DEBRAH VRS TAMBIL (C1/42/2020) [2023] GHAHC 388 (6 November 2023)

IN THE HIGH COURT OF JUSTICE ADENTAN BEFORE HER LADYSHIP JUSTICE ENYONAM ADINYIRA ON MONDAY THE 6TH DAY OF NOVEMBER 2023 SUIT NO. C1/42/2020 TIME: 9:27 a.m. JULIET DEBRAH G33/7 GIFFARD CAMP RD PALMWINE JUNCTION, LA ACCRA … PLAINTIFF VERSUS DR. JOSEPH TAMBIL NO. 2 DOCTORES AVENUE EFFIA NKWANTA REGIONAL HOSPITAL SEKONDI – TAKORADI ===================================================== … DEFENDANT PARTIES Plaintiff represented by Bernice Debrah Defendant present. REPRESENTATION Edinam Ama Abusah holding brief for Reindorf Twumasi Ankrah for the Plaintiff Anthony Namoo for the Defendant – present. ____________________________________________________________________________ JUDGMENT 1.0 BRIEF BACKGROUND 1.1 The Plaintiff issued a Writ of Summons and Statement of Claim in on the 14th of July 2020, and amended same on the 19th of February, 2021 praying and seeking from this honourable court the under listed reliefs against the Defendant: a. Declaration of title to all that piece or parcel of land situate lying and being at Katamanso-Accra in the Greater Accra Region evidenced per the indenture dated 7th March 2008, and bounded on the North by a proposed road measuring 69.0 feet more or less, on the east by Lessors Land measuring 123 feet more or less, on the south by Lessors Land measuring 70 feet more or less and on the west by Lessors Land measuring 122.0 feet more or less and containing an approximate area of 0.20 acre or 0.08 hectares more or less. b. Defendant be mulcted with punitive damages for trespass and unlawful damage to property. c. An order for demolition of all illegal structures erected on Plaintiff’s land by the Defendant, either by himself, assigns and/or any persons(s) deriving title/interest through them. d. Perpetual injunction to restrain the Defendant either by himself, agents, cohorts, privies, assigns, workmen, whomsoever or otherwise howsoever from further interference and harassment with the right, use and peaceful enjoyment of the said land by the Plaintiff. e. An order for recovery of possession. f. Costs inclusive of legal fees per the GBA approved scale of fees. 2.0 PLAINTIFF’S CASE 2.1 Plaintiff’s case is that she acquired the parcel of land in dispute, from one Gladys Forson Aboagye who had earlier obtained a grant/lease over that parcel of land from the Katamanso family or stool. It is the Plaintiff’s case further that, at the time she acquired the land, it was vacant and that she and her sister whose plot adjoins hers, exercised physical acts of possession on the land including erecting pillars, pouring sand and stones on same, appointing a caretaker to look after the land, with the aim of giving notice to the whole world that, the land has been occupied by the Plaintiff. 2.2 Plaintiff makes the case that subsequent to the acquisition of the parcel of land from the said Gladys Forson Aboagye and the works on the land, Plaintiff approached the grantor(s) of Gladys Forson Aboagye and the grantor(s) issued Plaintiff with a new lease. 2.3 Plaintiff again states that, somewhere in or about the year 2009 she commenced the land registration processes at the Lands Commission office and paid the required administrative fees and was issued with receipt(s). The Lands Commission issued her with a Provisional Land Title certificate with number: TD. 15617 and a title search from the Lands Commission shows that as at the time of Plaintiff’s land registration, there was no record to show that the land had been encumbered by any person ass side her grantor. 2.4 Plaintiff makes the case she enjoyed quiet, peaceful and undisturbed possession of the land in dispute until sometime in the 2012/2013 when the Plaintiff’s caretaker fell sick and therefore could not pay regular visits to the land like he used to and Defendant entered onto the land and started some works on the land. 2.5 When the Defendant was prevailed upon to quit his activities on the land, he refused and continued regardless and this conduct of the Defendant prompted the Plaintiff to report the matter to the Ghana Police Service. 3.0. DEFENDANT’S CASE 3.1. The Defendant’s case is that, he has never been an encroacher on the land in dispute and that, if anything at all, the Plaintiff’s action may be grounded on wrong description of her parcel of land which is distinct and separate from the defendant’s land. 3.2. 3.3. It is the Defendant’s case that, the Plaintiff has been inconsistent on how she acquired the land in dispute and that the Defendant acquired the piece of land from the New Katamanso stool through a Surveyor by name William Fobil who is now deceased. It is the Defendant’s case that he saw no caretaker on the land when he took possession after which he proceeded to erect a structure. He further states that it is upon reaching decking stage to continue building the first floor that a certain Bernice Debrah came to lay adverse claim on the land. It is the Defendant’s case that the Plaintiff acquired her piece of land from one Benjamin Eklemet who happens to be a colleague surveyor of the late William Fobil( who in this case sold the defendant’s land to him through the Katamanso stool). 