BABA GAMBO BAAKO VRS PRINCE ARMAH & 2 ORS. (L310/2003) [2024] GHAHC 100 (24 January 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE GHANA, LAND COURT SEVEN (7) HELD IN ACCRA ON THE WEDNESDAY THE 24TH DAY OF JANUARY, 2024 BEFORE HIS LORDSHIP ALEXANDER OSEI TUTU, J. SUIT NO: L310/2003 BABA GAMBO BAAKO (ADMINISTRATOR OF THE ESTATE OF MALAM SAADU BAAKO ALIAS MALAM GAMBO BAAKO) VRS 1. PRINCE ARMAH SARBON ZONGO 2. A.M.A. 3. LANDS COMMISSION ACCRA ===================================================================== J U D G M E N T It is a sad commentary for our judicial system that an unsophisticated case such as this should drag in |Court for more than two decades. I could count at least eight Judges from the records who have handled the suit. At last, the matter is coming to an end today at the trial Court. In the Amended Statement of Claim and Writ of Summons filed on 30th October, 2008, the Plaintiff sought for the following reliefs: “a. A Declaration of title to the piece of land at Sabon Zongo measuring an approximate area of 1.23acres bounded on the North-east by a proposed JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22ND DAY OF JAN., 2024 1 road measuring 185 feet more or less, on the South-West by a proposed road measuring 170 feet more or less, on the North West by the vendor’s land measuring 180 feet and 120 feet respectively more or less and on the South East by the vendor’s land measuring 175 feet more or less. b. A Declaration that the purported acquisition of the said piece of land by the Second Defendant is null and void for compliance (SIC) with its regulations. c. An Order of the Court for the recovery of possession by the Plaintiff from the Defendant for any portion they had trespassed upon. d. Perpetual Injunction restraining the Defendants, their agents, assigns, workmen from dealing with the Plaintiff’s land contrary to his interest. THE CASE OF THE PLAINTIFF The Plaintiff is the son of the late Malam Saadu Baako who died on 24th September, 1997. He instituted this action as the administrator of his late father’s estate, having been granted Letters of Administration by an Accra High Court on 14th July, 1999. It is his case that the Chief of Sabon Zongo and head of the Malam Bako Family by name Mallam Lawan Baako in the 1950’s customarily granted a piece or parcel of land to his late father until in 1979 when a Deed of Conveyance was registered as No. 343/1081 in his name. Apparently, Malam Bako had customarily been granted the Sabon Zongo lands in 1908. According to the Plaintiff, some time ago, the First Defendant’s father trespassed unto the land and sold it to one J.T. Ayenor who was a Deputy Police Commissioner (DCOP) and his father sued him in 1977 in Suit No. 328/77 titled Malam Lawan Baako V. J.T. Ayenor. The father of the First Defendant joined the suit, but the matter was abandoned when the docket could not be traced. Prior to that, J.T. Ayenor had renounced his interest in the portion of the land sold to him by the First Defendant’s father and removed all his materials deposited on the land. The Plaintiff’s father continued to enjoy full possession of the land with his family, until recently when the First Defendant trespassed unto a portion of the land. JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 2 It was further averred by the Plaintiff that the First Defendant has now trespassed unto a portion of the land, which caused him to protest. He relied on several judgments declaring the Baako Family as owners of the land. The Plaintiff undertook the construction of a public bathroom and a corn mill on his land but they were demolished by the Second Defendant on 16th December, 1996 at the instance of the First Defendant without being given any notice. When he protested, the Second Defendant informed him that the said land had been acquired by the state. He was compelled to petition the Commission on Human Rights and Administrative Justice (CHRAJ) for redress, but the Second Defendant was unable to produce their documents as to their acquisition of the land and whom compensation was paid to, if any. The Plaintiff would want to develop the land or have a replacement for same and being aggrieved, he instituted this action. In response to the Defendants’ defence that the land is covered by an Executive Instrument, the Plaintiff countered that the Instrument has wrongly been extended to cover his land. THE CASE OF THE FIRST DEFENDANT In the Amended Statement of Defence filed on 9th December, 2016 pursuant to leave granted by the Court on 8th December, 2016, the First Defendant denied the claim of the Plaintiff. He is a businessman and is currently in possession of the subject matter land with his siblings. He noted in his pleadings that in 1996 his father, Robert K. Commey conducted a search on the land at the Lands Commission