DARKO VRS. ADONU (LD/0088/2017) [2023] GHAHC 630 (29 November 2023)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 29TH DAY OF NOVEMBER 2023 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: LD/0088/2017 SAMUEL KODWO DARKO PLAINTIFF AIRPORT RESIDENTIAL AREA ACCRA VRS CLEMENT ADONU DEFENDANT ACCRA JUDGMENT The Plaintiff instituted the instant action per a Writ of Summons and Statement of Claim filed at the Registry of this court on the 27th of January 2017 which said writ and statement of claim was amended on the 18th day of June 2019 against the defendant for the following reliefs: 1. A declaration that Plaintiff has been given permit by the Ghana Railways Limited to exercise rights over the land 2. A declaration that Plaintiff has been in uninterrupted possession of the land for several years 3. An order against the Defendants to replace Plaintiff’s 3,000 sand crate blocks or in the alternative pay for the value of the 3,000 blocks 4. An order of ejectment against the Defendants and recovery of possession against Defendants in favour of the plaintiff. The plaintiff initially commenced this suit against the defendant herein and one Prosper. The said Prosper entered appearance and filed a statement of defence on the 8th of February 2017 wherein he averred that he was just an artisan engaged to construct a structure for the 1st defendant for a fee. The plaintiff therefore on the 23rd of March 2021 filed a notice of discontinuance against the 2nd defendant pursuant to the order of the court dated the 10th of March 2021. The 2nd defendant filed a statement of defence and counterclaim on the 20th of February 2017 against the plaintiff for the following reliefs: a. A declaration that the 1st defendant is the licensee of all the piece and parcel of land lying, being and situate at Airport West Residential Area within the boundaries of the Accra- Tema Railway Line, measuring 50ft. by 70 ft. and which said land was approved and granted to the 1st Defendant by the Chief Engineer of the Ghana Railway Corporation on 30th September, 1997 and more properly described and documented by a site plan No. 751 issued by the Ghana Railway Engineering Department, Accra. b. An order of recovery of possession of the said land c. General damages for trespass d. Perpetual injunction restraining the plaintiff, whether by himself, his land guards, workmen, family members, labourers and assigns from in any manner entering the land or interfering with 1st Defendant’s quiet enjoyment of the land. The plaintiff filed a reply and defence to the counterclaim on the 2nd of March 2017. The plaintiff filed application for directions on the 4th of April 2017 and on the 16th of May 2017 the following issues were set down for trial per the application for directions filed. 1. Whether or not Plaintiff has been in peaceful, quiet and an uninterrupted possession of the land in dispute. 2. Whether or not Plaintiff was given a license first in time by the Railways Company Limited in respect of the land in dispute. 3. Whether or not Plaintiff’s consent was sought before Madam Zita was permitted to build on a portion of the same land. 4. Whether or not Plaintiff had walled two sides of the land up to shoulder level and had started the construction of a two story building on the land before Defendant’s acts of trespass. 5. Whether or not Defendant continued the construction of the fence wall from the shoulder level Plaintiff had reached. 6. Whether or not upon the service of the writ of summons, the statement of claim and the application for interlocutory injunction and thereafter upon the service of the order of interlocutory injunction, Defendants continued with the construction on the land. 7. Whether or not the date on the site plan produced by 1st Defendant was signed later than the date on it. 8. Whether or not 1st Defendant’s site plan was fraudulently procured. 9. Whether or not 1st Defendant has been in possession of the land at all. 10. Whether or not Defendants destroyed Plaintiff’s sand crate blocks. 11. Whether or not Plaintiff is entitled to his reliefs 12. Whether or not 1st Defendant is entitled to his counterclaim 13. Any other issues arising from the pleadings. THE CASE OF THE PLAINTIFF The case of the plaintiff is that he is the owner of Plot No.1 containing an approximate area of 0.40 acre situate at Airport West Residential Area, Accra having acquired same from the Government of Ghana. His case is that the land in dispute lies opposite his plot No. 1 described supra. The plaintiff avers that he has been given the right by the Ghana Railways Company Limited to use the land and based on that he has subsequently been given a site plan of the land. He stated further that due to the right given over the land, he has exercised possessory rights over the land for several years without any interruption from any third party. The plaintiff states that he has paid rent to the Ghana Railways Company over the years in respect of the land in dispute herein and he has been issued with receipts to that effect, however most of the receipts are missing. According to the plaintiff, he used to do farming and horticultural activities on the land until sometime in the past when he permitted one Madam