FIESI VRS NUDE & 2ORS. (A1/07/2021) [2023] GHADC 1220 (30 October 2023)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON MONDAY THE 30TH OCTOBER, 2023 BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE) SUIT NO: A1/07/2021 KWASI FIESI OF MEPE............................... PLAINTIFF VRS. 1 . JOHANES NUDE ] 2 . VULOR SAPPEI ]................. DEFENDANTS BOTH OF MEPE ] PARTIES 1 . PLAINTIFF PRESENT. 2 . DEFENDANTS PRESENT. J U D G M E N T The Plaintiff instituted the present action against the Defendants seeking the following reliefs: ( A) A declaration of title to all that piece or parcel of land situate, lying and being at Mepe measuring 100 x 100 feet and bounded as follows: On the South by Dzagbaku clan land; On the East by Dzagbaku clan land; On the West by Road and On the North by Dzagbaku clan land. (B) Recovery of possession of the subject matter of litigation; (c) Perpetual Injunction restraining Defendants their agents, workmen, assigns or any person acting or claiming through them from further acts of trespass. The Defendants pleaded NOT LIABLE to all the Plaintiff’s reliefs. The Plaintiff’s Statement of Claim filed are as follows: 1. The Plaintiff is a native of Mepe but resident at Yeji in the Bono Region 2. Plaintiff avers that he is the owner of a parcel of land measuring 100 x 100 feet located at Mepe and bounded as follows: On the South by Dzagbaku Clan land; On the East by Dzagbaku clan land; On the West by Road; and On the North by Dzagbaku clan land. 3. Plaintiff states that he purchased this land from the Dzagbaku Development Committee on 20th August, 2003, and an Indenture was prepared for him; 4. Plaintiff avers that he took possession and started developing the land and managed to complete the foundation; 5. Plaintiff says that 1st Defendant took advantage of his absence in the community and caused destruction to his building foundation; 6. Plaintiff further states that 1st Defendant is currently building on the subject matter in haste; 7. Plaintiff says that all attempts to stop the 1st Defendant from developing the land have gone unheeded as he continues to build; 8. Plaintiff avers that on 27th May 2021, one Mr. Vulor Sappei (2nd Defendant) told the court that he sold the said land to the 1st Defendant; 9. Wherefore, Plaintiff claim against the Defendants jointly and severally for the reliefs supra including special damages for the demolition of Plaintiff’s building foundation and costs. The Defendants Statement of Defence and counterclaim are as follows: 1. The Defendants admit paragraph 1 and 8 of the Statement of claim; 2. The Defendants vehemently deny paragraphs 2, 3, 4, 5, 6, 7 and 9 of the Statement of Claim; 3. In further denial of paragraph 2 Defendants asseverate that 1st Defendant is the owner of the land in contention measuring 100 x 100 feet which is bounded as follows: On the North by Eric Ladzagla; On the South by Lorry Road; On the East by Etse Tetteh; and On the West by Mawuli Akuinor. Counterclaim The Defendants counterclaim against the Plaintiff as follows: a. Declaration of title to and ownership of all that piece or parcel of land situate lying and being at Mepe as clearly described in paragraph 3 of their Statement of Defence supra. b. Recovery of Possession. c. Costs. An order of Perpetual Injunction against the Plaintiff, his agents, servants, workmen, privies and assigns restraining them from having anything whatsoever to do with the land in dispute or any portion(s) thereof. The general principle of law in all civil cases has been codified in the Evidence Act, 1975 (NRCD 323) specifically Section 11 (4) and 12 (1) to be proof by the preponderance of the probabilities as the standard of proof required. Section 11 (4) states: “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”. Section 12 (1) also states: “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities”. The general position on the burden of proof and of persuasion had had Judicial approval by the Supreme Court in the case of Ababio v. Akwasi IV [1994-95] GBR 774 where Aikins JSC (as he then was) expounded the position as follows: - “The general principle of law is that it is the duty of Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of providing it. The burden only shifts to the defendant to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins, if not, he loses on that particular