AWAL VRS MAHAMA (UE/BG/DC/A1/7/2024) [2024] GHADC 613 (11 December 2024)

*HWMNJ@DC/BLG-11/12/2024* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON WEDNESDAY, THE 11TH DAY OF DECEMBER, 2024. SUIT NO. UE/BG/DC/A1/7/2024 MOHAMMED AWAL PLAINTIFF OF H/NO. 1/85, AKATARI LK-UB-0070-2531, TINDONSOBLIGO, BOLGATANAGA VRS. MAHAMA GODFRED DEFENDANT OF ATUBABISI, BOLGATANGA TIME: 09:10AM PARTIES PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT Introduction 1. The Plaintiff commenced this action on 6th May, 2024 and claims against the Defendant as follows: - a. A declaration that plaintiff bought an unnumbered Plot of Land from the Lessor who holds the allodial title to all that piece or parcel of land situated at Tindonsobligo Residential Area in the Bolgatanga Municipality of the Upper East Region of the Republic of Ghana. The Boundaries thereof commencing *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 1 of 24 *HWMNJ@DC/BLG-11/12/2024* from traverse Pillar marked SGUE A001/12/2 measuring at distance of 10,779.4' feet to more or less on a bearing of 196 29' which bearing together with all the other bearings herein after mentioned is referred to meridian 1 west longitude from a beacon marked SGUE A1212/22/1 runs along a bearing of 194 34' which together with all other measuring a distance of 184.0' feet more or less to beacon marked SGUE A1212/22/2 runs along a bearing of 298 14' measuring distance of 124.5' feet more or less to beacon marked SGUE A1212/22/3 runs along a bearing of 016 36' measuring a distance of 149.0' feet more or less to beacon marked SGUE A1212/22/4 runs along a bearing of 101 47' measuring a distance of 115.9' feet more or less to beacon marked A001/12/2. The points of commencement and hereby containing an approximate area of 0.45 acres which piece or parcel of land is more particularly delineated on-site plan, signed and sealed by the Ministry of Lands Bolgatanga with title number DR/UE 9138 on the Site Plan of the Plaintiff. b. Declaration that the said plot which was registered as title NO- UE 9138 under Serial NO-449/2022 dated 27/06/2022 is the property of the Plaintiff herein. c. Possession of the Plaintiff portion of the said plot of land that the Defendant has trespassed on. d. An Order by this Honourable Court restraining the Defendant, his Agents, Assigns, Workmen to stop putting up any structure or building on the plaintiff's Plot of land till the final determination of this matter. *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 2 of 24 *HWMNJ@DC/BLG-11/12/2024* e. Costs f. Any other reliefs this Honourable Court may deem fit. 2. Also, the defendant filed his response/defence on 15th May, 2024 and counterclaimed against the plaintiff as follows: a. A declaration that the defendant bought a half plot of land from his paternal grand uncle by name Adongosablika Abugre (the owner of the disputed land). b. A declaration that the Defendant did not trespass on the plaintiff’s land but only built on what was given to him by the land owners. c. Any other orders(s) that the court may deem fit. Plaintiff’s Case 3. The Plaintiff avers that he bought an unnumbered Plot of land from Adongsabga Abugre in the year 2009, witnessed by Agongo Abonsomo, Tindana of Tindonsobligo and Atule Agongo. Plaintiff says the said Lessor holds the allodial title to all that piece or parcel of land situated at Tindonsobligo Residential Area in the Bolgatanga Municipality of the Upper East Region of the Republic of Ghana. The Boundaries thereof commencing from traverse Pillar marked SGUE A001/12/2 measuring at distance of 10,779.4' feet to more or less on a bearing of 196 29' which bearing together with all the other bearings herein after mentioned *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 3 of 24 *HWMNJ@DC/BLG-11/12/2024* is referred to meridian 1 west longitude from a beacon marked SGUE A1212/22/1 runs along a bearing of 194 34' which together with all other measuring a distance of 184.0' feet more or less to beacon marked SGUE A1212/22/2 runs along a bearing of 298 14' measuring distance of 124.5' feet more or less to beacon marked SGUE A1212/22/3 runs along a bearing of 016 36' measuring a distance of 149.0' feet more or less to beacon marked SGUE A1212/22/4 runs along a bearing of 101 47' measuring a distance of 115.9' feet more or less to beacon marked A001/12/2. The points of commencement and hereby containing an approximate area of 0.45 acres which piece or parcel of land is more particularly delineated on- site plan, signed and sealed by the Ministry of Lands Bolgatanga with title number DR/UE 9138 on the Site Plan of the Plaintiff. 