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IN THE CIRCUIT COURT ‘1’ WESTERN REGION HELD AT TAKORADI ON

WEDNESDAY 31ST OCTOBER, 2022 BEFORE HIS HONOUR MICHAEL K. AMPADU,

CIRCUIT COURT JUDGE.

SUIT NO: C1/73/2015

BETWEEN

ABENA OWUSUA …. ….. PLAINTIFF

- AND -

OWUSU OBENG SAFO & 1 OR. ….. ….. RESPONDENTS

JUDGMENT

Parties are present except 2nd Defendant who is represented by Solomon Ntsinmoah

Counsel for the Plaintiff: Nana Konduah is present

Counsel Deborah Esi Essien with Baffour Dwumah’s brief is present for the Defendant

The Plaintiff by a Writ of Summons filed on 7/5/2015 claimed the following reliefs

against the Defendant:

(a) A Declaration that the Eight (8) poles of land situate and lying at Wassa Manso

with the following boundary features; Manso to Amanteng Road, Dekyere

Stream, Swampy area and farm land of tenant farmer Aziz Kolam belonged to

the Plaintiff.

(b) An order that the Defendant atone tenancy to the Plaintiff.

(c) An order that the rubber farm that the Defendant had cultivated on the Eight (8)

poles of farm land is on abunu basis and the Plaintiff is entitled to half of the said

rubber farm.

(d) Any other order that the Court may deem fit having regard to the case.

In his address to the Court, Counsel for the Plaintiff stated that the case was

commenced on an amended Writ of Summon dated 26/4/2016 but the records do not

have that information on this alleged Amended Writ of Summons. The Writ on record

was instituted on 7/7/15. On her statement of claim, the Plaintiff stated that she lives

together with the defendants at Wassa Manso and the Defendant without her consent as

the owner has entered the land which is Eight (8) poles and cultivated a rubber farm

thereon. It is the case of the Plaintiff that all attempts made to get the defendant atone

tenancy to her have failed.

According to her the land in dispute which is Eight (8) poles forms part of a larger

stretch of land whose virgin forest was broken by her ancestors by name: Opanyin

Nsuko, Opanyin Sobeng and Opanyin Gyimah and that since the virgin forest was

broken, the larger stretch has being in the undisputed possession of her ancestors and

now in her possession.

By an amended statement of defence filed on 5/2/2016, the Defendant denied the

Plaintiff’s claims and stated that the disputed land is bounded by the farms of Nana

Enyane Obuodum, one Joseph alais Awona Man, then River Dekyere and Aziz Cola

which was cultivated in 2013 and measured Eight (8) poles and forms part of the

Amanteng Stool land and that the land was granted to him by Nana Enyane Obuodum

II of Wassa Manso on abusa tenancy and as such he atones tenancy to the said Nana

Eryane Obuodum.
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It is the defence of the defendant that the land in dispute, hitherto, was a secondary

forest which the said nana Anyane Obuodum had held as a usufruct and farmed

thereon cultivating both food and cash crops for several years without let or hindrance

and that before he acquired the disputed land, he did all the requisite investigations and

satisfied himself that the disputed land was unencumbered and saw also that there was

no sign of any human activity on the disputed land at the time he acquired same.

It is the further defence of the defendant that he has been on the disputed land for about

Eighteen (18) years without any let or hindrance and cultivated rubber trees thereon

and have started harvesting same.

Defendant further averred that in a suit titled Abena Owusua vrs. Solomon Tsiamoah

and Nana Anyane Obuodum, the Plaintiff therein who is the Plaintiff herein sued the

Defendants before the District Court, Sekondi for the under listed reliefs:

i. Declaration of title to a parcel of land situate at Manso and bounded on the

north by Amanteng Chief, Annor Kofi and Enimil Mireku’s land, then on the

south by Nserempong’s land and on the West by Anbontua Stream and on

the East by the main road to Amanteng.

ii. Damages for trespass on the said land.

iii. Perpetual Injunction restraining the Defendants, his agents and descendants

from the said land.

