TENGEY VRS BOATENG (C1/18/2021) [2023] GHACC 618 (30 November 2023)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON THE THURSDAY 30TH DAY OF NOVEMBER, 2023, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C1/18/21 JACOB TENGEY ---- PLAINTIFF VRS. ISAAC BOATENG ---- DEFENDANT PLAINTIFF PRESENT DEFENDANT ABSENT KWAKU ADU MINTAH, ESQ. FOR THE PLAINTIFF ABSENT DORCAS GYAWAH TWUM, ESQ, HOLDING BRIEF OF PAUL KOFI BOAKYE, ESQ. FOR THE DEFENDANT PRESENT JUDGMENT FACTS The plaintiff caused a writ of summons to be issued against the defendant on 23rd June, 2021 praying this court for the following reliefs; (a)Declaration of title to all that piece or parcel of land situate lying and being at Dawhenya in the Ningo-Prampram District of the Greater Accra Region containing an approximate area of 0.17 Acre or 0.07 Hectare and bounded on the North East by assignor’s land measuring 68.0 feet more or less, on the South East by assignor’s land measuring 105.7 feet more or less, on the South West by a proposed road measuring 72.0’ feet more or less and on the North West by a proposed road measuring 107.1’ feet more or less respectively which the said piece of land is more particularly delineated on the plan in favour of plaintiff. (b)Damages for trespass. (c) Order for recovery of possession. (d)An order for Perpetual Injunction restraining the defendant, his servants, assigns, agents, etc., or anyone claiming through or under him from dealing with the land or having anything whatsoever to do with the land in dispute. (e) Costs inclusive of Solicitor’s fees. (f)Any other orders the Court may deem fit. THE PLAINTIFF’S CASE The plaintiff’s case as gleaned from the pleadings is that he is a former employee of Nestle Ghana Ltd, Tema and resides at Community 2, Tema and the defendant is also resident at Community 8, Tema. The plaintiff avers that on or about 15th March 2005, Parco Ltd, an Estate Development Company, by a lease, acquired a piece or portion of land from Numo Narh Mensah, the then head of family of Osu-Wem in Prampram for a term of 99 years. He further states that Parco Ltd represented by one Peter Anang assigned the unexpired interest in the lease to the Local Union of Nestle Workers by a deed of assignment dated in or about March 2005. The plaintiff described the land in dispute as bounded on the North-East by the assignor’s land measuring 220.0 and 481.5 feet respectively more or less; on the South East by assignor’s land measuring 198.8, 270.7 and 201.5 feet respectively more or less; on the South West by the assignor’s land measuring 351.0 and 220 feet respectively more or less; and on the North West by a proposed road measuring 680.8 feet more or less and measures 5.874 acres or 2.377 hectares. Additionally, the plaintiff states that the total land acquired by the Nestle Workers Union was subsequently apportioned into twenty-two (22) plots and allocated to members of the Nestle Workers Union, including plaintiff, who had made payments for the land. He states that the relevant documents were executed by his grantor to enable him perfect his title to the land. The plaintiff says that in or about 2007, Parco Ltd granted him an indenture covering the land duly signed by the grantor and he has since taken steps to register his title to the land at the Lands Commission. He also erected corner pillars on the land to demarcate the extent of his land but the defendant has since destroyed all the pillars. According to the plaintiff, the defendant has trespassed unto the plots belonging to him in this case. The plaintiff says that he has since 2007 peaceably been in possession of the land without any interruption from anybody till the defendant, in the year 2019, started construction on the land. He further states that he verbally warned the defendant to desist from developing the land and cease all trespassory activities on the land but to no avail. The plaintiff avers that despite the warnings, the defendant hastily constructed a building on the land in dispute. According to the plaintiff, the defendant, on 30th July, 2020 caused his lawyer to write to him requesting that he assigns his interest in the land to the defendant. The plaintiff says that he declined the request by refusing to reply to the said letter as he was not ready to accede to the request to assign his interest in the land to defendant. The plaintiff states that the defendant has evinced a clear intention to persist in his trespassory activities on plaintiff’s land unless restrained by this Court. THE DEFENDANT’S CASE The defendant in his statement of defence filed on 27th January, 2022, vehemently denied the claim of the plaintiff. The defendant states that he has been ordinarily resident in the United Kingdom for the past 19 years and that in or about the year 2015, he was engaged by one Emmanuel Laryea through his representative in Ghana about the availability of the land in dispute for sale. Based on his instructions, his representative inspected the