Zita to build a dwelling land on a portion of the land in dispute. His case is that he has been in peaceful and quiet enjoyment of the remaining portion of the land to the extent that he has constructed a fence wall up to the shoulder level on two sides of the land and has started constructing a two storeroom building on the land and has also deposited 3,000 sand crate blocks on the land to be used for his construction works. The plaintiff states that to his amazement however, the Defendant came from nowhere and has trespassed on the land, broken down his two store room buildings that he is constructing, destroyed some of his blocks and carried the remaining blocks and dumped them outside the confines of the wall demarcating the land. He states further that the defendant constructed his fence wall from the stage he had reached in addition to erecting the other two sides of the fence wall, placed a gate on it and locked it. According to the plaintiff, he reported the matter to the Ghana Police Service and the Defendant was advised by the Police to stop any further construction works on the land but he failed, refused and or neglected to put an end to the acts of trespass and has started constructing a building within the enclosed walls of the land. The defendant also brought land guards to the land who came to threaten him the plaintiff and his household and made political statements that no person in this country can dislodge him from the land. The plaintiff continued that the defendant’s workmen and land guards also assaulted one member of his household and when plaintiff’s wife went to enquire, they harassed her and also when he asked one member of his household to take photographs of the land, the workmen of the defendant attacked him. It is his case that he and his household now live in fear since the defendant, his workmen and land guards continually are threatening them. He asserts that the acts of the defendant amounts to trespass and same is unlawful and must be stopped by way of perpetual injunction and that unless and until the defendant, his agents, workmen, land guards among others are stopped by this court, they would continue in their unlawful acts hence his claim. THE CASE OF THE DEFENDANT The defendant who substantially denied the case of the plaintiff averred that the land in dispute is land acquired by the State and vested in the Ghana Railway Authority and no portion thereof belongs to or is an integral part of the Plaintiff’s Plot No 1. Airport Residential Area described supra. The defendant averred that he has been granted a license or permit by the then Ghana Railway Corporation now Ghana Railway Authority on the 30th of September 1997 to erect his storeroom structures on a portion of land within the boundaries of the Accra-Tema Railway line which said land measures 50ft by 70ft with a site plan signed by the Chief Engineer of the Ghana Railway Corporation. According to the Defendant, it is not the case that he has trespassed onto the land nor pulled down any structures, as no structures existed on the land. The defendant averred that he from the scratch constructed his own fence wall on all four sides and mounted a gate thereon. The defendant stated that the plaintiff reported him to the Police whereupon he was invited to the police station and produced his site plan issued to him by the Ghana Railway Authority dated the 30th of September, 1997. The defendant alleges that at the Police Station the Plaintiff who admitted to the Police that he did not own the land and that that particular piece of land was not part of his leasehold property Plot No.1 Airport Residential Area could not produce any document from the Ghana Railway Authority to justify his claim to entitlement to any rights over the said land. The case of the Defendant continues that he and the Plaintiff met on several occasions before the Police Officers who were investigating the matter and each time the Plaintiff was asked to produce his documents entitling him to the land, Plaintiff will tell the Police that he was just coming from Ghana Railway Authority Offices and that his document will soon be released to him. He averred further that after several fruitless encounters at the Police Station without the Plaintiff being able to produce any documents from the Ghana Railway Authority, the Police advised the 1st Defendant to proceed with the development of the land and the 1st Defendant did so. He stated that while investigations were being conducted by the Police, he was ordered by the Police to stop work while investigations into the case reported by the Plaintiff was ongoing and he complied with the said order. He added that on several occasions he had to leave his business as well as his building operations to attend to the call of the Police at the instance of Plaintiff and as a result, he has been greatly damnified and as such entitled to damages. He states that he has built, roofed and plastered the building and he is putting finishing touches to move in. He added that the Plaintiff’s site plan covering a parcel of land within the vicinity of the land which he has been permitted to develop by the Ghana Railway Authority is of spurious origin and deliberately calculated and