ADU-GYAMFI AND ANOTHER VRS AMIDU AND THREE OTHERS (LD/0650/2020) [2023] GHAHC 509 (6 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, LAND DIVISION (COURT 11) HELD IN ACCRA ON MONDAY, THE 6TH DAY OF NOVEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE AMOS WUNTAH WUNI SUIT NO. LD/0650/2020 1. DR. KWAME ADU-GYAMFI 2. HAGAR ADU-GYAMFI PLAINTIFFS VRS 1. TOMMIE AMIDU 2. MOS PROPERTY CONSULTANCY LTD 3. THE DEVELOPER 4. LANDS COMMISSION DEFENDANTS JUDGMENT BACKGROUND By a Writ of Summons (and accompanying Statement of Claim) filed on 23rd March 2020, the Plaintiffs commenced the instant action seeking the following reliefs against the Defendants: a) “A declaration of title in all that piece or parcel of land described in paragraph 7 of the Statement of Claim; b) A declaration that the purported alienation of the disputed land to the 3rd Defendant by the 2nd Defendant is unlawful and thus, same is null and void; c) A declaration that the entry unto the disputed land by the 1st and 2nd Defendants constitute trespass; - 1 - d) A declaration that the entry unto the disputed land and the development of same by the 3rd Defendant constitutes trespass; e) An order of perpetual injunction, restraining the 1st, 2nd and 3rd Defendants, their agents, workmen, assigns and or any person(s) howsoever described and claiming through the said Defendants, from trespassing or in any other way interfering with the Plaintiffs’ interest in the land in issue; f) An order of perpetual injunction directed at the 4th Defendant to cease title registration processes in favour of the 2nd and 3rd Defendants in respect of the land in issue and expunge any record that connects the 2nd and 3rd Defendants to the land in issue; g) Damages against the 1st, 2nd and 3rd Defendants for trespass on the land; h) Recovery of the sum of Sixty Thousand Ghana Cedis (GHC 60,000.00) from the 1st and 2nd Defendants, being the cost of the construction of the footings/foundation destroyed by the said Defendants and/or their agents; i) Cost inclusive of Solicitors’ fees.” The Plaintiffs filed an ex parte application for interim injunction on 23rd March, 2020 which was granted by the Court on 26th March 2020; and subsequently, the Plaintiffs’ motion on notice for Interlocutory Injunction against the 1st to 4th Defendants was also granted on 12th April 2021. On 17th June 2020, the 4th Defendant entered appearance and eventually filed its Statement of Defence on 24th March 2022. However, the 1st to 3rd Defendants neither entered appearance to the suit nor filed a Statement of Defence. The Plaintiffs subsequently filed an application on 14th July 2021 to set down the suit for trial in respect of the reliefs - 2 - endorsed on the Writ of Summons and Statement of Claim, following which the Court made an order setting the suit down for trial on 27th January 2022. Pursuant to the said order of the Court, the Plaintiffs filed their Witness Statement and Pre-Trial Checklist on 13th April 2022 as well as a Supplementary Witness Statement on 20th January 2023. The 4th Defendant on the other hand, filed its Witness Statement on 14th June, 2022; and Plenary Trial, which commenced on 27th March 2023 was concluded on 6th July 2023. THE PLAINTIFFS’ CASE It is the case of the Plaintiffs that they acquired a piece of land, the subject of the instant suit, by a Deed of Assignment executed on 11th March 2010 between themselves as Assignees and Alfred Nii Quartey-Papafio, Joseph Kwate Quartey-Papafio and Ernestina Kwakor Quartey-Papafio (Administrators of the Estate of the late Benjamin Kwatekwei Quartey-Papafio (“the deceased”)) as the Assignors. By the aforementioned Deed of Assignment, the Plaintiffs were assigned the unexpired residue of a Lease executed on 8th March 1971 (hereinafter referred to as “the Head Lease”) in respect of the land in dispute particularly described as all that piece or parcel of land situate lying and being at QUARTEY-PAPAFIO HILL (SANTEO), Tema in the Greater Accra Region of the Republic of Ghana bounded on the North-East by a proposed road measuring Seventy Three decimal Four (73.4) feet more or less on the South-East by Assignors’ property measuring One Hundred and One decimal Five (101.5) feet more or less on the South-West by Assignors’ property measuring Seventy-Four decimal naught (74.0) feet more or less on the North-West by a - 3 - proposed road measuring One Hundred decimal Eight (100.8) feet and covering an approximate area of 0.171 Acre (or 0.069 Hectare). The subject land as described above, is also known as Plot No. 12, Block B, Quartey- Papafio Hills, Santeo; and is a portion of a larger tract of land owned by the Plaintiffs’ grantors. It is contended by the Plaintiffs that, prior to the execution of the aforesaid Deed of Assignment in their favour, they conducted due diligence including a Search at the Lands Commission, which revealed that the subject land was affected by a Land Certificate No. TD 0457 issued to the Deceased Head Lessee. There was no record of any other person’s interest in the subject land at the Lands Commission. The Plaintiffs further contend that they inspected the land which was found bare and had no signs of occupation/possession; and upon enquiries made around, they were informed that the land formed part of the estate of the deceased Head Lessee. Therefore, after acquiring the subject land in 2010, the Plaintiffs took possession of same and caused to be constructed thereon foundation footings for a two-storey residence. It is also asserted by the Plaintiffs that between November 2013 and March 2016, they caused their Deed of Assignment to be registered; and per a letter dated 9th December 2019, the Plaintiffs’ Grantors gave their consent to the Land Registration Division (LRD) of the Lands Commission to proceed with the processing of the Plaintiffs’ registration of title to the subject land, after the registration had been held in abeyance for some time, while the Grantors sought to streamline acquisitions of land forming part of the Deceased’s estate. - 4 - It is further asserted by the Plaintiffs that they also applied for and obtained a building permit from the Kpone-Katamanso District Assembly dated 25th November 2013, to commence construction on the subject land. The Plaintiffs therefore contend that they enjoyed quiet possession of the subject land since its acquisition until sometime in December 2018 when they first heard from the 1st Defendant. Plaintiffs maintain that, in or about August 2019, the 1st Defendant, claiming that the 2nd Defendant had sold the subject land to its client, got unto the land and caused the destruction of the foundation footings which had been constructed thereon by the Plaintiffs. The Plaintiffs reported the conduct of the 1st Defendant to the Nmai Dzorm Police Station and upon being questioned by the Police, the 1st Defendant alleged that the Plaintiffs’ Grantors were also the Grantors of the 2nd Defendant. The Police requested the parties to present their respective title documents covering the subject land. While the Plaintiffs furnished the