land and following series of engagements with the grantors, he acquired the land from Emmanuel Laryea, his grantor and a conveyance was issued in his name for “All that piece or parcel of land situate, being and lying at Community 25, in the Ningo Prapram District of the Greater Accra Region of the Republic of Ghana containing an approximate area of 0.18 acres or 0.07 hectares more or less on the North-East by a proposed road measuring 82.3 feet more or less, on the South-East by lessor’s land measuring 105.5 feet more or less, on the South- West by lessor’s land measuring 72.0 feet more or less on the North-West by lessor’s land measuring 101.7 feet more or less as the same and which piece of land is more particularly described and delineated on the plan attached hereto and, thereon shown edged pink which shows the relevant Measurements.” The defendant further states that later, a search conducted at the Lands Commission showed that the land in disputed was plotted in the name of the plaintiff but denied destroying the corner pillars of the plaintiff. In further answer, the defendant states that he acquired a vacant land from his grantors and took possession of same without any adverse claim until the plaintiff surfaced to challenge his ownership. The defendant further states that, upon being granted vacant possession, he started construction and his development on the land was in an advanced stage before the plaintiff surfaced to challenge his ownership to the disputed. The defendant again states that it was after the confrontation by the plaintiff that he caused a search to be conducted on the land in dispute at the Lands Commission, which said report revealed that the land was plotted in the name of the plaintiff. The defendant in further answer states that, he had long commenced construction and had done substantial works on the land before the plaintiff showed up and he invested in the land on the basis that, he was working on his lawful acquisition but not in haste as a trespasser as purported by the plaintiff. The defendant again states that when the interest of the plaintiff in the land came to his attention, he took steps to meet the plaintiff and that he requested his lawyers to write to the plaintiff to transfer his interest in the land to him but the plaintiff failed to respond to his letter. The defendant says that the silence of the plaintiff urged him on to continue his works on the land and he had prior to the issuance of the writ by the plaintiff, invested heavily on the land and the building is near completion. The plaintiff in reply joined issues with the defendant. The plaintiff says that the defendant’s alleged grantor is not even a member of Osu-Wem Family of Prampram to clothe him with a semblance of capacity to alienate the disputed land which at any rate had been granted to the plaintiff as far back as 2005. The plaintiff maintains that his land has been clearly demarcated with corner pillars and he had been in quiet possession of same until defendant started his trespassory acts. The plaintiff maintains that the disputed land is not just plotted in his name but same has been registered in his name a land title certificate issued to him. The plaintiff admits receiving a letter from the defendant’s solicitor requesting that he assigns his interest in the land to defendant but he deemed the letter contemptuous and therefore ignored it as same did not merit a response. The plaintiff further says that ignoring defendant’s letter does not in any way clothe defendant with capacity to develop plaintiff's land. The plaintiff maintains that defendant is a trespasser and prays the Court as per the reliefs endorsed on the writ of summons against defendant. At the application for directions stage, the court set down the following issues for determination. LEGAL ISSUES 1. Whether or not the plaintiff is the assignee of the disputed land after having acquired same from Parco Ltd? 2. Whether or not defendant has trespassed on the plaintiff’s land. 3. Any other issues that may reasonably arise out of the pleadings. At the conclusion of the trial, Counsel for the plaintiff filed a written address on 3rd October, 2023 and Counsel for the defendant filed an address on 10th October 2023, and the court gave due consideration to the respective address filed on behalf of the parties. THE BURDEN OF PROOF It is settled law that in civil cases, he who asserts must prove. The standard of proof required is on the preponderance of probabilities only. See Sections 11(4) and (12) of the Evidence Act, 1975(NRCD 323). In the case of In re Wa Na; Issah Bukari [2013-2014] 2 SCGLR 1590, the Supreme Court held in its holding 2 of the headnote that: “The Evidence Act, 1975(NRCD 323), has prescribed the applicable procedure in every proceedings including enquiries, investigations and hearings etc. thus a person was obliged under section 11(1) of NRCD 323 to introduce sufficient evidence to avoid a ruling against him on an issue… The