AMARTEY VRS. THE PLOT ALLOCATION COMMITTEE AND ANOTHER (A1/03/22) [2023] GHADC 1316 (19 December 2023)

IN THE DISTRICT COURT KIBI, EASTERN REGION, HELD ON TUESDAY 19TH DECEMBER, 2023 BEFORE HER WORSHIP MRS. JULIET OSEI – DUEDU SITTING AS THE MAGISTRATE REV. ELSIENA AMARTEY PLAINTIFF SUIT NUMBER: A1/03/22 VRS THE PLOT ALLOCATION COMMITTEE FIRST DEFENDANT PER ITS CHAIRMAN TEACHER YEBOAH SECOND DEFENDANT JUDGMENT By her writ of summons, issued against the defendants in this case on the 20th October 2021, plaintiff herein, prays as follows; “a. Declaration of title to all that piece or parcel of land being and lying at a place commonly known and called Pararubber at Kyebi, measuring 160ft by 200ft and bounded by a road on two sides and undeveloped land on the other two sides. b. Recovery of possession. c. Perpetual injunction restraining the defendants, their agents, workmen and personal representatives or assigns from dealing with the land the subject matter of this action, pending the final determination by this Honourable Court. d. An order to pay general damages for trespass. e. An order directed at defendants to pay special damages of sixty – one thousand, two hundred and seventy cedis (GHC 61, 270) for the destruction of plaintiff’s property. f. Costs g. Any other orders as the Honourable Court shall deem fit.” Per plaintiff’s statement of claim, the brief facts leading to the present action are that, she bought a piece of land from first defendant (D1) in December, 2014 and begun developing same into a church building camp structures that very year. Sometime in October, 2021, defendants started grading a piece of land adjacent to hers and extended the clearing onto portions of her land. Upon confronting the defendants, she was informed that their exercise was for the sale of the adjacent land and so promised to return plaintiff’s land to her after a survey by their surveyor. She was subsequently summoned at the Kyebi Palace and threatened to have her property destroyed when she could not produce the originals of her land documents, upon demand. Defendant thereafter carried their threat through and destroyed her property worth, GHC 61, 270.00, hence the present action. The defendants who disputed and or denied the facts as set out by the plaintiff, filed their amended statement of defence and counterclaim on the 22nd September, 2022, with the following reliefs against the plaintiff; “a. That this Honourable Court causes Plaintiff to pay an amount of Hundred Thousand Ghana Cedis (GHC 100,000.00) being cost of reclamation exercise carried out to restore lands destroyed by plaintiff’s illegal mining activities. b. General Damages. c. Costs.” Defendants’ counterclaim was premised on the fact that the plaintiff had refused to reclaim her land after using same for illegal mining so defendants were forced to expend the GHC 100,000.00, in doing so. These facts were however denied by plaintiff in her defence to the counterclaim. The general rule in civil trials as in the instant case is that, the party who in his pleadings or his writ raises issues essential to his case assumes the onus of proof, Bank of WestAfrica Ltd. V Akun [1963]1 GLR 176 SC, applied. And the standard burden of proof in all civil matters as postulated by the Evidence Act 1975 (NRCD 323,) sections 11(4) and 12(1), is proof by the preponderance of probabilities. Section 12(2) of the Act also, defines proof by a preponderance of probabilities to mean the degree of certainty of belief in the mind of the court by which it is convinced that the existence of a fact is more probable than its non – existence. And the Supreme Court in the case of Nana Obiri Boahen V Golden Age Company [2021] 173 G. M. J. 519 @527, reiterated that proof in a civil matter is on the preponderance of probabilities and defined same in the exact provision in section 12(2), stated above. Primarily, the burden of proof is usually on the plaintiff because he makes the primary averments upon the institution of the action. However, where a defendant as the defendants herein, has a counterclaim, the same primary burden and standard of proof are placed on him as it is on the plaintiff. According to Orders 15 and 18 rule 13 of the District Court Rules 2009 (CI 59) also, a counterclaim is a relief available to any defendant which can be claimed against the plaintiff in the action instituted by the plaintiff. It however has the same effect as the claim of the plaintiff. Since this is a cross action, the parties bear the same burden in convincing the court on their claim and counterclaim, respectively. At the trail of this case, plaintiff testified in her person and called one witness in support of her case, while defendants called one witness to testify on their behalf. It is the case of the plaintiff that, in the year 2014, she purchased a parcel of land, four (4) plots of land to be precise, measuring 160 by 200 feet from the Kyebi Plot Allocation Committee and first defendant in this case. The first defendant is the body responsible for land allocations in Kyebi for and on behalf of the stool, with second defendant being its chairman at the time of the transactions between plaintiff and the second defendant. Plaintiff after the purchase of the land had been in uninterrupted possession of same with no challenge whatsoever to her ownership and possession. She thus, developed the land by constructing various structures for church activities on a portion and farming on the other part. Somewhere in October, 2021, while on her land, plaintiff saw three persons one Yaw Nti, Kwame Asiedu and another