4. Plaintiff says he has a Lease covering the said plot of land sold to him and that he has put up a building on the said plot of land which is in a form of L. shape. Plaintiff says he went through the lands registration processes at the Lands Commission in Bolgatanga and the said plot of land was registered his name as title No-UE/9138 under Serial No- 449/2022 dated 27/06/2022. 5. Plaintiff avers that the defendant has trespassed on his land and all warnings given to the defendant to stop encroaching on his land have proved futile. Plaintiff says that the defendant has evinced an intention not to vacate the land or stop his acts of trespass or encroachment unless compelled by this Honourable Court. Wherefore, plaintiff prays for the above-stated reliefs. Defendant’s Case *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 4 of 24 *HWMNJ@DC/BLG-11/12/2024* 6. Defendant vehemently denies plaintiff’s claims and says that the plaintiff is not entitled to any of the reliefs endorsed on the writ of summons. Defendant says that Adongsablika Abugre, his paternal grand uncle who was the owner of the disputed land gave a portion of his land (about half plot) which is closer to the plaintiff’s half plot to him to build after receiving an amount of GHC5,000.00 from the Defendant somewhere 2021. Defendant says the land owners are not aware of any registration of the said land at the Lands Commission because what was sold to him is not a full plot. 7. The defendant says that his paternal grand uncle signed a document / an affidavit in the presence of two witnesses before giving him that land. The defendant says that his paternal grand uncle indicated to him that the portion of the land where there was a deposit of gravel was not part of the Plaintiff’s land and that the plaintiff only deposited the gravel but will come for it. It is the defendant’s case that there was no visible pillar(s) on the Plaintiff’s land as alleged by him. 8. The defendant avers that he molded blocks on the said half piece of land given to him and dug foundation for the building somewhere in 2022. The defendant says it was at this moment that the plaintiff came to the land and alleged that the entire land belongs to the plaintiff. It is the defendant’s case that his paternal granduncle told the plaintiff that he did not sell a full plot to him but rather a half plot; and that the plaintiff was asked by the land owner’s family to bring his documents for them to see whether it was full or half plot but the plaintiff refused. *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 5 of 24 *HWMNJ@DC/BLG-11/12/2024* 9. The defendant says he therefore proceeded to build a chamber and hall apartment on the land; and that when he was about to roof the building plaintiff encroached upon his portion and also built three (3) rooms very close to his Chamber and hall apartment. 10. The defendant says further that he reported the plaintiff to the land owner’s family and the family of the land owners also reported the matter to the Tindaana and the plaintiff was invited by the Tindaana. Defendant says that after deliberation, the Tindaana asked his representative to visit the land together with both the plaintiff and the defendant to inspect the land and report to the Tindaana without involving the land owners. Defendant says the Tindaana’s representative after visiting the land realized that the plaintiff had encroached on the Defendant land but asked the plaintiff not to continue to build further in order to allow the defendant to have access to his apartment. It is the defendant’s case that both of them agreed to the Tindaana’s advice. 11. It is the defendant’s case that the plaintiff has however left his portion of the land and encroached upon his land. The defendant says the plaintiff does not know the boundaries of his land and that he brought surveyors to demarcate the said land without involving the land owners. He therefore prays the court to dismiss plaintiff’s action and counterclaimed for the above-mentioned reliefs. Issues for Determination 12. The issues for determination in this case are as follows: *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 6 of 24 *HWMNJ@DC/BLG-11/12/2024* a. Whether or not the Lease dated 3rd March 2009 together with the site plan dated 21st May 2022 was prepared in 2009 or 2022. OR whether or not the Plaintiff lease together with site plan was procured by fraud. b. Whether or not the registration of the land in dispute in the name of the plaintiff makes him the owner. c. Whether or not the defendant is entitled to his counterclaim. Burden of Proof 13. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. The law is that he who alleges must prove. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows: 11(1) For purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 7 of 24 *HWMNJ@DC/BLG-11/12/2024* (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 14 Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” 14. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023. 15. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 8 of 24 *HWMNJ@DC/BLG-11/12/2024* cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff.” 16. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows: “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witness, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the minds the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. 17. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 9 of 24 *HWMNJ@DC/BLG-11/12/2024* “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 and his averment is denied, 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 be satisfied that what he avers is true.” See also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, page 177, Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537 Evaluation of Evidence, Discussion of Issues and Legal Analysis 18. Plaintiff testified himself and called one witness. The summary plaintiff’s evidence is as follows: He testified that he bought the unnumbered plot of land in dispute which is located at Tindonsoligo Bolgatanga from Atule Agongo in the year 2009. The plaintiff stated that Adongsalaga Abugre, Mahama Abdulai (PW1) and one Baba Dawuda witnessed the sale of the said disputed land to him. Plaintiff testified that he has a Lease covering the said plot of land sold to him, which was admitted in evidence as Exhibit A. Plaintiff testified that he put up a building on the said plot of land which is in a form of L. shape. Plaintiff testified that the said plot of land was registered in his name as title No-UE/9138 under Serial No- 449/2022 dated 27/06/2022. It is the plaintiff’s case that the defendant has trespassed on his land and all warnings given to the defendant to stop encroaching on his land have proved unsuccessful. *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 10 of 24 *HWMNJ@DC/BLG-11/12/2024* 19. The Defendant on the other hand testified himself and called four (4) witnesses. The defendant testified that a portion of land was given to him by his paternal granduncles in the persons of Adongsablika Abugre and Atanga Adongo. He stated that after the plot of land was granted to him he gave a token of five thousand Ghana cedi’s (GHC 5,000.00) to show appreciation. He said the portion of land allocated to him was where he put up his residential apartment and never trespassed on the plaintiff’s portion of land but plaintiff rather trespassed on portion of his land. He testified that plaintiff’s purported lease was made 3rd March 2009 while the site plan accompanying the lease is dated 21st May, 2022 or was made in 2022. He tendered the said lease and site plan in evidence as Exhibit 1. He testified further that he knows one Mbora Amoah Thomas who is purported to have signed the oath of proof and the certificate of proof in the plaintiffs lease in the year 2022 rather died in the year 2012. He stated that the plaintiff used a purported thumbprint and the name of the late Tindana Agongo Abonsumo’s son in the person of Atule Agongo as an elder in the said lease. He stated that Atule Agongo is a son of the late Tindana and cannot be an elder of the family and he is not also the farm owner in this matter. He testified that the plaintiff used a purported thumbprint of Adongsablika Abugre as the Farm owner in the said lease because Adongsablika Abugre categorically told the plaintiff in a meeting held in his home in 2021 that he only sold half plot of land to plaintiff and not full plot. He also testified that the said lease was purportedly executed by the substantive and acting Tindana of Tindonsobligo. 20. From the above evidence of plaintiff and defendant, the plaintiff is relying on the lease dated 3rd May 2009 and site plan dated 21st May 2022 which purportedly *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 11 of 24 *HWMNJ@DC/BLG-11/12/2024* described the land in dispute. The defendant on other hand is challenging the validity of the lease or alleging fraud on the part of the plaintiff. In Amuzu vrs Oklikah [1998-1999] SCGLR 141at pg 183; [1997-98] GLR 89, Atuguba JSC explained that where fraud has not been pleaded but fraud is apparent, the court cannot turn a blind eye. See also the case of Hydraform Estates Ltd v. Kumnipa & Agyemang 2014 70 GMJ 48 at 84. In the instant case, since the defendant is challenging the validity of the lease or alleging fraud on the part of the plaintiff, this court will examine the plaintiff allegation of fraud. 