The Defendant contended that the present land in dispute forms part of the parcel of

land that was litigated on in the case cited above. According to him, the District Court

dismissed the above case on 11/9/2009 and an appeal made subsequently was also

dismissed and so the Plaintiff is stopped by the principle of judicata from instituting the

present action. He averred again that even if the Plaintiff had any legitimate interest in

the disputed land, that interest has been extinguished under the provisions of the

Limitation Act, Act 54 and also that he is a bonafide purchaser for value without notice
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of any encumbrance in respect of the disputed land at the time of his acquisition and

finally intimated that the Plaintiff has no cause of action against him and so the action

be dismissed in limine.

In the Plaintiffs reply to this amended statement of defence, he stated that the

defendants description of the boundaries of the land in dispute is not correct and that

the correct description are what is stated by the Plaintiff in paragraph 8(a) of the

statement of claim. He also replied that even though the Defendant had always claimed

that the land belonged to Nana Anyane Obuodum and that it was the said Obuodum

who granted the land to him, she wish to state that the disputed land does not belong to

Nana Anyane Obuodum.

On the 21/3/2016, the second Defendant (D2), Ebusuapanyin Nana Anyane Boadum II

applied to be joined to the suit and he was accordingly joined to the suit as the second

Defendant (D2).

The defence of the 2nd Defendant is that the disputed land in its virgin state was broken

by his forebears and thereafter, his forebears cultivated the land with food and

economic crops and that the disputed land shares boundaries with the lands of Adum

Banso, Amannin, Nana Ketekyere and Opanyin Tabil. It was the defence of the 2nd

Defendant that his forebears migrated from Agona Abirim and were permitted by the

Manso Chief at the time to settle on the disputed land after which the Plaintiff’s

ancestors also, migrating from Ituma, arrived at Manso. They were also given a place at

Wiredukrom and Ewiakrom to settle by the Chief of Manso and that where the

Plaintiff’s forebears settled is completely different from the disputed land.

Second Defendant further stated that his forebears including Nana Bogya, Nana Enyane

and his children and himself have all cultivated cocoa on the disputed land for over

Hundred (100) years without let or hindrance. D2 also averred that he is the Head of
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his Nsona Family at Manso and that his Nsona family and the Plaintiff’s Nsona family

do not succeed themselves but have only fraternal relationship and contends that the

land granted to 1st Defendant (D1) is part of the land broken in its virgin state by his

forebears and which has been in their possession exclusively for over Hundred (100)

years and concludes that the Plaintiff has no cause of action.

On the 17/4/2019, one Ebene Sika Owusu applied to be substituted for the 1st Defendant

(D1) Owusu Obeng Safo who he said was his father and had died. The application was

granted and so he filed his witness statement as the 1st Defendant to continue from

where his father left off.

In her evidence in chief, the Plaintiff stated that the Eight (8) poles of land in dispute

here forms part of a larger stretch of land whose virgin forest was broken by her

ancestors as stated in her statement of claim supra over two hundred (200) years ago.

She stated the land in dispute is situate at Wassa Manso and shares boundary with

Dekyere Stream, road from Manso to Amantsin, a swampy area and the tenant farmer

Aziz Kolam as stated also in her statement of claim.

According to her, the boundaries to the larger stretch of land to which the Eight (8)

poles forms part are as follows, Opanyin Annor Kofi, Opanyin Enimil Mireku, Opanyin

Nsoropany, Amanteng Chief’s land, a lorry road leading to Dekyere from Amantsin.

She contended that she had earlier on mounted an action against one Solomon

Tsinamoah over another portion of this larger land at the District Court, Sekondi which

later went on appeal to the High Court, Sekondi which appeal was dismissed. Plaintiff

attached Exhibit A, B and C which were her statements of claim before the District

Court, Sekondi, the statement of defence of Solomon Tsinamoah and Nana Anyane

Obuadum II in the District Court case and a suit subsequently mounted by the

Defendants against her at the Circuit Court, Takoradi respectively which Circuit Court

case against her was also dismissed.

Plaintiff again attached Exhibits ‘E’, ‘F’ and ‘G’ which were Judgments of the District

Court, Sekondi, High Court, Sekondi (Appeal) and Circuit Court, Takoradi respectively

and stated that it is not true that the land in dispute belong to Nana Anyane Boadum II

but that the Defendant has trespassed onto her land. After her evidence in chief from

her witness statement which was filed on 2/3/16, the Plaintiff called one witness, Mary

Arthur (PW1) who was substituted for Aziz Kolam. Her evidence was that the Plaintiff

was her mother and that she is a member of the Asona family of Wassa Manso.