Kwame who were grading an adjourning land, move unto her own and began grading portions as well. According to plaintiff upon seeing that, she quickly called in the police who warned the perpetrators to desist from their unlawful acts of trespass. Upon interrogations by the police, the trespassers named the first defendant committee as the one who instructed them to clear plaintiff’s land. According to plaintiff again, shortly after the incident, she was summoned before the first defendant committee and asked to prove her ownership of the land by producing the original copies of her documents. She could not do so because the said copies were with her husband who had by then travelled. She was warned by the committee members to produce the original documents in a week’s time or risk her land being graded by the committee. The defendants thereafter, proceeded to unlawfully grade her land and in the process, caused damage to her structures and food crops to the tune of GHC 61, 270.00. It is the case of the defendants on the other hand that, the first defendant is a body established with the aim of assisting the Okyeman Stool alienate its land and the Kyebi Traditional Council to plan and coordinate the development of Kyebi together with the Kyebi Municipal Assembly. As such, it only recommends applications for grant of stool lands as well as assist the Traditional Council for planning purposes. It is upon the approval of the stool for a grant of land to an applicant that, first defendant then issues the applicant with an allocation certificate with details including the number of plots, location and the purpose for which the land is allocated. It is after all these, that an applicant then applies to the stool for a proper indenture between them and the stool. The essence of the allocation certificate, is thus, to indicate the preparedness of their holders to apply for proper indenture. It is in the mandate of first defendant beautifully stated above that it made recommendations to the stool and plaintiff was granted the four plots of land, the subject matter in this dispute. Plaintiff was accordingly issued with an allocation certificate, a copy tendered as exhibit 1, which is the same as plaintiff’s exhibit A. The parcel of land allocated to the plaintiff is situated at Kyebi Domeabra, a place commonly called, Pararubber area. They were strictly for residential purposes as the entire area has been earmarked for residential development only, by the Municipal Assembly. The use of the said land by plaintiff for church activities and illegal mining are at variance with the certificate and also in violation of the Assembly’s development plan, there being no new agreement to the contrary. Per defendants’ testimony again, following reports of illegal activities in the Pararubber area, first defendant committee was tasked by the stool to ascertain the veracity or otherwise of the said reports. A visit to the place revealed that plaintiff in concert with other persons, were using the disputed land and other nearby lands for illegal mining, referred to as galamsey in the local parlance. The stool was notified of the committee’s finding and plaintiff was invited to the palace accordingly in October, 2020. Plaintiff admitted culpability to the illegal usage of the land for galamsey. The stool during its investigations into the matter demanded that plaintiff produces her indenture indicative of her ownership of the disputed land but could not, since she had none. Upon her admission to the illegal mining, plaintiff was fined by the stool and asked to reclaim the land so destroyed by her activities but she failed to do so. It was in respect of plaintiff’s failure to comply with the order to reclaim the land so destroyed that the first defendant took it upon itself to do so. The first defendant did not destroy any property of the plaintiff but only reclaimed the land destroyed by plaintiff’s illegal mining activities and incurred the sum of GHC 100,000.00, to that effect. Plaintiff in her evidence disputed her personal involvement in the alleged illegal mining but attributed same to one Pizor, who undertook the said activity without her consent. According to plaintiff, she engaged the said Pizor for a different service on the land but he ended up in using it for galamsey activities which he extended to her two (2) plots of land earlier purchased in May, 2009. They were summoned by the first defendant committee to the palace on this issue. The matter was resolved by plaintiff being compelled to pay GHC 4,000.00, as compensation for the damage caused through the said illegal activities. The committee agreed thereafter, to compel Pizor to level the damaged land but they failed to do so. This matter was thus, resolved, two and a half years before the initiation of the present action. And at the end of the trial, the following facts became undisputed; 1. That the defendants are the proper persons to be sued in this matter, this fact having already been so decided by the court in its ruling dated, 10th May, 2022. Defendants being dissatisfied with the court’s decision, applied and were granted leave by the court to appeal against its interlocutory decision on the 23rd June, 2022. Defendant subsequently, came back to this court for leave to file an amended statement of defence and so filed the pursuant amended defence and counterclaim on 22nd September, 2022. Since defendants were given every opportunity to pursue their contention on their capacity at the appellate court but failed to do so, they are forever estopped from raising the issue again in this very court. The court in the given circumstances lacks the jurisdiction to reconsider its earlier decision on the issue since it cannot review its earlier decision in this judgment. In this regard, defendants are deemed to have admitted that they are the proper persons to be sued. This fact is undisputed despite the detailed terms of reference and or mandate painstakingly, elucidated by defendant’s witness in his testimony. 