IN THE DISTRICT COURT, KADJEBI IN THE OTI REGION OF THE REPUBLIC OF

GHANA HELD ON FRIDAY THE 21ST DAY OF JULY, 2023 BEFORE H/W ERIC K.

FIAMORDZI ESQ. (MAGISTRATE)

SUIT NO. A1/09/2018

1. JOSEPH KOFI MENSAH

BOTH SUING FOR AND ON BEHALF OF THE

DESCENDANTS OF GEORGE KWAKU MENSAH

(DECEASED) OF DODI PAPASE. PLAINTIFFS

1. KWAME SEWUDIE
2. NANA YAW OBOUR DEFENDANTS

JUDGMENT

This judgment stems from the outcome of a civil writ of summons issued by the

Plaintiffs against the Defendants under the District Court Rules, 2009 CI 59 Order 2

rules 3(6) for the following reliefs:

1. Declaration of title of ownership of all that piece of land situate and lying at

Kadjebi near the Kadjebi Main Lorry Station and bounded as follows:

On one side by Okyeame Akyea

On another side by a lane to Anagokordzi Kadjebi

On the third side by Nana Kwasi Nyarku, and on the last side by Obakyeame

Ama which land was gifted to George Kwaku Mensah(deceased) by the then

Omankrado of Kadjebi.

2. Cost.

SUMMARY OF SUBJECT MATTER OF CLAIM.

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Plaintiffs are farmer and a staff of the Guaman

Rural Bank and bring this action against the Defendant(s) for and on behalf of

the descendants of George Kwaku Mensah (deceased) of Dodi Papase. The

Defendants are farmers and descendants of Nana Kwasi Nyarko living at Dodi

Papase. Plaintiffs said during the life time of George Kwaku Mensah and Nana

Kwasi Nyarko they acquired a piece of land from the Omankrado (chief) of

Kadjebi. Plaintiffs said, after acquiring this land they shared same into two equal

parts among themselves. Plaintiffs continued that George Kwaku Mensah

constructed a cocoa shade with house numbered KAF 183 on his portion and

appointed one Besah Denyo as a caretaker of the cocoa shade and he built a

house for the caretaker on a portion of this share of the land gifted to them by the

Omankrado of Kadjebi where the descendants of the said caretaker are still

occupying till date as caretakers.

Plaintiffs added that Nana Kwasi Nyarko also built a house on his with the

house numbered 181 on his portion. So, the two of them (George Kwaku

Mensah) and Nana Kwasi Nyarko) were in their respective occupation in their

individual houses peacefully until their demise. The Plaintiffs continued that

when cocoa farming was no more functioning, the cocoa shade was rented by

one Amegah from George Kwaku Mensah to operate a drinking spot and he

(George Kwaku Mensah) was collecting rents from Amegah. Plaintiffs added

that Mr. Amegah died and the drinking spot was left behind and one Kennedy

also sought permission from George Kwaku Mensah to operate a food joint/chop

bar till he passed on in the year 1994.

Plaintiffs continued further that after the demise of George Kwaku

Mensah, his self-acquired properties were disbursed among his children

including the first Plaintiff (P1) and the mother of the 2nd Plaintiff (P2).

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Plaintiffs noted that, during the sharing of George Kwaku Mensah’s properties,

his cocoa shade at Kadjebi was not shared.

It was reserved for the entire descendants to cater for any problem(s) affecting

the descendants of George Kwaku Mensah.

But, from the year 2013, the Defendant has been claiming the said cocoa shade as

the property of the late Nana Kwasi Nyarko. The Plaintiffs concluded that they

have reported the conduct of the Defendant to the paramount chief of Kadjebi

but to no avail hence this action to seek redress. Wherefore the Plaintiffs claim

against the Defendant as per the reliefs endorsed o the writ of summons.

The Defendants filed a notice of Counter Claim after the writ of summons was

served on him on the 16th day of March, 2018. The Plaintiffs did not file a reply to

the Counter claim.

On the face of the records, the plea of the defendant was taken on the 12th day of

March, 2018 and he (defendant) pleaded not liable to the reliefs of the Plaintiffs.

On the 9th day of April, 2018, the 2nd Plaintiff gave evidence in chief for himself

and on behalf of the first Plaintiff, after which he was cross examined by the

defendant.

The second defendant, on the face of the records applied to be joined as a party

and was joined on the 9th day of September, 2021 after the Plaintiffs had called

two witnesses on whom they relied. The witnesses were cross examine by the 1st

Defendant. The second Plaintiff was also cross examined by the second

Defendant in view of the fact that the PW2 was still being cross examined by the

first defendant before he (second defendant) was joined.

In all, the Plaintiffs relied on three witnesses who corroborated their evidence in

chief.

The second defendant elected to cross examine the PW3 for himself and on

behalf of the 1st defendant.

open their defence on their counter claim and they did.

The 1st defendant elected to open the defence for and on behalf of the 2nd

defendant.

He (2nd defendant) was cross examined by the second Plaintiff who also elected

to do so for himself and on behalf of the first Plaintiff.

The defendants also relied on three (3) witnesses to make their case. Again, the

three witnesses were cross examined by the 2nd Plaintiff on behalf of the first

Plaintiff.

The issues for the determination of this court are whether or not the land with

the house numbered KAF 183 at Kadjebi near the main lorry station with the

boundaries as described supra by the Plaintiff, should be declared as the

property of the late George Kwaku Mensah , or the property of Nana Kwasi

Nyarko I as described by the 1st defendant in the counter claim.