burden was not discharged by merely entering the witness box and repeating claims or averments, as by leading admissible and credible evidence from which the facts asserted by them could be properly and safely inferred.” See also Memuna Moudy v. Antwi [2003-2004] 2 SCGLR 967 at 774-975. In the case of Yaa Kwasi v. Arhin [2007-2008] SCGLR 580, the SC held in its holding 1 that: “Since the plaintiff-appellant sued not only for a declaration of title but also damages for trespass and an order for perpetual injunction, he assumed the onerous burden of proof of title to the disputed land by the preponderance of probabilities as required by Section 11(1) and (4) and (12) of the Evidence Decree, 1975(NRDC 323), or risks the prospect of losing his case. The need for a defendant to also adduce evidence in a trial even when the defendant has not counterclaimed in amplified by Brobbey JSC (as he then was) in the case of Ashalley Botwe Lands; Adjetey Agbosu & Others v. Kotey and Others (2003- 2004) SCGLR 420, 464, when he stated that: “…. A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realise that it cannot be based on nothing. If the defendant desires the determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” Thus, the plaintiff having sued the defendant in this court for declaration of title to land bears the burden to prove his claim on a preponderance of probabilities for judgment failing which the claim of the plaintiff will be dismissed. The defendant is also under a duty to lead evidence based on which the court can evaluate the evidence and the party in whose favour the balance weighs will win. ANALYSIS ISSUE 1: Whether or not the plaintiff is the assignee of the disputed land after having acquired same from Parco Ltd? The Supreme Court in espousing on what a person asserting title must prove in the case of Mondial Veneer (GH) Ltd v. Amuah Gyebu XV [2011] 1 SCGLR 466 per Wood CJ held at page 475 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 title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party will be entitled to the claim.” Also, the courts have consistently held that where the identity of the disputed land is not in issue, there is no obligation cast on any of the parties in law to prove the identity of the land, which a party claims. See the case of Assafuah v. Arhin Davis [2013-2014] 2 SCGLR 1459. In the instant case, the identity of the land being claimed by the plaintiff is not in issue and the court will not embark on an extensive discussion of same. In proving his title to the disputed land, the plaintiff testified that whilst in the active employment of Nestle Ghana Ltd, their workers union known as Nestle Workers Union was approached by an estate development company known as Parco Ltd with an offer to sell land to members of the Union on terms. He expressed interest in the scheme and signed onto it to enable him acquire a parcel of the land that was on offer. Through engagement between the Union and Parco Ltd, he got to know that on or about 15th March, 2005, Parco Ltd by a lease acquired a piece or portion of land from Numo Narh Mensah, the then head of family of Osu-Wem in Prampram for a term of 99 years. A copy of the lease agreement between Numo Narh Mensah and Parco Limited, was tendered in evidence and admitted and marked Exhibit “A”. Parco Ltd represented by one Peter Anang following its engagement with the Nestle Workers Union assigned its unexpired interest in the lease to the Local Union of Nestle Workers. A copy of the site plan in the name of Nestle Local Union covering the entire land bought from Parco Ltd is attached hereto and marked Exhibit “B”. The plaintiff described the land in disputed as bounded on the North-East by the assignor’s land measuring 220.0 and 481.5 feet respectively more or less; on the South East by assignor’s land measuring 198.8, 270.7 and 201.5 feet respectively more or less; on the South West by the assignor’s land measuring 351.0 and 220 feet respectively more or less; and on the North West by a proposed road measuring 680.8 feet more or less and measures 5.874 acres or 2.377 hectares. The plaintiff further states that the total land acquired by the Nestle Workers Union from Parco Ltd at the request of the Union was subsequently apportioned into twenty-two plots and allocated to members of the Nestle Workers Union who had made payments for the land. According to the plaintiff, he was part of the 22 members who paid for the land and he was thereafter given documents covering the portion assigned to him by Parco Ltd to enable him perfect his title to the land. He tendered a copy of the document admitted and marked Exhibit “C”. The plaintiff states that he has since registered his interest in the land with the Lands Commission and has been issued a land certificate. A copy of this land title certificate was admitted and marked as Exhibit “D”. After he had been allocated his plot, he took steps to erect corner pillars on the land to demarcate its