Issah Vrs Afrani (C1/86/05) [2023] GHACC 935 (14 July 2023)

IN THE CIRCUIT COURT HELD IN KUMASI ON FRIDAY THE 14TH DAY OF JULY, 2023 BEFORE HER LADYSHIP JUSTICE PRISCILLA DAPAAH MIREKU (MRS.), SITTING AS ADDITIONAL CIRCUIT COURT JUDGE. SUIT NO. C1/86/05 FAROUK ISSAH VRS: VIVIAN DAPAAH AFRANIE ---------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------- The Plaintiff on the 6th day of May, 2005 instituted this action against the defendant and claim for the following; a. A declaration of title to plots numbers 11 and 13 situate at Duase on the Kumasi Antoa Road. b. Damages for trespass. c. Recovery of possession. d. Perpetual injunction restraining the defendant, her agents, assigns and all those claiming title through her. It is the case of the plaintiff that sometime in 2003 he acquired three plots of land numbered Plot 11, 13 and 25 from the land owners of Duase and he was given documents covering the three plots of land. According to the plaintiff, he developed Plot 15 and currently residing on same. That the defendant trespassed on his two remaining land and reported same to the police. It is the case of the plaintiff that, it came to light the defendant acquired the land from people who were not the land owners and was advised by the police to stop work. That the plaintiff is building day and night and unless she is restrained by the Honourable Court, she would continue with her tresspassory acts to the detriment of the plaintiff and prays per the reliefs aforementioned. The plaintiff amended his writ and statement of claim while the defendant also amended his defence and counterclaim on the 10th of November, 2014 and 15th February, 2016 respectively. Per the amended Writ of Summons and statement of claim, the plaintiff is claiming for the following; a) A Declaration of title to Plots Numbers 11 and 13 but now numbered 21 and 23 Duase-Antoa. Kumasi Road. b) Damages for Tresspass. c) Recovery of possession. d) Perpetual inunction restraining the Defendant, her Agents, Assigns and all those claiming title through her. The Defendant’s case is that she is called Vivian Dapaah and her sister in whose name she bought Plot No. 11 and 13 is called Mrs. Afranie Appiagyei who is resident in the United States of America. That the allocation sheet for the land was issued in the name of her sister Mrs. Afrane Appiagyei. According to the defendant, the land was first allocated by one Nana Kwabena Poku in 1998 and same was subsequently also reallocated by one Okomfour Kofi Poku in the year 2000. The defendant avers that the only work she has done on the land is a foundation she caused to be laid in1998 when she acquired same. That the police requested for each party to produce their witness if any to prove from who each bought their plots but the plaintiff failed to do so claiming he was travelling whiles she produced one. The defendant avers that she has not done any construction on the plots since the police ordered her to stop. That the action of the plaintiff is without merit, baseless, unconscionable and an abuse of the court process. The defendant counterclaim for the following; 1. A declaration that Plot Nos. 11 & 13 Antoa Road, Duase were legally acquired by the defendant for Mrs. Afrane Appiagyei. 2. An order of perpetual injunction restraining the plaintiff, his agents, privies, assigns and all those claiming title through him from interfering or dealing with plot nos. 11 and 13 Antoa Road, Duase. The issues that were set down for trial are as follows; 1. Whether or not Plot Nos. 11 &13 belong to the Plaintiff. 2. Whether or not Plot Nos. 11 & 13 were legally acquired by the defendant on behalf of Mrs. Afrane Appiagyei. 3. Whether or not the disputed plots were sold to Mrs. Afrane Appiagyei after same had been sold to the Plaintiff. 4. Any other issues raised in the pleadings. In civil actions, the burden of proof is by the preponderance of probabilities and Section 12 of the Evidence Act 1975 (NRCD 323) provides that, (1)Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2)"Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. In Re Wa Na; Issah Bukari (substituted by Mahama Bukari & Anor v. Mahama Byong & Others [2013-2014], the Supreme Court stated that, The Evidence Act, 1975 (NRCD 323), has prescribed the applicable procedure in every proceeding including inquiries, investigations and hearings, etc thus a person was obliged under section 11 of NRCD 323 to introduce sufficient evidence to avoid a ruling against him on an issue. This instant case is a land matter and there are numerous authorities stating or declaring the onus on the plaintiff in land matter. Some of such cases are Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891, were the court was of the view that, “to succeed in an action for