Osei Vrs Gazali [2023] GHADC 484 (21 July 2023)

IN THE DISTRICT COURT TWO TAMALE HELD ON MONDAY 21ST JULY, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. A1/1/23 BETWEEN OSEI OFOSU NICHOLAS - PLAINTIFF AND BABA ALHAJI GAZALI - DEFENDANT JUDGMENT 1. This is judgment relates to land. 2. The parties herein described themselves as businessmen. Both are neighbours and ordinarily resident in Savelugu. 3. On 24th October, 2022 plaintiff instituted this action against the defendant for the following: “a. Declaration that plaintiff is the owner of plot nos. 18 and 19, section A “C” Kanborton Planning Scheme bounded by plots nos. 15, 16, 17 and 20 and the main Tamale-Bolga Road. b. An order of mandatory injunction on the defendant to pull down the structure he has erected on portions of plaintiff’s aforesaid plots and to close down the access road he has created through plaintiff’s aforesaid on plaintiff’s aforesaid plots without plaintiff’s knowledge and consent. c. An order of perpetual injunction restraining the defendant, his agents, servants, assigns or persons claiming through them from interfering in whatever manner with the plaintiff’s possession, ownership and use of his plot as described herein above. d. Recovery of possession. e. Damages against the defendant for trespassing to the land. f. Costs.” - 1 - 4. The defendant filed a Defence on 25th November, 2022 disputing plaintiff’s claim. On 13th December, 2022 the defendant filed a counterclaim for the following: “a. An order for the plaintiff to cover whatever foundation he has dug on the defendant’s land and return it to the state in which it was before the trespass. b. An order of perpetual injunction restraining the plaintiff, his agents, assigns, workmen, customary successors, privies and any persons claiming through him from interfering with the defendant’s possession, occupation and use of the disputed land. c. Damages for trespass. d. Costs.” 5. Plaintiff on 14th December, 2022 also filed a Defence to the defendant’s counterclaim disputing the assertions of the defendant. 6. Parties filed survey instructions to which this court ordered for a survey report to be filed. 7. The case of either party is detailed below. PLAINTIFF’S CASE 8. Plaintiff’s case is that he acquired the disputed plots sometime in 2021 from one Alhaji-Karim Iddrisu. He explained that the disputed plots are bounded by plots nos. 15,16, 17 and 20 and the main Tamale-Bolga road, to which the defendant owns plot no. 17. According to him, the defendant has encroached his plot no. 18 which they share a common boundary. Plaintiff added that when he proceeded to protect his boundary by erecting a fence wall, the defendant came to stop him. The matter was reported to the Yoo-Naa, but defendant would not put a stop to his interference. Plaintiff stated that he engaged surveyors to check his boundaries and on all occasions it came out that the defendant had encroached onto his land. He informed defendant but defendant has failed to heed to his advice, hence this present action. 9. The plaintiff tendered in evidence the following exhibits in support of his case: a. Exhibit A – Allocation Paper for plot no. 18 dated 17/4/17 b. Exhibit A1 – An Acceptance of the Allocation for Plot no. 18 dated 17/4/17 c. Exhibit A2 – Copy of Plaintiff’s Site Plan for plot no. 18. d. Exhibit A3 - Allocation Paper for plot no. 19 dated 17/4/17 e. Exhibit A4 – An Acceptance of the Allocation for Plot no. 19 dated 17/4/17 f. Exhibit A5 – Copy of Plaintiff’s Site Plan for plot no. 19 - 2 - g. Exhibits B and B1 – Copy of Transfer of Ownership of Plot Nos. 18 and 19 by Plaintiff’s grantor dated October 2021. 10. Plaintiff did not call any witness. DEFENDANT’S CASE 11. According to defendant, he does not own plot no. 17, rather his is plot no. 20, Kanborton Planning Scheme. He argued that he has not encroached or constructed any access road on plaintiff’s plots. Rather, he has planted trees to mark his plot boundaries. He averred that he acquired his plot in 2009 from one Issah Saaka. He completed his house and moved in around 2010. However, it was in 2015 that he went to the Yoo-Naa for the allocation letter to be changed to his name. He averred further that he has quiet enjoyment of his property all these while. He contended that is it rather the plaintiff who has encroached onto his plot. He stated further that the plaintiff during the construction of the wall caused damage to his pavement, garage, plumbing works and among others, hence his counterclaim. 12. The defendant tendered in evidence the following: a. Exhibit 1 – Picture of Plaintiff’s foundation trench close to his building. b. Exhibit 2 – Copy of Allocation Paper to defendant dated 30/7/15. c. Exhibit 3 –. Picture of defendant’s building. d. Exhibit 4 – Picture of plaintiff’s foundation trench close to his building. 