extent but the defendant has since destroyed all the pillars. The plaintiff states that he remained in quiet possession of the land from the period it was allocated to him in 2007 without any interruption from anybody until the defendant appeared out of nowhere in the year 2019 and started construction on his land. The plaintiff avers that he has on several occasions verbally warned the defendant and his workers to stay off his land and cease all their trespassory activities on the land but to no avail. Rather, in the face of all his warnings and protestations, the defendant is building a house on his land. He says that he has on several occasions asked the defendant to conduct a search at the Lands Commission to confirm his ownership of the land and on 30th July, 2020, the defendant caused his lawyer to write to him requesting that he assigns his interest in the land to the defendant. A copy of this letter is attached and marked Exhibit “E”. The plaintiff states that he declined this request by refusing to reply to the said letter as he was not prepared to accede to the request to assign his land to defendant. According to the plaintiff, the defendant, in the face of his own admission that the land belongs to him (the plaintiff), has forcibly taken over possession and has planted guards on the land who have since 2019 denied him access to his own land. The result of this is that his plan to develop the land to serve as his retirement home has been thwarted by the unlawful possession by the defendant. The plaintiff further states that it is not correct that his land was vacant in the year 2015 as he had long before that time erected corner pillars to demarcate its boundaries and he was making plans to start developing the land. The plaintiff denies that Emmanuel Laryea has any interest in his land to clothe him with capacity to alienate any part of it to defendant. According to the plaintiff, his checks with the Osu-Wem Family of Prampram, the original owners of the land shows that the said Emmanuel Laryea is not a member of that family but hails from La. The plaintiff maintains that, it is not correct that the defendant’s development on his land was at an advanced stage before he challenged him on the land. Indeed, the moment the defendant started digging on his land, he warned him to vacate the land but through intransigence, the defendant and his workers have persisted in their unlawful activities on his land till date, even after the defendant had become aware of the order of interlocutory injunction. In support of his case, the plaintiff’s witness, Isaac Korsi Xonya corroborated the plaintiff’s testimony on his acquisition of the disputed land when he testified that he and the plaintiff were former employees of Nestle Ghana Ltd but they are both currently on retirement. According to his testimony, in the year 2005 while he and the plaintiff were still in active employment of Nestle Ghana, their local workers union, known as Nestle Local Union acquired a parcel of land for valuable consideration from a company named Parco Limited. Parco Limited had originally acquired a large parcel of land inclusive of the portion their Union acquired from Numo Narh Mensah, the then head of family of Osu-Wem of Prampram. He states that the total land they acquired from Parco Limited and that the land is situate and lying at Dawhenya in the Ningo-Prampram District and succinctly described the boundaries of the disputed land. According to PW1, Parco Limited initially gave them a site plan in the name of Nestle Local Union covering the entire land they bought from them. The Union subsequently requested Parco Limited to apportion the land it had assigned to them into allotments to be allocated to members who had expressed interest in acquiring portions and had made payments towards that. He states that Parco Limited complied and apportioned the land into different allotments which were then allocated to members that had paid for it. He added that the plaintiff was allocated a portion of the land and his allocation was evidenced by a deed of assignment dated 26th July, 2007. PW1 further testified that the plaintiff submitted his documents for registration with the Lands Commission and has since obtained land title certificate covering his land. He submitted his documents at the same time and their land certificates came out around the same time. In the year 2005, after they had acquired their plots from Parco Limited, they erected corner pillars demarcating their respective lands and they remained in undisturbed possession of their respective plots till 2019 when the plaintiff informed him that the defendant has started his trespassory acts on plaintiff’s land. Thus, from the evidence adduced by the plaintiff and his witness, and the documents tendered in proof of his case, the plaintiff is the assignor of the land in dispute and was in possession of the land without let or hindrance until the defendant allegedly trespassed on same. The