PW1 corroborated the boundaries of the land in dispute as given by the Plaintiff and

added that the said tenant farmer, Aziz Kolam was given the land by the Plaintiff for

the cultivation of cocoa about six (6) years ago and ever since nobody has challenged

Aziz Kolam’s right to cultivate the land.

According to PW1, D2 also belongs to Nsona family of Wassa Manso but they do not

inherit each other. She said the 2nd Defendant’s section of Nsona family also have land

in the area but their land is on the left side of the road leading to Amantsin and the

Plaintiff’s land is on the right side of the same road. She contended that the land given

to Aziz Kolam a.k.a. Nicholas for the cultivation of cocoa which cocoa has even

matured and harvesting has stated, is for the Plaintiff and that the tenant Aziz atones

tenancy to the Plaintiff.

The evidence of the 1st Defendant (D1) is that he is the son of the late Owusu Obeng

Safo and he is a farmer. He averred that the land in dispute is situate at Wassa Manso

and it is boundered by the farm of Nana Anyani Boadum, one Joseph alias Amonaman,

River Dekyere and Aziz Kolam and the size is Eight (8) poles. This parcel forms part of

Manso stool lands according to him. He alleged that his late father acquired the

disputed land from the 2nd Defendant on ‘abusa’ terms and cultivated rubber thereon.
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Prior to the acquisition, he said it was the 2 nd Defendant’s family that was feeding on

the land. He contended that the land in dispute was a secondary forest which members

of the 2nd Defendant’s family had cultivated with both food and cash crops for many

years without let or hindrance from anyone and at the time it was granted to his late

father, there was no human activity on it and when they started cultivating the rubber

stumps on it, nobody challenged them and that he helped his father to cultivate the

disputed land with rubber stumps. According to him, his late father farmed the

disputed land for about twenty (20) years before he died and after his death, his siblings

and he are now harvesting the rubber stumps. It was the evidence of the 1st Defendant

that he accompanied his late father to negotiate for the land and at that time they were

informed by the 2nd Defendant family that the Plaintiff earlier on had mounted an action

at the District Court, Sekondi claiming title to the disputed land but lost.

The 1st Defendant did not call any witness after his evidence in chief. The evidence of

the 2nd Defendant is that he is the head of the Nsona family of Wassa Manso and knew

the 1st Defendant as a tenant farmer who is currently cultivating part of his family land.

According to him, the disputed land forms part of the Manso Stool lands and belongs to

his family whose ancestors broke the virgin forest some centuries ago and cultivated

both food and economic crops on it.

The land in dispute, he said, shares boundaries with the farm of Nana Anyane Boadum,

one Joseph alias Annonaman, Aziz Kolam and the Dekyere Steam.

2nd Defendant contended that his forebears migrated from Agona Abirim and were

permitted by the chief of Manso at the time to settle on the land in dispute and that it

was after his ancestor’s settlement that the Plaintiff’s ancestors arrived at Manso after

migrating from Ituma and they were also given a place to settle by the Chief of Manso

at Wiredukrom and Ewiakrom which places are completely different from where his
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ancestors settled. It was his further statement that his ancestors which included Bogya,

Nana Anyane and their children collectively cultivated cocoa on the disputed land for

over Hundred (100) years without any challenge from anybody.

He tendered Exhibit ‘1’ which is an action the Plaintiff instituted in 2009 against one

Solomon Tsiamoah and himself at the District Court, Sekondi and also Exhibit ‘2’ which

is an appeal the Plaintiff made against the decision of the District Court Judgment and

said the Judgment in the Exhibit has not been set aside by any competent Court of

jurisdiction and prayed that the Plaintiff has no cause of action against him. After his

evidence in chief, the 2nd Defendant called one witness, Opanyin Kweku Gyapah

(DW1).

The DW1’s evidence in chief is that he is currently the Head of family of the Asankoma

Royal family of Wassa Amantsin and a farmer. He said the Stool of Wassa Amantsin

owns a large tract of land situate at Wassa Amantsin and its environs and bounded by

the Stool land of the Wiredukrom, Benso and Manso. According to him, the boundary

features between his family’s land and that of the stool of Manso is the Dekyere Stream

and that the disputed land lies along the Dekyere Stream on the side of the Manso stool

land. He alleged that there is currently a rubber farm on the disputed land which he

does not know who cultivated the rubber.

