; Twafo- Assinea family to the southwest; Kwame Anowuo and Opanin Kwaku Broni to the South. He further testified that he commissioned a licensed surveyor to prepare a site plan for him, after which the Beposohene consented as the allodial owner sometime in 1982.However, the defendant conceded that he had not been born at the time his grandmother acquired the disputed land but he got to know of it through oral history. Concluding, the defendant said any allocation of part of his land to persons including the plaintiffs is null and void. He denied under cross-examination that PW1 as the allodial owner could give out lands without reference to the landowners, i.e. the Beposo, Kontre /Aduana family of which he is the current head.

The defendant's first witness (DW1), described herself as one of the defendant's boundary owners. She also traced her root of title to her grandmother by name Yaa Aduoko who cultivated the virgin forest. She told the court that her farm shares boundary with the defendant's citrus and oil palm plantations. At the time of her evidence in June, 2014, DW1 admitted that she had been farming on this land for close to 43 years. However, she told the court that the defendant started to cultivate his cash crops about 30 years ago.

Next to testify for the defendant was Kwame Konadu Yiadom who said he and the defendant belong to the Kontre and Aduana families of Beposo. His version of the acquisition of the disputed land was this: his grandmother, Yaa Frema, and the defendant's grandmother, Adwoa Appiah, scrambled for a common land in the olden days. The defendant's grandmother cultivated kola nuts and when the defendant took possession of the land, he first cultivated oil-palm and later cultivated cashew, teak and citrus. DW2 said in cross-examination that after the death of their respective grandmothers, the land which they scrambled for became the property of the Aduana Kontre family of Beposo.

In his closing submissions, counsel for the plaintiff argued, inter alia, that the plaintiffs' grantor, PW1,was only required to inform the Abusuapanin of the defendant's family before allocating the land to the plaintiffs which he did. But, PW1 was not required to inform the Kontihene of that family. In his view, the evidence of PW1 that he informed the defendant's Abusuapanin prior to the allocation of the land to the plaintiffs was not challenged in cross-examination. He then cited and relied on cases such as Okonti Borley & Anor v Hausbauer Ltd ( 2011) 39 GMJ 25 at 48; Fori v Ayirebi (1966) GLR 627, SC; Hammond v Amuah & Anor (1991) 1 GLR 89-93 and submitted that the defendant is deemed to have admitted the evidence of PW1 that the defendant's Abusuapanin at the material time was informed of PW1's intention to give the 33 acre land to the plaintiff.

For the defendant, counsel submitted that the defendant's grandmother acquired a usufructuary interest in the disputed land and a stool cannot arbitrarily or capriciously divest a usufructuary owner of his interest in stool land. He cited and relied on Ohimen v Adjei (1957) 2 WALR 275 at 280 to buttress this point. Counsel also relied on Oblee v Armah & Affipong (1958) 3 WALR 484 where the court held that an alienation of land by a stool which is occupied by a subject who holds usufructuary title is null and void. Further, on the authority of Boateng (No.2) v Manu (No.2) & anor (2007-2008) 2 SCGLR 1117, counsel argued that the entire township cannot grab any land belonging to a family for developmental purposes.

From the entirety of the evidence before me, these findings of fact can be made: that the Omanhene of Beposo is the Allodial title owner of Beposo lands; that the 12 sub-divisions/ stools under him occupy farm lands on which they have farmed for many years; that the land which was leased to the plaintiffs by PW1, Omanhene of Beposo, was occupied by family members of the Aduana Kontre Family of Beposo of which the defendant is the current head, having been so appointed after 1990; PW1 informed the Abusuapanin of that clan prior to granting the land to the plaintiffs in 1982; the Defendant was not the substantive head of family at the time the grant was made to the Plaintiff.

Now, the plaintiff is relying on exhibit B as evidence of the grant to it in the year 1982. It is to be noted that exhibit B is an allocation paper. The law is that an allocation paper per se cannot pass title to the grantee. The legal position on allocation papers was espoused in Boateng (No.2) v Manu (No.2) & Anor (2007-2008) SCGLR 1117 as follows:

"When admitted in evidence, it can only show that some transaction had taken place to signify that the owners or holders of land had purported to give some land to an individual or corporate body. The grantee will thereafter proceed to perfect his title by obtaining the appropriate documents which will have to be registered. The allocation paper per se cannot pass title to the grantee."