where it was revealed that the whole site forms part of land acquired by the Government under an Executive Instrument dated 19th September, 1963 for City Council School. The search also indicated his father’s interest of F/NO. AC 4044. A further inquiry on behalf of his father at the Town and Country Planning indicated that an approval for the rezoning of the land for residential purposes was effected on 22nd July, 1964. JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 3 The First Defendant and his siblings have since inherited their father’s property and therefore counterclaims against the Plaintiff for the declaration of title to the subject matter land, recovery of possession and perpetual injunction against the Plaintiff, his agents, assigns, workmen and all persons claiming through him from dealing with the land. His late father’s long occupation and possession of the land was regularized by the Ministry of Land and Mineral Resources on 23rd March, 1979. An indenture covering the land in his father’s favour was pleaded and tendered in evidence. The First Defendant in his counterclaim sought for declaration of title to the subject matter land, recovery of possession and perpetual injunction against the Plaintiff. THE CASE OF THE SECOND DEFENDANT The Second Defendant denied taking instructions from the First Defendant and averred that in the performance of its statutory duty, it does not take instructions from third parties. It maintained that as part of its mandate, it has a duty to remove unauthorized structures not covered by building permits. It further noted that it has no obligation to replace the unauthorized structure of the Plaintiff, hence contends that the suit against it is misconceived. In its Amended Statement of Defence filed on 2nd March, 2010, it counterclaimed against the Plaintiff for: “a. Declaration of title to all that piece of land acquired for Accra Municipal Schools under Executive Instrument, 131 of 1963. b. Recovery of possession to the land acquired by the state. c. An Order setting aside all judgments in favour of the Baako family as owners of any land affected by the 1963 E.I JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 4 d. An Order revoking and /or cancelling the Registration of the Plaintiff’s Deed of Conveyance No. 343/1081. e. Perpetual Injunction to restrain the Plaintiff, his agents, assigns, workmen and personal representatives from interfering with the land affected by the E.I. 131 of 1963. The Second Defendant testified through its desk officer on Education by name, S.O. Awuku. He stated that the subject matter land forms part of the State Lands acquired under Executive Instrument 131 dated 19th September, 1963 for Accra Municipal Schools. He claimed that the Plaintiff’s Deed of Conveyance registered as No. 343/108 of 1979 is null and void. ISSUES FOR DETERMINATION On record, the following issues filed on the 25th day of September, 2003 by the Plaintiff were set down by Justice Akwaah J. as the issues for determination at the Summons for Direction stage (now Application for Directions) on the 14th of October, 2003: a. Whether the Plaintiff is entitled to a declaration of title as per the endorsement on his Writ of Summons? b. Whether the Plaintiff is entitled to an Order for recovery of possession of the portion of his land trespassed upon by the Defendants? c. Whether the Plaintiff is entitled to perpetual injunction? d. Whether or not the First Defendant is entitled to his counterclaim? e. Whether the Second Defendant demolished the Plaintiff’s structures lawfully? f. Any other issue (s) arising out of the pleadings. Admittedly, there were subsequent amendments to the pleadings by the parties and it does not appear that directions were taken again. Accordingly, the Court will raise the issues hereunder being convinced that they can adequately help resolve the issues: JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 5 a. Whether the land the subject matter in dispute is a state vested land? b. Whether the subject matter land belongs to the Plaintiff or the First Defendant? c. Whether the Second Defendant was justified in demolishing the structures of the Plaintiff erected on the land? d. Whether the Plaintiff is entitled to his reliefs? e. Whether the First Defendant is entitled to his counterclaim? f. Whether the Second Defendant is entitled to its counterclaim? IS THE SUBJECT MATTER LAND A STATE VESTED LAND? The Second Defendant centred its defence principally on the fact that the disputed land was acquired by the Government by virtue of Executive Instrument (E.I.) 131 of 1963 and wanted a declaration to that effect. Although the Plaintiff generally owes the burden of proof in civil suits, the law actually is that where a party makes an assertion, he assumes the legal burden. In the case of ANKOMAH