3.4. The Defendant further states as his case that the two Surveyors (William Fobil and Benjamin Eklemet; both of whom he admitted to be colleagues and also his friends) agreed to give the Plaintiff an alternative land to which she agreed. And also that the Plaintiff had been allocated two plots of land in two different locations by the said Benjamin Eklemet. 3.5. 3.6. It is also the Defendant’s case that he continued the construction of the building without any hindrance and further claims that the construction of the building on the land was at an advance stage so the Plaintiff could therefore not lawfully process her land Title during that period. It is the Defendant’s case that he has been in occupation of the land since 2008 which he bought from the Katamanso stool through William Fobil and had his site plan drawn by Benjamin Eklemet. It is further his case that he is entitled to protection under the Land Development (Protection of Purchasers) Act, 1960 (Act 2) 4.0. STANDARD OF PROOF AND THE BURDEN THEREOF A land dispute of this nature is a civil litigation and like all civil cases, the standard of proof is one on the balance of probabilities or preponderance of the probabilities. The Plaintiff bears the burden of persuasion which per section 10(1) of Evidence Act, 1975 (Act 323) is “the obligation of a party to establish the requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court” The Plaintiff also has the burden of producing evidence which per Section 11(1) of Act 323 is: “the obligation of a party to introduce sufficient evidence to avoid ruling against him in this issue. The burden of persuasion in all civil cases is proof by preponderances of probabilities.” And per section 12(2) of Act 323 Proof by a preponderance of probabilities is the degree of certainty of belief in the mind of the Tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence1. Section 14 of Act 323 is also as follows; “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence”. The succinct dictum on the burden of proof by the Supreme Court in ACKAH VRS. PERGAH TRANSPORT LTD [2010] SC GLR 736 per Adinyira JSC bears reiteration 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. 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 reasonable than its non- existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.” His Lordship Anin-Yeboah, JSC (as he then was) in ACQUIE V TIJANI (2012) 2 SCGLR 1252 at 1258 also stated as follows: “In any case, the law does not require a party to prove his case with absolute certainty in civil proceedings. A court must, however, satisfy itself that the evidence led on a particular issue is proved in accordance with the requisite standard required by law. In Hawkins v Powells Tillery Steam Coal Co Ltd (1911) KB 988 at 996, Buckley, L. J said: ‘When it is said that a person who comes to the Court for relief must prove his case, it is never meant that he must prove it with absolute certainty. No fact can be proved in this world with absolute certainty. All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. That may be done either by direct evidence or by inference from facts. But the matter must not be left to rest in surmise, conjecture or guess.” The Commentary on the Evidence Decree, 1975 (NRCD 323) which contains a detailed explanation of section 11 (4) of NRCD 323 posits as follows: “The party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps meet the test of sufficiency. It is for this reason that the phrase ‘on all the evidence’ is included in each of the tests of sufficiency.” Also, in the case of ARYEE V SHELL GHANA LTD & FRAGA OIL LTD (2017-2020) SCGLR 721 at 733, the Supreme Court speaking through Benin JSC had this to say: “It must be pointed out that in every civil trial, all what the law required is proof by preponderance of probabilities: See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issues to be resolved. The law does not require that the court cannot rely on the evidence of a single witness in proof of the point in issue. The credibility of the witness and his knowledge of the subject-matter are determinant factors: See Armah v Hydrafoam Estates (Gh) Ltd 92013-2014) 2SCGLR 1551. Indeed, even the failure by a party himself to give evidence cannot be used against him by the Court in assessing his case: this court’s decisions in Re Ashalley Botwe Lands: Adjetey Agbosu v Kotei (2003-2004) SCGLR 420 per Georgina Wood JSC (as she then was), at page 448: and Armah v Hydrafoam Estates Gh Ltd referred to (supra)…..” This position of the law was affirmed by the Supreme Court in the case of ADWUBENG V DOMFEH (1996-1997) SCGLR 660 @ 670: “… While sections 11 (4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities-no exceptions are made. In the light of NRCD therefore the cases which hold that proof of title to land required proof beyond reasonable doubt, no longer represent the present state of the law.” 5.0. ADMITTED/UNDISPUTED FACTS In the case of IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV (SUBSTITUTED BY TAFO AMON II) V AKOTIA OWORSIKA III (SUBSTITUTED BY) LARYEA AYIKU III [2005-2006] SCGLR, the Supreme Court laid down the following salutary rule of law, as follows: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.” Thus, party