21. The law is that in any civil action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. Thus, it was held by the Supreme Court in Susu Bamfo vrs. Sintim (2013) 1 SCGLR 136 in holding 3 that: “the law regarding forgery or any allegation of a criminal act in civil trial was governed by section 13(1) of NRCD 323; that section provided that the burden of persuasion required was proof beyond reasonable doubt.” See also the case of Fenuku v John Teye (2001-2002) SCGLR 985 22. The real identity of the land is dispute is delineated on the composite site plan and report dated 05/09/2024 (Exhibits CE and CE1) which were prepared by the Survey and Mapping Division of the Lands Commission, Bolgatanga pursuant to an order made by this court. On the said plan, the land boundaries demarcated on the ground using Plaintiff’s registered land document is edged Red, land shown Green is the completed structures for plaintiff, land shown Yellow is the boundaries shown on the ground by the defendant, and land shown Blue is the *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 12 of 24 *HWMNJ@DC/BLG-11/12/2024* completed structures for the defendant. It is worthy of note that the land shown on ground by the plaintiff is not captured on the composite plan. The inference that could be made is that the surveyor only used the plan submitted by plaintiff without asking the plaintiff to show the boundaries of his land on the ground. Nevertheless, it is the land shown on the ground by the defendant which is in dispute. This means that it is not all the land covered by Plaintiff’s lease is in dispute. 23. From the evidence it is not in dispute that plaintiff bought a piece of land from Adonsobliga who was the farm owner and paternal grand uncle of the defendant. Whiles plaintiff claims he bought a full plot of land, the defendant is claiming that his paternal grand uncle told them that he sold half plot to the plaintiff when both Plaintiff and Defendant met him 2021. It is interesting to note that the documents plaintiff is relying in upon covers more than a full plot of land. The question to ask is whether the Plaintiff’s lease document (Exhibit A or 1) really covered the exact size of land sold him. This question can only be answered after critical examination of the document in issue as well as the evidence on record. 24. On 14th October, 2024, during cross examination of Plaintiff by defendant the following transpired: Q. I put it to you that Atule Agongo, who you claim sold the land to you, never did so, because he is not the farm owner. A. The one who sold the land to me and his witness are both deceased, so I do not know where you are getting this information from. *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 13 of 24 *HWMNJ@DC/BLG-11/12/2024* Q. I put it to you that the 2009 Lease was not accompanied by a Site Plan and the 2022 Site Plan was not accompanied by Lease. A. I bought the land in 2009 and it took me 2010 to 2011 to build. I started living in that house from 2012 so I used my Site Plan to know my boundaries. Q. I also put it to you that the farm owner Adongsabga Abugre never signed the Lease for you. A. That is not true. The said farm owner and his witness are deceased. 25. Also during cross examination of Plaintiff witness by defendant on 14th October, 2024, the following transpired: Q. I put it to you that Tindana’s palace has no knowledge about the Lease executed. A. That is not true. They have full knowledge with witnesses at the palace. Q. The dates in the Lease were altered from the original typed letters. A. That is true. But the signature of the secretary is in the document. Q. I put it to you that you deceived the survey department to suit yourself by changing the dates. A. That is not true. I did not deceive them. Q. In the lease, the Lease was made in 2009, while the Site Plan was made in 2022. Is that so? *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 14 of 24 *HWMNJ@DC/BLG-11/12/2024* A. It is true. But the Lease and Site Plan were prepared in 2009 while the Site Plan was signed in 2022. Q. I put it to you that it is not true that the Site Plan was prepared in 2009 but signed in 2022. A. That is not true. Q. In 2022, no elder followed you to the Site to pick the points for the Site Plan. A. That is not true. We did not pick up any points in 2022, it was picked in 2009. Q. And at that time, I had my structure on the land. A. We bought the land before you came to put trips of sand on the land. Q. As at the time I started building, there was no structure on the land in dispute. A. That is not true, you came and met a structure on the land and we were living with our family. 