Police with the aforementioned Deed of Assignment, the 1st Defendant failed to present any document evidencing the alleged transfer of the subject land by the Plaintiffs’ Grantors to the 2nd Defendant. The matter was later transferred to the Adenta Police Station, where the Commander called the Plaintiffs’ Grantors for a meeting to ascertain who the Grantors had conveyed the subject land to. The 1st Defendant again failed to produce any documentation covering the subject land but rather named one Salifu as the owner of the subject land. At the aforesaid meeting with the Plaintiffs’ Grantors, they confirmed to the Police Commander that they had executed the Deed of Assignment in favor of the Plaintiffs and categorically denied any alleged transfer to the said Salifu. - 5 - Despite the categorical denial of the alleged interest of the 2nd Defendant, the 1st and 2nd Defendants continued to interfere with the Plaintiffs’ possession of the subject land and purported to have transferred same to the 3rd Defendant, who commenced construction on the land at a rapid pace. It also came to the Plaintiffs’ knowledge that certain processes were ongoing to have the 4th Defendant register the subject land in the name of the 2nd Defendant. It is the contention of the Plaintiffs, in the circumstances, that the 1st Defendant was the 2nd Defendant’s proxy, used to trespass on the subject land, depriving them of their peaceful enjoyment of same. All attempts by the Plaintiffs to restrain the 1st, 2nd and 3rd Defendants from their unlawful acts proved futile especially as the 3rd Defendant vigorously proceeded with construction works on the subject land in complete disregard of the Plaintiffs’ interest. The Plaintiffs strongly assert that the 1st, 2nd and 3rd Defendants evinced every intention not to desist from their unlawful acts and quest to dispossess the Plaintiffs of their land unless compelled by an Order of the Court. Hence, the instant action against the Defendants to, among others, restrain them from their continuous trespass and interference with the Plaintiffs’ right to peaceful enjoyment of their land. THE 4TH DEFENDANT’S CASE The case of the 4th Defendant as can be gleaned from its Statement of Defence filed is that, there is a record of the Plaintiffs’ interest in the subject land at the Public and Vested Lands Management Division (PVLMD) of the Greater Accra Regional Lands Commission - 6 - confirming that the subject land was the subject matter of a grant from Nii Odai Ayiku IV to Benjamin K. Q. Papafio (“the Deceased”). That upon the death of the Deceased, the interest was vested in Alfred Nii Quartey- Papafio and Others (as beneficiaries) of the larger parcel of land, of which the subject land forms a part, is currently registered in favour of Alfred Nii Quartey-Papafio and Others who have been issued Land Certificate No. TD 0457. DOCUMENTS TENDERED IN EVIDENCE The 2nd Plaintiff testified in support of the Plaintiffs’ case and tendered the following documents in evidence at the trial: Description of Document Exhibit No. A copy of the Deed of Assignment executed on 11th Exhibit “A” March 2010 A picture showing the foundation footings Exhibit “B” constructed on the land by the Plaintiffs. A copy of the Building Permit obtained from the Exhibit “C” Kpone-Katamanso District Assembly A copy of the Search Report from the Lands Exhibit “D” Commission A copy of the Report from the Survey and Mapping Exhibit “E” Division of the Lands Commission - 7 - A copy of the Search Report from the Lands Exhibit “F” Commission A copy of an extract of a Police Report Exhibit “G” A copy of the Investigative Report issued by the Exhibit “H” Adenta Police Station A copy of the Letter by Lawyer of the Plaintiffs’ Exhibit “J” grantors to the Lands Commission Pictures showing the development on the land by the Exhibit “K series” 3rd Defendant The 4th Defendant on the other hand, tendered the following document at trial: Description of Document Exhibit No. A copy of an extract from the Records of the 4th Exhibit “1” Defendant Institution concerning the subject land - 8 - ISSUES FOR DETERMINATION The Court on 27th January 2022, set the suit down for trial to determine whether or not the Plaintiffs are entitled to the reliefs endorsed on the Writ of Summons and Statement of Claim. WHAT PROOF IS REQUIRED OF THE PLAINTIFFS TO SUCCEED? Speaking through Ansah JSC, the Supreme Court stated the position of the law, with regard to what is required of a Plaintiff in a civil suit, in Holding (5) of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882 vividly as follows – “(5) It is sufficient that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.” The Apex Court again reiterated the unique yardstick for determining a party’s success in civil litigation in the case of ACKAH v. PERGAH TRANSPORT LTD AND OTHERS [2010] SCGLR 728 at 736 as follows – “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 … This is a requirement of the law on evidence under Sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)” The said sections, which are relevant for this Judgment, state respectively as follows: - 9 - “10 (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.” (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.” “11 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.” Therefore, where a party fails to lead credible evidence of the quality prescribed by the Evidence Act, his claim ought to fail. For a party to a suit, much more so in an action for Declaration of Title and Recovery of Possession of landed property or land itself, to succeed, the authorities are clear that the proper legal means of proof must be adopted and the statutory requirements in force ought to be religiously adhered to, otherwise the claim for ownership and the subsequent recovery of possession would fail. This evidential precept was clearly articulated in the celebrated case of MAJOLAGBE v. LARBI & ORS [1959] GLR 190 at 192 where the learned Judge stated – “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, - 10 - and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” Regarding the standard of proof, the Supreme Court held, in the case of ADWUBENG V. DOMFE [1996-97] SCGLR 660, that sections 11(4) and 12 of the Evidence Act have clearly provided that the standard of proof in all civil actions was proof on the preponderance of probabilities – no exceptions were made. The case of EFFISA V. ANSAH [2005-2006] SCGLR 943 is to the same effect. The Supreme Court, also, explained in the case of BISI V. TABIRI ALIAS ASARE [1987- 88] 1 GLR 360 SC, that the standard of proof required of a Plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issues. The conjunctive effect of sections 11(1), (4) and 12(1), (2) of NRCD 323 is that, the burden of proof is always on a party who asserts a fact, to prove same on the preponderance of probabilities. In other words, the party asserting a fact is to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. In his written address, Counsel for the Plaintiffs went to town to establish, on the preponderance of probabilities, that the Plaintiffs are entitled to the reliefs endorsed on the Writ of Summons. This delivery would summarise Counsel for the Plaintiffs’ submissions on the reliefs sought as endorsed on their Writ of Summons. