HUSSEIN VRS ABUKARI & 2 OTHERS (A2/11/24) [2024] GHADC 398 (14 June 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON FRIDAY 14TH JUNE, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. A2/11/24 - - PLAINTIFF DEFENDANTS BETWEEN ABDUL GAFARU HUSSEIN AND 1. ALHAJI ALHASSAN ABUKARI 2. MUSAH ABDUL MUMIN 3. MANAN ALHASSAN JUDGMENT INTRODUCTION 1. This judgment relates to land. 2. The plaintiff is a tractor mechanic and dealer in agricultural implements in Tamale. The 1st defendant is also a dealer in agricultural implements and resides in Tamale. 2nd and 3rd defendants are described as the Nachi-Naa (Youth Chief) and Saha-Naa (Chief in charge of Protocol) of Lamashe-Naa’s palace, Tamale. 2nd defendant is also a mason by trade. 3. By a Writ of Summons and Statement of Claim filed on 3rd November, 2023 the plaintiff seeks against the defendants the following reliefs: “a. A declaration of title to all that piece of land situate at south of Tamale Magazine or Industrial Area which said plot is now bounded to the west by - 1 - the land belonging to Alhaji Ibrahim Dari Kwame, to the east by the land now belonging to a Chinese businessman known as Mr. Gue, to the north by a road joining the Tamale Magazine main road and to the south by the land belonging to lawyer Ibrahim Mahama. b. A declaration that defendants are trespassers on the said piece of land. c. Damages for trespass. d. Recovery of possession of the said piece of land. e. Perpetual injunction restraining defendants, their assigns, privies, successors, grantees or howsoever described from interfering with plaintiff’s quiet possession of the disputed land. f. Recovery of GHS50,000.00 being money defendants fraudulently took from plaintiff. g. Interest on the said sum of GHS50,000.00 from October 2022 till date of final, and h. Any other reliefs the Honourable Court might deem just and fit.” 4. On 13th November, 2023 this court granted an interlocutory injunction order against the defendants, their assigns, privies, successors, grantees or howsoever described from digging or constructing any structure/building on the disputed, until final determination of this mater. 5. The defendants per their Statement of Defence filed on 6th December, 2023 disputed the plaintiff’s claim. 6. Parties were ordered to file witness statements in respect of their case, which they did. Below are the respective cases of either party. - 2 - PLAINTIFF’S CASE 7. Plaintiff testified personally and called two witnesses, Alhassan Mohammed (PW1) and Hamza Abass (PW2). According to the plaintiff, sometime in 1995 he bought a piece of land with a structure on it from PW1 for GHS1,000.00 (10,000,000.00 old cedis). Plaintiff averred that in 1998 one Awudu Kawubi also transferred his interest in the disputed land, i.e. a space between the land on which there is a structure and the Tamale Magazine road (rough road). He explained that there are walls to the west, east and south on the adjoining lands and that the land he acquired in 1995 lies to the south while the one he acquired in 1998 lies to the north, but both abut each other. 8. Plaintiff averred that in 2001, he demolished the old structure on the initial land (i.e. bought in 1995) and developed the land into shops which he completed in 2002. He described that the shops have an open space toward the road leading to Tamale Magazine (Industrial Area) - the rough road. He added that he displays his agricultural implements and does his mechanic works there. Pictures of the open space tendered as Exhibits A and A1. Plaintiff contended that in 2012 upon a demand by the Lamashe-Naa’s palace, he paid money for an allocation paper for the open space, the disputed land. This same open space plaintiff described as the land he purchased from Awudu Kawubi in 1998. Copy of the allocation paper tendered and marked as Exhibit B. Similarly in 2015, upon another demand by the Lamashe-Naa’s palace, he paid money for an allocation paper for the land he had built his building, i.e. the land he earlier acquired from PW1 in 1995. Copy of the said allocation paper tendered and marked as Exhibit C. 9. Plaintiff added that in October 2022, the 1st defendant approached him saying that the Lamashe-Naa requested that he and 1st defendant pay GHS100,000.00 which later was settled at GHS80,000.00) to share the, “whole piece of land (full plot) into two equal - 3 - parts between us. The full plot is about 100x100 feet.” Plaintiff contended that he paid GHS40,000.00 as his share and was given an allocation paper, he tendered and was marked as Exhibit D. Plaintiff averred that, thereafter, 2nd and 3rd defendants approached him