13. Defendant also did not call any witness. I must point out here that the defendant failed to file copy of his site plan, although ordered to do so. He, however, gave a copy of his site plan to the Court Expert Witness (CEW) for the survey. Copy of his site plan was stamped by the Physical Planning Department, Savelugu Municipality on 16th February, 2023. COURT EXPERT WITNESS 14. Surv. Mutaru Fuseini Adam, the court appointed surveyor filed his report on 18th May, 2023, marked as Exhibit CW1. A copy of defendant’s site plan was tendered as CW2 stamped and dated 16th February, 2023. Also, he tendered in evidence Exhibit CW3 the local plan for the area in dispute. His conclusions/observations were that: “a. The local plan (Layout) of the area is not only compromised but it is also in local grid coordinates system, hence cannot readily be overlaid or superimposed on the new survey which is on national grid system. b. The actual dimensions of plot sizes of the local plan have been reduced on the ground and this means the sizes of the plots are smaller on the ground than on the local plan (Layout). - 3 - c. Whereas the dimensions of the local plan are measuring approximately 145x100, what was recorded on the ground is approximately 94x90 for each parties. d. There is an overlap between the claims of the two parties on the ground and that is indicated clearly on the composite plan as hatched red. e. While the plot for the defendant is completely developed, that of plaintiff is not yet developed except that an excavation was done to construct a fence wall.” 15. He was cross-examined by both parties. I shall consider in detail his evidence later in this judgment. - 4 - ISSUES FOR DETERMINATION 16. The issues borne out by the facts are: a. Whether or not per the portion hatched red on Exhibit CW1, the defendant has encroached onto plaintiff’s land? b. Whether or not the defendant trees on the disputed land constitute adverse possession? c. Whether or not the either party is entitled to his claim? BURDEN OF PROOF 17. In civil cases, the general rule is that the party who in his pleadings 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 and Sarkodie v FKA Company Ltd. [2009] SCGLR 65. 18. With regards to what is required of the plaintiff in land cases, the law is that 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.” 19. Where there is claim and a counterclaim, the Supreme Court speaking through His Lordship Ansah JSC in the case Osei v Korang [2013] 58 GMJ 1, stated as follows: “… each party bears [the] onus of proof as to which side has a claim of title against his/her adversary, for a counter claimant is as good as a plaintiff in respect of a property which should he assays to make his/her own.” ANALYSIS OF THE ISSUES Issues a, b and c. 20. I will consider issues a, b and c together. Thus (a) whether or not per the area hatched red on Exhibit CW2, the defendant has encroached onto plaintiff’s land, (b) whether or not the defendant trees on the disputed land constitute adverse possession, and (c) whether or not the either party is entitle to his claim? 21. It is settled and trite law that a person claiming title has to prove (i) his root of title, (ii) mode of acquisition, and (iii) various acts of possession over the disputed land, see - 5 - Yehans International Ltd. v Martey Tsuru Family & Anor. [2018] DLSC 2488. Similarly, the plaintiff must positively describe/identify the land and its boundaries. In Anane v. Donkor [1965] GLR 188, the Supreme Court held at holding 1 that, “…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 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 stated that the principle enunciated in Anane v. Donkor [supra] should not be slavishly applied. 22. Now, with regard to proof of one’s claim or allegation, the Supreme Court in the case Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867 held as follows: “... What this rule literally means is that if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish.” 23. Let me also rehash what was stated in Majolagbe v. Larbi [1959] GLR 190 regarding proof of an allegation. The learned judge, Ollenu J. (as he then was) stated at page 192 that, “where a party makes an averment capable of proof in some positive way…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 case of Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139. 24. It must be noted that per the authorities, the court is not bound by the surveyor’s report, but it is only to help the court to come out with a reasoned decision. The court can thus, upon stated reasons, depart from the contents of the report as presented by the surveyor, see the case of Tetteh v. Hayford [2012] 1 SCGLR 417. 