VRS CITY INVESTMENT COMPANY LIMITED (2008) 19 MLRG 83; (2013) 43 MLRG 36, the Supreme Court held per Dotse JSC thus “It is a cardinal rule of evidence that whoever asserts must prove. In other words, the burden of proving an assertion is on the person who makes the positive.” (See also FARIS VRS BAKALIAN [2008] 18 MLRG 204 @ 213 & MAJOLAGBE VRS LARBI (1959) GLR 190 @192). Significantly, where the Defendant counterclaims, he is in the same position as the Plaintiff. In ABED NORTEY VRS AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION [2014] 77 GMJ 1 @ page. 40, Akamba JSC couched it thus: “Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in a substantive action if he/she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by Sections 11 and 14 of NRCD 323, the Evidence Act (1975)” (See also ERASMUS MARLAI COMMODORE & ANOR VRS ESMERALDA AYELEKUNTIN-NUAMAH JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 6 [2016] 95 G.M.J. 196 @ 223, C.A. & SETH SEADEY VRS MRS. GERTRUDE ADJATEY ADDY [2018] DLCA 4814). The Plaintiff had denied in his pleadings that there was no such Executive Instrument and even if there was at all, it did not affect his land. What would have helped resolved the issue was the production of the said E.I. 131 of 1963 and the plan indicating where the instrument covered. Undoubtedly, the production of these documents was the responsibility of the Second Defendant who stands to benefit from it if established or risked losing out if it is not. Under cross-examination of the Second Defendant’s representative by Counsel for the Plaintiff, he noted that the site plan of E.I. 131 of 1963 was available and could produce it to the Court. Unfortunately, he never did. As it stands, the averment that the land claimed by the Plaintiff is covered by E.I. 131 of 1963 remains a mere assertion without any substantiation. It is the law that if a party had in his possession certain documents to establish his case, but fails to produce them, the proper inference to be drawn is that the document never existed or if it did, it contained not the averments mentioned or testified about. (See BOUSIAKO COMPANY LIMITED VRS COCOA MARKETING BOARD (1982-83) 2 GLR 824 @ 839; GYAMPO VRS EVANS, COURT OF APPEAL, 26 JUNE 1972, UNREPORTED & KORLEY VRS BRUCE [1962] 1 GLR 7 AT PAGE 10). The inference that can be drawn in the instant case is that the disputed land is not covered by the Government acquisition as contended by the Second Defendant. Counsel for the Plaintiff submitted in his written address that if the subject matter land falls within E.I. 131, it is the Third Defendant which is seized with the authority to litigate over all public lands including the instant land and not the Second Defendant. It does not appear to me that that argument is unsound. The Court further takes into consideration the answers of the Second Defendant’s representative, Seth Otu Awuku, when he responded to a question posed to him by Counsel for the Plaintiff under cross-examination on the 4th day of May, 2018 thus: JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 7 “Q: The Plaintiff’s family land is immediately a neighbour to the school? A: I know it is a neighbour but I cannot say it is immediately, unless you look at the site plan before you can tell how close to the school property.” By implication, the witness per his answer did not deny the fact that the Plaintiff’s family has their land near the school, despite having earlier denied the Plaintiff’s claim. If the Plaintiff’s land was actually covered or taken over by the Government’s acquisition, it was not explained anywhere in the evidence by the Second Defendant how the Plaintiff’s family continued to be a neighbour to the school. The Second Defendant did not also say that the state acquisition affected only a part or a portion of the Plaintiff’s land. In its defence and Witness Statement, it sought to say that the state’s acquisition affected the entire subject matter land which the Plaintiff is laying claim to. (See paragraph 11 of both documents). The allegation of the Government’s acquisition was even whittled down by the First Defendant who claimed his father rather granted the land to the school and this could not be seriously challenged by the Second Defendant. It may be recalled that the Second Defendant counterclaimed against only the Plaintiff for the Court to declare that the subject matter land is covered by E.I. 131 of 1963. In the light of the above analysis, the Court finds that the evidence on record does not support the assertion that the disputed land is covered by the Executive Instrument 131 of 1963. IS THE SUBJECT MATTER LAND FOR THE PLAINTIFF OR FOR THE FIRST DEFENDANT? Both the Plaintiff and the First Defendant are laying claims to the subject matter land. Incidentally, they make their claims based on