to a suit need not lead evidence to establish matters not in dispute or matters that are admitted by the adversary and that once a matter is admitted by an adversary, the party in whose favour the matter or issue is admitted is entitled to judgment on that issue. From the Pleadings and evidence of the parties before this Court, it is beyond contestation that some allegations/matters are no longer in dispute and therefore the party who made those allegations owes no further duty at law to prove those allegations by way of evidence and also since those matters have been admitted then the Court has been relieved of its duty regarding the issues arising from that matter. From the record before this Court, the following allegations by the Plaintiff has been admitted by the Defendant; From the defence filed by the Defendant, the Defendant admits in paragraphs 11 of both his statement of defence and witness statement and paragraph 9 of his Amended statement of defence and counterclaim that he has been aware of an adverse claim to the land in dispute since the year 2010. Again, per paragraph 14 of both the Defendant’s statement of defence and witness statement, he admits that the site plans to the disputed land drawn in his name postdates that of the Plaintiff’s, rendering the plaintiff’s site plan first in time. This, he had also confirmed under cross examination on the 26th January 2023 on pages 24 and 25. Also, at page 34 of the record of proceedings dated 27th of February 2023, the defendant admitted during cross examination as follows: “Q. kindly go to page 10 of Exhibit D, do you notice from that page that as at March 2010, Juliet Debrah was recorded in the Land Title Registry as having a subsisting lease or interest in the land in dispute? A. Yes please. It is true that’s the time she had registered her interest and that is not in dispute. It is for that particular reason that we sought to engage as my structure was already on the land” 6.0 ISSUES ADOPTED FOR DETERMINATION 1. Whether or not the Plaintiff is entitled to the declaration of title to the parcel of land in dispute. 2. Whether or not the Defendant has trespassed onto the Plaintiffs land 3. Whether or not the Defendant had constructed the structure on the land in dispute before the Plaintiff’s purported registration of her interest in the said land. 4. Whether or not the Defendant constructed the structure on the land in dispute under the cover of darkness. 5. Whether or not the Plaintiff and/or her predecessor agreed and was allocated a different parcel of land by the New Katamanso stool. 6. Whether or not the Defendant is entitled to his counterclaim. 7. Whether or not the Plaintiff is entitled to the reliefs she seeks from this court 8. Any other issue(s) arising out of the Pleadings or evidence. Issues 7 and 8 are derivates from the substantive issues and will be encompassed in the discussions following. ANALYSIS OF THE ISSUES Issue 1: Whether or not the Plaintiff is entitled to the declaration of title to the parcel of land in dispute; The Plaintiff in this matter is asserting Title to the land in dispute and the law requires that she produces evidence to persuade the court by establishing her root of title, mode of acquisition and overt acts of possession. Cases on declaration of title to land give credence to the fact that in such cases where a plaintiff seeks a declaration of title to land, he bears the legal burden of proof throughout. In the case of BENYAK COMPANY LTD V PAYTELL LTD AND OTHERS (J4/19/2010) [2014] GHASC 128, His Lordship Anin JSC stated: “This is so in every civil case where averments are denied as the law has settled this in authorities namely: Bank of West Africa Ltd v Ackon [1963] 1 GLR 176 SC, Ababio v Akansi [1994-95] GBR Part II 74 and Duah v Yorkwa [1993-94] 1 GLR 217 CA. Indeed, this court has held that the plaintiff, apart from pleading his root of title, mode of acquisition and overt acts of membership, if any, must prove that he is entitled to the declaration sought. In MONDIAL VENEER (GH) LTD V AMUAH GYEBU XV [2011] I SCGLR 466 AT 475 WOOD CJ said as follows: “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 this instant case, to prove the root of his title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation”. This point was reiterated per Adinyira JSC (as she then was) in the case of YEHANS LTD VRS MARTEY TSURU FAMILY AND 1 OTHER [2018] DLSC 2488 as follows: “It is settled that a person claiming title has to prove; i) his root of tile, ii) mode of acquisition and iii) acts of possession exercised over the land…this can be proved either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must prove the title of his grantor. Also see “Awuku v. Tetteh [2011] 1 SCGLR 366”. In this case, all the allegations of facts pleaded in support of the reliefs, that is, a declaration of title to land and other ancillary reliefs were denied by the Defendant in his Statement of Defence and counterclaim. Thus, the onus of proof of title is on the plaintiff. On proof of her root of title and mode of acquisition, the Plaintiff’s testimony is that the grant of the land was initially made to her in or about the year 2008 by Mrs Gladys