26. From the above evidence the Plaintiff and his witness maintained that the lease and the site plan were prepared in 2009 but however the site plan was signed in 2022. They also claim the said lease was submitted for registration in 2009 but registration completed in 2022. However, a critical examination of the lease and the site plan shows otherwise. Thus, if you look at the schedule or the description of the land in the purported lease executed in 2009, the description of the land *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 15 of 24 *HWMNJ@DC/BLG-11/12/2024* made reference to the year 2022. Some questions to ask are: How can a lease prepared in 2009 makes reference to the year 2022? How can a site plan prepared in 2009 takes more than ten (10) years to be signed? How can a lease allegedly submitted to the Lands Commission in 2009 takes more than ten (10) years to be registered? The inference that could be drawn in answer to the preceding three (3) questions is that both the lease and the site plan were prepared in 2022 and not 2009 as plaintiff wants this court to believe. This court therefore found as a fact that the said plaintiff’s lease and site plan (Exhibit A or 1) were prepared or executed in 2022 and not 2009. 27. It must also be noted that in every lease, the consideration paid apart from rent payable for the land is normally stated, but in Exhibit A the consideration paid by Plaintiff to the farm owner is not stated in it. If the value of the consideration were to be stated it might have helped the court to ascertain whether plaintiff land was a half plot or full plot or otherwise. 28. Furthermore, defendant testified that the Tindaana who purportedly thumb printed the Lease died in 2010 and that one Mbora Amoah Thomas who is purported to have signed the oath of proof and the certificate of proof in the plaintiff’s lease in the year 2022 rather died in the year 2012. The plaintiff however did not challenge this evidence by the defendant. Besides, the plaintiff also testified that the farm owner died in 2021 and that his witness also died but he did not tell the court when the witness died. 29. The inferences that could be made are that the said documents were prepared after the death of the farm owner and his witness; and that the said documents *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 16 of 24 *HWMNJ@DC/BLG-11/12/2024* were prepared after the defendant put up his structure on part of the disputed land which he claims his paternal grand uncle, the original owner of the land gave to him. The plaintiff is therefore not truthful to this court as to the size of the land he bought as well as the year the lease was executed. 30. Moreover, the Plaintiff claims he was not present or around when the lease was prepared but PW1 did the lease in his absence. This court wonders how Plaintiff thumb printed the said lease in his absence. Thus, during cross examination of plaintiff by the defendant on 14th October, 2024, he testified as follows: Q. In your Witness Statement, you said you bought the land from Atule Agongo but in exhibit A, Atule Agongo is rather an elder and not the farm owner. Is that correct? A. It was my elder brother who is a witness in this matter who bought the land on my behalf whiles I was away. So he will be the best person to answer this question. Q. In your Lease, it shows Agongo Akubayela acting Tindana and Agongo Aborisomo Tindana executed the Lease for you. Is that so? A. It was my elder brother who did the documents for me so he is the best person to answer the question. A. In the Lease, it was indicted one Mboro Amoah Thomas interpreted the content of the Lease for you. Which language did he use? A. Because I was not around when the document was prepared, it is my elder brother who can answer the question. *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 17 of 24 *HWMNJ@DC/BLG-11/12/2024* 31. Furthermore, the defendant claims the lease was signed by two Tindana. But the court upon examination of the lease is of the view that even though the names of the two Tindana appeared on the Lease, only one of them purportedly thumb printed it. The Plaintiff however did not explain how come the names of the substantive Tindana, Agongo Abonsomo and acting Tindaana, Agongo Akubayela appeared in the lease as the Lessors. 32. For the foregoing reasons, this court holds that plaintiff’s lease and site plan were procured by fraud as those purported to have executed the lease in 2009 did not do so and that the lease was prepared in 2022 and not 2009. The said lease document is therefore null and void of no legal effect. 