In the instant case, a lease was executed in favour of the plaintiff pursuant to exhibit B. As rightly observed by counsel for the defendant, exhibit B does not give the actual description of the land allocated to the plaintiffs by the Beposo stool. That notwithstanding, it can be reasonably inferred from the document as a whole that the Beposo stool purported to grant an interest in land to the plaintiff on 25/10/1982. That purported grant was perfected by the execution of the lease, exhibit C, in favour of the plaintiff on 20/04/1989.The lease was also registered in accordance with the Land Registry Act under title number 13849.

Therefore, by the combined effect of exhibits B and C, I conclude that the plaintiff acquired the disputed land from the Beposo Stool in 1982 and took steps to perfect its title in 1989. By the preponderance of the evidence before me, I find as credible the plaintiff's evidence that it went into occupation of the land described in exhibit C, constructed a hospital thereon and planted teak trees along its boundaries. The hospital, i believe, was not constructed on the land overnight, and if the defendant and his family had issues with the grant so made by the Omanhene of Beposo to the plaintiffs, they ought to have acted timeously to challenge the said grant. More importantly, the defendant did say in his evidence-in-chief before this court that sometime in the year 2008, some members of the Ghana Muslim Mission came to his office and among other things, told him that the Land on which he was farming had been leased to the Ghana Muslim Mission. From the record, the defendant was by that time the head of the family whose land had been taken by the Omanhene and leased to the plaintiff. Yet, the defendant, as head of family took no steps to challenge the plaintiff's grantor or lessor.

WHETHER OR NOT THE DEFENDANT'S GRANDPARENTS ACQUIRED THE DISPUTED LAND FOR FARMING PURPOSES BY CUSTOMARY GRANT?       AND

WHETHER OR NOT THE LAND IN DISPUTE IS A STOOL LAND OR WAS A VIRGIN FOREST CULTIVATED BY THE DEFENDANT'S ANCESTORS AS INDIGENES?

These two issues cut across each other and as such, it will be expedient to consider them together.

The plaintiffs story as per the evidence of PW1 is that the defendant's grandparents acquired the disputed land from the Beposo Stool for farming purposes by way of a customary grant. The defendant's rival story is that the land on which he has his farms was given to him by his grandmother who had cultivated it as a virgin forest.

Whilst counsel for the defendant maintains that the defendant has a usufructuary interest in the land as a result of which PW1 could not have arbitrarily leased the same out to the plaintiff without the consent of the defendant, counsel for the plaintiff is of the view that the defendant's inconsistent accounts regarding how he came by that property makes his claim doubtful and must be rejected by the court.

The defendant who obviously relied on oral history to support his root of title had pleaded that his late grandmother who cultivated the virgin forest gave the land to him in the 1970's and he has since been cultivating the same. He tendered a site plan, exhibit 1, which he caused a licensed surveyor to prepare, and allegedly endorsed by the Chief of Beposo, to show that the land on which he has his farms is his bona fide property.

Now, the evidence of DW2 shows that his grandmother, Yaa Frema, and the defendant's grandmother, Adwoa Appiah, jointly scrambled for a common land; and while Adwoa Appiah cultivated kola nuts, Yaa Frema cultivated food crops. It is also in his evidence that his uncle Kwaku Broni succeeded his grandmother Frema; and after the death of Kwaku Broni, he, DW2 succeeded him, holding the land in trust for the family. In cross-examination, DW2 admitted that after the death of Frema and Adwoa Appiah, the common land which they scrambled for became family property, specifically, the Aduana Kontre family of Beposo.

I will go back to the evidence of DW1 where she emphatically stated that her land shares boundary with that of the defendant. She traced her root of title to her grandmother Yaa Aduoko. She also said the defendant's mother farmed on the disputed land until she died two years ago (i.e. as at the time she was being cross-examined on 09/07/2014). And, that the boundary is between Adwoa Appiah's land and the mother of Adwoa Addai.