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RELIEF (a) - 11 - The Plaintiffs per relief (a) endorsed on their Writ of Summons, seek a declaration of title to the subject land. Counsel for the Plaintiffs reiterates the fact that the 1st, 2nd and 3rd Defendants failed, neglected or refused to file a Statement of Defence despite having been served with the Writ of Summons and Statement of Claim. The law is settled that when a party fails to file a Statement of Defence after having been served with a Writ of Summons and Statement of Claim, that party is deemed to have admitted the claim of the Plaintiff as endorsed on the Writ of Summons and Statement of Claim. In the case of SYLVESTER SAMPSON VONDEE V. AMISGOLD MICROFINANCES LTD, Suit No. INDL/57/15 Judgment dated 12th February, 2016, HC, the Court held: “A Defendant who defaults in filing a Statement of Defence is deemed to admit the claim endorsed on the writ.” Taking into account the burden on the Plaintiff to adduce evidence such that on all the evidence led, the Court would find their claim more probable than not, and the principle as stated in the case of ODOI & ANOR V. HAMMOND [1971] 1 GLR 375, the Plaintiffs at the trial led evidence to establish their case on the balance of probabilities. In the case of AWUKU V. TETTEH [2011] 1 SCGLR 366 at 372, the Supreme Court quoted with approval the dictum of Azu Crabbe J. A. (as he then was) at page 382 of Odoi & Anor v. Hammond, supra, where the learned Justice held: “It is now common learning in this country that in an action for a 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.” - 12 - Furthermore, in the case of MONDIAL VENEER (GH) LTD V. AMUAH GYEBU XV [2011] 1 SCGLR 466 at 475, the Supreme Court held: “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in the instant case, to prove the root of title, mode of acquisition and various acts of possession over the subject-matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim.” At Paragraphs 6, 7 and 8 of the Statement of Claim, the Plaintiffs pleaded the following: “6. The Plaintiffs aver that on the 11th of March 2010, they, as Assignees, executed a Deed of Assignment with Alfred Nii Quartey-Papafio, Joseph Kwate Quartey- Papafio ad Ernestina Kwakor Quartey-Papafio; Administrators of the estate of the Benjamin Kwatekwei Quartey-Papafio, (hereinafter referred to as “the Deceased”) as the Assignors therein. 7. The Plaintiffs aver that by the aforementioned Deed of Assignment, they were assigned the unexpired residue of a Lease executed on 8th March 1971 (“the Headlease”) in respect of land particularly described as all that piece or parcel of land situate lying and being at QUARTEY-PAPAFIO HILL (SANTEO), Tema in the Greater Accra Region of the Republic of Ghana bounded on the North-East by a proposed road measuring Seventy Three decimal Four (73.4) feet more or less on the South-East by Assignors’ property measuring One Hundred and One decimal Five (101.5) feet more or less on the South-West by Assignors’ property measuring Seventy-Four (74.0) feet more or less on the North-West by a proposed road measuring One Hundred decimal Eight (100.8) feet and covering an approximate area of 0.171 Acre or 0.069 Hectare, (hereinafter referred to as “the land in issue”). - 13 - 8. The Plaintiffs aver that the land as described above is also known as Block B, Plot No. 12, Quartey-Papafio Hills, Santeo, which is a section of a larger tract owned by the Plaintiffs’ Grantors.” At the trial, the 2nd Plaintiff testifying on behalf of the Plaintiffs testified in paragraphs 3, 4 and 5 of the Witness Statement as follows: “3. My Lord, on the 11th of March, 2010, we executed a Deed of Assignment with Alfred Nii Quartey-Papafio, Joseph Kwate Quartey-Papafio and Ernestina Kwakor Quartey-Papafio (hereinafter referred to as “our Grantors”), as the Administrators of the estate of Benjamin Kwatekwei Quartey-Papafio (hereinafter referred to as “the Deceased”). The Lands Commission granted consent for the said assignment on 23rd December 2015. Annexed hereto and marked as “Exhibit A” is a copy of the said Deed of Assignment together with a copy of the said Consent. 4. By the said a Deed of Assignment, we were assigned the unexpired residue of a Lease executed on 8th March 1971 (hereinafter referred to as “the Head Lease”) in respect of the land in dispute particularly described as all that piece or parcel of land situate lying and being at QUARTEY-PAPAFIO HILL (SANTEO), Tema in the Greater Accra Region of the Republic of Ghana bounded on the North-East by a proposed road measuring Seventy Three decimal Four (73.4) feet more or less on the South-East by Assignors’ property measuring One Hundred and One decimal Five (101.5) feet more or less on the South-West by Assignors’ property measuring Seventy-Four decimal naught (74.0) feet more or less on the North-West by a proposed road measuring One Hundred decimal Eight (100.8) feet and covering an approximate area of 0.171 Acre or 0.069 Hectare, (hereinafter referred to as “the subject land”). 5. The subject land as described above is also known as Block B, Plot No. 12, Quartey- Papafio Hills, Santeo, which is a portion of a tract owned by our Grantors.” - 14 - The Plaintiffs tendered the Deed of Assignment executed between the Plaintiffs and their Grantors –the Administrators of the deceased’s estate- in evidence as Exhibit “A” to prove their interest in and title over the subject land. On the face of Exhibit A, it is stamped as LVD 12826A/2013 and indexed at the Public and Vested Lands Management Division (PVLMD) as GAAR152/2016 (Property No. F587). Furthermore, the Recitals of Exhibit “A” clearly spell out the root of title of the Plaintiffs. What constitutes “Good Title” is stated in Section 64(1)(d) of the Land Act, 2020 (Act 1036) as follows: “Good title is derived from a grant, an acquisition under customary law, conveyance, assignment or mortgage which is at least thirty years old and establishes that a person is entitled to convey an interest in the land.” In the recitals of Exhibit “A”, the following is stated clearly as the Plaintiffs’ root of title: “WHEREAS by a lease dated the 8th March 1971 and registered as Land Registry No. 1712/1971 and at the Land Title Registry as No. TD 0457 Dated 22nd day of November 1999 and with cadastral No. GA 1086A/99 and made between NII ODAI AYIKU IV Nungua Mantse of Accra (therein referred to as the LESSOR) and BENJAMIN KWATEKWEI QUARTEY-PAPAFIO, the Assignors herein, (therein referred to as the LESSEE) of the other part, the land therein described was demised unto the Assignors herein for a term of Ninety-Nine (99) years from the 31st day of December 1971 at the yearly rent of ¢0.40 per acre for thirty (30) years certain and to renew the lease after every ten (10) years of the term.” It is the submission of Counsel for the Plaintiffs that the above