2. That plaintiff on the 15th December, 2014, was allocated 4 plots of land for residential purposes, by the first defendant committee with the second defendant as its chairman, who duly signed the allocation paper covering the said transaction. 3. That plaintiff took immediate possession of the said land and had remained on same without any interference from anybody until the events leading to this matter. 4. Thus, the second defendant per the title of the case is not being sued in his personal capacity but in his capacity as the chairman of the first defendant committee. This fact is inferred by plaintiff’s use of the word, ’per’ in the title of the suit which means, ‘though or by means of.’ 5. That beyond plaintiff’s evidence that D2 was the chairman of the first defendant committee at the time of purchase, there is no evidence of any cause of action against him. D2 cannot therefore be a separate party to the suit but the person through whom the first defendant is brought to court. Hence, though the title of the case remains the same, D2 is hereby ceases to be considered as such. First defendant is hereafter, referred to as the defendant simpliciter in this case. 6. That the disputed land is the 4 plots of land, measuring 160 by 200 feet and it’s situated at a place commonly known as, Kyebi Pararubber, Akwadum Road. 7. That plaintiff used the said land for church services instead. 8. That one Pizor, engaged by plaintiff to work on her land used same for illegal mining, to wit, galamsey. With these facts so settled the issues which called for resolution by the court are; 1. Whether the use of the disputed land for church activities is in breach of an agreed term by the parties. 2. Whether any breach of covenant or condition by the plaintiff entitles the defendant to re – entry. 3. Whether plaintiff can be charged with any expenses incurred by defendant in its alleged reclamation. 4. Whether or not defendant upon re – entry onto plaintiff’s land caused damage to her properties. I will address these issues seriatim. First is the issue of whether or not plaintiff by using the land for church activities breached an agreed covenant of the parties. There is no gainsaying the fact that plaintiff has no title document or deed of sale or lease or indenture to the four plots of land. The only document plaintiff has on the disputed land is exhibit A, the allocation certificate issued by defendant and duIy signed by its chairman. The defendant does not dispute this fact as earlier observed in this judgment and in fact tendered a copy of this same certificate as its exhibit 1. At this initial stage of the parties’ transaction therefore, the only terms of agreement are those stated in exhibit A. And per exhibit A, which can best be described as an agreement for a lease, considering the fact that the land concerned is stool land, the purpose for the said allocation is clearly stated in bold letters as, residential. Plaintiff admitted to this fact in her cross – examination as follows; Q. In respect of the parcel of land you bought from the first defendant, there was a condition as to the usage of land, that is all the plots. A. What I know is that if you don’t develop the land allocated to you after two years, you would have to renew the certificate. Q. Aside this condition was another condition that the land was for residential purposes. A. Yes, there was. Q. In respect of the four plots of land, what are you using it for currently? A. Presently, I cannot go onto the land because there is an injunction on it. Q. What were you using the four plots of land for before the court order? A. Church services. Q. So you will agree with me that you did not sue the four plots of land for the purpose for which you applied. A. Yes, but we bought the land specifically for church services and before we started the church services too, we went to see the late Abontendomhene through a chief, one Okyeame Yaw Darkwa with schnapps and drink for permission. Q. Did you buy this land from the Abontendomhene of the plot allocation committee? A. I bought from the plot allocation committee but before I did so, I made it clear to them that it was for church purposes. If indeed plaintiff pre – informed defendant before the allocation was made, why wasn’t her alleged purpose varied accordingly? Better yet, why the need for that special permission at an extra cost if, defendant committee was already aware of the land being meant for church activities? Again, since defendant was made aware of the exceptional usage of the land by the plaintiff, contrary to the agreed purpose stated in exhibit A, why didn’t plaintiff seek the said permission from the very body that so allocated the land to her, the defendant committee itself? Also, the sub chief who allegedly permitted plaintiff’s usage of the land otherwise, did he have the authority to do so per the customs and traditions of the land or the terms of reference of the defendant committee? Unfortunately, plaintiff could not call him as a witness to answer these questions because he is deceased. What about the alleged Okyeame who so led plaintiff to seek the permission, why