lands held by their respective fathers. The Plaintiff sued as the administrator of his late father’s estate and tendered the Letters of Administration granted him by the High Court, Accra on 14th July, 1999 as Exhibit ‘A’. The Plaintiff’s case is that Malam JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 8 Lawan Baako, who had been granted the Sabon Zongo lands in 1908, customarily granted 1.23acres of the land to his late father, Mallam Gambo Baako, in the 1950’s and he remained in possession until a Deed of Conveyance was executed for him in 1979 and registered as No. 343/1981 (He tendered it in evidence as Exhibit ‘B’). The Plaintiff and his family continued to live on the land until the First Defendant trespassed unto a portion of it and sold it to one DCOP J.T. Ayenor. Proceedings of the suit were tendered as Exhibit ‘C’. It does not appear that Exhibit ‘C’ is of any probative value. Being mere proceedings and not a judgment, it cannot raise an issue of res judicata against the First Defendant. In NYAN V. AMIHERE (1964) GLR 162, the Supreme Court held: “To ascertain the subject matter of a judgment forming the basis of a plea of res judicata the matters to be considered by the court are, inter alia, the judgment itself and the whole of the record especially the evidence of the parties in Court substantially forming the basis of the adjudication.” (See also ADUMUA OKWEI VRS ASHIETEYE LARYEA [2011] 1 SCGLR 319 & A.G.’S DEPT VRS SWEATER & SOCKS FACTORY LIMITED [2014] 74 G.M.J. 1 @ 10). Consequently, if the DCOP J.T. Ayenor renounced his interest in the land and evacuated his materials on it as is being alleged by the Plaintiff, there is nothing to show that the First Defendant’s father did same or ceased to be a party to the suit. The Plaintiff further relied on various judgment delivered in favour of his grantor as Exhibits ‘D’ series. In his defence to the First Defendant’s counterclaim, he pleaded that the first Defendant is estopped from laying claim to the land by reason of the said judgments. To the extent that the judgments in Exhibit ‘D’ series did not involve the First Defendant or his predecessors, he cannot be bound by them. They may only serve the purpose of demonstrating his predecessors’ interest in the land, but not as an estoppel against the First Defendant, who is a stranger to the said judgments. The Plaintiff’s counsel submits that they are successors in title. This was not explicitly pleaded as is generally required by law (See the cases of KWAO VRS BAALEIFIO (2009) 1 GLR 697, C.A. & DOLPHYNE VRS SPEEDLINE STEVEDORING CO. LTD & ANOR. [1997-98] 1 GLR 786, S.C.) Suffice to say, in most cases, res judicata is often employed as a defence and not as a cause of action. JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 9 Nevertheless, putting the Plaintiff’s evidence together, particularly with his proof of long possession and the judgments in Exhibits ‘D’ series, it could be seen that the Plaintiff has made out a very strong case relative to the 1.23acre land he is claiming from the Court. The First Defendant also claimed that his late father acquired the land. Per a search conducted by his father, the results revealed that the whole site formed part of land acquired by the Government under an Executive Instrument dated 19/09/63 for City Council School (See Exhibit ‘1’). According to the exhibit, a procural in favour of the First Defendant’s father as F/NO AC 4044 was noted. Further enquiry about the land indicated that it was rezoned into residential purposes by the city authorities on 22nd July, 1964 tendered as Exhibit ‘2’. The First Defendant’s father’s interest in the land was regularized by the Ministry of Lands and Mineral Resources on 23rd March, 1979 as Exhibit ‘3’. The First Defendant tendered his father’s 1954 indenture covering the land as Exhibit ‘4’. A careful examination of the Defendant’s case raises a plethora of questions. From the word go, the First Defendant shot himself in the foot. While the Plaintiff sued for a declaration of title to a 1.23acre land, a portion of which he alleged the First Defendant trespassed upon (see paragraph 4 (b) of the Amended Statement of Claim) and consistently stood by that, the same cannot be said of the First Defendant’s claim. In his defence, the First Defendant counterclaimed for ‘Declaration of title to all the piece or parcel of land the subject matter of this suit”. No specific dimension was stated, neither was the description of his boundaries. By implication, he was asking for the very land the Plaintiff was seeking declaration of title to, being of an acreage of 1.23acres. However, the site plan in the First Defendant’s father’s name, Robert Klemesu Commey, as attached to Exhibit ‘1’ has an area of 0.41 acre. Further, in Exhibit ‘4’, which the First Defendant tendered as his