recital as found in Exhibit “A” establishes the root of the Plaintiffs’ title, which is the Head Lease dated 8th March - 15 - 1971 by which the parcel of land therein described was transferred by the Nungua Stool to the deceased. It is also noteworthy that the said Head Lease, as of the date of the acquisition of the subject land in 2010, was over 30 years old and therefore, meets the criteria of good title as per the wording of Section 64(1)(d) of Act 1036. Additionally, it is contended that, the recitals of the said Exhibit “A” further establish the capacity and right of the Assignors – then the Administrators of the Deceased – to transfer or convey the land to the Plaintiffs. The relevant paragraph of the recitals reads: “WHEREAS the said Benjamin Kwatekwei Quartey-Papafio died on the 9th day of February, 2009 intestate and whereas Letters of Administration in respect of his estate has been granted to the said Alfred Nii Quartey-Papafio, Joseph Kwate Quartey-Papafio and Ernestina Kwakor Quartey-Papafio on the 24th day of February, 2009 by the High Court Accra and whereas the Assignors acknowledge the right of the Assignee to the production of the said Letters of Administration and the delivery of the copies.” Furthermore, the learned Counsel submits that, it is significant to note that the pleadings of the 4th Defendant and the evidence of the 4th Defendant corroborate the case of the Plaintiffs as regards their root of title. In paragraphs 7 to 10 of the Statement of Defence of the 4th Defendant, the following are pleaded: “7. The 4th Defendant says that records information available to it confirms that the parcel in question was the subject matter of a grant from Nii Odai Ayiku IV to Benjamin K. Q. Papafio. - 16 - 8. The 4th Defendant says that upon the death of Benjamin K. Q. Papafio, the interest was vested in Alfred Nii Quartey-Papafio and Others (as beneficiaries) in June, 2011. 9. The 4th Defendant says that the larger area of which the land in dispute forms a part is currently registered in the names of Alfred Nii Quartey-Papafio and Others who have been issued with Land Certificate No. TD 0457. 10. The 4th Defendant says per the records available to it, Dr. Kwame Adu-Gyamfi and Hagar Adu-Gyamfi obtained a grant from the beneficiaries mentioned above per a Deed of Assignment dated 23/12/15.” At the trial, it became clear that the aforementioned paragraph 10 of the 4th Defendant’s Statement of Defence could only have been in error as the 4th Defendant’s representative at paragraph 7 of her Witness Statement clarified that it was the Consent of the 4th Defendant which was obtained on 23rd December 2015 and not the Plaintiffs’ Deed of Assignment. The said paragraph 7 is reproduced below for ease of reference as follows: “7. That per the records available to it, Dr. Kwame Adu-Gyamfi and Hagar Adu- Gyamfi were assigned the interest of the beneficiaries in the parcel per a Deed of Assignment and same received the consent of the Lands Commission on 23rd December, 2015.” It is worthy of note that the aforementioned testimony of the 4th Defendant’s representative, Ms. Gloria Batsa, contained in paragraph 7 of her Witness Statement, corroborates the Plaintiffs’ case as contained in paragraph 3 of the 2nd Plaintiff’s Witness Statement as follows: “My Lord, on the 11th of March 2010, we executed a Deed of Asisgnment with Alfred Nii Quartey-Papafio, Joseph Kwate Quartey-Papafio and Ernestina Kwakor Quartey-Papfio, (hereinafter referred to as “our Grantors”), as the Administrators of the estate of Banjamin - 17 - Kwatekwei Quartey-Papfio (hereinafter referred to as “the Deceased”). The Lands Commission granted consent for the said assignment on 23rd December 2015. Annexed hereto and marked as “Exhibit A” is a copy of the said Deed of Assignment together with a copy of the said Consent.” [Emphasis Added] The 4th Defendant’s representative led additional evidence at the trial, which said evidence further corroborated the Plaintiffs’ case as regards their root of title. The said evidence contained in paragraphs 4 to 6 of Ms. Batsa’s Witness Statement is reproduced below as follows: “4. That records available to at [sic] the Lands Commission confirm that the parcel in question was the subject matter of grant from Nii Odai Ayiku IV to Benjamin K. O. Papafio [sic].” 5. That the records available to it indicate that upon the death of Benjamin K. O. Papafio, the interest was vested in Alfred Nii Quartey Papafio and Others (as beneficiaries) in June 2011. 6. That the larger area of which the land in dispute forms a part is currently registered in the names of Alfred Nii Quartey Papafio and Others who have been issued with Land Certificate No. TD 0457.” It is trite learning that where the evidence of one party is corroborated by the evidence of the opponent or the opponent’s witness, a Court ought to accept the corroborated evidence unless for some reason, it finds the corroborated evidence not credible. - 18 - This principle was first espoused by Ollennu J. (as he then was) in the case of TSRIFO V. DUA VIII [1959] GLR 63, HC at pages 64 and 65, where the learned Justice held: “Where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a Court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the Court finds the corroborated version incredible or impossible.” This principle was applied by the Supreme Court in the case of ASANTE V. BOGYABI & ORS [1966] GLR 232, where the Supreme Court, speaking through Siriboe JSC, held at pages 240 and 241: “Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, as appears to be so in the instant case on appeal, then it seems to me right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view…” In the case of EMMANUEL TETTEH BLEBOO AND BENJAMIN NARH BLEBOO V. SAMUEL YAW OPATA AND LANDS COMMISSION, CIVIL Appeal No. H1/55/2009, Judgment dated 21st October, 2010, the Court of Appeal speaking through Marful Sau J. A. (as he then was) held: “The law is settled that when a party’s witness testifies to corroborate the evidence of his opponent the party who called the witness ought to lose the contest.” The evidence of the 4th Defendant as reproduced in the preceding paragraphs, corroborates that of the Plaintiffs. Although the 4th Defendant is not a party asserting a - 19 - rival claim to that of the Plaintiffs, the fact that the 4th Defendant is an institution of State set up with the mandate of among others, managing and/or regulating the acquisition, ownership and use of land in the Republic of Ghana, which fact is admitted by the 4th Defendant in its Statement of Defence, lends credibility to the Plaintiffs’ case as regards their root of title to the subject land. The Court, in recognition of the vital role of the 4th Defendant in the suit, stated as follows on the 11th of May 2022 (Please see the Court Notes of 11th May 2022): “In view of the unique position of the 4th Defendant as the custodian of Land Records in Ghana, particularly with respect to Land Registration, the filing of its Witness Statement(s) would assist this Court to effectually determine all