declaration of title to land, injunction and recovery of possession the plaintiff must establish by positive evidence the identity and limits of the land claimed.” The case of Mondial Veneer (GH) LTD v. Amuah Gyeby XV [2011] 1 SCGLR 466, also provides that, there is the “need for person having burden of persuasion to prove root of title, mode of acquisition and acts of possession exercised over disputed property.” The Plaintiff was first called to prove his case and he testified on his behalf and called two other witnesses. According to the plaintiff he acquired three plots of land numbered Plot 11, 13 and 25 from the land owners of Duase sometime in 2003 and he was given documents covering the three plots of land. The Plaintiff tendered Exhibit ‘A’ which is an allocation note to the plaintiff but the said document is not legible but what can be read is that plot no. 13, street 7th Duasi has been allocated to Umoru Farrouk Issa. Exhibit ‘A1’ is allegedly allocation notes for Plots 11 and 15. The site plan attached to Exhibit ‘A1’ was rejected by the court during trial. Certificate of land allocation marked as Exhibit ‘B’ indicates that the plaintiff was allocated the subject matter on 22nd December, 2012. The land is described as plot no. 21 and 23 in Exhibit ‘B’. This suit was instituted on 5th May, 2005 and thus the plaintiff acquired this document when the case was pending and the subject matter when same was pending. Exhibit ‘C’ tendered by the Plaintiff which is a lease agreement also states that same was entered into on 27th May, 2013. The plaintiff witness (PW1) Abusapanin Nkansah Brepong testified on the plaintiff’s behalf and testified as to how the plaintiff’s grantor acquired the subject matter and gave the boundaries of their land. The defendant counsel challenged the said boundaries as given by PW1. PW1 tendered a judgment (Exhibit ‘E’) allegedly made in their favour but he further testified that after the delivery of the said judgment there was a disagreement on the boundaries so there was an arbitration on same and tendered Exhibit ‘F’ as proof of same. PW3 Nana Agyenim Boateng who describe himself as the head of the Tano Kwabena Asona Family and testified that they granted the subject matter in dispute together with another plot of land to the plaintiff. According to PW2, Nana Kwabena Poku whom the defendant claims she first acquired the land from is not a member of their family and owns no land at Duase. That, the said Nana Kwabena Poku only settle on Tano Kwabena Stool lands for herbal treatment and Okomfo Poku who the defendant claims resold the land to her was part of the delegation which visited the land to demarcate same for the plaintiff. PW2 further testified that the allocation note purportedly issued to the defendant by Okomfo Kofi Poku was fraudulently procured as he never issued any allocation note to the defendant. Aside the mentioning of this purported fraud no evidence was led to prove same. In the case of Zambrama vs Segbezi [1991] 2 GLR 221 @ 246 the Court of Appeal held that, 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 from which the fact or facts he asserted can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden. In Awuku v. Tetteh, [2011] 1 SCGLR 366 the court held that, “In an action for declaration of title to land, the onus was heavily on the Plaintiff to prove his case; he could not rely on the weakness of the defendant’s case. He must, indeed, show clear title.” After the plaintiff closed their case, the burden shifted on the defendant. The defendant is also counterclaiming for the reliefs aforementioned. The counterclaim reliefs for purposes of emphasis are as follows; 1. A declaration that Plot Nos. 11 & 13 Antoa Road, Duase were legally acquired by the defendant for Mrs. Afrane Appiagyei. 2. An order of perpetual injunction restraining the plaintiff, his agents, privies, assigns and all those claiming title through him from interfering or dealing with plot nos. 11 and 13 Antoa Road, Duase. The defendant also has the same burden of proof as that of the plaintiff as she takes on the cap of the plaintiff in her counter claim. It is important to note that the defendant in her defence stated that, she was called Vivian Dapaah and her sister by name Mrs. Afrane Appiagye acquired the subject matter. The plaintiff did not amend his writ of summons to reflect same and no Mrs. Afrane Appiagyei was also joined to the suit. The defendant also testified and called two witnesses to testify on her behalf. The defendant alleges her sister bought the land from Nana Opoku of Duase and she was issued with allocation note and site plan and same was tendered in evidence as Exhibits ‘1’ and ‘1A’. the defendant further testified that she had taken steps to acquire a lease from Manhyia in respect