Forson Aboagye who had earlier obtained a grant over the land from the Katamanso family/stool. In support of this claim is the document attached and marked as Exhibit A showing receipt for purchase of land between Gladys Forson Aboagye and the Plaintiff herein. The Plaintiff goes further to adduce Exhibit B which is evidence of the Plaintiff’s engagement with the grantors of the land to her grantor for which she was granted a lease to cover the land. Exhibit B is a copy of the lease comprising of an indenture (signed and sealed by both parties) and an attached Site Plan indicating the parcel of land granted to the plaintiff by the Katamanso family/stool. Plaintiff avers, it is on the strength of the above documents that she proceeded to commence her land registration process at the Lands Commission and paid the required administrative fees and was issued with a receipt a copy of which is admitted into evidence and marked Exhibit C. A Provisional Land Title Certificate with number TD 15617 was registered in the Plaintiffs name in the year 2010 (Exhibit D). Per the records before the court, a title search from the Lands Commission at the time of the Plaintiff’s application to register her interest in the land showed no record of the land being encumbered in any way by any person. This very fact is supported by the documents exhibited and marked as D and D1 which are copies of the Land Title Certificate and the official search from the lands commission dated. Per the foregoing Plaintiff has established her root of title and mode of acquisition. It is the general position of law that mere possession of land is sufficient for a person to maintain an action of trespass against anyone who cannot show a better title. This the courts have applied in the case of MAJORLAGBE VRS LARBI [1959] DLHC 2024. ALSO SEE THE CASE OF MENSAH VRS PENIANA [1972] 1 GLR 337. The Plaintiff’s case is that she enjoyed peaceful and undisturbed possession of the land from the year 2008 until somewhere in the year 2012/13. The peaceful enjoyment of the land was due to the Plaintiff’s placement of a caretaker on the land who pays regular visits to the land. Not only was there a caretaker but there was also erected corner pillars on the land and heaps of sand deposited on the land to show clear and overt acts of possession. The Plaintiff’s caretaker of the land, Mr. Oti Antwi who testified for the Plaintiff, in his witness statement and evidence under cross examination testified that, he was engaged by the Plaintiff acting through her sister Bernice Debrah Ashun to erect corner pillars, pour sand and stones on the Plaintiff’s land. The caretaker’s testimony showed that he was no stranger to the land in dispute because he used to be the caretaker of the land at the time it was owned by the Plaintiff’s grantor Mrs Gladys Forson Aboagye. He also made it clear that he paid regular visits to the land until he fell seriously ill about the year 2012 and could not visit the land for some time only to regain his health and visit the land to find the activities of the Defendant going on. The caretaker further testified that, it was upon the discovery of the Defendant’s encroachment and building that he caused a notice to stop work on the land and the telephone number of the Plaintiff’s sister to be written on the Dwarf walls. Upon the recalcitrance and continued building of the structure on the land despite the notice on the dwarf walls a report to the Police Property Fraud Unit of the Police headquarters was lodged. (See Record of Proceedings of 24th January 2023) The court finds the above to constitute enough notice to the Defendant of a prior interest in the disputed land. Thus, the absence of the Plaintiff and her caretaker at the time made it easier for the Defendant to trespass on the land. In the case of WESTERN HARDWOOD ENTERPRISE LTD VRS WEST AFRICAN ENTERPRISE LTD [1998-1999] SCGLR 105 the Court stated the law on acts possession and how it serves as notice to all others as follows: “Where a purchaser of land had the opportunity of seeing evidence of possession no matter how slight on any part of the land he intended to purchase but he fails to investigate the authority behind the possession, he is fixed with notice of the adverse possessor.” In the case of ROSINA ARYEE V SHELL GHANA LTD & FRAGA OIL, UNREPORTED JUDGMENT, CIVIL APPEAL NO. J4/3/2015 OF 22ND OCTOBER 2015, Benin JSC dealing with issues of possession stated as follows; “Notice does not mean only notice of registration of the title but also notice of possession by the first purchaser, grantee or lessee or their agent as the case may be. That is why an intending purchaser must make reasonable enquiries in respect of the property he seeks to acquire. This involves legal searches at the Land Registry, but more critically it involves a physical inspection of the land to ensure it is free from any encumbrances” It is also instructive to note that, the Defendant could not before this Court adduce any document indicating that the land in dispute has been granted to him by the rightful family. In fact when asked for the document in support of his claim to title or interest in the land, he relied on a Site Plan attached to his