father’s indenture, the acreage or the dimension of the land is left void. It could be seen that the site plan attached to this 1954 indenture, stamped in 2010, does not JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 10 have anybody’s name on it to show that it is the site plan of Robert Klemesu Commey. It was of little wonder that the Plaintiff’s Counsel before ending his cross examination of the First Defendant suggested to him that Exhibit ‘4’ does not relate to the subject matter land to which the First Defendant disagreed with him. Perhaps, if the First Defendant had carefully examined the said exhibit, he would have swallowed a humble pie, because the said site plan has an area of 265acres and not 0.41 acres as he alleged was his father’s land. As it stands, the identity of the First Defendant’s father’s land is uncertain. It is not known whether that was the reason why the First Defendant failed to mention the dimension of the land he is claiming in his counterclaim. It is trite law that a person who makes a claim for a declaration of title to land must fail if he is unable to establish positively the identity of his land. (See ANANE & OTHERS VRS DONKOR & ANOTHER (CONSOLIDATED) (1965) GLR 188, SC; LIVING FAITH WORLD OUTREACH CENTRE & ORS. VRS THE REGISTRAR GENERAL & ORS, NO. J4/49/2021, 17 MAY 2023, S.C. & BISSAH VRS GYAMPOH III (1964) GLR 381, SC). The First Defendant’s father’s indenture (Exhibit ‘4’) was allegedly executed in 1954, but the year the attached site plan was prepared was in 1961. This means that it took seven years after the execution of the indenture before the preparation of the site plan. And since the dimension of the land was left vacant in the indenture, issues may be raised about the actual land he obtained when he executed the indenture. The Court of Appeal had held in MARINA HOTEL LTD VRS STEPHEN MENSAH [2016] 92 GMJ 141 @ 174 thus: “It is trite that one cannot obtain a conveyance in respect of land which the boundaries have not been specified.” Aside Exhibits 1 and 4, the other exhibits (2&3) do not have the dimensions and descriptions of the disputed land and offer little or no relevance to the Court in the determination of the instant issue. The Composite Plan also revealed that while the land of the Plaintiff and the First Defendant intersect, both have their separate lands. Is the First Defendant now asking for the land as delineated for him in the Composite Plan or the 1.23 acres being claimed by the Plaintiff; bearing in mind that he counterclaimed for the very land the Plaintiff is claiming in his Writ and not for land of an area JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 11 of 0.41 acre or 265 acres? Should the Court decide to grant the counterclaim of the First Defendant, it will have to contend with which of the two Site Plans to abide. Regardless, the evidence of the First Defendant was full of inconsistencies. In one vein he was seeking to benefit from a procural obtained by his father after the Government had, by an Executive Instrument acquired the land. In another vein, he claimed his father owned the land and granted part of it to the Government for the purpose of building a school. Again, in paragraph 3 of his Witness Statement, the First Defendant claimed his late father conducted a search on the land in 2006. Under cross examination on 26th April, 2018, he said his father died in 1999. It beats my imagination how a person who died in 1999 could conduct a search in 2006. At paragraph 4 of the Witness Statement, he turned around to say that the search was conducted in 1996, without endeavouring to give any explanation for the two conflicting assertions. The First Defendant further claimed that his father had his land from the Government on 22nd July, 1964 after it had been rezoned for residential purposes. However, under cross examination by the Plaintiff’s Counsel on 30th April, 2018, he said ‘… I was given birth in 1949 when we were already on the land’. As I have earlier pointed out, the Plaintiff’s evidence appears more consistent and reliable. Aside some minor discrepancy such as the fact that his grandfather Mahammadu Baako was the one who first acquired the land before it passed it on to his father and to him; he did not waver in the dimension of the land he is claiming in this Court being of an area of 1.23 acres. His case is that it is a portion of his land (and not the entire land) which the First Defendant trespassed upon. This was confirmed by the Composite Plan. In his lawyer’s questions to the First Defendant, he did not dispute the fact that they have their separate lands, but maintained that the First Defendant had trespassed unto a portion of his own. The First Defendant denied entirely that the Plaintiff has land at the area. Cross–Examination of First Defendant by the Counsel for