33. This brings me to the issue of whether or not the registration of the land in dispute in the name of the plaintiff makes him the owner. In the case of Amuzu vrs Oklikah [1998-1999] SCGLR 141at pg 183; [1997-98] GLR 89, the Supreme Court held that: “The Land Registry Act, 1962 (Act 122) did not abolish the equitable doctrines of notice and fraud and neither had it conferred on a registered instrument a state- guaranteed title. Besides, since equity would not permit a statute to be used as an instrument of fraud or inequitable conduct, section 24(12) of Act 122 should not be interpreted in a way that would facilitate fraud in the acquisition and sale of lands. Accordingly, a later executed instrument could only obtain priority over an earlier one by registration under section 24(1) of Act 122 if the later *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 18 of 24 *HWMNJ@DC/BLG-11/12/2024* instrument was obtained without fraud and without notice of the earlier unregistered instrument. Thus registration did not create an absolute title…. 34. As stated above, plaintiff lease and site plan were procured by fraud. Thus, plaintiff is not truthful to the court when he claims the documents were prepared in 2009 instead of 2022. Even though the Land Registry Act, 1962 (Act 122) which governed the registration of deed and instrument in Ghana was repealed by the new Land Act 2020, (Act 1036), Chapter Six of Act 1036, specifically sections 206 to 232 regulates the registration of deeds in Ghana currently. Indeed Plaintiff’s purported lease was registered under the new Land Act 1036. The Act 1036 does not abolish the equitable doctrines of fraud and neither had it conferred on a registered instrument a state-guaranteed title. In other words, registration under Act 1036 does not create an absolute title. 35. The Blacks Dictionary (9th ed.) defines fraud thus:- “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Fraud connotes a serious offence; hence, the authorities held that it vitiates everything. In Frimpong v. Nyarko [1998-99] SCGLR 734 at 743, Acquah JSC (as he then was and of blessed memory) stated succinctly thus:- “Fraud is well-known, vitiates everything, and when a court of law in the course of its proceedings, has cause to believe that fraud was committed, it is duty bound to quash whatever has been done on the strength of that fraud.” 36. Also in Mass Projects Ltd (No2) v Standard Chartered Bank (No. 2) [2013 – 2014] 1 SCGLR 309 holding (4) the Supreme Court held that because fraud vitiates every conduct, an allegation of fraud, if proven and sustained, would *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 19 of 24 *HWMNJ@DC/BLG-11/12/2024* wipe and sweep away everything in its trail as if the thing had never existed. See also in re West Cost Dyeing Industry Ltd; Adams Tandoh [1984-86] 2 GLR 561 at 605. Dzotepe v Hahormene III (No.2) [1984 – 86] 1 GLR 294 and others. 37. Having found that the Plaintiff’s purported lease was procured by fraud, its registration at the Lands Commission, Bolgatanga is of no legal effect. The Lands Commission Bolgatanga is hereby ordered to expunge registration of Plaintiff’s lease from its register. Accordingly, plaintiff’s action fails in its entirety and it is hereby dismissed. 38. The next issue to consider is whether or not the defendant is entitled to his counterclaim. It is a well-established principle of law that a defendant who files a counterclaim has the same burden of proof as a plaintiff. In the case of Nortey (No.2) V. African Institute of Journalism and Communication & Others (No.2) [2013-2014] 1 SCGLR 703, the principle was stated as follows: “Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she has 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)”. 39. Also, the law is that a party can only succeed in his or her counterclaim on the strength of his or her evidence. The standard of proof required that for a party to succeed on his or her counterclaim, he or she must lead satisfactory evidence, either by himself or otherwise which, on the balance of the probabilities, makes *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 20 of 24 *HWMNJ@DC/BLG-11/12/2024* his or her case more probable than not. See the cases of 2000 Ltd Vrs Otoo [2018] GHASC 68 (17 October 2018) and Osei v Korang [2013] 58 GMJ 1. In the instant case, the Defendant counterclaimed against the Plaintiffs. He therefore has a burden of proof to discharge. The defendant’ counterclaim cannot automatically succeed because plaintiff’s action failed. 