Witness Statement. Site plan without more does not constitute a grant of interest in land and to the extent that the Defendant failed to adduce any credible evidence to buttress his claim that the land was granted to him by the family, it stands to reason that, there is no such grant because it there was such a grant, he would have tendered same in evidence in support of his case. This is what transpired on Thursday, 26th January 2023 at pages 23 - 24 of the record of Proceedings: “Q. in your witness statement and the exhibits before this court, you have not tendered in evidence any lease agreement between you and your alleged grantors. Have you? A. I have tendered in an indenture which came from the Katamanso Stool which per what I know are the legitimate owners of the land. Q. so is it not true that the exhibit 4 and 4A you identified as your indenture are only site plans? A. It is true, these are Site Plans which are part of the indenture Q. And it is also true, is it not, that on the face of your exhibits 4 and 4A, it is not stated who the grantors are. A. Yes. On the face of the exhibits the parties to the transaction are not mentioned Q. so you will agree with me that as you testify before this court today, the court has no document before it to determine whether the Katamanso Stool actually leased the land in dispute to you. A. I do not agree. I have from the beginning indicated these are only portions of the indenture and if there is need for the full indenture to be produced, I can do that in a short time.” Again, under cross examination the Defendant testified on Monday, 27th February, 2023 at pages 32, of the Record of Proceedings as follows; “Q. You have not been able to exhibit any indenture between you and Nii Otu Akwetey (Katamanso Mantse) and yourself in respect of the land in dispute. Have you? A. I have not. But the last time I came to court I made it clear that I have it in my possession and that I can provide it if the need be. Indeed aspects of it has been photocopied as evidence. Q. when you say aspects of it, do you mean the Site Plan you exhibited as Exhibit 4? A. Yes please Q. I am suggesting to you that there is no indication on the face of your exhibit 4 that the Katamanso Mantse or any member of that family has given that parcel of land to you. A. I do have an Indenture leasing land from the Katamanso stool to me and I can provide it if I am called upon to. Q. I am further suggesting to you that it is because no lease has been given to you by the Katamanso Mantse that is why in your exhibit 1 series with specific reference to the document titled ‘An Application for First Registration of Leasehold…you could not state in your declaration the period of the lease and when it was to expire but only stated the date on the Site Plan which is dated 10/12/2009 A. As I mentioned earlier, I have the Indenture and all the details he is requesting or are in there for him to verify” The dialogue above establishes on a balance of probabilities that the Defendant does not have and could not produce any evidence whatsoever to show his root of his title nor a document showing who his grantors of the disputed land were, or any documents of indenture/lease agreement to that effect and his mode of acquisition of the parcel of land. It is therefore safe to assume or conclude that no such lease over the land in dispute has been granted to the Defendant by the said Katamanso stool or family. The only basis the Defendant relies upon to lay claim to the disputed land is based on possession. However, the evidence before the court shows that prior possession to the land was obtained by the Plaintiff and then subsequently by the Defendant through unlawful encroachment and trespass. This assertion is confirmed by the Defendant during cross examination on pages 24 and 25 of the Record of Proceedings dated Thursday 26th January, 2023 as follows: “Q. Please take a look at your exhibit 4, kindly go to the portion titled “approved by”. You will notice that there is date which is 10/12/2009, not so? A. yes please I confirm Q. you can also confirm from your exhibit 4A is dated 7/03/2008, is that not so? A. yes please. It is so Q. And you can also confirm that both exhibit 4 and exhibit 4A were prepared by the same Benjamin Akyea Eklemet; not so? A. Yes please Q. you can also confirm that exhibit 4 which bears your name is the one with the date 10/12/2009; not so? A. Yes please Q. And exhibit 4A which bears the Plaintiff’s name was prepared in March 2008; not so? A. Yes please Q. So you will agree with me that from your own exhibits the Plaintiff had a right over the land before your Site Plan was prepared for you, not so? A. I do not agree Q. So you do not agree with your own exhibits before the court? A. To the extent that this document may have been prepared before mine, that may be true. But I was physically on the land before the Plaintiff. Q. You also agree that from your own evidence, the Plaintiff’s Site Plan which is your exhibit 4A predates your Site Plan; not so? A. yes please I agree” From the above, the Plaintiff has led the requisite evidence to buttress her claims hence the Defendant’s presence on the land cannot avail him since based on the