HAMMOND VRS ARTHUR & ANOTHER (E1/6/2020) [2024] GHAHC 88 (19 January 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON FRIDAY THE 19TH DAY OF JANUARY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. 1. REV. ISAAC HAMMOND - PLAINTIFFS SUIT NO.: E1/6/2020 2. ERIC AKWA VRS 1. HON. DR. NANA ATO ARTHUR - DEFENDANTS 2. EKOW MENDS JUDGMENT The Plaintiffs have instituted this action in their capacity as Executors/Trustees of the Estate of the late Isaac Kweku Begyina. The Plaintiffs’ case is that the Deceased, during his lifetime, own the all that land described in paragraph 2 of the Plaintiffs’ Statement of Claim. The 1st Defendant is described as an ex-member of Parliament for Komenda- Edina-Eguafo-Airem Constituency and currently the Head of the Local Government Service. The 2nd Defendant is also a citizen of Ghana who resides in Cape Coast. According to the Plaintiffs, the Defendants are trespassers on the land described in paragraph 2 and have graded a portion of the said land and are unlawfully developing and putting up structures on the said land both day and night. The Plaintiffs aver that the late Isaac Kweku Begyina purchased the land in dispute in 2005 from Ebusuapayin Kobina Attah, Head of Anona Royal family of Kwaprow per an indenture dated 7th January, 2005. The Plaintiffs say that on 9th July, 2018 they obtained probate on the late Will and Testament of the Deceased in the High Court, Accra and visited the land with the view of gathering the assets of the Estate in order to administer the Estate of the Deceased. The Plaintiffs further aver that in or around July 2019, the Defendants trespassed and encroached upon portions of the disputed land by weeding it and have now brought machine unto the land with the intention of grading it for development. The Plaintiff reported the matter to the police but the Defendants never stopped their trespassory acts despite the advice of the police. The Defendants were further summoned to the palace of the chiefs (the Plaintiffs’ grantors) but they refused to honour the invitation. The Plaintiffs aver that the Defendants are determined to carry on with their trespassory acts and are using their high positions and political clout to bamboozle and intimidate the Plaintiffs and further to forcibly and unlawfully develop the land in dispute quickly during the day and at night to the detriment of the Plaintiffs. On the basis of the above facts, the Plaintiffs claim against the Defendants jointly and severally as follows: a. Declaration of title to and ownership of ALL THAT PIECE OF LAND (60-71) situate at Kwaprow near U. C. C., Cape Coast in the Central Region of the Republic of Ghana (particularly described in paragraph 2 of the Statement of Claim). b. Recovery of possession of the said piece or parcel of the said land. c. An order for the removal of any offending structures or objects or obstructions on the land in dispute by the Defendants. d. Perpetual injunction restraining Defendants, their agents, assigns and workmen or any person claiming through them from ever dealing with the land in dispute in a manner detrimental to the interest of the Plaintiffs and from interfering anyway whatsoever in the Plaintiffs’ rights, claims and interest to the land in dispute. e. General damages against the Defendants for their unwarranted and unlawful trespass on the said land. f. Costs including legal cost assed at 10%. The Defendants, on the other hand, being vehemently opposed to the claims of the Plaintiffs filed their Statement of Defence and Counterclaim on 5th May, 2020 wherein they denied all the assertions and claims of the Plaintiffs in their Statement of Claim. The Defendants’ case is that the late Isaac Kweku Begyina in his lifetime never brought any action against the Defendants because he knew the Defendants had not trespassed on his land. The Defendants further denied the Plaintiffs claim to the land in dispute. According to the 1st Defendant, the land in dispute has been their bona fide property since its acquisition from the grantors in 2007. He has his land documents which is duly registered at the Lands Commission and that there is 20 feet lane between the Two (2) plots thus, there is no way by which they can encroach on the property without blocking the access lane which conveys sand to other properties. According to the Defendants, encroaching on the land of the Plaintiffs would mean that other property developers cannot access their lands and the consequences would be chaotic and could lead to disturbance. The Defendants further aver that the 1st Defendant has a permit from the Metropolitan authorities to develop the said property and the development carried out on the land is at an advanced stage of construction till the Plaintiff initiated this suit. The Defendants aver that the permit was issued because it conforms to the statutory lay out scheme and all the requirements needed under the Spatial Planning law. The Defendants deny working in the night. According to the Defendants, when the issue of encroachment first came up, the parties met at the Metro Works Department. Both parties submitted their site plans for verification and onward site visit towards the resolution of the matter by the said institution but the Plaintiffs refused to appear for a surveyor to be appointed to go to site to carve out the respective boundaries to resolve the impasse. The Defendants aver that when the parties met at the Metro Works Department it was agreed that the services of a surveyor be procured for him to visit the site to demarcate the respective boundaries of the land but the Plaintiffs knowing very well that they do not have a good case never showed up. The Defendants further denied using their political