the Plaintiff JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 12 “Q: You have a family land around the family house of the Plaintiff; is that not so? A: No my Lord. Q: You do not know that the Plaintiff’s family house is just by your family house? A: No, my Lord.” The First Defendant was however exposed by the Composite Plan which showed his land and that of the Plaintiff converged. The admission of the Second Defendant’s representative that the Plaintiff’s family land is a neighbour to the School reaffirms the Plaintiff’s land at the area. The Court is thus satisfied that the Plaintiff has been able to demonstrate that he owns the 1.23acre-land at Sabon Zongo being claimed. On the contrary, the Court believes that the First Defendant has failed to establish that the subject matter land belongs to him. Whether the Second Defendant was justified in demolishing the structures of the Plaintiff erected on the land? The Plaintiff claimed that it was the Second Defendant that demolished the structures of the public bathroom and corn mill he constructed on the land. The Second Defendant did not deny the allegation of the demolishing made by the Plaintiff, but rested its defence on two main premises. “i. That the subject matter land does not belong to the Plaintiff because it was acquired by the Government through E.I. 131 of 1963 purposely for Accra Municipal Schools. ii. That the Plaintiff did not obtain the requisite building permit under the Local Governance Act, 2016 (Act 936) to construct the structures he erected on the land and the Second Defendant as part of its responsibilities entrusted by the law had the duty to demolish it after posting a STOP WORK notice”. JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 13 Since the Plaintiff disputed the allegations, the burden fell on the Second Defendant to establish that its acts of demolishing the structures of the Plaintiff was justified by law. On the issue of the subject-matter land being a state land, the Court has sufficiently dealt with it earlier in this judgment that the failure of the Second Defendant to produce or tender the said E.I. 131 of 1963 and its accompanying plan to superimpose on the land is not in its best interest. The courts rely on proof in evidence and not mere assertions as happened in this case. On the defence of the Second Defendant’s demolishment of the Plaintiff’s structures on the land for not procuring a building permit to construct the structures, the least said about it the better. The Court is not ignorant of the fact that the law generally presumes official acts to be regularly performed (See Section 37 of the Evidence Act, 1975 (NRCD 323). However, it must be noted that it is only a presumption which under the same statute is one of rebuttable or inconclusive presumption (see Section 30 of the Act), hence evidence may be admissible under Sections 19 & 20 to disprove it. The Plaintiff led evidence that his property was demolished by the Second Defendant without notice to him and that caused him to petition CHRAJ for a redress, but the Second Defendant could not produce any document to justify its actions. The Second Defendant at that stage assumed the burden of proving that it acted within the law in demolishing the Plaintiff’s structure. Essentially, the Counterclaim it mounted against the Plaintiff enjoined it to prove its case. Did it succeed in proving that it operated within the law in demolishing the Plaintiff’s structures which he had erected? It may seem that the defence was an afterthought. When the Second Defendant’s representative, S.O. Awuku, in 2017 stated at paragraph 6 of his Witness Statement that it had power under the Local Governance Act of 2016 (Act 936) to demolish the Plaintiff’s structure because he did not have a building permit, it had forgotten that prior to the Plaintiff commencement of his action in 2003 when he complained about demolishment of his buildings, the said Act was not in existence and it was not surprising that he sought to elucidate at paragraph 9 that prior to the enactment of Act 963 in JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 14 2016 and around 2002 when the demolishing was done, there was a similar enactment in place being the Local Government Act, 1993 (Act 462) which equally enjoined developers of land to obtain permits from the appropriate local authorities, otherwise their properties risked being demolished (See section 64 and the Third Schedule of the Act). Nonetheless, the demolishment of a structure could not take place under Act 462 except ‘notice in writing in the form prescribed in the Third Schedule’ of the Act had been given to the developer. While the Second Defendant claims it posted a STOP WORK NOTICE on the land and requested the Plaintiff to produce permit covering same before undertaking the demolishing