issue”. Similarly, the principle has been summarized by the Supreme Court in the case of Ackah v. Pergah Transport Ltd [2011] 31 GMJ SC 174 at 178 that: It is a basic principle of the 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 witnesses, 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 mind of 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 probable than its non-existence. This is a requirement of Law or Evidence under Section 10 and 11 of the Evidence Decree.” Further, In re Ashalley Botwe Land: Agbosu and Others v. Kotey and Others [2003- 2005] 1 GLR 685 at 732 it affirms the mandatory responsibility of a Plaintiff in all civil cases that: “the import on all these authorities and statute is that, it is the duty of the Plaintiff to produce evidence to establish the requisite degree of belief concerning a fact in the mind of the court. Plaintiff cannot rely on the case of Odametey v. Clocuh[1989- 90] 1 GLR 14 where it was decided that “If a plaintiff in a civil suit failed to discharge the onus on him and thus completely failed to make a case for the claim of which he sought relief, then he would not only rely on the weakness in the defendant’s case to ask for relief. If however, he made a case which entitle him to a relief and if the defendant when he did give evidence disclosed any weakness which tendered to support the Plaintiff’s claim, the plaintiff was entitled to rely on the weakness of the defendant’s case to strengthen his case”. The Plaintiff assumed the duty to prove his case, called two (2) witnesses, Edmond Kwabla Bigah and Michael Modzaka as well as tendered in evidence some Exhibits. They include, Plot Allocation Form from Dzagbaku Development Committee, Indenture, Judgment delivered in January 1960 and a Statutory Declaration published in the National Dailies as Exhibit ‘A’ ‘B’ ‘C’ and ‘D’ respectively. The Defendants opened their defence and called a common witness, Abla Agala. They equally tendered in evidence some exhibits, Land Receipt and Indenture, same marked as Exhibit ‘1’and ‘2’. The issues for determination: (i) whether or not the parties satisfied the requirement to succeed for declaration of title to land; (ii) whether or not the Defendants have trespassed on Plaintiff’s land; (iii) whether or not the Defendant is entitle to his counterclaim; and (iv) whether or not the Plaintiff’s entitle to his claim The Plaintiff is seeking declaration of title to land and other reliefs, he will succeed only if he is able to establish the identity of the land in dispute satisfactorily according to law so as to entitle him to the reliefs. The onus of proof required by law as regards the identity of land would be discharged by meeting the conditions clearly stated in the case of Tetteh v. Hayford [2012] SC GLR 417 citing the case of Kwabena v. Atuahene [1981] GLR 136: i. the plaintiff has to establish positively the identity of the land to which he claimed title, subject matter of the suit. ii. Plaintiff has to establish all his boundaries iii. Where there is no properly oriented plan drawn to scale, which made compass bearings vague and uncertain the court could hold that the plaintiff had not discharged the onus of proof of his titles. Similarly, in the case of Agyei Osae & Others v. Adjeifio & Others [2007-2008] SC GLR 499, it was held that in an action for declaration of title to land, recovery of possession and injunction, a plaintiff must establish by positive evidence of identity and limits of the land he claims. It is the Plaintiff’s case that he purchased the said land from the Dzagbaku Development Committee on the 20th August 2003. He took possession and commenced developing the land to the foundation level. As evidence of purchase, he was given Allocation Form and Indenture by the Committee. A witness to the Exhibit ‘A’ and ‘B’, Edmond Kwabla Bigah corroborated the Plaintiff’s evidence. They stated the measurement of the disputed land as 100 x 100 feet and bounded as follows: On the South by Dzagbaku clan land; On the East by Dzagbaku clan land; On the West by Road; and On the North by Dzagbaku clan land. To prove supremacy of the subject matter, they tendered in evidence, Exhibit ‘C’ and ‘D’ Judgment delivered on the 15th January 1960 and subsequent Statutory Declaration in the National Dailies. On the other hand, the 1st Defendant, Johannes Nude who is in possession