saying that the Lamashe-Naa requested GHS10,000.00 to be given to a surveyor to demarcate the land between him and 1st defendant. This he again paid to 3rd defendant (in October 2022) and 2nd defendant did the demarcation with plot labelled A (his building and the open space) given to him and plot labelled B given to 1st defendant. Plaintiff indicated that he caused a site plan to be done for his land, which he tendered and marked as Exhibit E. 10. To his disbelieve, plaintiff stated that 1st defendant threatened pulling down his building and had deposited trips of sand thereon. Plaintiff tendered a picture of the said trip of sand and was marked as Exhibit F. He added that the 1st and 2nd defendants on 1st November, 2023 were erecting a wall to block him from accessing his open space of trade. He resisted, but 1st and 2nd defendants reported the matter to the police alleging threat of death, but same was dismissed when the police visited the site. Plaintiff further contended that the defendants fell a nim tree on his land purporting to prevent him from accessing his place of trade. Pictures of the uprooted nim trees tendered and marked as Exhibit G and G2. Plaintiff described the actions of the defendants as fraudulent which he particularized at paragraph 15 of his Statement of Claim. Details of which I will consider later in this judgment when analysing the law and the facts. Plaintiff’s witnesses 11. PW1, Alhassan Mohammed, averred that in 1992 he acquired a piece of land from one Master Abdulai @ Awudu Kawubi at a cost of GHS600.00 (600,000.00 old cedis). He explained that at the time he purchased the said plot, plaintiff “was already doing his business at the spot where he displays his agricultural machinery and carry out his - 4 - repair works.”. He indicated that he doesn’t know any of the defendants to be owners of any part of the disputed land. 12. PW2, Hamza Abass, added that he has known the plaintiff to be in occupation of the land where he (plaintiff) plies his trade since 2017. He stated further that plaintiff has also been the owner of adjoining land where plaintiff plies his trade. He explained that he often goes to the plaintiff to have his machinery repaired. He, however, stated that he never knew the 1st defendant until the matter was referred to Lamashe-Naa’s palace. DEFENDANTS’ CASE 13. On their part, each defendant testified for himself. 1st defendant called a witness, Mr. Abukari Adbullai. 1st defendant 14. According to 1st defendant, the Lamashe-Naa has jurisdiction over the disputed land. He indicated that the Lamashe-Naa instructed that all persons occupying the Industrial Area land without proper documentation to secure allocation papers from the palace/skin. As a result, the 2nd defendant approached him and the plaintiff to enquire about their lands to which he (1st defendant) clearly pointed out the land he was occupying to the 2nd defendant. He explained that 2nd defendant then constructed a fence wall and then demarcated the lands belonging to him (1st defendant) and the plaintiff, from plot nos. F5 and F6. He stated further that after the demarcations, 2nd defendant demanded that he and plaintiff pay GHS40,000.00 each to which plaintiff gave GHS40,000.00 to him and he added his and paid GHS80,000.00 to the Lamashe- Naa through the 2nd defendant. He added that 2nd defendant later requested for GHS10,000.00 “to secure that parcel of land”, which he paid. He explained that the - 5 - plaintiff had also complained to 3rd defendant for 2nd defendant, “to properly divide the parcel of land for both plaintiff and 1st defendant, so that each of them will know their boundaries.” Hence, after the demarcation, plot no. F5A was allocated to plaintiff and F6A and F6C to him. He tendered copies of the allocation papers and were marked as Exhibits 1 and 2 for his plots F6A and F6C, respectively. 15. 1st defendant contended that after plot no. F6A had been allocated to him, the plaintiff protested saying that that portion of land was closer to the road of Tamale Magazine and should be given to him. 1st defendant averred that on 1st November, 2023 he caused plot no. F6A to be developed but plaintiff threatened to kill him. So he reported the matter to the Lamashe-Naa and the police. He averred that the Lamashe-Naa wrote a letter to the police trying to assist the police in determining the case. 1st defendant sought to tender a copy of the said letter, but same was objected to and marked as Exhibit R. 2nd defendant 16. According to 2nd defendant, he added that after the instructions/notice of the Lamashe-Naa for all persons occupying the Industrial Area land to