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JUDGMENT
JUDGMENT
According to the plaintiffs, their late father Opanyin Yaw Mensah who died over 30
years ago gifted his personally acquired farmlands to his wife and children in his will. It
is plaintiff’s claim that a year after their father’s death, the then Ebusuapanyin Kwame
Osei distributed the farmlands according to the dictates of the will. The farmland covers
land space measuring 18.20 acres and is situated on the Fosu-Dunkwa road. The
plaintiffs took possession of their farmland and occupied same until the defendant
trespassed and started to lay claim to it as family property. The defendant is the current
head of the family of the plaintiff’s late father and he disputes the plaintiff’s father’s
ownership of the said lands. He also claims that no such will was made and even if it
was, the father of the plaintiff’s father could not have gifted the land since it was family
property.
Both parties seek from this court declaration of title to all that piece and parcel of land
situated at Fosu Dunkwa and measuring 18.20 acres. Also included in their reliefs is an
order for perpetual injunction against the other party from interfering with the land as
well as costs. The main issue for determination is whether or not the land in dispute is
family property or the personal property of the late Yaw Mensah.The standard burden of proof in civil matters is proof by a preponderance of the
probabilities. This principle of law has statutory backing having been provided for in
sections 11(4) and 12 of the Evidence Decree, 1975 NRCD 323. It has also been affirmed
by countless decisions of the Supreme Court of Ghana. See the cases of Adwubeng v
Domfeh 1996-97 SCGLR 660 and Takoradi Flour Mills v Sami Faris 2005-06 SCGLR 682
In discharging the burden of proof the Supreme Court in the case Don Ackah v Pergah
Transport & others [2010] SCGLR 728 held that
….the method of producing evidence is varied and it includes the testimonies of the party and
material witnesses, admissible hearsay, documentary and thing (often described as real evidence)
without which the party might not succeed to establish the requisite degree of credibility
concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that
matters that are capable of proof must be proved by producing sufficient evidence so that on all
the evidence a reasonable mind could conclude that the existence of the fact is more reasonable
than its non-existence.
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