It is his further evidence that the disputed land belongs to Ebusuapanyin Nana Anyane

Boadum’s family because from time immemorial, it is Nana Anyane Boadum’s family

members including Opanyin Anyane and Opanyin Bogya that had fed on the said land

without any let or hindrance and that now the 2nd Defendant has an oil palm plantation

adjoining the disputed land on the side of the Manso Stool land.

At the application for direction stage, the following issues were set down for trial.

(a) Whether or not the land in dispute belonged to the Plaintiff;

Additional Issues;

1. Whether or not the disputed land is owned by Nana Anyane Boadum II.

2. Whether or not for the past Eighteen (18) to Twenty (20) years, the 1st

Defendant has been in possession of the land and atoned tenancy to Nana

Anyane Boadum.

3. Any other issues arising from the pleadings.

It was held in the case of Boateng vrs. Boateng (2009) SGMT at 58 at 63 CA that “The

law has always been that a person who makes an avernment or assertion which is

denied by his opponent has the burden to establish that his averment is true. And he

does not discharge this burden unless he leads admissible, credible evidence from

which the fact or facts he asserts can properly and safely be inferred”.

In the case of Fosua and Adu-Poku vrs. Dufie (deceased) and Adu-Poku Mensah (2009

SC GLR 310, It was held that “It is common learning in this Country that in an action for

declaration of title to land, the onus is heavily on the Plaintiff to prove his case and he

cannot rely on the weakness of the Defendant’s case. He must indeed show clear title

… that in an action for a declaration of title, the first question logically and

chronologically to consider in the appeal is the traditional evidence regarding the

acquisition of a title to the disputed territory.

Gawu III and Another vrs. Ponuku (1960) GLR 101 (HC) has the law that “To succeed in

an action for declaration of title to land and recovery of possession, a Plaintiff must

establish positively the identity of the land he is claiming and where (as in this case) he

admits that the land forms boundary with land belonging to the defendants, he must

establish clearly the boundary between his land and the land which he admits is the

property of the defendant and show that the land in dispute is in his side of that

boundary”
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The three main issues, that are whether or not the land in dispute belong to the Plaintiff,

whether or not the disputed land is owned by Nana Anyane Boadum and whether or

not the 1st defendant has been in possession of the land for the past twenty (20) years

and atoned tenancy to the 2nd Defendant, Nana Anyane Boadum will be discussed and

determined together. For a Plaintiff to win in a case for declaration of title to land in his

favour, the Plaintiff should first of all establish the identity of the land. The failure to

establish this identity is fatal to the Plaintiff’s case as espoused in the laws supra. In the

opinion of this Court the identity is what makes the suit valid since any imprecision in

the identity of the land makes it impossible for the Court to give any order in favour of

the Plaintiff, if any order comes in his favour at the close of the trial.

Both Counsel for parties, in their respective addresses, have stated a lot of laws

including, estoppel by res judicata, Limitation Act and referred to three judgments, one

from the District Court, Sekondi, Exhibit ‘A’, appeal to the High Court which High

Court’s judgment was exhibited as Exhibit ‘2’ dated 27/03/2012 and Exhibit ‘G’, another

judgment dated 17/07/14 which suit was mounted at the Circuit Court, Takoradi by the

2nd Defendant herein and the other against the Plaintiff herein as a Defendant in that

Case. All the above cases were dismissed based on the identity of the boundaries

presented by the parties which the Courts found were differently described by the

parties.

In the instant case, the Plaintiff claims title over an Eight (8) poles of land described as

lying at Wassa Manso with the following boundary features, Manso to Amantsin Road,

Dekwere Stream swamping area and the road form land at tenant farmer Aziz Kolam.

In her evidence in chief, the plaintiff averred that the land in dispute forms part of

larger piece of land which larger piece of land boundaries she described as bounded by

Opanyin Annor Kofi, Opanyin Enimil Mireku, Opanyin Nserepong, Amantsin Chief’s

land, a lorry road leading to Dekyire from Amantsin.