secure allocation papers from the palace/skin, if not having any, it was realised that the plaintiff and 1st defendant did not have allocation papers. He explained that both plaintiff and 1st defendant occupied portions of plot nos. F5 and F6. At paragraphs 8 and 9 of his evidence-in-chief, 2nd defendant stated: “8. The 2nd defendant says that he demarcated portions of plot no. F5 and F6 under the instructions of Lamashe-Naa (Chief of Lamashegu) and then built a fence wall around the newly created parcel of land. 9. The 2nd defendant says that after the fence wall was built, the plaintiff and the 1st defendant [were] asked to pay GHS50,000.00 each to secure allocation letters from the Lamashe-Naa to cover the remaining portions of land they each occupied.” He - 6 - confirmed that the lands were demarcated into plot nos. F5A and F6A: where plot no. F5A was allocated to plaintiff and plot no. F6A allocated to 1st defendant. He indicated that the plaintiff, however, demanded for the portion allocated to the 1st defendant and it was clarified that same already belong to 1st defendant. To him, plaintiff was allocated plot no. F5A, i.e. where plaintiff’s shop is, and nothing further. 3rd defendant 17. 3rd defendant also added that in October 2022 that plaintiff contacted him regarding the 2nd defendant’s request of GH40,000.00 for the allocation papers and GHS10,000.00 for the survey. He admitted that plaintiff and 1st defendant paid GHS50,000.00 each to the 2nd defendant for plot nos. F5A and F6A, respectively. 1st Defendant’s witness 18. According to Mr. Abukari Adbullai (DW1), he is the Tibogu-Naa of the Lamashe-Naa. He added that after the demarcations to the parties, that the plaintiff contacted the Nakoha-Naa, Daling Gban Lana and N’yah Dakpema to appeal to 1st defendant to release plot no. F6A to him (plaintiff). But plaintiff’s appeals failed. He stated that the Lamashe-Naa’s palace is surprised that the plaintiff has turned round to claim plot no. F6A in this court, after all the failed attempts. LOCUS 19. On 23rd May, 2024 the court visited the disputed land and some observations were made. Copy of the report of the visit was tendered as Exhibit CW by the Registrar of the Court. I shall consider same as part of this judgment. ISSUES FOR TRIAL 20. The issues borne out of the facts are: - 7 - a. Whether or not the defendants perpetuated fraud on the plaintiff regarding his already acquired lands? b. Whether or not the plaintiff or 1st defendant is entitled to the disputed land, plot no. F6A? BURDEN OF PROOF 21. In civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression ‘burden of persuasion’ and in section 14 that expression has been defined as relating to, ‘each fact the existence or non-existence of which is essential to the claim or defence he is asserting.’ See also ss. 11(4) and 12(1) and (2) of NRCD 323. 22. With regards to what is required of the plaintiff in a civil case such as land, the law is that the he must succeed on the strength of his own case and not on the weakness of the defendant’s case, see Odametey v Clocuh [1989-90] 1 GLR 14, SC. In Kodilinye v Odu [1935] 2 WACA 336, the court puts it simply that “in case of doubt, …the party who asserts must lose.” Therefore, a person who makes an averment or assertion which is denied by his opponent has a burden to establish that his averment or assertion is true and he does not discharge this burden unless he leads admissible and credible evidence from which the fact(s) he asserts can properly and safely be inferred, see Zabrama v Segbedzi [1991] 2 GLR 221. See also the often cited case of Majolagbe v. Larbi [1959] GLR 190 per Ollennu J (as he then was) where the court held that: “Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going - 8 - 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 be satisfied that what he avers is true”. 23. Where, however, a party pleads fraud in civil case, the law regarding the proof of that criminal act is that of proof beyond reasonable doubt. Section 13(1) of NRCD 323 provides, “In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” See also the cases of Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 at 903 and Sasu Bamfo v Sintim [2012] 1 SCGLR 136 at 148. ANALYSIS OF THE ISSUES Issue ‘a’ 24. I shall deal with issue ‘a’. Thus, whether or not the defendants perpetuated fraud on the plaintiff regarding his already acquired lands? It is trite law that fraud vitiates everything. As earlier mentioned, where fraud is pleaded in civil case, the law regarding the proof of that criminal act is that of proof beyond reasonable doubt, section 13(1) of NRCD 323. See also the cases of Aryeh & Akakpo v Ayaa Iddrisu [supra] and Sasu Bamfo v Sintim [supra]. Further, the courts have held that even where a deed/instrument affecting a land is obtained by fraud or mistake, same shall be set aside, see also the cases of Amuzu v Oklikah [1997-1998] GLR 89 and Mary Larley Nunoo v Manase Atagloe, Suit No. J4/7/18 Unreported SC, dated 28/7/20. 