prepared for purposes of the present litigation. The case of the defendant is that it is the Plaintiff who brought land guards to the site in the full glare of the Police to whom he had reported the matter and were at the site at his behest to investigate at first hand the veracity of the Plaintiff’s complaint. He added that the Police investigator was not amused at the sight of the land guards and queried the Plaintiff as to why he brought the land guards to the site and the Plaintiff answered that it was his wife who brought the land guards to the land. The claim of the Defendant is that the Plaintiff has no claim whatsoever to the land and Plaintiff lacks capacity to institute and maintain the present action. THE BURDEN OF PROOF Sections 11(4) and 12(1) of the Evidence Act 1975 (NRCD) 323 sets out the burden of proof in civil trials. Section 11(4) provides that: “ 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 provides that: “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities” The law on the standard of proof required in civil cases is proof by the preponderance of probabilities. It is also the view of the law that the burden of producing evidence shifted from party to party at the various stages of the trial based on the issues asserted or denied. See the case of In RE-ASHALLEYBOTWE LANDS; ADJETEY AGBOSU AND OTHERS VRS. KOTEY AND OTHERS {2003-2004} SCGLR 420 AT PAGE 425. The Supreme Court had earlier in the case of ADWUBENG VRS DOMFEH [1996-97] SCGLR 660 outlined the standard of proof required in all civil actions at holding 3 of the Head note as follows: "Sections 11 (4) and 12 of the Evidence Decree [1975] NRCD 323 (which came into force on 1st October 1979) have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities, no exceptions were made." The Defendant who counterclaimed also assumed equal burden on his counterclaim. The Court of Appeal per Dzamefe J. A. stated in Alex Etoh Kwaku vrs Bridgette Ofosu Asabea (2014) 72 GMJ 68 @ 77 that “ it is trite learning that in civil suits when the defendant counterclaims, for the purposes of the relief, that party becomes the Plaintiff and bears the same burden of establishing that relief. The yardstick being the same as the Plaintiff, on the preponderance of probabilities” That is because it is settled that a counterclaim is in law a separate and independent action which is tried together with the original claim of the Plaintiff. The Supreme Court in the case of Gbedema v Awoonor-Williams [1970] CC 12 threw some light on the nature of counterclaim to wit: “A counterclaim is to all intents and purposes an action by the Applicant against the Respondent. It is an independent and separate action.” Bowen, LJ also said in Amon v Bobbett [1889] 22 Q. B. D. 543 at 548 as follows: “A counterclaim is to be treated for all purposes for which justice requires it to be so treated, as an independent action.” Following and applying the above standard of proof, I proceed to examine the evidence on record and resolve the issues set down for determination to arrive at a decision on the reliefs claimed by the plaintiff and the defendant. ISSUES The first issue the court would determine is the issue of whether or not Plaintiff was given a license first in time by the Railways Company Limited in respect of the land in dispute. The fact that it is the same piece or parcel of land that the parties are litigating over is abundantly clear from the pleadings and the evidence led at the trial by both parties. For instance, the plaintiff testified at paragraph 10 of his witness statement relied on at the trial that “ I also deposited on the land 3,000 sand crate blocks to be used for the construction works but to my amazement the defendants came from nowhere, trespassed onto the land broke down my two store room buildings that I started constructing…” It is also evident from the evidence led at the trial and an admitted fact by both parties that the disputed property is for the Ghana Railway Authority. To that end, the plaintiff testified under cross examination that “Q: You will agree with me that the disputed land lies just along the railway line. A: Yes my Lady the land belongs to the Ghana Railway Authority.” The parties therefore presented site plans executed by the Ghana Railway Authority that is Exhibit B and Exhibit 1 in their bid to ground their claim that the Authority has granted them a license over the disputed piece of land. It is trite learning that it is only the owner of land who can transfer an interest in same to another party. In the case of ACHIMOTA VRS BUILDAF LTD & 2 ORS (2015) 91 GMJ 1 @ PAGE 15 the court held that it “ is the law that only the owner of the land can give away title to a third person.” At the trial, the plaintiff called one John Apagya Quayson who stated that he was the Chief Technician of the Business and Commercial Department of the Ghana Railway Development. He testified per paragraph 4 of his witness statement that the Authority granted the land to the plaintiff herein. The plaintiff himself testified and stated that he has “over the years exercises possessory rights over the land in dispute ever since I came to live in my house and I have been in peaceful and an uninterrupted possession