Adubofour & Anor V Koduah (C1/113/22) [2024] GHAHC 430 (29 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN THE ASHANTI REGION ON TUESDAY THE 29TH DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP JUSTICE HANNAH TAYLOR(MRS). SUIT NO:CI/113/22 1. MICHEAL ADUBOFOUR … PLAINTIFFS 2. LOUISA ADUFOUR BOTH OF H/NO. PLOT 61. AHENEMA KOKOBEN, KUMASI/ASH. VRS. JOHN KODUAH … DEFENDANT OF PLOT NO. 10 “I”, BLOCK 17, SECTION 5025, TANOSO – KUMASI/ASH. _____________________________________________ J U D G M E N T The plaintiffs per their amended writ of summons filed on 7th March, 2024 pray for the following reliefs: - a) An order for recovery of possession of Plot Number 10 “I” Block 17, Section 5025, Tanoso, Kumasi. b) An order for perpetual injunction restraining the defendants and their (sic) agents, assigns, workmen, etc. from having any to do with the land in dispute. PLAINTIFFS’ CLAIM The plaintiffs lay a claim of ownership of the parcel of land, Plot Number 10 “I”, Block 17, Section 5025, Tanoso, Kumasi. The said plot they contend was acquired around the year 2014 and a lease was engrossed in their name by the Lands Commission with the Government of Ghana as the lessor. A Land Title certificate was also issued to cover the land for their benefit. Subsequently, they took over the land which was acquired purposely for commercial purpose by depositing sand and stones on the land. However, the defendant has entered the land and pitched his tent on same to engage in petty trading. Notices given to the defendant to vacate the land have been ignored. Hence, the institution of the action to assert their title. THE DEFENDANT The defendant has been served with the writ of summons and the accompanying statement of claim by substituted service. No appearance has been entered. The case was set down for hearing. Plaintiff’s witness statements and hearing notices have been served by substituted service on the defendant and in all, he made no appearance to contest the plaintiffs’ claims. The defendant thus, has spurned the opportunity to be heard. BURDEN OF PROOF The Evidence Act, 1975, NRCD 323 provides under section 11 (1) and (4) as follows: - (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against the party. (4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. For a court to make a ruling favourable for a party requires that same be done within the context of credible, cogent and admissible evidence adduced at the trial. The burden to produce evidence in a circumstance the defendant does not appear to contest a case does not mean that the plaintiff would be granted all that he asks for by the court. Thus, in the case of DR. R. S. D. TEI AND ANOTHER v. MESSRS CEIBA INTERCONTINENTAL [2018] DLSC 3301 at page 6, Pwamang JSC held, “The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish prima facie case of entitlement to his claims.” The plaintiffs therefore, are required to lead evidence to establish that the existence of the fact they allege are more probable than their non-existence. In leading evidence, plaintiffs are to be mindful of the fact that their title to the disputed land is put in issue. In ASANTE APPIAH v. AMPONSA [2009] SCGLR 90, per the holding 5, it was held “The law is well established that where a party claims are for possession and perpetual injunction, he puts his title in issue. He thereafter assumes the onus of proving his title by a preponderance of probabilities like any party who claims declaration of title to land”. Within the context of proving their title, the direction given by Wood CJ (as she then was) in MONDIAL VENEER (GH) LTD. v. AMUAH GYEBU XV [2011] SCGLR 466 at 475 ought to be adhered, being “in land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title and on whom the burden of persuasion falls, as in this case to prove his root of title, mode of a acquisition and various acts of possession exercised over the subject matter of litigation.” WHAT EVIDENCE DID PLAINTIFFS ADDUCE TO DISCHARGE THE BURDEN PLACED ON THEM? The 1st plaintiff set of to discharge the burden placed on plaintiffs by testifying and tendering some documents admitted into evidence and marked as Exhibits. 1st plaintiff’s evidence was a reflection of the pleaded case as found in the statement of claim. To support the claim of acquisition he tendered Land Certificate executed by the Regional Divisional Head of Land Registration and the chairman of the Ashanti Regional Lands Commission and same is marked as Exhibit “A”. Exhibit “A” certifies that Michael Adubour and Louisa Adubofour are registered as owners in common of a lease for a term of 50 years from the first day of January, 2015 of parcel of land measuring 0.40 acre described as No. 10 “I” Block 17 Section 5025 situate at Tanoso Kumasi. A lease dated 28th June, 2015 was also tendered and admitted into evidence and marked as Exhibit “B”. Exhibit “B” discloses a lease between the Government of the Republic of Ghana acting by Frank Osei Mensah Chairman of the Ashanti Regional Lands Commission on one part and Mr. Michael Adubofour and Mrs. Louisa Adubofour on the other part. The subject matter of the lease is described as Plot 10A Sunyani Road situate at Tanoso. The land area of the lease is given as 0.40 acre and same delineating the parcel of land in the plan attached to the lease. The Exhibit “B” discloses that the land was to be used for commercial purpose only. But it is clear that though the Exhibit “A” describes the land granted the plaintiffs as No. 10 “I” Block 17 section 5025, the Exhibit “B” describes the subject land as Plot No. “10A” Sunyani Road, Tanoso. The description of the land found in Exhibit “B” does reflect the parcel of land which is the subject matter of this dispute. The correlation between the plots as described is not shown. However, the Exhibit “A” the Land Certificate reflects the description of the parcel of land which is the subject matter of this case. On when a Land Certificate is issued, the Land Act, 2020, Act 1036 seems helpful. Section 125 of the Land Act, 2020 Act 1036, provides for the Land Registrar on registration of a person as proprietor of land or holder of an interest in land to issue a Land Certificate to the person. Thus, for all intent and purposes, the Land Certificate, significantly holds the plaintiffs as owners of the parcel of land which is the subject matter of this suit. In the case of WRANGLER GHANA V. SPECTRUM INDUSTRIES PVT LTD [2022] 179 GMJ 737, the Court of Appeal also observed that; “before a Land Certificate is issued the particular land is identified, the ownership is ascertained, a parcel plan is prepared and therefore the ownership, identity and limits of the land cannot be in doubt. Again, a land certificate issued to a person can be impeached only on grounds of fraud”. In the case of NII STEPHEN MALEY NAI v. EAST DADEKOTOPON DEVELOPMENT TRUST [2019] DLSC 6358 at page 7, the Supreme Court held “We have carefully examined the evidence and are in no doubt that the land in dispute is contained in the land in respect of which the defendant holds a Land Title Certificate”. The Land Certificate is of probative value in determining the claim of ownership by the plaintiffs. The plaintiffs’ claim of title is probable. The plaintiffs’ having demonstrated the interest so acquired, they shall be entitled to the reliefs sought against the defendant whose attitude shows that indeed, he has no defence to the action. In the circumstance, the court enters judgement for the plaintiffs for the reliefs sought, being; - a) An order for the recovery of possession of Plot No. 10 “I” Block 17 section 5025, Tanoso, Kumasi. b) An order of perpetual injunction restraining the defendant, his agents, assign, workmen etc. from having anything to do with the land in dispute. Cost of GH¢8,000.00 awarded against the defendant. JUSTICE HANNAH TAYLOR (MRS) JUSTICE OF THE HIGH COURT LAWYERS EVANS OPPONG ADOMA HOLDING WILLIAM KUSI’S BRIEF FOR THE PLAINTIFFS.