25. In light of the above, what is required of the plaintiff is to prove beyond reasonable doubt is that defendants perpetuated fraud on him regarding his already acquired lands. - 9 - 26. With respect to this issue, at paragraph 15 of the plaintiff’s Statement of Claim, the plaintiff stated follows: “Plaintiff avows that the defendants’ action amount to fraud: a. Defendants knowingly and or without any belief in same made a false and dishonest representation to plaintiff and took GHS40,000.00 from plaintiff on the pretext that the Lamashe-Naa was going to permanently settle the boundaries between plaintiff and 1st defendant. b. Defendants [perpetuated] fraud on the plaintiff when they represented that the Lamashe-Naa had asked for the GHS10,000.00 from plaintiff to get a surveyor to officially settle the boundaries between plaintiff and 1st defendant when they knew same to be false. c. The 2nd defendant falsely represented himself as a surveyor with the mandate to do official demarcations when he knew same to be false. d. The 2nd and 3rd defendants are colluding with the 1st defendant to deprive plaintiff of his legitimately acquired piece of land.” 27. The evidence on the record, however, says otherwise. Below is what ensued when plaintiff was under cross-examination: Q: You indicated that 1st defendant approached you that you should pay A: Q: GHS100,000.00 for the land to be allocated to you? He never said so. At paragraph 12 of plaintiff’s witness statement, “12(a) Sometime in October 2022, 1st defendant approached me with information that the Lamashe-Naa had asked that the two of us pay GHS100,000.00 for the Lamashe-Naa to share the whole piece of land (full plot) into equal parts between us. The full plot is about 100x100 feet.” Do you still stand by it? A: I wasn’t asked to pay GHS100,000.00 but rather GHS50,000.00. - 10 - Q: You indicated that 3rd defendant also came to you on the same issue of land A: Q: A: Q: A: Q: that you should pay an amount of GHS10,000.00? Yes. So in all how much did you pay for the said land in dispute? GHS5,000.00, next GHS5,000.00, next GHS40,000.00, next GHS10,000.00, next GHS2,000.00. So you paid GHS62,000.00 for the portion of land in dispute? Yes. I am suggesting to you that the portion of land in dispute between you and the defendant, the two of you paid GHS50,000.00 each, yours was in respect of where your shop is built and the other GHS50,000.00 is for the defendant for the vacant land close to the main road? A: I only know of what I paid but regards to the payment of the 1st defendant I cannot tell. Q: You paid GHS40,000.00 to the 1st defendant to be paid to the Naachi-Naa, A: … Q: the youth chief, not so? After the payment to Naachi-Naa, I cannot tell the person he also paid to. As a businessman who claims to own or already in possession of a property goes ahead to pay money to another person in respect of the same property you own, what kind of businessman are you? A: I consulted before paying the money. I did not out-rightly pay. I made the consultations before. Tell the court who did you consult? The 3rd defendant. And what was the instructions of the 3rd defendant? Q: A: Q: - 11 - A: My first consultation with 3rd defendant, he said I should hold on for him to also confirm from the chief palace and the fact was that his side of the chieftaincy title, he had no hands in plots, so later he indicated to me that the Lamashe-Naa wanted to demarcate the land for the four of us who are currently occupying the land. So it is true that your money you paid was instructed by Lamashe-Naa? Yes, because I trust the 3rd defendant. So you called the 3rd defendant a friend and you believe him so much so Q: A: Q: you paid the money? A: Yes. Q: When you finished paying, who divided the plots? A: It is still not demarcated.” 