of the land and subsequently I was given a licence by the Ghana Railways Development Company to occupy the land. Consequently a site plan covering the land was prepared and executed in my name.” He had testified that he had lived in his house plot No 1, which he said the disputed property lies at its frontage for well over twenty eight (28) years. His exhibit B the licence given by the Authority is dated 11th February 2008. The defendant on the other hand tendered into evidence his licence which is dated the 30th of September 1997. The defendant’s case is that he acquired the disputed property from the Ghana Railway Authority and then engaged labourers to clear the entire area. He added that while making preparations to erect structures on the land, he had an opportunity to travel abroad and it was upon his return that he noticed that the plaintiff had trespassed on his land and moulded sandcrete blocks on the land. From the documentary evidence presented to the court, it is clear that the defendant was granted the land first in time. The plaintiff however has challenged the site plan of the defendant and alleged that same did not go through due process. He further alleged that the defendant obtained the licence through fraudulent means. It is therefore the duty of the plaintiff to lead enough evidence to prove his assertion. That is because in the case of KANGBEREE VRS MOHAMED (2012) 51 GMJ 173 @179 Dotse JSC stated “It is trite learning that for anyone to succeed with a serious allegation like fraud which has the tendency to vitiate acts done regularly, the particulars, which must be pleaded, must also be proven. The law is also that where a party alleges fraud or forgery which is a criminal act under our laws, the party is required to prove that assertion beyond reasonable doubt even if the proceedings wherein the said criminal act has been raised is a civil suit if the said allegation of fraud or forgery is directly in issue as in the instant case. This is in line with section 13 of the Evidence Act, 1973, Act 323 which provides: “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” I find no such cogent evidence led on record to prove his assertions. For starters, his PW1 who claimed that the Authority had granted the land to the plaintiff led no evidence of his assertions. From the record, it is clear that he was testifying on his own personal capacity and not in the capacity as an employee of the Authority to speak to the allocation of the disputed property. This is what transpired during cross examination: “Q. And you have no authority from the Ghana Railway Development Authority to come and give evidence in this matter. A. That is not true. Q. You are not here on a subpoena summons are you? A. Yes my lady. Q. By yes, do you mean you are here on a subpoena summons? A. I was not subpoenaed to come and give evidence. Q. I am suggesting to you that you have decided to come and give evidence in this matter because of your close relationship with the Plaintiff. A. That is not so. Q. The Ghana Railway Development Authority is not aware of your presence before this court. A. I believe that is so because I have now been seconded from the Ghana Railway Development Authority to the Ministry of Railway Development. Q. The Ghana Railway Development Authority and the Ministry of Railway Development are two different entities is that not so? A. That is so. Q. So as you sit here, you are not an officer of the Ghana Railway Development Authority. A. That is so but I am still handling all the court cases of the Railway Authority. Q. You are not in any way in charge of or handling any court cases of the Ghana Railway Development Authority. A. That is not true. Q. There was one time Ghana Railway Corporation is that not so? A. That is so. Q. Is it that Corporation that was turned into Ghana Railway Company Limited? A. That is so. Q. And Ghana Railway Company Limited became Ghana Railway Development Authority. A. That is not true. Q. The Ghana Railway Development Authority has never ever licensed any parcel of land to the Plaintiff. A. That is not true. Q. It has not done so that is why you have no documentary evidence to that effect. A. That is not true. Q. I am suggesting to you that the Ghana Railway Corporation through its Engineering Department gave to the Defendant a parcel of land on the 30th day of September, 1997. A. That is not true. Q. You say you are an employee of Ghana Railway Authority, when did you become an employee? A. I was an employee of Ghana Railway Company since the year 2000 and then was seconded to the Ghana Railway Development Authority in 2016 and then September, 1st 2021 I was seconded again to the Ministry of Railway Development. Q. So in 1997, you had not become an employee of Ghana Railway Authority. A. That is so but I was a trainee by then with the Ghana Railway Company. Q. And before this court, you have not produced any file or document evidencing the licensees of the Ghana Railway Company. A. That is true because I was not asked to do so.” That apart the said PW1 exhibited that he was not in the employment of the Ghana Railway Authority as at the 1997. Even though it is trite that the evidence of a grantor in favor of one of the