40. The defendant in his counterclaim is seeking a declaration that he bought a half plot of land from his paternal grand uncle by name Adongosablika Abugre (the owner of the disputed land) and that he did not trespass on Plaintiff’s land. In other words, the defendant is praying for declaration of title or ownership to a half plot of land his paternal grand uncle allegedly gave to him. It is a settled principle of law that a party who claims a declaration of title must show with particular certainty the dimensions of his land failing which he must fail. The rationale behind the need for a party to positively identify its land in an action for a declaration of title is to enable an order for possession to be executed without any difficulty. Besides, a judgment for declaration of title to land cannot operate as res judicata to prevent the parties from relitigating the same issues in respect of the identical subject-matter unless the land is clearly identified. In the case of Kwabena vrs. Atuahene (1981) GLR @ 136, Justice Archer JA referring to the Supreme Court case of Anane vs Donkor (1965) GLR 188 @ pg 192 quoted Ollenu JSC stating the law as follows: “Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated, the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 21 of 24 *HWMNJ@DC/BLG-11/12/2024* or order of the court will be in vain. Again, a judgment for declaration of title to land should operate as res judicata to prevent the parties relitigating the same issues in respect of the identical subject-matter, but it cannot so operate unless the subject-matter thereof is clearly identified. For these reasons a claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identity of the land to which he claims title with the land the subject-matter of the suit.” See also Bedu & Others vrs. Agbi & Others (1972) 2 GLR 238-244 and Baruwa vrs. Ogunshola (1938) 4 WACA, 159. 41. From the evidence, the defendant claims he bought about half plot from his paternal grand uncle but he did not positively or clearly identify the boundaries of the land he is claiming. Indeed during cross examination of DW2-Adombire Atanga on 29th October 2024 by Plaintiff the following transpired: Q. When you and the defendant went to your family for the land to be sold to him, did you show him his boundary or the size of his plot. A. Yes, when plaintiff came to buy the plot, the boundary of his land was shown to him remaining a parcel of land which my family later told me they wanted to dispose of. At that time, defendant approached me for a land so I mentioned him to my family members and subsequently led the defendant to my family for the land to be sold to him. My parent upon seeing the defendant said he was their son so they will not sell the land to him so any token that he has he should bring it. Q. Can you tell the court the exact size of the land given to the defendant? *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 22 of 24 *HWMNJ@DC/BLG-11/12/2024* A. The land was not measured but they said once it is a small piece of land that was remaining defendant should take it. Q. Did they give the defendant any document that shows a piece of land was given to him? A. He has no document because my parents gave the land to him as a son and were not expecting him to prepare any document. 42. From the above evidence it is clear that the boundaries of the land defendant claims his paternal grand uncle gave to him was not measured and whether is half plot or not this court cannot tell. Accordingly, this court is of the view that defendant counterclaim for declaration of title or a declaration that his paternal granduncle gave him piece of land cannot be maintained in law or equity as he failed to establish positively the identity of the land he is claiming. In the circumstance, defendant’s counterclaim is hereby dismissed. Conclusion 43. Having examined the whole evidence adduced by the plaintiff and the defendant on record in accordance with the foregoing authorities as well as the analysis, the court holds as follows that: a. Plaintiff’s action fails in that he deceived the court that his lease and site plan were executed or prepared in 2009 meanwhile the said documents were executed or prepared in 2022 and registered at the Lands Commission, Bolgatanga in 2022. In other words, this court holds that plaintiff’s lease was procured by fraud and its registration at the Lands Commission does not *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 23 of 24 *HWMNJ@DC/BLG-11/12/2024* make him the owner of the land in dispute. The Lands Commission is hereby ordered to expunge the said registration from its register. Accordingly, Plaintiff’s action is dismissed in its entirety. b. The defendant also has failed to establish positively the identity of the land he is claiming. In the circumstances, defendant’s counterclaim is hereby dismissed. c. There will be no order as to costs. The parties are to bear their respective cost incurred in pursuing this matter. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-MOHAMMED AWAL VRS. MAHAMA GODFRED (SUIT NO. A1/7/2024) * Page 24 of 24