28. When 1st defendant was under cross-examination, this is what also ensued: “Q: Plaintiff gave his GHS40,000.00 to you and you gave it to the Lamashe-Naa? A: Q: A: Q: A: … Q: Yes. And you brought an allocation letter from Lamashe-Naa to the plaintiff? I was not the one who presented the allocation letter to the plaintiff? But you are aware that plaintiff has an allocation letter relating to the GHS40,000.00 he gave you? Yes. He has an allocation with respect to where he is occupying. I am suggesting to you that the purported allocation letter, Exhibit D, that you and the 2nd defendant gave to the plaintiff was a sham? A: The 2nd defendant does not issue allocation letters, it is the Lamashe-Naa who issues allocation letters. Q: I am suggesting to you that you are the one who brought Exhibit D to the plaintiff? - 12 - A: I have never issued an allocation letter to the plaintiff. It is the Lamashe- Naa who issues allocation letters. Q: I am suggesting to you that the plaintiff only paid the GHS40,000.00 to you because you and the 2nd defendant represented to him that it will enable the Lamashe-Naa to properly delineate the boundaries of the plaintiff’s land to avoid any future dispute? A: No one can say this to the Lamashe-Naa.” 29. Based on the above, I come to the conclusion that the plaintiff knew very well what he was paying for. He did his consultations to confirm where the money was going. He knew he had no documents to where he is occupying and so made the payments. Then the demarcation was done by 2nd defendant, who apparently is not a licensed surveyor. Plaintiff stated in his evidence-in-chief that the allocation was done, but turned round to say under cross-examination that no demarcation was done. I, therefore, find no intentions on the part of the defendants to so defraud the plaintiff. In effect, the plaintiff failed to prove beyond reasonable doubt that the defendants had perpetuated fraud on him and I so hold. Issue b 30. Issue b regards, whether or not the plaintiff or 1st defendant is entitled to the disputed land, plot no. F6A? First and foremost, regarding land cases, it is settled law that a person claiming title must prove (i) his root of title, (ii) mode of acquisition, and (iii) various acts of possession over the disputed land, see Yehans International Ltd. v Martey Tsuru Family & Anor. [2018] DLSC 2488. Similarly, the claimant must positively describe/identify his land and its boundaries. In Anane v. Donkor [1965] GLR 188, the Supreme Court held at holding 1 of the headnotes that, “…a claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity - 13 - of the land claimed with the land being the subject-matter of his suit.” The Supreme Court, however, in the case of Nortey v. African Institute of Journalism and Communication [2013-2014] 1 SCGLR 703 held that such a description does not have to be mathematically certain or exact. A similar pronouncement was made by the Supreme Court in Okine & Another v. Amoah VI [2013-2014] 2 SCGLR 1358 and in addition the Supreme Court further stated that the principle enunciated in Anane v. Donkor [supra] should not be slavishly applied. 31. In effect, as stated by Taylor JSC in the case of Odametey v Clocuh [supra], “If the plaintiff ... fails to discharge the onus on him and thus completely fails to make a case for a claim for which he seeks relief, then he cannot rely on the weakness in the defendant’s case to ask for relief. ... If, however, he makes a case which would entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff’s claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant’s case to strengthen his case. This is amply supported by ss. 11 and 12, particularly s. 11(4) of the NRCD 323.” 32. Further in alienating lands, the Supreme Court has held that statutory declarations or allocation papers by themselves do not confer title in land. Reference can be made to cases such as In re Ashalley Botwe Lands; Adjetey Agbosu v. Kotey [supra], Nana Bediako Atwere v. Osei Owusu [2009] DLSC 2635 and Mrs. Vivian Aku-Brown Danquah v. Samuel Lanquaye Odartey [2016] DLSC 2833. In the latter case for example, the Supreme Court noted as follows: “… in an action for declaration of title to land a statutory declaration by itself does not confer title on the declarant. A party relying on a statutory declaration in an action for title is required to lead credible and admissible evidence to prove the - 14 - acts of ownership and possession referred to in the declaration. See the case of Agbosu v. Kotey [2003-2004] SCGLR 420.” 33. In the case of Nana Bediako Atwere v. Osei Owusu [supra] the court held: “Ex ‘1’ was merely an allocation paper which by itself does not constitute title. In the case of Boateng (No.2) v. Manu (2) & Another [2007-8] SCGLR 1117, it was held inter alia “that an allocation paper is only an initial process to evidence that land has been acquired by an individual or corporation body. That kind of paper cannot by itself represent the acquisition.” 