of the subject matter in dispute and tendered a receipt to prove same marked as Exhibit ‘3’. That she then took steps to fence the two plots and constructed a foundation on same. The defendant tendered a picture of same and it was marked Exhibit ‘4’. The defendant further led evidence that, at the time the plaintiff purported to have bought the land, she was already in possession. That the plaintiff then sued his grantors and the defendant tendered a writ of summons allegedly issued by the plaintiff and same marked as Exhibit ‘5’. According to the defendant, a search at the town and country planning shows that the land number has not changed. That Okomfo Kwame made it clear to the plaintiff that the land is for her and the plaintiff disregarded all indication that the plots are encumbered. In the case of Akoto II v Kavege [1984-86] 2 GLR 365, C. A, decided in an action of declaration of title in a judgment read by Francois JSC that: “The suit being one for a declaration of title, the plaintiffs have an onerous burden to discharge. This is trite law and would have necessitated no further comment but for the procedure adopted by the plaintiffs of throwing this burden to the winds. No root of title was disclosed. Neither the tradition of acquisition of an inherited estate nor the incidents of purchase, if acquired by sale were divulged. No clear and positive acts of unchallenged and sustained possession or of substantial user emerged from the evidence. The boundaries of the land were not established. No boundary neighbors were called to testify to the ownership of the adjoining lands.” Akoto II v Kavege (supra) laid in pithy terms what a plaintiff in an action for declaration of title to land must prove on the preponderance of probabilities in order to secure a verdict by the court in his favor. Also, in the case of Odoi v Hammond [1971]2 GLR 375, CA, Azu Crabbe JA, (as he then was), said at p382 that: It is now common learning in this country that in an action for declaration of title to land the onus is heavily on the plaintiff to prove his case, and he cannot rely on the weakness of the defendant’s case. He must indeed ‘show clear title’: per Yates Ag. C. J. in Kuma v Kuma (1934) 2 WACA 178 at 179. In Kponuglo v Kodadja (1933) 2 WACA 24 at 25, the Judicial Committee of the Privy Council observed that in an action for a declaration of title the first question chronologically to consider in the appeal is the traditional evidence regarding the acquisition of a title to the disputed territory. For a stool or family to succeed in an action for a declaration of title it must prove its method of acquisition conclusively, either by traditional evidence, or by overt acts of ownership exercised in respect of the land in dispute. The court takes judicial notice of the fact that, all the land document tendered by the plaintiff was not stamped as required by the Stamp Act. Thus this court will not relied on same as in the case of Woodhouse v. Airtel Ghana Ltd. SC, (CIVIL APEAL NO. J4/05/2018) DATED 12TH DECEMBER, 2018. With the court not relying on these documents, the plaintiff failed to lead evidence to show that indeed at the time he acquired the plots of land, the defendant was not in possession as claimed by her and that the defendant rather trespassed on the land after he had acquired same. This court finds that, the defendant acquired the subject matter on behalf of her sister Mrs. Afrane Appiagyei prior before the plaintiff allegedly acquired same and she has been in possession since. The court however cannot make a declaration of title in her favour as it is trite that a defendant cannot rely on a defence of ‘jus tertii’. (John K. A. Klu v. Mavis Darko & Another (Civil Appeal No. J4/15/2007) Dated 24th November, 2009. SC. It is however trite that a person in possession of land has a right to be protected against all except the one with a legal title. The plaintiff has failed to prove that he has a legal title which this court ought to protect and declared same in his favour. In the case of ABAKA EFFIANA FAMILY & ORS V. MBIBADO EFFIANA FAMILY & ORS [1959] GLR 362 , it was held that where a defendant has been in long undisturbed possession and occupation of land, he is entitled to the protection of the law against all who cannot affirmatively prove a better title. The defendant has proved that she has been in possession for swo long. Judgment is therefore entered for the defendant against the plaintiff and the plaintiff, his workers, agents, privies, assigns and whosoever claiming through him are injuncted from entering or interfering with the subject matter. Cost of fifteen thousand Ghana Cedis (GHC15,000.00) is awarded against the Plaintiff. SGD. H/L PRISCILLA DAPAAH MIREKU JUSTICE OF THE HIGH COURT CIRCUIT COURT 2, ADUM 12