In paragraph 5 of the defendant's amended statement of defence, he pleaded that his land shares boundaries with: Agyuuku's scrub land on the North West; Opanin Boama's Scrub Land on the North east; Opanin Adusei's Scrub Land on the South east; Kwame Anowuo's scrub land and Kwaku Broni's Scrub land on the South; and Nana Twafourhene's Scrub land on the South West. The plaintiff denied these assertions in its reply and thereby placing the evidential burden on the defendant. The defendant repeated these names in his evidence -in-chief before this court but the plaintiff again challenged them in cross-examination. It is to be observed that the defendant never mentioned DW1 or her mother, Yaa Aduoko, as a boundary owner. I have also perused the defendant's exhibit 1; the persons or entities named as boundary owners do not include Abena Asetu, DW1, or her mother Yaa Aduoko. It is obvious, as counsel for the plaintiff noted in his closing submissions, that DW1 is clueless about the identity of the land in dispute.

Turning to the evidence of DW2, if the common land acquired by Adwoa Appiah (decd) and Yaa Frema (decd) has become family property which is being held in trust for the Aduana/Kontre family of Beposo, then on what basis is the defendant claiming by his exhibit 1 that the land is his bona fide property because his grandmother Adwoa Appiah gave the same to him? Does this not make his claim of title to the land based on oral history doubtful? I will answer in the affirmative!

By the preponderance of the evidence on record, I find that the oral history regarding the defendant's root of title is conflicting and therefore doubtful. In the circumstance, I will accept the plaintiff's version, as narrated by PW1, that the Chief of Beposo and for that matter, the Beposo stool, is the Allodial Owner of all that land at Beposo and his 12 sub-divisions have farming rights, as the truth. Therefore, I conclude that the disputed land was not acquired in its virgin state by the defendant's grandmother, Adwoa Appiah, who hailed from Beposo.

WHETHER OR NOT THE DEFENDANT HAS BEEN IN UNDISTURBED POSSESSION FOR DECADES AFTER ACQUIRING SAME FROM HIS GRANDPARENTS?

In fact this issue which counsel for the defendant set down as an additional issue is basically the same as the plaintiff's 3rd issue, that is, whether or not the defendant has been in undisturbed possession of the disputed land for decades after acquiring same.

The evidential burden of the issue under consideration will first rest on the defendant. In his evidence-in-chief, the defendant testified that it was in 1975 that he cultivated oil palm on the 12.2 acre land which his grandmother gave to him, Then in cross-examination, he said his grandmother died in 1971. So what happened on the land between 1971 and 1975 before the defendant started his oil-palm plantation ? The evidence does not show. I will also comment on the age of the defendant during the period he said he cultivated this vast land. As at the time of his testimony (specifically cross-examination) on 02/06/2014, he told the court that he was 54 years. By reasonable inference, the defendant was 21 years at the time he allegedly planted oil-palm on the 12.2 acre land. The evidence also shows that prior to becoming the substantive head of family in 1990, the defendant left Beposo to pursue his education. The evidence does not show how the defendant, as an individual, who at all time material was schooling, had the requisite resources to cultivate that vast land at that youthful age.

That apart, I have already found as false the defendant's attempts at tracing his root of title to his grandmother, Adwoa Appiah. In the premises, the defendant could not have been in possession of the disputed land since the 1970's as he has alleged.

WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIM

In Deliman Oil Company Ltd v HFC Bank Ghana Limited (2016) 92 G.M.J. 1, the Court of Appeal, sitting in Tamale, in its judgment delivered by Ackah-Yensu JA at page 8 said the following:

"Title is the means by which a person establishes his right to land. A person's title indicates by what means he claims to be the owner of land. Title to land may take the form of possession or it may take the form of a document or a series of documents. A good title, however, is always documentary...".

Now, in the case before me, the plaintiff's exhibit C clearly shows that Nana Boamah Kwabi IV, acting on behalf of the Beposo stool, and with the consent and concurrence of principal members of the Beposo stool, and confirmed by Otumfuo Opoku Ware II, executed a 99-year lease in favour of the plaintiff in 1989. Having obtained the lease, the plaintiff has been paying its ground rent as per the exhibit D series.