evidence of the plaintiff also indicates that the plaintiff has registered his title to the land in dispute and is in possession of a land title certificate which is prima facie evidence of plaintiff’s title to the disputed land. The plaintiff having discharged his burden of producing evidence, the burden now shifts to the defendant to produce cogent evidence to rebut Plaintiff’s case. In Seidu Mohamed v. Saanbaye Kangberee [2012] 2 SCGLR 1182 @ 1202 in Holding 3, the Supreme Court speaking through Dotse JSC stated that: “…by the mere fact that the plaintiff was able to produce a valid land title certificate which constitutes prima facie evidence of good title, the defendant also needs to produce very cogent evidence to rebut this presumptions of good title” The defendant testified for himself and did not call any witness. According to the defendant, in the year 2015, he, acting through his representative in Ghana, was engaged by one Emmanuel Laryea about the availability of the land in dispute for sale. Based on that, his representative inspected the land and following a series of engagements with the grantor, he acquired the land from Emmanuel Laryea, and a deed of conveyance was issued in his name to cover the grant. In support, he tendered in evidence Exhibit “1”, a copy of the lease issued to him to cover the grant. He states that he later approached the Osu-Wem Family of Prampram, the original owners of the land to confirm the grant made to him by Emmanuel Laryea. He tendered in evidence Exhibit 2, a copy of the confirmation document issued by the Osu-Wem Family. The defendant further claims that he acquired a vacant land from his grantors, took possession of same without any adverse claim and started the construction of his residential home on it. According to him, he peaceably enjoyed the land and continued the construction works until later in time when the plaintiff surfaced to claim interest in the land to the extent that he had applied for land title at the Lands Commission. According to the defendant, his building construction on the land was in an advanced state before the plaintiff surfaced to claim ownership of the land. He tendered in evidence Exhibit “3” a copy of a letter he caused his lawyers to write to the plaintiff confirming the extent of construction works at the time the plaintiff surfaced to claim interest in the land. He then caused a search to be conducted at the Lands Commission, Accra to ascertain the claims of the plaintiff and the search report confirmed the registration processes of the plaintiff. The defendant states that upon ascertaining the interest of the plaintiff in the land, he tried to engage the plaintiff to reach an amicable settlement with him since he had invested substantially in the building on the land and the project was near completion. The defendant states that it had never been his intention to litigate with the plaintiff but to humbly request the plaintiff to transfer his interest in the land to him upon agreeing and paying the due consideration to the plaintiff. The defendant states that his investment in the building was so much that he could only admonish the plaintiff to cede his interest to him upon an amicable settlement. In support, he tendered in evidence Exhibit “3” copy of a letter his lawyers wrote to the plaintiff requesting for settlement. The plaintiff neither responded to his lawyer’s letter nor the several attempts he made to him towards settlement. According to the defendant, he acquired the land from the Osu-Wem family, the original owners of the land and his investments in the land should not be disregarded since he is ready and willing to pay the realistic compensation to the plaintiff. In support, the defendant tendered in evidence Exhibit “4” series which are photos of the building depicting the extent of his investments on the land. The defendant states that, he acquired the land innocently without knowing the interest of the plaintiff in the land since he was granted a vacant land by his grantors without any demonstration of the presence of the plaintiff on the land when he went into possession. The defendant maintains plaintiff only came late in time to assert interest in the land which at the time he had expended so much into building on the land. The defendant therefore seeks the intervention of the honourable court to get the parties to settle amicably. From the defendants Exhibit “1” the indenture made between Emmanuel Laryea and Isaac Boateng, the defendant herein, it is dated 13th July, 2015 but the oath of proof is dated 13th July, 2022. In Exhibit “2” which is titled “Deed of Confirmation”, one Abraham Nortey who described himself as the head and lawful representative of the Osu-Wem Family, sought to confirm the grant made by Emmanuel Laryea subject to the payment of consideration by the defendant herein who had stated construction on the land. Again, in Exhibit “3", Counsel for the defendant wrote to the plaintiff acknowledging his