facts, same was done in reckless disregard of the Plaintiff’s cautions among others. The Plaintiff is entitled to the declaration of title to the parcel of land in dispute. Issue 2. Whether or not the Defendant has trespassed onto the Plaintiffs land. The tort of trespass is committed against possession and not just mere ownership of land. Having both good title (ownership to be precise) and possession together makes a plaintiff more fortified to sue for trespass. In the case of MENSAH V. PENIANA [1972] 1 GLR 337 the law was stated thus: “proof of possession by a plaintiff is sufficient to maintain an action for trespass against a Defendant who cannot prove a better title. Therefore, a claim of absolute ownership by a Defendant does not automatically put the Plaintiff to proof of his title. He must, however, fail if the Defendant is able to establish his title to ownership or that he went to the land with the permission of the owner” Again, in the case of NUNEKPEKU AND OTHERS V. AMETEPE [1966] GLR 249, the Supreme Court further held that: “In an action the true nature of which is damages for trespass to land it is sufficient for the Plaintiff to establish possession. It is only where there is specific or general denial of his title that the Plaintiff could not succeed without proving his title. And that an action for recovery of possession was a wrong against possession, and therefore the main fact which the Plaintiff must prove in order to succeed is possession. But where…the defendant pleaded possession then it is incumbent upon the Plaintiff to prove that he was in possession at the time the Defendant entered upon the land and wrongfully dispossessed him of it” On the authority of the decision in the Nunekpeku case supra, the evidence on record demonstrates that, the Plaintiff acquired her interest over the disputed land in March 2008 before the Defendant purported to have acquired interest in it in December 2009. Again, the testimony of the Plaintiff’s caretaker discussed supra confirms that the Plaintiff was in possession of the land before Defendant took advantage of the temporary absence of the caretaker to enter onto the land. Thus from the evidence on record and based on the law, the Plaintiff is entitled to the relief under this claim since it is abundantly clear that Defendant trespassed onto the land. Issues 3 and 4 : Whether or not the defendant had constructed the structure on the land in dispute before the Plaintiffs purported registration of her interest in the said land and Whether or not the Defendant constructed the structure on the land in dispute under the cover of darkness. The records before this court have demonstrated that, the plaintiff has as far back as 2nd March 2010 registered her interest in the land in dispute. The Exhibits attached to Plaintiff’s Witness Statement and marked as C (Receipt of Payment of Registration Fee at Land Title Registry dated 2/3/2010), Exhibit D (Provisional Certificate dated 13/10/2018) and Exhibit D1 (Lands Commission Acknowledgement Slip dated 16/12/2020) speaks very clearly to that fact. Having registered her interest coupled with the acts of ownership and possession, notice had been given to the whole world of the presence of Plaintiff on the land. Under cross-examination Defendant testified that as at 2012/2013 he had only erected footings or completed the foundation on the land. Having himself made the claim that he only started construction and erected footings in 2012/2013, it stands to reason that, he commenced his activities after the Plaintiff had started her registration of the land. See the Record of Proceedings dated 26th January 2023. However, Per paragraph 9 of the Defendants Amended Statement of Defence it is stated as follows: “it was after the Defendant had erected a structure and had reached the stage of decking in order to proceed to build the first floor around 2010, that one Bernice Debrah a florist at flower pot, East Legon popped up to lay adverse claim on the land in dispute” Thus from the Defendant’s own case, it is unclear when he started his construction. While in one breadth he claims as at the year 2010 he was done with foundation and moving to the construction of the first floor, in another breadth he claims as at 2012 he had only done his foundation. The apparent inconsistencies make the narration of the Defendant unbelievable in this case. Based on the evidence before this court, it is most improbable that the Defendant had constructed the structure on the disputed land before the Plaintiff’s registration of same as the Defendant has not provided a scintilla of evidence which indicates in any manner whatsoever that he had carried out any activity on the disputed land prior to the year 2010. All the pictures submitted by the defendant are dated between the years 2012-2013 (Exhibit 2 series). What is abundantly clear to the court is that notwithstanding all the evidence discussed supra which should have put the Defendant on notice particularly as he has no Indenture in his name, and without even a search from the respective land divisions and only a Site Plan in hand, the Defendant recklessly carried out the construction works on the land. Issue 5: Whether or not the