couldn’t plaintiff call him as a witness to explain the circumstances surrounding the change in personality regarding plaintiff’s alleged permission. Plaintiff’s evidence fails to answer all these nagging questions. The fact that the area is concerned at the time of acquisition or even currently is a forest area does not negate the fact that it is earmarked for residential user by the Assembly as defendant is alleging. To earmark an area for a particular user, simply means to set that area aside for the said purpose, whether or not it is an outskirt of a town or a forest. Afterall, the very townships currently so seen were once forest areas. In any case, plaintiff at the time of the acquisition was fully aware of the user condition and yet, with her eyes wide open and without any duress or compulsion agreed to same and paid the necessary consideration to birth the said contract. Having so accepted the terms boldly documented in exhibit A, plaintiff is precluded from leading oral evidence, inconsistent or contrary to same. The law is certain that where there is an inconsistency between oral and documentary evidence, the documentary evidence should be preferred, Joyce Yeboah V Charles Asamoah (Civil Appeal No. J4/25/2012,1st November, 2023), unreported, referred. This court on the basis of the above, gives preference to the documentary evidence exhibit A, and hold that plaintiff’s usage of the disputed land for her church activities, is in clear breach of the residential user in particular, agreed upon by the parties. The question then is, whether any breach of the user condition of the disputed land by the plaintiff entitles the defendant to re – entry. It is the case of the defendant invariably that it re-entered plaintiff’s land to reclaim same after her alleged admission to having used the land for illegal mining together with others, and her failure to rehabilitate same. Hence, the only reason defendant entered onto plaintiff’s land, was the alleged admission of her involvement in galamsey but not the change in usage. Per the defendant again, plaintiff was asked to produce her proof of ownership in the nature of an indenture but she could not do so. In essence, there is no lease properly so called between the parties per defendant’s testimony. It is not in dispute that, there is no formal lease agreement between the parties, and that the only document covering the lease agreement between the parties, is the allocation certificate. As rightly stated by Counsel for plaintiff in her written address, per the case of Boateng (No.2) V Manu (No.2) and Anorther [2007 – 2008] SCGLR 1117, an allocation note is but an initial process evidencing the acquisition of land by a person. The allocation paper such as exhibit A in this case, is therefore, is prima facie evidence of a transaction and not evidence of ownership of land stricto senso, or title to land. This notwithstanding, exhibit A represents the initial process, of a lease agreement between the parties regarding the disputed land. As such, it is indicative of the fact that the land in dispute has been validly acquired by the plaintiff, especially when defendant does not dispute the said allocation. In equity therefore, what the parties have at this stage of their transaction, is an equitable lease with plaintiff as the lessee becoming the equitable owner of the property, and the defendant as the grantor or lessor becoming the trustee or legal owner for the lessee in respect of the demised property. The transaction can also, best be described as a contract for a lease which, is trite that it is as good as a lease. What defendants should know is that, they cannot approbate and reprobate at the same time. Having so relied on exhibit A to establish plaintiff’s breach of a condition, they cannot run away from same by disregarding its existence and demanding, ‘further and better particulars’ in proof of ownership. In the circumstances of this case, exhibit A applies in toto to all the acts done by the parties. That said, it is notable that, there is no specific term of right of re – entry stated in exhibit A. Granted without admitting that there is even a forfeiture clause in exhibit A, defendant should know that, it cannot forcibly take over the land in the name of re – entry. Defendant fails to realize or appreciate that even, the mere serving of notice of re – entry in the nature of the ultimatum given to plaintiff regarding the production of her documents, would not clothe them with capacity to exercise the right of re – entry. A forfeiture or re – entry clause if even present in a contract of lease, cannot be enforced without first complying with section 57 of the Land Act 2020, (Act 1036.) The procedure stated in this law as an alternative to instituting a court action in the exercise of a right of re – entry by a lessor as in the instant case, is precisely as outlined by Learned Counsel for plaintiff in her address. The lessor is required to first serve notice on the lessee and specify the particular breach of the covenant, condition or agreement in the lease. The lessor shall further require the lessee to remedy the breach provided it is remediable, and where it is not, require that, the lessee pays a reasonable monetary compensation. The lessee must have knowledge of the notice of re – entry, and fail to remedy the breach if possible or pay the compensation to the satisfaction of the lessor, before the lessor can exercise the right to re - entry. This procedure being a restriction to re – entry must be strictly complied with before the actual right of re – entry can