The defendant in his amended statement of defence filed on 5/2/16 and dated 3/2/16

described the boundary features of the land in dispute as bounded by the farms of Nana

Anyani Boadu, he 2nd Defendant, one Joseph alias Anwona Man, then River Dakyere

and Aziz Cola.

In his witness statement to the Court, the 2nd Defendant mentioned the above

boundaries in his statement of defence. The Plaintiff in her reply to the 2nd Defendant’s

defence denied the boundaries given by the 2nd Defendant.

In cross-examination of Plaintiff by Counsel for Defendant, she answered like this.

Q. 2nd Defendant, yourself and his family do not inherit each other?

A. Yes, he is in the left and I am on the right.

Q. When your family came to Dixcove, 2nd Defendant’s family already had their

lands.

A Yes, they had theirs and we also had ours. We farmed on individual lands; we

did not farm together.

Q. Because the land was their family land that is why they gave it to the 1st

Defendant?

A. No not so. His family is far away from ours.

Q. Is it the case that the disputed land is your family land?

A. Yes.

Q. But you are not the family head?

A. Yes.

The above discourse does not leave any doubt in the mind of the Court that the lands

the parties describe in this suit are different lands.

As stated in the case of Fosua and Adu-Poku vrs. Dufie (deceased) supra, it was held

that in an action for declaration for title, the onus is heavily on the Plaintiff to prove his

case and not rely on the weakness of the Defendant. The Plaintiff was supposed to
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prove that her boundaries were the same as the boundaries she was accusing the

Defendant of occupying. She called one witness after her evidence in chief. Her

evidence at paragraph Eleven (11) of her witness statement was that “I reaffirmed that

the land in dispute is on the right side of the road leading to Amantsin. It is part of the

Plaintiff’s land”. This is what she came to Court to reaffirm. She also confirmed the

boundaries features of the Plaintiff who she said was her mother.

In cross-examination of her by Counsel for the Defendant, the PW1 answered this way;

Q. Your claim that the 2nd Defendant’s family land is on the left is not true?

A. It is true.

Q. Prior to the construction of the road, the land was one and it was the

construction of the road to Amantsin that led to the division of the land?

A. Not true.

The witness to the Plaintiff still insists that the lands are at different sides of the road. It

is therefore not surprising that their boundaries features in this suit are not the same. If

they are not the same, then their lands are different and they did not have any common

issue to be resolved. It was clearly stated in the case of Gawu III & Anor. Vrs. Ponuku

supra that for a Plaintiff to succeed in an action for declaration of title to land and

recovery of possession, he must establish positively the identity of the land he is

claiming and where he admits that the land forms boundary with land belonging to the

Defendant; he must establish clearly the boundary between his land and the land which

he admits is the property of the Defendant and show that the land in dispute is at his

side of that boundary. That the Plaintiff has not been able to do. What boundaries she

has established are different from the boundaries the defendant has established. In

cross examination of the Plaintiff, she answered as follows:

Q. You sued him and the 2nd Defendant in this suit on this same land at Sekondi

District Court?
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A. Yes.

Q. In that Court, you lost the case. The Court held that that land in dispute was not

yours which land is also the subject matter in dispute in this Court?

A. No. It was not given. We were to take over our own plots. It is the same land.

Q. At the High Court, you lost over there; the Court affirmed the decision of the

lower Court?

A. Yes, that we should take our lands.

The above questions and answers are indicative of the fact that the lands for the parties

are not the same. All the earlier decisions, according to the Plaintiff, asked them to go

for their own lands. This means their lands are different and so everybody should go to

his. This is the case and actually it is because the lands, from the facts, are different

from the definition of the boundaries. No Court could have given title to any of them

even if they had counterclaimed since the lands are not the same by description per

their boundaries.

As said earlier by this Court, the Court will have decide this matter on merits only if it

had been clear that the parties are contesting the same land.

It is only then the Court can use the evidence before it to decide which of the parties

owns the land. In the instant case the lands are different so this Court rules that the

parties are entitled to remain on their respective lands. The suit is therefore dismissed.

Cost of Two Thousand Ghana Cedis (GH¢2,000.00) is awarded against the Plaintiff in

favour of the Defendants.

SGD

H/H MICHEAL K. AMPADU

(CIRCUIT COURT JUDGE)