parties should incline a court to believe the case of the party in whose favor the grantor gives evidence as stated in the case of OGBARMEY-TETTEH v OGBARMEY-TETTEH [1993-94] 1 GLR 353 Stated per its holding 4 that, “where rival parties claimed property as having been granted to each by the same grantor, the evidence of the grantor in favour of one of the parties should incline a court to believe the case of the party in whose favour the grantor gave evidence unless destroyed by the other party” the same cannot be said to be the same in this case. I am more inclined to believe the story of the defendant which accords with the documentary evidence on record that he obtained the disputed plot first in time. He claimed that he had been in possession of the disputed plot since he occupied his plot No 1 which he claimed was 15 years as at the date of his witness statement. His document is dated in the year 2003. What I find proved from the record is that the plaintiff saw the vacant land and then farmed on it and it was later that he sought for a license on the part which was left after a portion was given to Madam Zeeta’s mother. At that time, the Railway Authority had already granted a license in favor of the defendant. It is trite learning that, a person cannot give what he does not have. Thus for the Authority to be able to pass valid title in the disputed land to the plaintiff, the state institution must have a valid title. In Bruce v. Quarnor & Ors [1959] GLR 292 it was held that: “that by native custom, grant of land implies an undertaking by the grantor to ensure good title to the grantee. It is therefore the responsibility of the grantor, where the title of the grantee to the land is challenged, or where the grantee's possession is disturbed, to litigate his (the grantor's) title to the land; in other words, to prove that the title which he purported to grant is valid”. Where a party’s grantor has no title to pass, it does not matter whether he gives the grantee genuine documents or not. It was thus held by the Court of Appeal in WORDIE V AWUDU BUKARI [1976] 2 GLR 271 C. A AT 380, applying the principle of nemo dat quod non habet in similar circumstances that: “It follows that, although the conveyance the first appellant took from the Osu stool is valid so far as the necessary legal formalities are concerned, yet it conveyed nothing because the Osu Stool had no land in the area in dispute on the maxim nemo dat quod non habet. The first appellant cannot therefore legally rely on exhibit C the conveyance from the Osu stool which was a party to the consolidated suit before Jackson.” See also SARKODIE v FKA Co. LTD [2009] SCGLR 65; DOVIE & DOVIE v. ADABUNO [2005-2006] SCGLR 905 and AWUAH v. ADU TUTU [1987-1988] 2 GLR 191 CA. The evidence on record is clear that the disputed land was granted to the defendant as far back as 1997. It follows therefore that they could not have passed any valid title in same to the plaintiff. In EGYIR v. HAYFRON [1984-86] GLR 510 it was held that ‘where a party derived his title to land from someone else, either by way of gift or purchase or other form of alienation of land, it was incumbent upon that party whose title was derivative to prove the title of his grantor or vendor or donor as the case might be’. I therefore find on this issue that, the plaintiff was given a licence first in time by the Railways Company Limited in respect of the land in dispute. The next issue to discuss is whether the defendant destroyed plaintiff’s sand crate blocks on the disputed land. The defendant claimed that since the land belonged to him, he caused his workmen to pack the sand crate blocks the plaintiff had deposited on the plot away from the land to pave way for his constructional work. He denied the charge of trespass and insisted that he was the owner of the land having been granted a licence by the Ghana Railway Authority. He further asserted that there was no structure on the land for which he had to build upon and that he commenced his structure from scratch. From the record, there is no evidence on record to prove that the defendant destroyed the sandcrete blocks on his plot neither do I find any evidence of any structure constructed by the plaintiff prior to the defendant developing the disputed property. This is more so when per exhibit 3 the police extract, he did not report as part of his complaint any damage to any blocks. Are the parties therefore entitled to their claims? Per the foregoing it is the view of this court that the plaintiff’s case fails and the defendant’s counterclaim succeeds. A declaration is made that the defendant is the licensee of all the piece and parcel of land lying, being and situate at Airport West Residential Area within the boundaries of the Accra-Tema Railway Line, measuring 50ft. by 70 ft. described and documented by a site plan No. 751 issued by the Ghana Railway Engineering Department, Accra. The defendant is to recover possession of same. The plaintiff his, workmen, family members, labourers and assigns are hereby restrained from in any manner entering the land or interfering with Defendant’s quiet enjoyment of the land. Damages for trespass is assessed at GHC10,000. Cost of GHC20,000 against the plaintiff.