interest in the land and further acknowledging that further search shows that the plaintiff had even registered his interest in the land in dispute. The plaintiff tendered in evidence photographs of the stage of the building which was at an advanced stage as at 3rd October, 2022. From the evidence led by the defendant to rebut the presumption of good title in favour of the plaintiff who is possession of a land title certificate, it is clear that the defendant admits the plaintiff’s ownership to the land save that he has invested heavily on the land and the plaintiff should transfer his interest in the land to him. In the case of Re Asere Stool; Kotei v. Asere Stool [1961] GLR SC 493, the Supreme Court held that: “Where a party has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than relying on such admission which is an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he has formally asserted. This type of rule is a salutary rule of evidence based on common sense and expediency” Thus, the defendant having admitted the validity of the plaintiff’s land title certificate and the earlier acquisition of the land in dispute by the plaintiff, there is no room for conjectures than to rely on the admitted facts to support the claim of the plaintiff to the land in dispute. Further to that, at the time the plaintiff allegedly acquired the land from Emanuel Laryea in the year 2015 and the purported confirmation of the grant to the defendant by the head of the Osu-Wem family, the plaintiff had already acquired an assignment of the interest of Parco Limited who acquired a lease from the Osu-Wem family in the year 2005. Thus, the Osu-Wem family, having divested itself of any interest in the disputed land could not have purported to regularise the transaction between Emmanuel Laryea and the defendant based on the principle of demo dat quod non habet. See the case of Tetteh v. Hayford [2012] 1 SCGLR 417 at 430. Thus, on the evidence led by the plaintiff and the defendant, I find that the plaintiff proved his title to the disputed land. Both Counsel for the plaintiff and Counsel for the defendant in their respective addresses discussed the issue of bona fide purchaser for value without notice under the issue “any other issue arising out of the pleadings”. This is a defence which should have been specifically pleaded and proved. The defendant in his pleadings states that when he noticed the plaintiff’s interest in the land, he caused his lawyer to write to him to transfer his interest since he had made substantial investment on the land. During the trial, the evidence focused on whether the defendant had notice of the plaintiff’s interest in the disputed land or could be described as a bona fide purchaser for value without notice. The defendant maintained in his evidence that he did not know that the land was encumbered at the time he purported to acquire same. The plaintiff in his evidence testified that he turned down plaintiff’s offer to him to buy his interest in the land since he acquired the land to build his retirement home. The plaintiff also maintains that he warned the defendant severally to desist from developing the land. In my considered opinion, it behoves on a party relying on a plea of bona fide purchaser for value without notice, to prove that he acted in good faith. It is the contention of the defendant that he only conducted a search on the land when the plaintiff raised issues about his ownership of the land at a time that he had already invested heavily in the land in dispute. The defendant who was desirous of purchasing the land in dispute should have done due diligence and failure to do so, he is deemed to have actual and or constructive notice of all that a prudent purchaser would have discovered through diligent search. In the case of Kusi & Kusi v Bonsu [2010] SCGLR 60, the law as clearly summed up in the judgment of the majority, delivered through Wood (CJ) at page 88 as follows: “It is trite learning that any person desirous of acquiring property (Land) ought to properly investigate the root of title of his vendor…In our view, the steps they took are not the adequate steps of a prudent purchaser of this particular property. Indeed, had they extended their search to the Lands Department, Kumasi, the statutory body that kept official records of lands in Kumasi, they would have known that the land was encumbered”. The Supreme Court of Ghana has also shed light on this requirement in the often- cited case of Aryee v Shell Ghana Ltd and Another [2017-2020] 1 SCGLR 721, In this case, the Supreme Court held in its holding 3 that “The notice required by a purchaser relying on the plea of innocent or bona fide purchaser for value without notice did not mean only notice of registration of title but also notice of possession by the first purchase, grantee, or lessee or their agent. Accordingly, an intending purchaser must make reasonable inquiries in respect of the property, which was to be acquired. That involved