of the subject matter produced Exhibit ‘1’ and ‘2’ being a receipt of purchase and Indenture from Afi Anyimornu family dated 20th day of August 2015. That the land measuring 72 x 72 feet is bounded as follows: On the North by Eric Ladzagla; On the South by Lorry road; On the West by Mawuli Akuinor; and On the East by Etse Tetteh The 2nd Defendant Vulor Sappei the vendor of 1st Defendant evidence was not different, as he gave the measurement and boundaries as supra. He contended that the Plaintiff have no interest and cannot claim the subject matter as he was a squatter. DW1, Yaa Dede Afi Anyimornu a family member of Anyimornu Akatorpeme Dzagbaku a division of the Dzagbaku Clan of Mepe and on whose behalf 2nd Defendant became an agent and sold the subject matter to 1st Defendant gave the boundaries as supra. From the documentary evidence provided, the parties acquisition of the subject matter is through sale. In selling land, one party agrees to part with their parcel of land and should part with the same land for consideration agreed upon and given. It therefore means that in the sale of land, there is an evident agreement to sell the land. Such agreement must involve compliance of certain requirements. They also identified their respective boundaries and limit of the land they claim, the case of Nyikplorkpo v. Agbedotor [1987-88] 1 GLR 65 at 171. The outstanding issue is the date of purchase. The plaintiff stated 20th of August 2003 and the 1st Defendant, 20th August 2015. But for the fact that their root of title is from divisions of the Dzagbaku Clan, equitable doctrine of notice would have been employed. The 1st Defendant was issued with Receipt duly endorsed evidencing the purchase. The 2nd Defendant with others inclusive endorsed as the vendor and agent. The Plaintiff was issued with Allocation Form signifying the release of his land by the Dzagbaku Committee. This was exhibited as Exhibit ‘A’ and ‘1’ respectively. A Receipt would suffice to show consideration has been given. The law is that receipts cannot transfer an interest in land but it is evidence of payment in pursuance in an agreement to transfer an interest in land. Receipts are clear evidence showing that there was an agreement and money was paid to the vendor as either part payment or the full purchase price of the property. A receipt could be the basis for an action for specific performance under Section 36(2) of the Land Act, Donkor v. Alhassan [1987-88] 2 GLR 253. See Dennis Adjei J. A book titled Land Law, Practice and Conveyancing in Ghana 3rd ed. Page 283. Thus, it follows that the Plaintiff and 1st Defendant are both possessors at customary Law. With the evidence of 2nd Defendant and PW1 who are their witnesses the court can conclude on how the parties became possessors, and as stated in Mondial Veneer (GH) Ltd v. Amuah Gyebu XV [2011] 1 SC GLR 466 at 475, that: “In land litigation, even where living witnesses who are directly involved in the transaction under reference are produced in court as witnesses, the law required the person asserting title and on whom the burden of persuasion falls, as in this instant case, to prove the title of his root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. On the strength of the case above, the court is satisfied that the parties have successfully proved their case as to ownership and acts of possession. Now I want to look at the issue of trespass as stated by the Plaintiff that 1st Defendant has trespassed onto his land. Once the Plaintiff’s claim that the Defendant has unlawfully entered his land, must prove the following, that there was a volitional act made by the Defendant, that the Defendant acted with the intent of intruding on the Plaintiff’s land, that there was an actual intrusion on the Plaintiff’s land, that he was in possession or was entitled to immediate possession, of the land when the intrusion took place and that the intrusion was caused by the Defendant’s act. See Rogers v. Board of Road Commissioners, 30 N. W. 2d 358 (Mich. 1948). The Plaintiff in his witness statement had stated that the Defendants are trespassers. That they took advantage of his absence trespassed onto his land and caused destruction to his building foundation. The Defendants described the Plaintiff as a squatter and claimed in their Statement of Defence paragraph 4 that the 100 x 100 feet subject matter was