exercise, it failed to give details of the notice. When was the notice issued? How many days did it take from the date of the issuance of the notice before the structures were demolished? Which officer issued the notice and supervised the demolishing? These questions are relevant because the law required that the notice under section 64 of the then applicable law was to be in writing and strictly followed the form stipulated in the Third Schedule. Some detailed information under the Third Schedule were expected from the person serving the notice. The Court does not know whether they were complied with because the Second Defendant’s witness did not adduce any evidence on their apart from generally saying it notified the Plaintiff and despite the fact that the Plaintiff had denied being notified prior to the demolishing. It is common knowledge that when an assertion is denied, it is not enough to give general statements and consider them as proof in law. In appropriate cases, details of such proof may be required in order to consider the fact as having been established. For instance, in LADI V. GIWAH AND ANOTHER [2013–2015] 1 GLR 54, the Supreme Court held: Thus, when the fact that a gift had been made was challenged, if any, on which the gift was made, the date, the time, if possible, the venue and most importantly, in whose presence it was made had to be shown”. In the instant case, at least the Second Defendant, if for nothing at all, should have told the Court the date it issued the notice to the Plaintiff before undertaking the demolishing, especially when the Plaintiff denies ever being notified. It is not for nothing that Section 64 (2) of Act 462 provides that the notice in writing prior to the demolishing to be given to the developer or JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 15 occupier has to conform to the Third Schedule and the law maker in his wisdom has made provision for the date the notice is issued a requirement under the Schedule. I doubt whether the Second Defendant could undertake the demolishing exercise without complying with the strict demands of the law. The Supreme Court in REPUBLIC V HIGH COURT, KOFORIDUA; EX-PARTE ASARE (BABA JAMAL & OTHERS INTERESTED PARTIES) [2009] SCGLR 460 AT 509 held: “Where a statute has made provisions for certain steps to be taken in order to comply with the requirements of the law, then no other steps other than those prescribed must be taken or followed. In this case, once the first interested parties have failed to strictly adhere to the provisions of PNDCL 284 as will be shortly established, it follows that their actions fall flat in the face of the law.” (See also GPHA VRS CONTINENTAL TERMINAL LTD. [2013-2014] 2 SCGLR 1625 AT 1653, S.C.; BOYEFIO VRS NTHC [1997-98] 1 GLR 768 & THE REPUBLIC VRS GENERAL JURISDICTION ‘5’, ACCRA, EX PARTE THE MINISTER FOR INTERIOR & ANOTHER (ASHOK KUMAR SIVARAM, CIVIL MOTION NO. J5/10/2018, DATED 8TH MARCH, 2018, S.C. (UNREPORTED). It is worthy of noting that the provision on the requirement of notice to a developer or occupier in writing before demolishing can be done has been replicated in Act 936 and I am guided by the unreported case of ESI YEBOAH ALIAS JUSTINA MONNEY VRS MFANTSEMAN MUNICIPAL ASSEMBLY IN SUIT NO. A2/06/2021, DATED 13TH OCTOBER, 2022 (available online), where the High Court, Mankessim held that the practice by most Assemblies in writing on structures ‘STOP WORK, PRODUCE PERMIT’ is not enough notice for undertaking a demolishing exercise. Justice Cecilia N.S. Davis (Mrs) held as follows: “such writings on peoples’ structures do not conform to the intention of the Act empowering the Assemblies and that if they decided to give notice, it has to be in writing, on paper, specifying the date within which the offender must respond etc”. I also take into consideration the fact that under the then applicable law, where a notice in writing was served on a developer before the demolishing was done, the said developer was to be saddled with the expense incurred in demolishing the property. (See Section 64 (5) of the Act). If the Plaintiff was actually notified prior to the demolishing of his structure, why was he not taxed with the expense incurred in the demolishing? JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 16 On the whole, the Court is not satisfied with the reasons adduced by the Second Defendant for demolishing the Plaintiff’s property on the subject matter land and holds that the demolishing of the Plaintiff’s property by the Second Defendant was unlawful. WHETHER THE PLAINTIFF IS ENTITLED TO HIS RELIEFS? The Plaintiff led evidence to prove that the subject matter land of 1.23 acres is his father’s land. He also established that the first Defendant has trespassed unto a portion of it as confirmed by the composite plan. His building on