25. Lastly, regarding adverse possession, in the case Binga Dugbartey Sarpor v Ekow Bosomprah [2020] DLSC 9922 the Supreme Court cited with approval the definition of adverse possession by Brain A. Garner in the Blacks’ Law Dictionary, 9th Edition as: “The enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim is continuous, exclusive, hostile, open, notorious.” See also - 6 - the case of Ebenezer Kwaku & Anor. v Mankralo Tetteh Otibu IV [2021] DLSC 10790. In establishing what constitutes adverse possession, His Lordship Ansah JSC (as he then was) in the case Antwi v Abbey [2010] SCGLR 17 stated that, “Acts amounting to establishing adverse possession are many and may be in the nature of fencing the property, posting signs posts, planting crops, building or raising animals in a manner that a diligent owner could be expected to know about them. The list may be taller still.” Also, the 12years limitation period under section 10(1) of the Limitation Act, 1972 (NRCD 54) does not run, unless the person against whom a suit is instituted for recovery of land is in adverse possession of same, see Tsuru III v Obodai & Ors. Suit No. H1/228/04, 2008, CA, Unreported per Dotse JA (as he then was). 26. Based on the above, the legal burden is on the plaintiff to establish that the property in dispute belongs him, see Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) (supra). Failing which, an unfavourable ruling shall be entered against him. Where plaintiff succeeds, the burden then shifts to the defendant, see Ababio v Akwasi III (supra). The defendant is duty bound to also prove his counterclaim, failing which an unfavourable ruling shall be entered against him. Both parties must succeed on the strength of his own case and not on the weakness of the other, see Kodilinye v Odu (supra) and Osei v Korang (supra). 27. In the instant case, the plaintiff maintained that the area hatched red on Exhibit CW1 is part of his land. He asserted that a careful look at Exhibits A2 and A5, his plot nos. 18 and 19 are in line with each other. Hence, there should not be an instance where plot 19 is properly measured, but that of plot no. 18 is not. Exhibit CW1 also shows that his two plots are in line with each other, save that the area hatched red indicates an encroachment onto his plot no. 18. Lastly, per Exhibits A2 and A5, plot no. 18 shares the same boundary with plot no. 17, being the disputed area hatched red. 28. The defendant, on his part, contended that his plot is no. 20 but not 17. He claims he constructed his building and moved in 2010. Later, on 30th July, 2015 he applied to the Yoo-Naa for his allocation letter, Exhibit 2. He contended that he has being in quiet enjoyment of his land, until the plaintiff encroached on his pavement, garage and plumbing works. 29. From the evidence, it was apparent that the defendant did not have a copy of his site plan when he constructed his building. He, in fact, got a copy of his site plan, Exhibit CW2, on 16/2/23, when this case had commenced on 24/10/22. Yet, he maintained that he knew the exact boundaries of his plot. 30. Below is an extract of what ensued when defendant was under cross-examination: - 7 - “Q: You stated in your witness statement that your plot is rather plot no. 20 and not 17, is that correct? A: That is so. Q: But you agree with me that on the ground, the plot you own is part of the dispute with plaintiff? A: Yes. Q: You also agree with me that plaintiff dug a foundation at the boundary of his plot to erect a fence wall? A: Plaintiff dug, but that is not the boundary to plaintiff’s plot. Q: A: … Q: A: You also agree with me that when plaintiff started construction, you prevented him? Yes. You agree with me that before you constructed your house, the place was not properly laid out, you did not have a site plan? That is not true. There were pillars to the boundaries of the plot before I constructed my house. People were already there before I went there. Q: You agree with me that to this day you do not have a site plan? A: I have. Q: But you have not exhibited any site plan especially so when surveyors instructions were needed? A: My counsel did not add it, but I gave it to the surveyor. Q: You agree with me that before you constructed your house, you did not seek any expert, i.e. a surveyor to check whether where the pillars were, were the exact location? - 8 - A: … Q: A: … Q: I checked. It was the mason who brought the surveyor to come and handle the boundary aspect. You agree with me that at the time of the purchase of the plot in July 2015, there was no site plan? I do not agree with you. In paragraph 6 of your witness statement you said that you completed your building and moved in 2010, is that correct? A: That is so. Q: A: Q: And that meant that you went into your house 5yrs before you obtained your allocation letter? The reason being that I bought the land from my brother who earlier bought it. So I was not bothered to take the allocation letter when I purchased the land. I therefore suggest to you that at the time of putting up the building you did not have a document to verify the boundaries of the said plot? A: That is not so. It was my brother who stood when I was putting up the building.” 