Plaintiff and/or her predecessor agreed and was allocated a different parcel of land by the New Katamanso stool. The Defendant averred in paragraphs 11 and 12 of his Statement of Defence and paragraph 16 of his witness statement that an agreement had been reached between the parties where it was settled that the Plaintiff be given a different parcel of land. Having made the allegation which has been denied by the Plaintiff, the Defendant has the burden to lead the legally required evidence to found the claim. The Defendant in his Pleadings make the case that, the information about the said meeting and alleged agreement came to him through the surveyors. This means clearly that he has no personal knowledge of those matters and by sections 116 and 117 of the Evidence Act, 1975 (NRCD 323) the said evidence is inadmissible to the extent that the Defendant actually believes same to be true and offers them in support of his claim. At least one of the persons alleged to have been present in the said meeting is alive and available as a witness yet the Defendant who relied on his statement to him failed to call this person as a witness. In the case of CPL. EKOW RUSSEL V. REPUBLIC CRIMINAL APPEAL NO: J3/5/2014 DELIVERED ON 13TH JULY 2016 the Supreme Court stated the law on hearsay as follows: In simple terms the rule against hearsay requires that a witness should not talk about something of which he has no personal knowledge. He should rely upon his own observation and recall of the matter in dispute. .. Section 118 of NRCD 323, would also not avail the prosecution because at the time the PW6 testified in this matter Maxwell Antwi was available and yet not called as a witness. This section avails the prosecution where the declarant is unavailable as a witness.” This is what transpired on 27th February 2023 at pages 29,30 and 31 of the Record of Proceedings wherein the Defendant testified as follows: “Q. In fact, your claim that the Plaintiff had agreed to accept a new parcel of land was information that came to you from Eklemet and Mr Fobil the surveyors; is that not so? A. That is the case. And like I mentioned earlier, I only got to know that she had declined it after a few years. Q. Mr. Eklemet is alive; is he not?” A. He is but I have not spoken to him since June last year. Q. I believe you have his telephone number and means of reaching him; not so? A. Yes please I do. Q. In fact since the commencement of this action in court you have spoken to him; that is Eklemet. A. Yes please that is true Q. You agree with me that since Eklemet is the only surviving surveyor among the two surveyors who communicated this so called agreement to you, Eklemet will be a better placed person to tell this court about this so called agreement and how it was arrived at A. Yes please. That is true From the above dialogue, the Defendant has testified to the very fact that he is not the best placed person to speak or testify to this very issue, which is whether or not there was an agreement for an alternative land to be given to the Plaintiff. Defendant further admitted that Eklemet, who he claimed had been an active participant in the so called meetings and agreement is the better placed person to testify to the court. Without the corroboration of Eklemet the Defendant’s testimony on a balance of probabilities on this issue is most improbable. The testimony that there was meeting wherein Plaintiff agreed to an alternative land being information that came to the Defendant through the surveyors and to the extent that those surveyors were not called as witnesses in this case and also to the extent that the said information was made outside the court and to the extent that the said information is being offered in evidence to establish the truth of the said agreement or settlement, they are inadmissible evidence and on the authority of section 8 of NRCD 323 same is rejected and expunged from the records. It should also be added that since the Defendant admits that the said information came to him through a third party, the said third party is a material witness who should have been called to corroborate the case and the failure to do so must go against the case of the Defendant. There is no credible evidence before the court to establish that indeed there was any such meeting or agreement. As the Plaintiff denied this assertion, the Defendant was under obligation to prove this claim which he failed to do. From the evidence before the court, on a balance of probabilities there was no such agreement or settlement and the Plaintiff did not at any point in time agree to an alternative land as is obvious in Plaintiff’s submission during cross examination on 24th January 2023 as page reproduced below: Q: You know as a fact that Mr. Akyea Ekleman did the site plan attached to your Exhibit ‘B’.? A: Q: Yes, please. He was the one who negotiated to give you a different piece of land; Is that not so? A: Q: A: Yes, please. According to you, you rejected it. Yes, please. Issue 6: Whether or not the Defendant is entitled to his counterclaim to be protected under the Land Development Act. Land Development (Protection of Purchasers) Act 1960, Act 2 in section 1 states as follows: “1. Power to cure