the property of 1st Defendant. At locus, both lands claimed by parties were measured. The Plaintiff’s land measured 100 x 100 feet with a single room foundation situate on the subject matter land. The 1st Defendant had constructed a three-bed room house at roofing level on his land. The building measured as follows: On the South 51.10 feet; On the West 38.2 feet; On the East 29.5 feet On the North 51.0 feet. The 1st Defendant’s portion of his land was to the North and not developed. His building had extended by about 52.3 feet onto the Plaintiff’s portion of land towards the South. Per the locus report and the photograph of 1st Defendant’s building Exhibit CE’1’ and CE’2’, the evidence so overwhelming that Defendants cannot claim 100 x 100 feet as they stated in their Statement of Defence as they could not lead sufficient evidence to claim same. It is enough for the Plaintiff in action for trespass if he is able to lead evidence to recover possession in addition to damages. The Plaintiff per the reliefs has put his title in issue and would be required to prove it by the preponderance of probabilities, the case of Dagadu and Others v. Addy and Another [1991] 1 GLR 316. On the issue of Defendants counterclaim, as the burden of proof is always on the plaintiff to prove positively by a balance of the probabilities that the identity of his land is certain and there is no doubt about it, Bedu v. Agbi [1972] 2 GLR 238 CA, a defendant who has a counterclaim has the same responsibility as the Plaintiff and would be expected to discharge the same burden of proof in order to succeed in his claim. The Defendants in the present action, filed a counterclaim and by extension become Plaintiffs as counterclaimants. This was clearly stated by Rose Owusu JSC (as she then was) in Sasu v. Sintim [2012] 1 SC GLR 136 at 156: “A counterclaim is different action in which the Defendant as a counterclaimant is the Plaintiff in the action becomes a Defendant.” Similarly, the position of the law is that in an action for declaration of title, the burden of proof is always put on the Plaintiff to satisfy the court on the balance of probabilities but where the defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing the case of the defendant just as was used to evaluate or assess the case of the Plaintiffs against the defendant.” See Yeboah v. Ahele [2012] 44 GMJ 37 CA [at page 66]. Thus, Section 11 (1) of the Evidence Act, 1975 (NRCD 323) enjoins the Defendants in their capacity as Plaintiff in a counterclaim to introduce sufficient evidence to avoid a ruling on the issue against him.” At locus in quo when it had become imperative that there is a material issue which could not be resolved other than by such visual inspection, it became clear after the measurement of parties land, the portion of land trespassed by the 1st Defendant’s uncompleted building. Part of the structure was sitting on the Plaintiff’s lands. This was the boundary between them by the Southern side. It must also be noted that though the plots belong to the Dzagbaku Clan but the divisions within the Dzagbaku Clan owned these lands which same have been alienated to the parties, that Dzagbaku “small and big” as they referred to at the scene of the subject matter in dispute. Flowing from the evidence above and the evidence adduced so far, the 1st Defendant has though proved his title but he has trespassed onto the Plaintiff’s land about 52.3 feet. This is a case where the Plaintiff in my view has successfully proved the title of his 100 x 100 feet land which sale was facilitated by DW1, Edmond Kwabla Bigah. Accordingly, the court finds as a fact that the land is the property of the Plaintiff as he is entitle to all his reliefs: In the court’s opinion, the Defendants and their witness could not convince the court, the counterclaim is hereby dismissed. Judgment is entered for the Plaintiff. I order the 1st Defendant to remove the portion of his building on Plaintiff’s land by the 30th of November, 2023 to enable Plaintiff recover the full complement of his land measured 100 feet by 100 feet bounded by Dzagbaku Clan, South, North East and West by Road. Further, I restrain the Defendant from any acts of trespass. I award costs of Three Thousand Ghana Cedis (GH₵3,000.00) against the Defendants. (SGD) H/W MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE) 30TH OCTOBER, 2023