2 Cost should be awarded against the Plaintiffs or the defendants.

Section 12 of NRCD 323 (Evidence Act 1975) provides the standard of proof in civil

matters. It states:

“standard of proof in civil matters is by preponderance of probabilities. The standard

of proof here means the degree of certainty of belief in the mind of the court or tribunal

of fact by which it is convinced that the existence of a fact is more probable than its non-

existence:

By this standard or decree, a reasonable mind may conclude that upon the evidence

gathered, it is more likely that what is alleged had taken place than that it did not take

place”.

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This mean it is the Plaintiffs’ duty as required by law to produce the evidence of the

facts in issue and discharge that duty in a manner that on the preponderance of

probabilities, a reasonably person in the streets of Kadjebi or Dodi Papase could believe

and be convinced that the facts produced are more probable than not.

The parties invited the court to visit the properties (estates) in issue to see thing as they

are. The court saw the buildings being referred to as the property of Nana Kwesi

Nyarko I ad which has been numbered KAF 181, and which portions or parts of the

rooms are clearly on portions of the other building numbered KAF 183.

It has been observed that the two main semidetached buildings particularly the one

being referred to as the cocoa shade b the Plaintiffs, is the cocoa shed by the Plaintiffs, is

currently being occupied by one Juliana Adzo Amegah (who appeared before this court

as the second witness (DW2) for the defendants and led evidence in favor of the

defendants. The numbering should not fool anyone into believing that they are owned

by different owners

The Plaintiffs used one Okyeame Akyea as a boundary owner. A son (or for want of a

better word, a descendant of Akyea) known as Okyeame Asiedu Kwesi Akyea came

and gave evidence in favor of the defendants as the DW1.

In court, the PW1 told the court that, he ( Anane Denyo ) was born in the year 1965 in

the house owned by one George Mensah.

According to PW1, on the 14th day of May, 2017, the first defendant came to tell him that

one Kennedy’s wife (believed to be DW2) a DW2) has agreed to support him

(defendant) to claim the house from George Mensah’s descendants. As a court, I

wonder why he has kept that to himself till now

Under cross examination by the 1st defendant, the PW1 told the court that he knows the

first defendant as belonging to the same family as George Mensah.

Mensah in the year 1974, and not in the year 1950s. He maintained that the first

defendant came and told him that the DW2 had had planned to support the first

defendant to take the now disputed property.

According to PW2 ( Opanyi Kwame Akreh) who described himself as a distant relative,

Opanyin George Mensah passed on in the year 1994. So, he and other members

organized the funeral rites. After one year, he was among the family members in

George Mensah’s house where they shared his properties which are in Accra, Lome,

Kadjebi and other places.

It is the evidence of PW2 that one Opanyin Kofi Tuo was the one who supervised the

sharing of the properties, and the house situated at Kadjebi was given to Joseph Kofi

Mensah (first Plaintiff) alias Abrantie to act as caretaker on behalf of George Mensah’s

descendants.

The PW2 concluded that, after the ceremony, libation was poured and they all departed.

Under cross examination by the first defendant he told the court he saw the first

defendant and his brother at the ceremony where the properties were shared. He

added that some people (including himself) were asked to append their signatures to

what was documented on that day.

In the month of September, 2021, the 2nd defendant applied and was joined as Party in

the suit, after which cross examination of the PW2 continued.

According to the PW2, although he is aware that the defendants are related to the late

George Mensah, none of the members were made to sign the sheet of paper floated on

the day of the sharing of the properties of Opanyin George Mensah.

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The 2nd Defendant also applied to cross examine the PW2 and the court obliged him.

The PW2 said he cannot remember that some members of the Nyarko family (including

Nana Kwabena Boateng, Nana Kwame Simon, Kwabena Asamoah and Opanyin Yaw

Obiri) came to the sharing ceremony and were sacked.

The PW2 was emphatic when he said Amankrado Otuo, Okyeame Akromah and the

children of the late George Mensah were the people who told them (family and others

who were present at the sharing ceremony) that the building in issue belong to Nana

Kwasi Nyarko. He added that if they had known the estates belongs to Nana Kwasi

Nyarko they would not have shared them. So, clearly the PW1 and PW2 are not very

certain that the building in issue belongs to the late George Mensah. They are both

acting on hear- say evidence.

The PW2 even told the court that it is the 2nd Plaintiff who takes the rent from the

tenants in the house and not the first defendant.

The PW1 told the court that his father Besa Denyo, during his lifetime, was a

purchasing clerk for the late George Mensah.

The DW1 and DW2 as well as the DW3 have all corroborated the evidence of the

Defendants that the building in issue belongs to the late Nana Kwesi Nyarko I.

In relying on Mensah V Mensah [2013] 42 MLRG, Bielbiel V Daramani [2013] 43 MLRG,

and other related laws, I find as a fact that the evidence of the Plaintiffs has no leg to

stand on. As such the claims of the Plaintiffs must fall.

From the facts, the evidence adduced before the court, the law as well as on the

preponderance of probabilities I enter judgment in favor of the Defendants against the

Plaintiffs based on the counter claim filed.

I declare that the land and the buildings there on are granted to the defendants herein.

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The Plaintiffs, their heirs in title, their agents, workmen and all those who claim

through them (Plaintiffs) are hereby restrained from interfering with the property in

issue.

I award, the cost of ten thousand eight hundred and ninety Ghana Cedis

(GH₵10,890.00) against the Plaintiffs jointly in favor of the defendants herein.

H/W ERIC K. FIAMORDZI ESQ.

(MAGISTRATE)