34. Similarly, in Donkor v Alhassan [1987-88] 2 GLR 253, cited by Aninakwah JSC in the case of Kottey v Kolete [2005-2006] SCGLR 368 at 375 held that, “(1) the receipts, Exhibits A and B, were not meant to transfer by themselves any interest in the land, but only evidenced payment in pursuance of an agreement to transfer an interest in land.” Also, in Osei v Korang [supra], the Supreme Court speaking through Ansah JSC (as he then was) elaborated in saying that: “It is settled that receipts/building permits, building plans, title documents, etc do not confer titles on their holders per se, are nevertheless strong acts of ownership, Kakraba v Kwofie [1966] GLR 229.” 35. Now, with registration of a deed, it is trite that a registration of a deed in land does not guarantee ownership, but priority. The courts have, therefore, held that the registration of an instrument creates priority over an earlier unregistered instrument affecting the same land, only if the later instrument was obtained without fraud and without notice of the earlier instrument, see the case of Amuzu v Oklikah [supra]. Therefore, a deed covering a land or land title certificate obtained by fraud or mistake - 15 - can be ordered to be cancelled by the courts, see the case of Mary Larley Nunoo v Manase Atagloe, [supra]. 36. At this stage, what is required of plaintiff is to lead sufficient on the balance of probabilities that that he is entitled to the disputed plot, plot numbered F6A. Here, he must succeed on his own case, he cannot rely on the weakness in the defendant’s case to ask for a relief. Similarly, the 1st defendant to prove on the balance of probabilities that he is entitled to the said land. He cannot also rely on the weakness of the defendant’s case to ask for a relief. 37. Now, the plaintiff argued that plot no. F6A is where he trades all this while. He explained that sometime in 1995 he bought a piece of land together with a structure on it from PW1. On this land, he now has a building on it. Plaintiff added that in 1998 one Awudu Kawubi also transferred his interest in the disputed land, i.e. the space between the land he has his building and the Tamale Magazine road (rough road). Yet, none of his grantors gave him any document to the said lands. He explained further that there are walls to the west, east and south constructed by the adjoining lands and that the land he acquired in 1995 lies to the south while the one he acquired in 1998 lies to the north, but both adjoins each other. He argued that he paid monies for the allocation papers for his ‘built’ land and the ‘open space’ from the Lamashe- Naa. However, it appears that open space where he plies his trade, i.e. the disputed land, is being taken over by the 1st defendant. Plaintiff indicated that he later acquired an allocation paper for the disputed land from the Lamashe-Naa, described as 6-Part Industrial Area, see Exhibit B dated 28th September, 2012. 38. The 1st defendant argued that the Lamashe-Naa through 2nd defendant instructed that all persons occupying the Industrial Area land without proper documentation to - 16 - secure allocation papers from the palace/skin. As a result, the 2nd defendant approached him and plaintiff to enquire about their lands to which he (1st defendant) clearly pointed out the land he was occupying. He explained that 2nd defendant then constructed a fence wall and then demarcated the lands belonging to him (1st defendant) and the plaintiff, from plot nos. F5 and F6. He averred that upon the demarcation plot no. F5A was allocated to plaintiff and F6A and F6C to him. He tendered copies of the allocation papers and were marked as Exhibits 1 and 2 for his plot F6A and F6C, respectively. Both Exhibits 1 and 2 are dated 28th February, 2015. 1st defendant contended that after plot no. F6A had been allocated to him, the plaintiff protested saying that that portion of land was closer to the (rough) road of Tamale Magazine and should be given to him. This, he vehemently disputes. 39. Having considered the evidence so far, I find that plaintiff has three allocation papers from the Lamashe-Naa’s palace, Exhibits B, C and D. Exhibit B is dated 28th September, 2012 describing the plot as, “6-Part, Industrial Area.” Exhibit C is also dated 28th January, 2015 describing the plot as, “F6B, Industrial Area Residential Area Revised.” Exhibit D is dated 25th October, 2022, describing the plot as, “F5A Industrial Area Revised.” Yet, on Exhibit E, of the plaintiff, there is not mention of plot nos. 6 Part, F6B or F5A. Exhibit E is endorsed by the Metropolitan Director, Physical Planning Department dated 7th November, 2023. Thus, a period after the allocations had been made. It is a known practice within this jurisdiction, and same stated in