triable issues in respect of this suit. Accordingly, the 4th Defendant is directed to file Witness Statement(s) within ten (10) days as proposed by Counsel for 4th Defendant.” All the four (4) Defendants in the suit did not cross-examine the 2nd Plaintiff on the evidence she tendered in support of the Plaintiffs’ case at trial. The law is that a party who fails to challenge an opponent’s evidence during cross-examine is deemed to have admitted the averments made by his opponent. In the case of AGBOSU & ORS V. KOTEY & ORS [2003-2005] 1 GLR 685 at 704, the Supreme Court speaking through Wood JSC held: “… where a party’s testimony of a material fact was not challenged under cross- examination, the rule of implied admission for failure to deny by cross-examination would be applicable and the party need not call further evidence on that fact …” It is the submission of Counsel for the Plaintiffs that they have adduced sufficient evidence at the trial to establish on the balance of probabilities, their interest and legal - 20 - title over the subject land; which evidence was not only unchallenged by the Defendants but corroborated by the evidence of the 4th Defendant. The Plaintiffs have accordingly discharged the burden on them as per the provisions of Section 11 of Act 323 and are therefore entitled to relief (a) as endorsed on their Writ of Summons. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RELIEF (B) AS ENDORSED ON THEIR WRIT OF SUMMONS AND STATEMENT OF CLAIM. The Plaintiffs’ relief (b) as endorsed on the Writ of Summons is as follows: “A declaration that the purported alienation of the disputed land to the 3rd Defendant by the 2nd Defendant is unlawful and thus, same is null and void” Having established that the Plaintiffs are entitled to relief (a), and in the absence of any evidence to prove any alleged title or interest of the 2nd Defendant over the subject land, there is only but one irresistible conclusion that can be drawn; that the 2nd Defendant has no interest or title over the subject land. It is trite learning that a person cannot give what they do not have or possess, this is also expressed in the Latin maxim, “nemo dat quod non habet”. The maxim is more particularly applicable to immovable property and its effect is that a person cannot give what they do not have, as such any purported transfer of land by a person who has no interest or title to the land is void and of no effect, and the purported transferee receives nothing. - 21 - The 2nd Defendant led no evidence at the trial to establish any interest in or title over the subject land. There is therefore no evidence before this honourable Court to support a finding of same in favour of the 2nd Defendant. There being no such evidence to establish or prove the 2nd Defendant’s interest in or title over the subject land, we submit that the 2nd Defendant has no interest in or title over the subject land. Consequently, and by the application of the principle of nemo dat quod non habet, any purported transfer of the subject land by the 2nd Defendant to the 3rd Defendant is null and void and of no effect. The above having been said, we proceed to state that the Courts have held and applied the principle of nemo dat quod non habet against subsequent grants made by grantors who having previously divested themselves of a parcel of land, purport to transfer the same parcel of land to a third party. In such an instance, the subsequent grant to the third party is null and void and of no effect. In the case of CHRISTINA EDITH AGYAKWA ABOA V. MAJOR KEELSON (RTD); AND OKYEAME YIMA V. MAJOR KEELSON (RTD) SC, [2012] 37 MLRG 127, the Supreme Court held: “It can thus be safely concluded that, the principle nemo dat quod non habet applies whenever an owner of land who had previously divested himself of title in the land previously owned by him to another person, attempts by a subsequent transaction to convey title to the new person in respect of the same land cannot be valid.” It is therefore the submission of the Plaintiffs that, their grantors having transferred the subject land to the Plaintiffs by the Deed of Assignment dated 11th March 2010 any alleged - 22 - or purported subsequent transfer of the subject land by the said Grantors to a third party, in this case the 2nd Defendant, would be null and void and of no effect. From the foregoing, the Plaintiffs are entitled to relief (b) as endorsed on their Writ of Summons and Statement of Claim. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RELIEFS (C) AND (D) AS ENDORSED ON THEIR WRIT. The Plaintiffs’ reliefs (c) and (d) as endorsed on the Writ of Summons are reproduced below respectively, as follows: “A declaration that the entry unto the disputed land by the 1st and 2nd Defendants constitute trespass” “A declaration that the entry unto the disputed land and the development of same by the 3rd Defendant constitutes trespass” Counsel or the Plaintiffs demonstrated that while the Plaintiffs had interest in and title over the subject land, the 2nd and 3rd Defendants on the other hand, had no interest or title over the subject land whatsoever. The evidence on record proves that since their acquisition of the subject land from their Grantors in 2010, the Plaintiffs have been in undisturbed possession of same until sometime in August 2019, when the 1st Defendant purporting to act on behalf of the 2nd Defendant, entered the land and interfered with the Plaintiffs’ quiet enjoyment of same. - 23 - In paragraphs 12 and 14 of the Statement of Claim, the Plaintiffs pleaded the following facts: “12. The Plaintiffs aver that following the acquisition of the land in issue in 2010, they took steps to exercise possession of the land and accordingly caused the construction of footings/foundation thereon. 14. The Plaintiffs state that they also applied for and obtained a building permit from the Kpone-Katamanso District Assembly dated 25th November 2013, to commence construction on the land in issue and have enjoyed quiet possession of the land until sometime in December 2018 when they first heard from the 1st Defendant.” It must be reiterated that neither the 1st Defendant nor the 2nd Defendant nor the 3rd Defendant filed any Statement of Defence denying the averments of the Plaintiffs in the Statement of Claim. They are therefore deemed to have admitted same. At the trial, to prove their possession of the subject land, the 2nd Plaintiff testified in support of the Plaintiffs’ case as follows at paragraphs 8, 9 and 12 of their Witness Statement: “8. Following the acquisition of the subject land, we took steps to exercise possession of same and caused the construction of footings/foundation thereon. Annexed hereto and marked as Exhibit “B” is a picture showing the said footings/foundation being constructed sometime in June 2013.” 9. My Lord, we also applied for and obtained a building permit from the Kpone- Katamanso District Assembly dated 25th November 2013 to commence the development of the subject land. Attached hereto and marked as “Exhibit C” is a - 24 - copy of the said building permit together with the receipts of payments made in this regard.” 