I have taken note of the closing submissions by counsel for the defendant to the effect that the defendant's usufructuary interest could not be taken away arbitrarily by the chief of Beposo in the name of development.

It is on record that the Beposohene is the Allodial Owner of Beposo stool land, of which the disputed land forms part. One main incident of the allodial title is that the owner has theoretically, absolute control over the land. But, where the allodial owner is a stool, family or clan, that absolute ownership will be subject to the rights of the stool's subjects or members of the family or clan in possession. See Da Rocha & Lodoh(1995) Ghana Land law & Conveyancing page 4. It is trite law that the "Abusuapanin" or the Head of family has the responsibility to protect family lands. In the case before me, the plaintiff’s grantor, chief of Beposo, duly informed the Aduana/Kontre Abusuapanin of Beposo before making the grant to the Plaintiff. The evidence does not show that the said Abusuapanin objected to the steps taken by the Chief of Beposo. What is not clear is whether the Abusuapanin at the material time benefitted from the consideration provided by the plaintiff on behalf of his family. Subsequent heads, including the defendant herein have also not taken any legal steps to challenge the validity of the grant made to the plaintiff and the subsequent lease executed in plaintiff's favour.

What remains clear from the evidence is that the plaintiff went through the due process in obtaining its lease from the allodial owner, with the consent and concurrence of principal members of the stool, and has been in possession of the land since 1982. I do not think the principle of "nemo dat quod non habet" has any application to the circumstances of this case. The plaintiff therefore holds a good title to the land covered by its lease, part of which the defendant has encroached. Accordingly, the plaintiff is hereby declared owner of all that parcel of land situate and lying at Beposo, Ashanti and encompassing an approximate area of 33.37 acres and covered by the lease dated 20^th April, 1989.The defendant's act in planting various tree crops on a portion of the said land amounts to trespass which is actionable per se.

In Odonkor & Ors v Amartei (1992) 1 GLR 577, the court held among other things that (holding 6): "... In actions for trespass to land damages were at large. Accordingly, there was no need to plead or prove special damages."

The fact that damages are at large in cases of trespass to land does not mean that damages are to be awarded arbitrarily. The guiding principles in awarding damages for trespass were stated in Laryea v Oforiwaah (1984-86) 2 GLR 410 (holding 6) thus:

"... In awarding damages for trespass to land, regard should be had to the acreage of the land on which the trespass was committed, the period of wrongful occupation and the damage caused...".

From the evidence before me, the plaintiff said when it noticed the presence of the defendant on the land on or about the year 2008, they approached him, and subsequently instituted the present action against him. By reasonable inference therefore, the defendant has been on the land leased to the plaintiff by the allodial owner to the knowledge of the defendant's head of family at the time for at least over eight (8) years. It is on record that the land on which the defendant has trespassed measures approximately 12.2 acres. That notwithstanding, the plaintiff's evidence shows that it lacked the resources to develop the entire land leased to it and so apart from the defendant's unlawful presence on the land and the expenses incurred in removing him from the same, I do not think the defendant has caused any further damage to the plaintiff.

All the same, the plaintiff is entitled to general damages for trespass and an order for recovery of possession of the approximately 12.2 acres of land occupied by the defendant.

Having declared the plaintiff owners of all that parcel of land situate and lying at Beposo, Ashanti and encompassing an approximate area of 33.37 acres and covered by the lease dated 20th April, 1989, the following orders are hereby made:

The plaintiff is to recover possession of the portion of the 33.37 acre land on which the defendant has trespassed forthwith.

The Defendant shall pay GH¢10,000.00 as general damages for trespass to the Plaintiff.

The defendant, whether by himself, his agents, workmen, assigns and any other persons claiming through, under or in trust for him are perpetually restrained from interfering with the plaintiffs right, title to and quiet enjoyment of the subject land, covered by the lease dated 20/04/1989.

Judgment is entered in favour of the plaintiff against the defendant.

Cost of GH¢4,000.00 is awarded against the Defendant in favour of the Plaintiff.