Exhibits B, C and D, that the named allotee/grantee is to request from the Lands Commission a lease to be executed. As mentioned earlier, these allocation letters/papers, do not transfer by themselves any interest in the land, but only evidence in pursuance of an agreement to transfer an interest in land, see Kottey v Kolete [supra]. Assuming without admitting that these allocation letters/papers reflect the physical planning of the land, it is out of these allocations that a site plan can be issued. However, in this - 17 - case, the plaintiff’s allocations are not represented in his own Exhibit E. This part is where the issue regarding the disputed land turned up, since the plaintiff heavily relied on it. 40. Regarding Exhibit E, this is what ensued when plaintiff was under cross-examination: “Q: F6A on Exhibit E, how did you come by it? A: From the surveyor department, they came with their gadgets and captured Q: A: my portion for me? So Lamashe-Naa did not allocate this to you? Lamashe-Naa issued me with allocation letter but this particular document is from the government institution.” 41. The identity of the disputed land became clear when plaintiff’s counsel was cross- examining the 1st defendant, and this is what ensued: “Q: But you are aware that plaintiff has an allocation letter relating to the GHS40,000.00 he gave you. Yes. He has an allocation with respect to where he is occupying. Exhibit A is the property of the plaintiff, correct? The properties are for the plaintiff, but it is on my land. Have a look at the Exhibit B, are the machinery belonging to the plaintiff? The machinery belongs to the plaintiff, but the machinery are on my land. You agree with me that both Exhibits A and B are on the disputed land? That is so. A: … Q: A: Q: A: Q: A: Q: Were you also given an allocation letter by Lamashe-Naa upon your payment of the GHS40,000.00? A: Yes and that is the F6A. - 18 - Q: It was during the same time that the Lamashe-Naa gave plaintiff the allocation A: Q: A: ... Q: A: Q: A: Q: letter that the said Lamashe-Naa also gave you your allocation letter? Yes. But there is a difference, one is A, the other is B. Your allocation letter and that of the plaintiff were given in the same year? That is correct. I am suggesting to you that there is no plot known as F5A and F6C on the disputed plot? There is. I am suggesting to you that the title of the disputed land is properly and lawfully demarcated as F6A. Yes. I am suggesting to you that the purported allocation letter, Exhibit D, that you and the 2nd defendant gave to the plaintiff was a sham? A: The 2nd defendant does not issue allocation letters, it is the Lamashe-Naa who issues allocation letters. Q: I am suggesting to you that you are the one who brought Exhibit D to the plaintiff? A: I have never issued an allocation letter to the plaintiff, it is the Lamashe Naa who issues allocation letters. ... Q: A: ... Q: How long have you been in Tamale Magazine? From 1983 to date. I am suggesting to you that you have no property on any part of the disputed land, including the alleged F6C? A: I have my building on F6C. - 19 - ... Q: A: Q: A: Q: I suggest to you that your Exhibit 1 is fake? It is only the Lamashe-Naa who can say that it is fake. Also, your Exhibit 2 is also forged? That is even the allocation I have my building on. I am suggesting to you that you were only conniving with the 2nd and 3rd defendants to take advantage of the plaintiff in respect of the disputed land? A: The 2nd and 3rd defendants have no land that they can allocate to me. It is only the Lamashe-Naa, who has lands and he allocated it to me. Q: That is all.” 42. The visit to the disputed plot resolved the above controversies. During the locus, plaintiff was asked the following questions: “Q: Where is plot number 6-Part? A: It is where the tractors are. Q: Where is plot number F6B? A: It starts from my building and ends at where the tractor/planter PPK 500 is parked. Q: Where is plot number F5A? A: Q: A: Q: They did not show me. Do you recall this Exhibit E? Yes On Exhibit E, there is no plot numbers 6-Part, F5A and F6B which you claim were allocated to you? A: No. But the chief palace allocated those numbers to me. Exhibit E was given to me by the government people, Lands Commission.” - 20 - 43. When the 1st defendant was also questioned, the following ensued: “Q: Where is plot number F6A? A: From the store to the road. Q: Where is plot F6C? A: Q: A: Q: A: Q: A: Q: A: From the plaintiff’s building to the next wall. Plot described as plot F6C, is that your place of trade? All the three stores are for me. Do you recall Exhibit E of the Plaintiff? (Exhibit