clout and as responsible and lawful citizens, there is no way by which they would bamboozle their way through any authority of state. The Defendants state that the Plaintiffs summoned them to the Chief Palace, Metro Works Department and lastly the Ghana Police Service. In all, they confidently showed up (which they would not have done if they wanted to use their political clout). On the basis of the averments contained in the Defendants’ Statement of Defence, the Defendants also counterclaimed against the Plaintiffs as follows: a. An order for perpetual injunction on the Plaintiff, their agents, assigns and privies from interfering with the quiet and peaceful enjoyment of the land belonging to the Defendants. b. An order for the payment of cost arising from this suit. c. And for any other order(s) that this Court may deem fit in the circumstances. The Plaintiffs subsequently filed their Reply and Defence to Counterclaim on 11th November, 2020 wherein they joined issues with the Defendants generally. The Plaintiffs, inter alia, averred that the said lane referred to by the Defendants forms part of the Plaintiffs’ land and it is not a lane properly so called but a dirt road which was illegally created by neighbours to enable them convey building materials to their respective properties. The Plaintiffs further aver that the Defendants are not entitled to their counterclaim. Directions were taken on 26th November, 2021 and a single issue was set down for trial. The issue is whether the disputed land belongs to the Plaintiffs or the Defendants. The law is settled that the onus is on the party who asserts. There is plenitude of decided cases to the effect that where a party makes an averment which is denied by his opponent, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true. See KLAH V PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139 & ACKAH V PERGAH TRANSPORT LTD & OTHERS (2010) SCGLR 736. The standard of proof required in all civil cases, according to section 12 of the Evidence Act 1975 (N. R. C. D. 323), is proof by the preponderance of probabilities. This has been defined as the degree of certainty of belief in the mind of the court by which it is convinced that the existence of a fact is more probable than its non-existence. See section 12 of the Evidence Act and ACKAH V PERGAH TRANSPORT LTD supra. On the basis of the above, the burden is usually on a plaintiff to prove his case by adducing sufficient evidence to satisfy a court that his assertions are more probable than his opponent’s. However, whenever a Defendant files a counterclaim, then the same standard or burden of proof would be used to evaluate and assess the case of the Defendant just as it was used to evaluate and assess the Plaintiff’s case. This is in accordance with the principle of law that a counterclaim is an independent action thus a counterclaimant is as good as a Plaintiff. See JASS CO. LTD & ANOTHER V APPAU & ANOTHER [2009] SCGLR 265 and ELIZABETH OSEI V MADAM ALICE EFUA KORANG [2013] 58 GMJ SC. In this light, I hold that the Parties herein bear the onus of proof in respect of their respective cases. I therefore proceed to determine the sole issue set down for trial: Which of the parties has adduced evidence to satisfy this Court of their ownership to the land in dispute? A person seeking for a declaration of title to land or recovery of possession must prove his root of title, mode of acquisition and various acts of possession exercised over the land. See RUKAYATU USUMANU V ZONGO NAA KUN-GARI & 16 OTHERS (J4/23/2020) DATED 31ST MARCH 2021 (DELIVERED BY THE SUPREME COURT). It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party would be entitled to the claim. This was emphasised by the Supreme Court in the case of MONDIAL VENEER (GH) LTD V AMUAH GYEBI XV [2011] 1 SCGLR 466 at 476. The law also requires such party to satisfactorily prove the identity of the land. See TACKIE V LAMPTEY [2001-2002] 2 GLR 186. A court cannot make orders for title or an injunction in respect of a land whose identity is uncertain or unknown. Any such orders made is made in vain and same cannot operate as res judicata to prevent the parties from re-litigating the same issue in respect of the said laid. For this reason, a claim for declaration of title must always fail where the Plaintiff fails to establish positively the identity of the land to which he claims title. See the case of ANANE V DONKOR; KWARTENG V DONKOR (CONSOLIDATED) [1965] GLR 188. In the Witness Statement of John Kwesi Dadzie in favour of the Plaintiffs, he testified that he has known the late Isaac Kweku Begyina Ansah personally until his demise in 2017. He was his building supervisor for many projects. He worked for him and executed all his building projects and many enterprises he established in Cape Coast and its environs and Accra. In 2005, together with one Kobina Acquah, he accompanied the Deceased to purchase the land in dispute for which an indenture was executed between Ebusuapanyin Kobina Attah, the Head of Anona Royal family of Kwaprow, near UCC and the Deceased on 7th January, 2005. The said indenture is marked as EXHIBIT JKD. John Kwesi Dadzie further stated that in the presence of Mr. Kobina Acquah, he signed as one of the witnesses for the Deceased. The Deceased made payment for the acacia plant on the land to pave way for the commencement of work on the land which was bare at the time of purchase. The Deceased subsequently erected a two-storey student hostel on the land in dispute. The Deceased was the first person to start a project within that enclave and that gave access to other land owners to start their own building projects. John Kwesi Dadzie further testified that they encountered no problems and worked