legal searches at the land registry and a physical inspection of the land to ensure it was free from encumbrances. Thus, an intending purchaser must enquire from the occupants of the land he intended to purchase their authority for staying on the land. And where there were structures on the land, the duty of a prudent purchaser was to find out who must have erected the structure on the land.” In the instant case, the defendant has not demonstrated that he was a prudent purchaser. If the defendant been diligent in his search, he would have noticed on the face of the land documents issued to him that he was not dealing with the right person concerning the land. The contention of the defendant that since he has built on the land which is near completion, the plaintiff should be made to transfer his interest in the land for a handsome compensation is untenable. In the case of Seidu Mohamed v. Saanbaye Kangberee, supra, the Supreme Court held per curiam that a pronouncement by a trial High Court Judge that because the defendant had speedily completed the house he should be deemed as being in effective occupation is a dangerous precedent that should not be allowed to prevail since it has he tendency to aid the rich and wealthy in our society who may decide to be unscrupulous in their conduct in land transactions. The Supreme Court further held that “the defendant not having pleaded the equitable doctrine or principle of bona fide purchaser for valuable consideration without notice; or the protection provided by and under the Land Development (Protection of Purchasers)Act, 1960 (Act 2), the defendant cannot avail himself of these defences because of his conduct. He who comes to equity must come with clean hands is an equitable maxim.” From the above exposition of the law, the defendant cannot base on the fact of his completion of the building for the court to compel the plaintiff to transfer his interest in the land to him since he has not demonstrated that he was a prudent purchaser as shown by the evidence led by the defendant himself. The defendant did not conduct any search at the Land Registry or physical search on the land to ascertain if the land was in any way encumbered before parting with money. Under cross-examination by counsel for the plaintiff, the defendant admitted that he was not diligent when he testified that because he is resident in the United Kingdom, and usually comes to Ghana on a short visit, he trusted people to handle the land transaction for on his behalf. Additionally, on the evidence, the plaintiff was not indolent in protecting his interest in the land since he persistently warned the defendant to desist from constructing on the land since he was the owner of the land but in defiance of the warnings from the plaintiff, the defendant continued his construction on the land. The failure of the plaintiff to respond to the letter of the defendant’s Counsel urging him to sell his interest to the defendant because he had invested in the disputed land is not sufficient to conclude that the plaintiff slept on his rights. From the pictures attached to the application for interlocutory injunction filed by Counsel for the plaintiff on 23rd June, 2021, the property was not at an advanced stage but rather the ground floor which was uncompleted but in Exhibit “4", tendered by the defendant, the building was complete which means that even during the pendency of this suit, the construction was still ongoing in blatant disregard of the order of injunction as Counsel for the plaintiff lamented in his written address to the court. The defence of bona fide purchaser for value without notice is unfounded. On the totality of the evidence led by the plaintiff and the defence put up by defendant, I hold that the plaintiff proved his title to the disputed land on a balance of probabilities. The plaintiff therefore succeeds in his claim of title to the disputed land. ISSUE 2: Whether or not the defendant has trespassed on the plaintiff’s land. In the case of Odonkor and others Vs. Amartei [1992] 1 GLR 577, at page 587, the Supreme Court per Hayfron-Benjamin JSC held that: “Trespass to land was committed by injury to or interference with one’s possession. Accordingly, the cardinal principle in an action for trespass to land was that the plaintiff had to establish that he was in exclusive possession of the land at the time of the trespass and that the trespass was without justification”. Also, in the case of Ebusuapanyin Akuma Mensah v. Nana Atta Komfo II [2015] DLCA8016 39 @ 80, C. A, the Court of Appeal speaking through Barbara Ackah- Yensu JA (as she then was) opined that :“ As with all forms of trespass, there must be directness; the plaintiff must prove direct invasion of the defendant on his land for a claim of trespass to succeed…” From the conclusion of the court on the analysis of issue one that the plaintiff is the true owner and was in possession of the land in dispute at the time the defendant entered same, the