31. As earlier stated, the defendant failed to file his site plan before the survey was carried out. Hence, the plaintiff did not have the opportunity to cross-examine him on it. From Exhibit CW2, which the Court Expert Witness tendered as copy of defendant’s site plan, defendant claims plot no. 20 as his property. From Exhibits A2, A5 and CW2, plot no. 20 of the defendant shares a common boundary with plot no. 19 of the plaintiff. Exhibit CW1, the survey report, the situation on the grounds depicts a boundary dispute between plot no. 18 of the plaintiff and plot no. 17. The surveyor indicated that on the grounds, the disputed area hatched red is bounded by plots no. 18 of the plaintiff and plot 17 of the defendant. Hence, if defendant is contending that he was allocated plot no. 20, per his allocation letter Exhibit 2, then he is on the wrong land. Nonetheless, the evidence points that he, defendant, is on plot no. 17 and has already built his house thereon. 32. Also, below is an extract of what ensued when the surveyor was being examined by the court: “Q: Did you receive an order for your survey dated 30/1/23? - 9 - A: Yes. Q: Was your survey per this order? A: … Q: Yes, in conjunction with the instructions from the parties. So per Exhibit CW1, that is the current dimension for the said area, not so? A: That is correct. Q: And per the parties claims compared with Exhibit CW1, it was not impossible for you to identify their plot dimensions on the ground, not so? A: Yes. Q: And these dimensions are marked out as blue for the plaintiff and green for the defendant? A: That is correct.” - 10 - 33. From Exhibit CW1, plot no. 18 of the plaintiff shares boundary with plot no. 17. It is on plot no. 17 that the defendant has put up his building. If indeed the survey report, Exhibit CW1, is to be followed strictly, then I should say that the report is misplaced, since defendant failed to point out clearly his allocated property, i.e. plot no. 20 per Exhibits 2 and CW2. Nonetheless, the parties are at idem that the dispute is found on the area hatched red on the composite plan, Exhibit CW1. Since parties are at idem, I am minded to proceed in that regard but warn the defendant to have his allocation, properly delineated. Hence, the principle in Anane v. Donkor [supra] not slavishly applied, see Okine & Another v. Amoah VI (supra). 34. On the totality of the evidence led so far, the defendant did not know his exact boundary at the time of putting up his building. He only got a copy of Exhibit CW2, his site plan, on 16th February, 2023. Again, if indeed he bought his land from his brother, then his brother should have given him his allocation and site plan together with a valid transfer, similar to that of the plaintiff. Defendant’s evidence, however, points to the effect that he bought it from the Yoo-Naa on 30/7/15. Furthermore, no site plan was attached to the said allocation. There is, however, no doubt that the defendant build his property and moved in year 2010. Let me remind myself here that there is no dispute with the defendant’s house, rather the dispute regards the boundaries. From Exhibits A2, A5, CW1 and CW2, there is no doubt that the land size of plot nos.18 and 19 should be the same as plot nos. 20 and 17. However, a careful study of Exhibit CW1, the composite plan, the disputed area hatched red appears clearly on plaintiff’s land. As explained by the plaintiff, the boundaries of plot no. 19 and 18 must be in line with each other, see the line edged blue. However, the line edged green belonging to the defendant has clearly entered or overlapped into the land of the plaintiff, and I so hold. 35. The issue regarding whether the defendant’s trees amount to adverse possession, from the evidence, Exhibits 1 and 4 indicate that after the plaintiff had dug his foundation for a fence wall, the defendant’s trees came into plaintiff’s land. There was no evidence as to when these trees were planted. Assuming without admitting that they were planted in 2010 when the defendant constructed and moved in, the plaintiff challenge was in 2021 regarding the pillars. Below is what ensued when defendant was under cross-examination: “Q: Do you remember plaintiff came to construct pillars around the boundaries of his plot? A: The planting of the pillars extended into my plot. Plaintiff was shown the boundaries to his plot. He came to construct his pillars, my mechanic bore hole was there and went beyond the mechanic bole hole. - 11 - Q: At the time you constructed the mechanic bore hole, did you have a site plan? A: Yes. Q: You agree with me that after plaintiff constructed the pillars, you approached him for a discussion? A: Yes. And the discussion was that plaintiff entered into my land. Q: A: I am suggesting to you that when you approached the plaintiff, you made an offer to him for him to exchange that particular plot for an uncompleted building of yours elsewhere? That is not true. I only went to the plaintiff to buy the land from him, but plaintiff declined.” 