in a peaceful and quiet environment and there was no trespasser. On the other hand, the 1st Defendant gave evidence on behalf of the Defendants. The testimony of the 1st Defendant is basically a repetition of the Defendants’ Statement of Defence save that he tendered in evidence a copy of the indenture (EXHIBIT NAT A) dated 12th October, 2007 between Opanyin Nana Kofi Nketsiah of Kwaprow representing the Anona Royal family of Kwaprow near U. C. C. Cape Coast and one Hannah Mends which the 1st Defendant claims to be his wife. Moreover, the 1st Defendant also tendered in evidence the building permit granted to his wife to develop the said property which is at an advanced stage. See (EXHIBIT NAT B). From the above testimonies, I am satisfied that the parties have exercised various acts of possession over their respective land. The late Isaac Kweku Begyina Ansah made payment for an acacia plant on the land and also commenced the construction of a student hostel on his land until his demise. The Defendants on the other hand has also demonstrated to this court that there have been overt acts of possession and/or ownership on the land in dispute. Firstly, there is construction of a building on the land in dispute which is confirmed by the composite plan drawn by the Regional Surveyor. The probative value of Exhibit NAT B cannot be ignored or overemphasised. It is settled law that receipts, building permits, building plans, title documents among others do not confer titles on their holders per se. They are, nevertheless, strong acts of ownership. See ELIZABETH OSEI V MADAM ALICE EFUA KORANG supra. In respect of the title documents tendered in evidence by the parties this court could not help but notice that both Exhibit JKD and Exhibit NAT B have not been stamped as required by law. Section 32(6) of the Stamp Duty Act 2005, (Act 689) stipulates that “Except as expressly provided in this section, an instrument (a) executed in Ghana; or (b) executed outside Ghana but relating to property situate or to any matter or thing done in Ghana shall, except in criminal proceedings, not be given in evidence unless it is stamped in accordance with the law in force at the time when it was first executed.” This provision is clear and requires no interpretation. In the oft-cited case of LIZORI LTD V MRS. EVELYN BOYE AND SCHOOL OF DOMESTIC SCIENCE 7 CATERING (2013-2014) 2 SCGLR 889, the Supreme Court held that when a party has blatantly failed to comply with section 32(6) supra, the court would be justified to reject the party’s request to admit the unstamped document in evidence. The Supreme Court further held that: This provision is so clear and unambiguous and requires no interpretation. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the first place and ask the party to pay the duty and penalty after judgment. On this basis, Exhibit JKD and Exhibit NAT B are hereby rejected for non-compliance with section 32(6) of the Stamp Duty Act supra. This notwithstanding, I am satisfied that the Parties herein own lands based on the unchallenged testimonies with respect to the various acts of ownership exercised on their respective lands. From the pleadings and evidence adduced, I am of the opinion that the issue for determination, that is, whether or not the land in dispute belongs to the Plaintiff or the Defendant is one of that relates to the boundaries or identities of the respective lands of the parties. In resolving this issue, the composite plan drawn by the Regional Surveyor with the survey instructions filed by the parties is relevant and comes in handy. The composite plan, being expert evidence, although not binding on the court, cannot be rejected without assigning good reasons for the rejection. See HAYFORD V TETTEY (SUBSTITUTED BY LARBI & DECKER) [2012] 1 SCGLR 417. In this instant case, I rely favourably on the composite plan and find no reason to reject the composite plan. The survey report accompanying the composite plan clearly revealed that the Parties were heavily involved in the survey as their respective representatives took the team round and identified their boundaries. From the composite plan, the land shown by the Plaintiff is edged red whiles that of the Defendants is edged yellow. The area in dispute on the ground is hatched black. From this representation, the land claimed by the Defendants clearly falls within the Plaintiffs’ vast land. However, when the various site plans of the Parties were superimposed, the Plaintiff’s site plan (edged Green) fell at a different location whiles the Defendants’ site plan edged blue substantially corresponded with the land on the ground. The composite plan reveals that the land in dispute falls outside the land conveyed to the Plaintiff as represented by the site plan of the Plaintiff. It also reveals that development carried out by the Defendants was clearly within his land. Further, the composite plan established the assertion of the Defendants that there is a lane between the two plots. On this account, the issue of whether the disputed land belongs to the Plaintiffs or the Defendants is resolved in favour of the Defendants. The evaluation of the evidence adduced at trial proves or establishes the Defendants’ case as being more probable than that of the Plaintiffs. The Plaintiffs’ case must therefore fail. Judgment is hereby given in favour of the Defendants. The Plaintiffs, their agents, assigns and privies are perpetually restrained from interfering with the quiet and peaceful enjoyment of the land belonging to the Defendants. Cost of GH₵30,000.00 is awarded in favour of the Defendants. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL ERIC AKWA ESQ. FOR THE PLAINTIFF. DR. ADDO TUFFOUR ESQ. FOR THE DEFENDANTS. 10