the land that was demolished by the Second Defendant was also proved. The Court believes that the Plaintiff deserves the grant of the various reliefs he is claiming from the Court. The Court however realizes that the Plaintiff did not make any case against the Third Defendant. Conversely, the Court forms the opinion that the First Defendant’s counterclaim is bogus that does not deserve the sympathy of the Court and so is the counterclaim of the Second Defendant. Consequently, the entire claims of the Plaintiff are granted as follows: “a. A Declaration that the Plaintiff is the owner of all that piece and parcel of land situate and lying at Sabon Zongo and containing an approximate area of 1.23 acres and bounded on the North- East by a proposed road measuring 185 ft more or less on the South-West by a proposed road measuring 170 ft more or les on the North-West by vendor’s land measuring 180 ft and 120 ft respectively more or less and on the South-East by vendor’s land measuring 275ft more or less. b. A Declaration that Executive Instrument 131 of 1963 does not cover the Plaintiff’s land. c. An Order of recovery of possession of the said land from the Defendants. d. Perpetual Injunction restraining the Defendants, their agents, assigns and workmen from dealing with the Plaintiff’s land contrary to his interest. JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 17 It bears emphasis that both counterclaims of the First & Second Defendants contained in the Amended Defences filed on 9th December, 2016 and 2nd March, 2010 respectively are hereby dismissed in limine. Considering the fact that the matter has dragged for 20 good years, I award costs of GH¢20,000 each against both the First and Second Defendants. I believe that this is a matter the Second Defendant deserves to have compensated the Plaintiff for its unlawful demolishment of his property, but I restrain myself because the Plaintiff did not personally ask for damages for the trespass and the unlawful demolishing. Finally, no costs shall be awarded against the Third Defendant, because it was a nominal party and no specific allegation was levelled against it. (SGD.) H/L ALEXANDER OSEI TUTU JUSTICE OF THE HIGH COURT PARTIES: PLAINTIFF PRESENT IST DEFENDANT PRESENT 2ND AND 3RD DEFENDANTS ABSENT COUNSEL: HAMID MASHOOD ESQ. WITH MUKAILA ASUMAILA ESQ. H/B FOR ALI GOMDAH ABDUL-SAMAD ESQ. FOR PLAINTIFF PRESENT VANESSA SAM-WOODE ESQ. WITH ISABELLA ADIREH ESQ. H/B FOR FELIX QUARTEY ESQ. FOR 1ST DEFENDANT PRESENT EMMANUEL BRONI-BEDIAKO ESQ. AND ROSELYN INKOOM ESQ. H/B FOR ISAAC OSEI-OWUSU ESQ. FOR 2ND DEFENDANT ABSENT JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 18 DOUGLAS OBENG ESQ. FOR THE 3RD DEFENDANT ABSENT REFERENCES: CASES CITED: 1. ANKOMAH VRS CITY INVESTMENT COMPANY LIMITED (2008) 19 MLRG 83; (2013) 43 MLRG 36 2. FARIS VRS BAKALIAN [2008] 18 MLRG 204 @ 213 3. MAJOLAGBE VRS LARBI (1959) GLR 190 @192 4. ABED NORTEY VRS AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION [2014] 77 GMJ 1 @ PAGE 40 5. ERASMUS MARLAI COMMODORE & ANOR. VRS ESMERALDA AYELEKUNTIN-NUAMAH [2016] 95 G.M.J. 196 @ 223, C.A. 6. SETH SEADEY VRS MRS. GERTRUDE ADJATEY ADDY [2018] DLCA 4814) 7. BOUSIAKO COMPANY LIMITED VRS COCOA MARKETING BOARD [1982–83] 2 GLR 824 @ 839; 8. GYAMPO VRS EVANS, COURT OF APPEAL, 26 JUNE 1972, UNREPORTED 9. KORLEY VRS BRUCE [1962] 1 GLR 7 AT PAGE 10. 10. NYAN VRS AMIHERE (1964) GLR 162, 11. ADUMUA OKWEI VRS ASHIETEYE LARYEA [2011] 1 SCGLR 319 12. A.G.’S DEPT VRS SWEATER & SOCKS FACTORY LIMITED [2014] 74 G.M.J. 1 @ 10). 13. KWAO VRS BAALEIFIO (2009) 1 GLR 697, C.A. JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 19 14. DOLPHYNE VRS SPEEDLINE STEVEDORING CO. LTD & ANOR [1997 - 98] 1 GLR 786, S.C. 15. ANANE & OTHERS VRS DONKOR & ANOTHER (CONSOLIDATED) (1965) GLR 188, SC; 16. LIVING FAITH WORLD OUTREACH CENTRE & ORS. VRS THE REGISTRAR GENERAL & ORS, NO. J4/49/2021, 17 MAY 2023, S.C. 17. BISSAH VRS GYAMPOH III (1964) GLR 381, SC). 18. MARINA HOTEL LTD VRS STEPHEN MENSAH [2016] 92 GMJ 141 @ 174 19. LADI VRS GIWAH AND ANOTHER [2013–2015] 1 GLR 54 20. REPUBLIC VRS HIGH COURT, KOFORIDUA; EX-PARTE ASARE (BABA JAMAL & OTHERS INTERESTED PARTIES) [2009] SCGLR 460 AT 509 21. GPHA VRS CONTINENTAL TERMINAL LTD. [2013–2014] 2 SCGLR 1625 AT 1653, S.C.; 22. BOYEFIO VRS NTHC [1997–98] 1 GLR 768 23. THE REPUBLIC VRS GENERAL JURISDICTION ‘5’, ACCRA, EX – PARTE, THE MINISTER FOR INTERIOR & ANOTHER (ASHOK KUMAR SIVARAM, CIVIL MOTION NO. J5/10/2018, DATED 8TH MARCH, 2018, S.C. (UNREPORTED). 24. ESI YEBOAH ALIAS JUSTINA MONNEY VRS MFANTSEMAN MUNICIPAL ASSEMBLY IN SUIT NO. A2/06/2021, DATED 13TH OCTOBER, 2022 ENACTMENT: 1. EVIDENCE ACT, 1975 (NRCD 323) JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 20 JUDGMENT DELIVERED BY ALEXANDER OSEI TUTU J. IN SUIT NO. L310/2003 AT LAND COURT ‘7’ ON 22 ND DAY OF JAN., 2024 21