36. As earlier noted in the case of Antwi v Abbey (supra) acts amounting to establishing adverse possession are many which include but not limited to fencing the property, posting signs posts, planting crops, building or raising animals in a manner that a diligent owner could be expected to know about them. In this instant case, there was no evidence as to when the defendant’s trees were planted or when the mechanic bore hole was constructed. There was no picture of the mechanic bore hole. Again, if the trees were planted in 2010, the time to prohibit the plaintiff from challenging defendant, i.e. the 12years under s. 10 of NRCD 54 had not elapsed. Plaintiff entered his land in 2021, mapped out his boundaries, planted pillars and a dispute arose. Defendant, offered to buy the plaintiff’s land, but same was declined. I, therefore, find that the defendant’s trees does not amount to an act of adverse possession since there was no sufficient evidence to that effect. 37. Finally, trespass to land, as a tort, is actionable per se. This means that once the act of trespass has been proven against a defendant, the plaintiff does not have to prove by evidence that he has suffered damages. The law presumes injury to the plaintiff to be a natural consequence of the defendant’s act of trespass and therefore a claim for general damages will arise as of right by inference of the law. See the cases of Klah v Phoenix Insurance Co. Ltd. (supra) and Esi Yeboah v Mfantseman Municipal Assembly, Suit No. A2/6/2021 dated 13th October, 2022, HC. To assess the extent of damages, the court is required to consider the circumstances of the case and in particular the acreage of the land on which the trespass was committed, the period of - 12 - wrongful occupation of the land by the defendant and the damage caused, see the cases of Laryea v Oforiwaa [1984-1986] 2 GLR 410 and Ayisi v Asibey III & Ors. [1964] GLR 695. From the evidence, the defendant trees are on the plaintiff’s plot. There is no evidence as to where the mechanic bore hole is. Having determined that the defendant does not have a valid claim to be on the portion hatched red, per Exhibit CW1, his actions amount to trespass, and I so hold. I, however, did not find any sufficient evidence regarding the access road created by the defendant. From Exhibits A2, A5, CW1 and CW2, there is no access road that should exist between plot nos. 18 and 19 on the one part and plot nos. 17 and 20 on the other part. In effect, shall award damages for trespass in the sum of GHS5,000.00 against the defendant. I will, however, not grant the relief for the defendant to pull down those trees, since I have awarded damages for same. CONCLUSION 38. In conclusion, I hereby enter judgment in favour of the plaintiff as follows: a. I declare that the plaintiff is the owner of plot no. 18 Kanborton Planning Scheme and more particularly that the area hatched red, per Exhibit CW1, belongs to the plaintiff. b. The defendant, his agents, servants, assigns or persons claiming through him are perpetually restrained from interfering in whatever manner with the plaintiff’s possession, ownership and use of his plot as described herein above. c. Plaintiff is at liberty to recover possession of the disputed land. d. Damages against the defendant for trespassing to the land is assessed at GHS5,000.00 e. Costs of GHS3,000.00 is awarded in favour of the plaintiff. H/W D. ANNAN ESQ. [MAGISTRATE] SYLVESTER ISANG ESQ. WITH LAMBONG SAMPSON ESQ. FOR PLAINTIFF RASHID M. MUMUNI ESQ. WITH SALISU B. ISSIFU ESQ. FOR THE DEFENDANT References: 1. ss. 11(4), 12(1) and (2) and 14 of the Evidence Act, 1975 (NRCD 323) 2. s. 10(1) of the Limitation Act, 1972 (NRCD 54) 3. Faibi v State Hotels Corporation [1968] GLR 471 4. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 5. Sarkodie v FKA Company Ltd. [2009] SCGLR 65 - 13 - 6. Odametey v Clocuh [1989-90] 1 GLR 14, SC. 7. Kodilinye v Odu [1935] 2 WACA 336 8. Osei v Korang [2013] 58 GMJ 9. Yehans International Ltd. v Martey Tsuru Family & Anor. [2018] DLSC 2488 10. Anane v. Donkor [1965] GLR 188 11. Nortey v. African Institute of Journalism and Communication [2013-2014] 1 SCGLR 703 12. Okine & Another v. Amoah VI [2013-2014] 2 SCGLR 1358 13. Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867 14. Majolagbe v. Larbi [1959] GLR 190 15. Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139 16. Binga Dugbartey Sarpor v Ekow Bosomprah [2020] DLSC 9922 17. Ebenezer Kwaku & Anor. v Mankralo Tetteh Otibu IV [2021] DLSC 10790 18. Antwi v Abbey [2010] SCGLR 17 19. Tsuru III v Obodai & Ors. Suit No. H1/228/04, 2008, CA, Unreported 20. Esi Yeboah v Mfantseman Municipal Assembly, Suit No. A2/6/2021 dated 13th October, 2022, HC 21. Laryea v Oforiwaa [1984-1986] 2 GLR 410 22. Ayisi v Asibey III & Ors. [1964] GLR 695 23. Blacks’ Law Dictionary, 9th Edition - 14 -