E shown to him) I cannot recall Exhibit E On Exhibit E, there is no plot numbers F6B or F6C, correct? From the document, there is no plot F6B or F6C, but this was not the document given to me. Do you recall that you told the court that you have a building on plot F6C? Yes Q: Where is the building? A: Q: A: … Q: A: The first one of three stores, by the wall. [The permanent or block building]. The wall that the 2nd defendant constructed to plaintiff’s shop, the gap there, is it an access road for the plots? Yes. It is a road. Aside plot number F6C, do you have any other plot you are trading on around? No.” 44. Also, from the evidence, it is clear that 2nd defendant is not a licensed surveyor. Yet, he demarcated the lands. - 21 - 45. It also appears to this court that it is the plaintiff who has been on trading on the disputed land for a long time. 1st defendant indicated that aside plot no. F6C, he was not trading on any other land around. Now, since the parties contend that the Lamashe-Naa through 2nd defendant instructed that all persons occupying the Industrial Area land without proper documentation were to secure allocation papers from the palace/skin and that where one occupies shall be allocated to him, then where plaintiff was occupying should have been allocated to him. But, that was not done. Rather, 1st defendant was allocated the said land, see his Exhibit 1. In effect, I find the allocation of plot no. F6A to 1st defendant as having no basis. He was not trading there, how then was he allocated the said land? I find that it is rather the 2nd defendant who failed to carry out the demarcations well, as per where each occupies. More so, he is not a licensed surveyor. The allocation papers are not reflective of the reality on the ground. It appears that the lands regarding the disputed area have lost it clear demarcations, to the extent that where one is trading that what is being demarcated/allocated. In effect, I see no reason why the disputed land was not given to the plaintiff. That plaintiff is, therefore, entitled to the disputed plot by way of his prior occupation. He is, however, to see his grantor for an appropriate conveyance. 46. Lastly, Exhibit E, in my opinion does not reflect the true demarcations of the area. The said plot numbers F6B or F6C, i.e. where plaintiff has his building on plot F6B and the defendant has his stores on plot F6C, are not found on it, save the disputed plot F6A. I, therefore, find that Exhibit E is defective or fraught with mistake and same is cancelled, see Mary Larley Nunoo v Manase Atagloe [supra] CONCLUSION 47. In sum, I hereby enter judgment in favour of the plaintiff as follows: - 22 - a. That plaintiff is entitled to the disputed plot by way of his prior occupation. However, he is to see his grantor(s) for an appropriate conveyance. b. The 1st defendant, his agents, assigns, privies, successors, grantees or howsoever described are perpetually restrained from interfering with plaintiff’s quiet possession of the disputed land. c. The 1st defendant to remove his trip of sand from the disputed land. Plaintiff is, therefore, at liberty to recover possession of the said land. d. Damages for trespass is assessed at GHS2,000.00 e. No order as to costs. H/W D. ANNAN ESQ. [MAGISTRATE] ISAAC BORRIDO ESQ., WITH SADAT BIPEMBI ESQ., FOR THE PLAINTIFF SAFIAN NASIGRI ESQ., HOLDING THE BRIEF OF MOHAMMED MUSAH ESQ., FOR THE DEFENDANTS Reference 1. ss. 11(4), 12(1) & (2), 13(1) and 14 of the Evidence Act, 1975 (NRCD 323) 2. Faibi v State Hotels Corporation [1968] GLR 471 3. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 4. Odametey v Clocuh [1989-90] 1 GLR 14, SC 5. Kodilinye v Odu [1935] 2 WACA 336 6. Zabrama v Segbedzi [1991] 2 GLR 221 7. Majolagbe v. Larbi [1959] GLR 190 8. Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 at 903 - 23 - 9. Sasu Bamfo v Sintim [2012] 1 SCGLR 136 at 148 10. Amuzu v Oklikah [1997-1998] GLR 89 11. Mary Larley Nunoo v Manase Atagloe, Suit No. J4/7/18 Unreported SC, dated 28/7/20. 12. Yehans International Ltd. v Martey Tsuru Family & Anor. [2018] DLSC 2488 13. Anane v. Donkor [1965] GLR 188 14. Nortey v. African Institute of Journalism and Communication [2013-2014] 1 SCGLR 703 15. Okine & Another v. Amoah VI [2013-2014] 2 SCGLR 1358 16. Nana Bediako Atwere v. Osei Owusu [2009] DLSC 2635 17. Mrs. Vivian Aku-Brown Danquah v. Samuel Lanquaye Odartey [2016] DLSC 2833. 18. Agbosu v. Kotey [2003-2004] SCGLR 420 19. Boateng (No.2) v. Manu (2) & Another [2007-8] SCGLR 1117 20. Donkor v Alhassan [1987-88] 2 GLR 253 21. Kottey v Kolete [2005-2006] SCGLR 368 at 375 22. Kakraba v Kwofie [1966] GLR 229 - 24 -