12. My Lord, it is worthy of note, respectfully, that we enjoyed quiet possession of the land from the date of acquisition until sometime in 2019 when the 1st Defendant emerged on the scene. This prompted us to conduct another search at the Lands Commission in order to obtain the relevant documentation from the Lands Commission, evidencing our Grantors’ right to assign the subject land to us, since we could not locate the search report procured as part of our due diligence prior to acquisition of the subject land. Annexed hereto and marked as “Exhibit F” is a copy of the search report from the Lands Commission to this effect.” It is worth reiterating that neither the 1st Defendant, the 2nd Defendant nor the 3rd Defendant cross examined the 2nd Plaintiff on her testimony. They are therefore deemed to have admitted same on the authority AGBOSU & ORS V KOTEY supra. In paragraphs 15 to 21 of the Plaintiffs’ Statement of Claim, the Plaintiffs pleaded the following facts in relation to the acts of trespass by the 1st to 3rd Defendants and the ensuing events: “15. The Plaintiffs state that sometime in or about August 2019, the 1st Defendant, claiming the 2nd Defendant had sold the land in issue to its client, got unto the land and caused the destruction of the structure which had been constructed thereon by the Plaintiffs. 16. The Plaintiffs aver that following a report of the conduct of the 1st Defendant to the Nmai Dzorm Police Station, the 1st Defendant named the Plaintiffs’ Grantors as the 2nd Defendant’s grantors when questioned by the Police; whereupon the Police requested the parties to present their respective title documents covering the land in issue. - 25 - 17. The Plaintiffs aver that while they furnished the Nmai Dzorm Police with the aforementioned Deed of Assignment, the 1st Defendant failed to present any valid document evidencing a conveyance of the land between the Plaintiffs’ Grantors and the 2nd Defendant as alleged by the 1st Defendant. 18. The Plaintiff state that the matter was later transferred to the Adenta Police Station where, the Commander called the Plaintiffs’ Grantors for a meeting to ascertain who the Grantors had conveyed the land to. 19. The Plaintiffs aver that upon the Adenta Police Station Commander’s request for documentation covering the land in issue, the 1st Defendant failed to present any documentary proof and rather named one Salifu as the owner of the land in issue. 20. The Plaintiffs further aver that at the said meeting, the Plaintiffs’ Grantors confirmed that they had executed the assignment in favour of the Plaintiffs and categorically denied any transfer to the supposed Salifu. 21. The Plaintiffs aver that the despite the categorical denial of its Grantors regarding the 2nd Defendant’s purported interest in the land in issue, the 1st and 2nd Defendants continue to interfere with the Plaintiffs’ peaceful enjoyment of the land in issue and purport to have conveyed the land in issue to the 3rd Defendant, who has in recent times commenced construction on the said land at an incredibly fast pace. At the trial, the 2nd Plaintiff was not only consistent with the Plaintiffs’ case as contained in their pleadings but adduced and referred to documentary evidence in proof of the said averments. She testified as follows in paragraphs 13 to 19 of her Witness Statement: “13. The 1st Defendant, sometime in August 2019, claiming the 2nd Defendant had sold the land to its Client, got unto the subject land and caused the destruction of the - 26 - structure we had constructed thereon. Annexed hereto and marked as Exhibit “G” is an extract of a Police Report on the subject. 14. The conduct of the 1st Defendant was reported to the Nmai Dzorm Police Station whereupon questioning the 1st Defendant named our Grantors as the 2nd Defendant’s Grantors. The Police then requested both sides to present their respective title documents covering the land. 15. My Lord, while we furnished the Nmai Dzorm Police with the aforementioned Deed of Assignment, the 1st Defendant failed to present any document evidencing a conveyance of the land between our Grantors and the 2nd Defendant as alleged by the 1st Defendant. Respectfully my Lord, it is worthy of note that paragraphs 7, 8, 9 and 10 of the 4th Defendants’ Statement of Defence, filed on 24th March 2022, confirm our root of title as pleaded in our Statement of Claim and reiterated in this Witness Statement. 16. The matter was later transferred to the Adenta Police Station for investigation. Annexed hereto and marked as Exhibit “H” is a copy of an Investigative Report issued by the Adenta Police. 17. Upon the Adenta Police Station Commander’s request for documentation covering the subject land, we furnished them with the aforementioned Deed of Assignment while the 1st Defendant produced a Deed of Assignment dated 17th January 2018, alleging that one Salifu (who the 1st Defendant stated had died in 2015) had acquired the subject land on behalf of the 2nd Defendant. 18. My Lord, our grantors investigated the matter and categorically denied executing any Deed in favour of the said Salifu on behalf of the 2nd Defendant. Our Grantors however confirmed our aforementioned Deed of Assignment as having been duly executed by them. Subsequently, per a letter dated 9th December 2019, our Grantors gave their consent to the Lands Commission to proceed with the processing of our - 27 - title registration. Attached hereto and marked as Exhibit “J” is a copy of the said letter. 19. My Lord, despite the categorical denial of our Grantors regarding the 2nd Defendant’s purported interest in the subject land, the 1st and 2nd Defendants continue to interfere with our peaceful enjoyment of the subject land and purport to have conveyed the land to the 3rd Defendant, who sometime in 2019 commenced construction on the land at an incredibly fast pace and would have not relented but for the institution of the instant suit and the subsequent grant of an Order for interlocutory Injunction. Attached hereto and marked as Exhibit “K” series are pictures of the said development on the subject land.” Once again, it is emphasized that the 1st, 2nd and 3rd Defendants neither filed Statements of Defence denying the averments in the Statement of Claim nor filed Witness Statements in rebuttal of the testimony of the 2nd Plaintiff nor cross examined the 2nd Plaintiff on her evidence at the trial. In the case of ODONKOR & ORS V. AMARTEI [1992] 1 GLR 577 at 587, the Supreme Court speaking through Hayfron-Benjamin JSC held: “Now trespass to land is committed by injury to or interference with one’s possession thereof. The cardinal principles in an action for trespass to land are that the Plaintiff must be in exclusive possession of the land at the time of the trespass and that the trespass is without justification.” The uncontroverted evidence on the record establishes the Plaintiffs’ interest in and/or title over the subject land, their quiet possession of same until the 1st, 2nd and subsequently, - 28 - the 3rd Defendants interfered with their possession and trespassed on same without any justification. It is the submission of the Plaintiffs that the acts of the 1st, 2nd and 3rd Defendants constitute trespass and accordingly, the Plaintiffs are entitled to reliefs (c) and (d) as endorsed on the Writ of Summons. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RELIEF (G) AS ENDORSED ON THE WRIT OF SUMMONS AND STATEMENT OF CLAIM Per relief (g) endorsed on the Writ of Summons, the Plaintiffs seek damages against the 1st – 3rd Defendants for trespass to the subject land. Damages is defined in McGregor on Damages, as: “the pecuniary compensation obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum, which is awarded unconditionally”. Having established in the preceding paragraphs, that the acts of the 1st, 2nd and 3rd Defendants constitute trespass to the subject land, we submit that the Plaintiffs are entitled to the award of damages against the said Defendants for their tortious act of trespass to the subject land. The Plaintiffs are accordingly entitled to relief (g) as endorsed on their Writ of Summons and Statement of Claim. - 29 - WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RELIEF (H) AS ENDORSED ON THE WRIT OF SUMMONS. The Plaintiffs, per relief (h) seek the following: “Recovery of the sum of Sixty Thousand Ghana Cedis (GHC 60,000.00) from the 1st and 2nd Defendants, being the cost of the construction of the footing/foundation destroyed by the said Defendants and/or their agents” The Plaintiffs pleaded the following in respect of the construction of footings/foundation on the subject land and the destruction of same by the 1st Defendant in their Statement of Claim: “12. The Plaintiffs aver that following the acquisition of the land in issue in 2010, they took steps to exercise possession of the land and accordingly caused the construction of footings/foundation thereon.” “15. The Plaintiffs state that sometime in or about August 2019, the 1st Defendant, claiming the 2nd Defendant had sold the land in issue to its client, got unto the land and caused the destruction of the structure which had been constructed thereon by the Plaintiffs.” To this, neither the 1st Defendant nor the 2nd Defendant filed a Statement of Defence denying the averments of the Plaintiffs in the Statement of Claim. At trial, the Plaintiffs testified as follows concerning construction of footings/foundation on the subject land and the destruction of same by the 1st Defendant. The relevant paragraphs of the Witness Statement of the Plaintiffs are reproduced below: - 30 - “8. Following the acquisition of the subject land, we took steps to exercise possession of same and caused the construction of footings/foundation thereon. Annexed hereto and marked as Exhibit “B” is a picture showing the said footings/foundation being constructed sometime in June 2013.” “13. The 1st Defendant, sometime in August 2019, claiming the 2nd Defendant had sold the land to its Client, got unto the subject land and caused the destruction of the structure we had constructed thereon. Annexed hereto and marked as Exhibit “G” is an extract of a Police Report on the subject.” The 1st and 2nd Defendants neither filed a Witness Statements to rebut the testimony of the Plaintiffs’ witness nor cross-examined the Plaintiffs’ witness on this testimony. They are therefore deemed to have admitted this fact by reason of their failure to cross examine the witness of the Plaintiffs on the authority of AGBOSU & ORS V. KOTEY, supra. Respectfully your Lordship, we submit that the uncontroverted evidence on record (Exhibit “B”), shows that the Plaintiffs in exercise of their possession over the subject land constructed the footings/foundations thereon. The evidence also establishes that when the 1st Defendant trespassed upon the subject land sometime in August 2019, he caused the destruction of the aforesaid footings/foundation which resulted in the Plaintiffs complaint to the Nmai Dzorm Police Station. An extract of a Police report of this incident was tendered in evidence by the 2nd Plaintiff as Exhibit “G”. Accordingly, it is the submission of the Plaintiffs that they are entitled to relief (h) as endorsed on the Writ of Summons and Statement of Claim. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RELIEF (E) AS ENDORSED ON THE WRIT OF SUMMONS AND STATEMENT OF CLAIM. - 31 - By relief (e), the Plaintiffs seek the following: “An order of perpetual injunction against the 1st, 2nd and 3rd Defendants, their agents, workmen, assigns and or any person(s) howsoever described and claiming through the said Defendants, from trespassing or in any other way interfering with the Plaintiffs’ interest in the land in issue.” Your Lordship, we have, in the preceding paragraphs, demonstrated the following: a) That the Plaintiffs’ have an interest in and legal title over the subject land which was obtained from their Grantors, the then Administrators of the estate of Benjamin Kwatekwei Quartey-Papafio. b) The 1st, 2nd and 3rd Defendants neither have an interest in nor have title over the subject land. c) That the 1st, 2nd and 3rd Defendants committed trespass to land by interfering with the Plaintiffs’ quiet possession of the subject land. At paragraphs 21 and 22 of the 2nd Plaintiff’s Witness Statement, she testified as follows at the trial, which was not challenged by the Defendants, particularly the 1st, 2nd and 3rd Defendants: “21. My Lord, all peaceful attempts at restraining the 1st, 2nd and 3rd Defendants from their continued unlawful acts fell on deaf ears with the 3rd Defendant as aforesaid, causing construction works to vigorously commence on the subject land but ceasing upon the institution of the instant suit and the grant of an Order of interlocutory injunction by this honorable Court. 22. My Lord, the 1st, 2nd and 3rd Defendants have by their actions, evinced an intention to dispossess us of the subject land, and shall continue and/or resume their unlawful conduct unless this honorable Court intervenes in the manner prayed for per the reliefs endorsed on the Writ of Summons and Statement of Claim.” - 32 - Accordingly, the Plaintiffs submit that having established the abovementioned facts by the uncontroverted evidence on record, they are entitled to relief (e) as endorsed on their Writ of Summons and Statement of Claim to prevent any and/or further interferences with their interest in and/or title over the subject land by the 1st, 2nd and 3rd Defendants or any other person(s) claiming under and/or deriving authority through them. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RELIEF (F) AS ENDORSED ON THE WRIT OF SUMMONS AND STATEMENT OF CLAIM. The Plaintiffs per relief “f” seek the following: “An order of perpetual injunction directed at the 4th Defendant to cease title registration processes in favour of the 2nd and 3rd Defendants in respect of the land in issue and expunge any record that connects the 2nd and 3rd Defendants to the land in issue” Your Lordship, the Plaintiffs pleaded the following at paragraph 22 of their Statement of Claim. “The Plaintiffs aver further that it has come to their attention that processes are ongoing at the 4th Defendant institution to have title in the land in issue registered in the name of the 2nd Defendant.” In response to this the 4th Defendant in paragraph 6 of its Statement in Defence denied same on the basis that it does not possess the requisite facts to form a belief in respect of same or respond to same. The relevant paragraph is reproduced below for ease of reference: - 33 - “6. The 4th Defendant denies paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 as it does not possess the requisite facts to form a belief.” At the trial, the 2nd Plaintiff testified per paragraph 20 of her Witness Statement as follows: “My Lord, it has also come to our attention that processes are ongoing at the 4th Defendant institution to have title in the land registered in the name of the 2nd Defendant. Reference to Exhibit “E”.” At the trial on 28th March 2023, the 4th Defendant indicated that it did not intend to cross- examine the 2nd Plaintiff and indeed did not cross-examine the 2nd Plaintiff. Thus, the Plaintiffs’ Exhibit “E” is deemed to have been admitted. The said Exhibit “E” on its face shows that, contrary to the 4th Defendant’s aforementioned denial, at the Survey and Mapping Division of the 4th Defendant institution, there is an ongoing process in respect of the 2nd Defendant. The Plaintiffs’ having led evidence to show that processes are ongoing to have the subject land registered in the name of the 2nd Defendant, which said Defendant has in this Written Address been shown not to have any interest in and/or title to the subject land, the 4th Defendant ought to be restrained by this Court as prayed for by the Plaintiffs per their relief (f) endorsed on the Writ of Summons. In any event, it is the submission of the Plaintiffs that having established their interest in and title to the subject land; and, having established that neither the 1st Defendant nor the 2nd Defendant nor the 3rd Defendant have any interest in nor title to the subject land, it would fly in the face of logic and the legal principles in relation to land should the 4th - 34 - Defendant register the subject land in the name of the 2nd Defendant or the 3rd Defendant for that matter. Counsel for the Plaintiffs therefore submits that the Plaintiffs are entitled to relief (f). WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RELIEF (I) AS ENDORSED In the case of GATCO CHEMPHARAM V. PHARMADEX (GH) LTD [1999-2000] 2 GLR 262 at 276, the Court of Appeal per Twumasi J. A. held: “In practice costs are awarded to victorious parties not for the fact of their victory but also the industry in the preparation and conduct of the case, the time and energy consumed and the expenses involved.” It is trite that the award of costs in a suit is at the discretion of the Court. The Plaintiffs therefore implore your Lordship to exercise your discretion in their favour by awarding substantial costs against the 1st, 2nd and 3rd Defendants for the industry and expense incurred in prosecuting the instant matter while the said Defendants have not participated in the suit in any way, shape or form. The Plaintiffs submit that they had to commence the instant suit against the unlawful acts of the Defendants interfering with their possession of the subject land. The Plaintiffs have incurred substantial costs since the commencement of the trial including the fees of their Counsel. On the other hand, the 1st – 3rd Defendants whose actions necessitated the institution of the instant action neglected and failed to participate in the action. - 35 - The 1st to 3rd Defendants’ non-participation in the suit led to the Plaintiffs incurring substantial cost by way of, among others, procuring Orders for substituted service and ensuring that every process filed was duly served on the said Defendants. On the authority of Order 74 of C. I. 47 and GATCO CHEMPHARAM V. PHARMADEX (GH) LTD, supra, Counsel for the Plaintiffs submits that the Plaintiffs are entitled to relief (i) as endorsed on the Writ of Summons and Statement of Claim. CONCLUSION From the pleadings and the totality of the pieces of evidence adduced by the Plaintiffs and the 4th Defendant, I have no hesitation in coming to the conclusion that the Plaintiffs have discharged the burden of proof on them, on a preponderance of the probabilities, as required by Law, pursuant to the provisions of the Evidence Act, 1975 (NRCD 323) and the authorities cited in this delivery. The Plaintiffs are therefore entitled to the reliefs sought per their Writ of Summons. Accordingly, I make the following Orders: a) I declare title to all that piece or parcel of land situate lying and being at QUARTEY-PAPAFIO HILLS (SANTEO), Tema in the Greater Accra Region of the Republic of Ghana, which piece or parcel of land is also known as Plot No. 12, Block B, Quartey-Papafio Hills, Santeo and is bounded on the North-East by a proposed road measuring Seventy Three decimal Four (73.4) feet more or less on the South-East by Assignors’ property measuring One Hundred and One decimal Five (101.5) feet more or less on the South-West by Assignors’ property measuring Seventy-Four decimal naught (74.0) feet more or less on the North-West by a - 36 - proposed road measuring One Hundred decimal Eight (100.8) feet and covering an approximate area of 0.171 Acre (or 0.069 Hectare) in favour of the Plaintiffs. b) I declare that the purported alienation of the disputed land to the 3rd Defendant by the 2nd Defendant is unlawful and thus, same is null and void; c) I declare that the entry unto the disputed land by the 1st and 2nd Defendants constitute trespass; d) I declare that the entry unto the disputed land and the development of same by the 3rd Defendant constitutes trespass; e) It is hereby ordered that the 1st, 2nd and 3rd Defendants, their agents, workmen, assigns and or any person(s) howsoever described and claiming through the said Defendants, be and are hereby restrained from trespassing or in any other way interfering with the Plaintiffs’ interest in the land in issue; f) The 4th Defendant is hereby ordered to cease title registration processes in favour of the 2nd and 3rd Defendants in respect of the land in issue and to expunge any record that connects the 2nd and 3rd Defendants to the land in issue; g) I award Damages in the sum of Thirty Thousand Ghana Cedis (GHC 30,000.00) against the 1st, 2nd and 3rd Defendants jointly for trespass on the land; h) I hereby order recovery of the sum of Sixty Thousand Ghana Cedis (GHC 60,000.00) from the 1st and 2nd Defendants, being the cost of the construction of the foundation footings destroyed by the said Defendants and/or their agents; and i) I award Costs of twenty thousand Ghana cedis (GHS20,000.00) against the 1st, 2nd and 3rd Defendants, severally, in favour of the Plaintiffs. AMOS WUNTAH WUNI (J) JUSTICE OF THE HIGH COURT - 37 - COUNSEL: NANA AGYEI BAFFOUR AWUAH WITH THERESA TABI FOR THE PLAINTIFFS NO LEGAL REPRESENTATION FOR 1ST, 2ND AND 3RD DEFENDANTS EMMANUEL AKUFFO FOR 4TH DEFENDANT - 38 -