actions of the defendant in entering onto the land of the plaintiff and constructing on the land without showing a better title than that of the plaintiff constitutes trespass to land. I therefore hold that the defendant trespassed onto the land of the plaintiff. The plaintiff claims damages for trespass against the defendant. In the case of Odonkor and others Vs. Amartei, supra, the Supreme Court held in its holding 6 that: “in action for trespass to land, damages were at large. Accordingly there was no need to plead or prove special damages". The principles governing the award of damages for trespass as stated by Court of Appeal in the case of Laryea v. Oforiwah (1984-86) 2 GLR 411 at page 429, is that: "In awarding damages for trespass to land regard should be had to the acreage of land on which the trespass was committed the period of wrongful occupation and the damage caused" In the instant case, having regard to the size of the land in dispute, the extent of the injury caused to the land of the plaintiff , the period of the wrongful possession of the land and recalcitrance of the defendant in continuing to build a storey building to completion on the land despite his findings confirming the plaintiff’s title to the land, blatant disregard of the warnings from the plaintiff and the order of injunction, I will award an amount of Twenty Thousand Ghana Cedis (GH₵20,000) as damages for trespass against the defendant in favour of the plaintiff. CONCLUSION In conclusion, I hold that the plaintiff proved his title to the disputed land on a balance of probabilities. I therefore enter judgment for the plaintiff on the reliefs sought against the defendant in the following terms; 1. I hereby declare title in favour of the plaintiff to all that piece or parcel of land situate lying and being at Dawhenya in the Ningo-Prampram District of the Greater Accra Region containing an approximate area of 0.17 Acre or 0.07 Hectare and bounded on the North East by assignor’s land measuring 68.0’ feet more or less, on the South East by assignor’s land measuring 105.7 feet more or less, on the South West by a proposed road measuring 72.0’ feet more or less and on the North West by a proposed road measuring 107.1’ feet more or less respectively which the said piece of land is more particularly delineated on the plan in favour of plaintiff. 2. I hereby grant an order for the recovery of possession of the disputed land from the defendant. 3. An order for Perpetual Injunction is granted restraining the defendant, his servants, assigns, agents, etc., or anyone claiming through or under him from dealing with the land or having anything whatsoever to do with the land of the plaintiff. 4. I hereby award an amount of Twenty Thousand Ghana Cedis (GH₵20,000) as damages for trespass. Award of Costs It is trite learning that the award of costs is at the discretion of the Court and like all discretionary powers, it must be exercised judiciously and in accordance with sound principles of law. See Article 296 of the 1992 Constitution. Order 74 of the High Court (Civil Procedure) Rules, 2004, CI. 47 governs the award of costs. Akamba JA( as he then was) in the case of Tema Oil Refinery v. African Automobile Ltd. [2010] DLCA 6596 stated inter alia that: “…It is significant to point out that an award of costs is designed to compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made and provide reasonable remuneration for the lawyer of that party for work done by the lawyer. The court in assessing the amount of costs to be awarded may have regard also to the amount of expenses, including travelling expenses reasonably incurred by the party or his lawyer or both in relation to the proceedings; the amount of court fees paid by the party or his lawyer in relation to the proceeding; the length and complexity of the proceeding; the conduct of the parties and their lawyers during the proceedings and any previous order as to costs made in the proceedings.” The court emphasised the need for lawyers to file record of work done and fees attached as well as the basis for the figures claimed to serve as a guide to the court in awarding costs. The court gave the defence Counsel the opportunity to address the court on costs but Counsel left it to the discretion of the court. Counsel for the plaintiff was also not in court to address on the issue of costs. Considering the reasonable expenses incurred by the plaintiff in filing processes and remunerating his lawyer, the length of the trial and the number of court sittings, travel expenses in relation to the proceedings, and the fact that the defendant testified virtually and the parties and their lawyers were not physically present in court. I will award an amount of Ten Thousand Ghana Cedis (GH₵10,000) as costs in favour of the plaintiff against the defendant. 5. Cost of Ten Thousand Ghana Cedis (GH₵10,000) is awarded against the defendant in favour of the plaintiff. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 24