defective titles (1) Where 1. a person has taken a conveyance of land in a prescribed area at any time after 31stDecember, 1944, whether before or after the date on which the area became a prescribed area, and 2. the purchaser or a person claiming through the purchaser has in good faith erected a building on the land, and 3. proceedings are brought to obtain a possession order in relation to the land on the ground that a person other than the purchaser or a person claiming through the purchaser is entitled to the land, the High Court, where it considers that if this Act had not been passed the possession order would fall to be made by reason that the conveyance taken by the purchaser did not operate to confer on the purchaser the title to the land, but that to make the order would cause hardship and injustice to the person against whom it would fall to be made, may, instead of making the possession order, make an order providing that the conveyance liken by the purchaser shall be considered for all purposes to have operated to confer on the purchaser the title to the land. (2) Where an order is made under subsection (1), and the Court considers that order would by itself cause hardship and injustice to a person, the Court may make a further order requiring the person in whose favour the order under subsection (1) is made to pay to that person a sum of money by way of compensation. (3) The aggregate of the sums ordered to be paid under subsection (2) shall not exceed an amount equal to twice the value of the land at the date of the purported conveyance to the purchaser. (4) The Court may exercise the powers conferred in any proceedings although the proceedings are instituted before the commencement of this Act, and, in proceedings on appeal, although that the decision appealed against was given before the commencement date”. In LARTEY V HAUSA [1961] 2 GLR 773, Ollennu J (as he then was) held in holdings (3) and (4) thus: “(3) the Plaintiff is not estopped by acquiescence from claiming title. To be estopped by acquiescence his conduct must amount to fraud; he must have encouraged the defendant, acting in ignorance of his title to change his position in relation to the land in such a way that he cannot be adequately compensated in money or money’s worth. In the instant case there is evidence that the defendant was warned by the Plaintiff as soon as he entered the land; besides his temporary structure are worth not more than EG240; (4) the term ‘purchaser’ used in the Land Development (Protection of Purchasers) Act, 1960 (Act 2) means a bona fide purchaser for value of land, who, but for the defect in the title of his vendor or grantor would have been entitled to occupy the land as owner thereof. The term does not apply to a tenant or a licensee whose interest in the land can be determined on notice. The Defendant, a mere licensee cannot claim the benefit of the Act”. From all of the evidence on record supra that the Defendant was not an innocent purchaser as at the time he entered the land and rapidly built the house, there was evidence of Plaintiff’s possession in the form of dwarf walls, corner pillars, and sand placed on the land by Plaintiff. Also, the Defendant did not hold any conveyance on the land and did not conduct a search at the respective land divisions. The Defendant knew through the surveyors that there was an issue on the land and did not seek confirmation of its resolution and yet continued to build on the land. It is obvious then that the Defendant was trying to overreach the Plaintiff, trespassed onto the Plaintiff’s land and acted in bad faith. Accordingly, the defendant cannot be protected by the Land Development (Protection of Purchasers) Act (Act 2) as explained in the case of VAUGHAN-WILLIAMS VRS OPPONG [2015-2016] 1 SCGLR 781. The defendant’s counterclaim is therefore fails and is refused accordingly. CONCLUSION Based on the foregoing, all of the Plaintiff reliefs sought from this court are granted except the order for demolition of the Defendant’s structures on the disputed land which is refused. It is hereby declared as follows: 1. Declaration of title in favour of the Plaintiff Juliet Debrah to all that piece or parcel of land situate lying and being at Katamanso-Accra in the Greater Accra Region evidenced per the indenture dated 7th March 2008, and bounded on the North by a proposed road measuring 69.0 feet more or less, on the east by Lessors Land measuring 123 feet more or less, on the south by Lessors Land measuring 70 feet more or less and on the west by Lessors Land measuring 122.0 feet more or less and containing an approximate area of 0.20 acre or 0.08 hectares more or less. 2. An order of Perpetual injunction is granted to restrain the Defendant either by himself, agents, cohorts, privies, assigns, workmen, whomsoever or otherwise howsoever from further interference and harassment with the right, use and peaceful enjoyment of the said land by the Plaintiff. 3. An order for recovery of possession of the land in dispute is granted in favour of the Plaintiff. 4. GHC 10,000.00 is awarded as damages for trespass and unlawful damage to property. 5. GH 10,000.00 is awarded as costs. ENYONAM ADINYIRA, J. HIGH COURT JUDGE