be exercised. In the instant case also, with the court considering exhibit A in the light of a lease, as earlier indicated, defendant needed to strictly comply with the procedural requirements above before moving back onto plaintiff’s land, that is the disputed land. First of all, there must be the existence of such a right for a specified breach in exhibit A, before the whole procedural requirement stated above can be set in motion. This is the fact within the meaning and intendment of section 57(1) of Act 1036. The said law provides as follows; “A right of re – entry or forfeiture under a provision in a lease for a breach of a covenant, condition or agreement in the lease is not enforceable by a court action or any other means, unless…” the lessor satisfies all the procedural requirements stated above. There is no such right of re – entry in exhibit A. That being the case, not even plaintiff’s church user of the disputed land, in breach of exhibit A, entitles defendant to re – enter plaintiff’s land. And even if defendant decided to enter plaintiff’s land in the absence of evidence in proof of her ownership, I have already stated that the committee was precluded from doing so in the circumstances of this case. On the available evidence therefore, I find and hold that not even the alleged breach of use of the disputed land by the plaintiff does not entitle defendant to re – enter same. Regarding the next issue of whether plaintiff can be charged with any expenses incurred by defendant in its alleged reclamation, the least said about it the better. I say this because, defendants ‘s reason for the re – entry is one of a crime allegedly perpetrated by the plaintiff. According to the testimony of defendant’s witness, in October 2020, plaintiff was summoned before the stool and upon her admission of using the disputed land for galamsey, she was fined by the stool and also asked to reclaim the land so destroyed but she failed to do so. This is what warranted the defendant to move onto plaintiff’s land to reclaim same. The cost of the said reclamation exercise is the GHC 100,000.00, defendant is claiming from the plaintiff. If indeed plaintiff so admitted culpability for the crime of illegal mining as defendant is alleging, then their approach to dealing with the said confession is completely wrong and offends the criminal jurisprudence or laws and procedure of the land. Defendant’s witness being fully aware of these facts had this to say in cross – examination; Q. So you know when someone alleges that another person has committed a criminal offence like, stealing or murder a complaint is lodged at the police station. A. That is correct. Q. And you will agree with me that after a complaint is lodged at the Police Station, the police conduct investigations and arraign the person before court not so? A. That is so. Q. And it is your case that plaintiff has used her four plots of land allocated to her by the first defendant for illegal mining or galamsey. Not so? A. That is so. Q. Are you aware that illegal mining is a criminal punishable under the laws of Ghana? A. Yes, I know. Q. And I believe you also know that it is only a court that can make the determination as to whether or not a person has committed the offence of illegal mining? A. I know that very well, but regarding plaintiff’s case, because of her distinguished position she holds as a prophetess, that is what informed us not to report her to the police, but rather called her and discuss the issue with her privately for an amicable solution. That is why we did not make it a, police or a criminal case… Q. So from your own answer, first defendant never made a complaint to the police concerning the issue of illegal mining? A. Not at all. Q. Did the first defendant institute any legal action in court for the recovery of the land, that you claim plaintiff has used for illegal mining when the matter came to your attention? A. No we did not use any legal means to recover the land from the plaintiff because we were for reconciliation… An interesting scenario indeed. The commission of this particular crime by plaintiff as alleged by defendant could not be settled by the committee without recourse to the police and eventually, the court. Even if defendant is a peace loving, reconciliation oriented, and anti-litigation person, it is legally estopped from deciding to settle an alleged confessed crime out of court without any leave of court. Section 73 of the Courts Act 1993, (Act 459,) makes this mandate of the court very clear thus; “Any court, with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of any offence not amounting to felony and not aggravated in degree, on payment in cases of compensation or on other terms approved by the court before which the case is tried, and may during the pendency of the negotiations for a settlement stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person.” And according to sections 106 and 111 of the Minerals and Mining Act, 2006 (Act 703,) galamsey is a serious offence to be tried only by the High Court, any out of court settlement of the offence in question by the parties, should have been with the leave of the court. In the absence of any such leave, the said settlement orchestrated by defendant, is unlawful. Since the defendant is fully aware of the laws and procedures regarding the resolution of crime committed in the land, but decided to ignore same, and deal with matters their own way, they cannot now run to court for any redress. Most especially, when their said approach runs contrary with the law. To grant defendants’ request will amount endorsing unlawful actions which is an affront to justice. Furthermore, when defendant decided to undertake the alleged reclamation exercise themselves, did they inform plaintiff about it? Since they are reconciliation prone, what was the fine taken from plaintiff for? Why didn’t defendants state the amount plaintiff was made to pay as a fine? The court commends the first defendant in the execution of its mandate to reclaim lands ravaged by the menace of galamsey, especially where the culprits are not found. However, in instances where the perpetrators are so found, it will be in the interest of the nation and justice as well that, the said culprits are allowed to face the full force of the law. Most especially where the person so caught denies personal involvement as the plaintiff in this case. Plaintiff herein, contrary to defendant’s assertions has never admitted to the commission of the criminal offence in question, personally. Nowhere in the evidence before this court did plaintiff admit personal culpability for the illegal mining activities. It is therefore surprising to hear Counsel for defendant alluding such an admission to the plaintiff and thus, grounding his preliminary legal issue on same in his written address. Both plaintiff and her witness never denied the engagement of one Kwasi Asare, alias, Pizor by plaintiff on her land, nor did they deny that the said Pizor used the land for galamsey. They equally admitted that plaintiff was summoned at the chief’s palace for this reason and was pressured by defendants to pay GHC 4, 000.00 as compensation for the damage. The committee thereafter promised to ensure that Pizor levels the destroyed land but failed to do so. They however, never admitted that plaintiff actually engaged Pizor for the perpetration of the said dastardly act on her behalf. Nor did plaintiff admit that she committed the offence together with Pizor. Plaintiff’s testimony is clear, that she engaged Pizor to level her land as the grading of portions of her neighbour’s land had left her house hanging, making its accessibility, dangerous. Exhibits E1 and E2, which were tendered in evidence by plaintiff without any objection, are photographs showing plaintiff’s hanging house after her neighbours grading activities. They actually depict a dangerous situation which needed immediate intervention. That was the only reason why Pizor was hired but he went on a frolic of his own when he decided to undertake the galamsey activities. It was after she had warned him to desist from those acts to no avail that, they were both summoned before the committee at the palace. This is what plaintiff said in cross – examination; Q. Now in your witness statement paragraph 10 you stated that your neighbour graded a portion of the land leading to his land and that made it dangerous to yours. A. That is so. Q. And as a result of that you employed or engaged one Kwasi Asare, popularly known as Pizor to correct the level of your land. A. That is true. Q. You said in your witness statement that you later realized that this Pizor was engaging in illegal activities. A. That is true. Q. Can you please tell the court the illegal activities he was engaged in. A. He was creating small holes on the land and using a gold detecting machine in same. Q. So you admit that Pizor whom you engaged to be on your land was involved in galamsey. A. Yes, I admit. It is obvious from the above that though plaintiff admits that her land was used for galamsey purposes, she at all material time, blames Pizor for it. This admission is clearly different from that of personal culpability by plaintiff, for the offence in question as defendant and its lawyer are saying. To hold plaintiff personally culpable on the basis of the above will amount to the court accepting a twisted version of plaintiff’s evidence. If Learned Counsel is so sure that Pizor is a ‘galamsey man’ as indicated in his address, he should have put that to plaintiff in cross – examination but he did not because he was very satisfied with the clear distinction drawn by plaintiff’s evidence between personal liability and liability of another person. Better still, defendant should have made good the opportunity granted them by the court, to call Pizor to testify on this issue, as his evidence is crucial regarding how and for what exactly plaintiff engaged his services. In the case of Owusu V Tabiri [1987 – 88] 1 GLR 287, where the defendant failed to call a chief who alone could testify on the existence of a valid arbitration in proof of his allegation to that effect, the court held same to be fatal to his case. In the present case also, defendant’s failure to call a material witness to testify on plaintiff’s personal involvement in the galamsey business is fatal to their case At any rate, the impression created by defendant’s counterclaim of GHC 100,000.00, is that, it is a in the nature of special damaged. This is because, in addition to this, defendant also claims general damages. That being the case, the said special damages should have been particularized in defendant’s pleadings but this was not so. On this score alone, the said claim fails to be so considered by the court. Additionally, considering the fact that defendant bear the same onus of proof regarding its counterclaim as does the plaintiff, her claim, the evidence led by defendant in proof of the said counterclaim, is woefully insufficient. Defendant without more, itemized the various expenses incurred in their alleged reclamation exercise. This is all the evidence on the GHC 100,000.00, counterclaim as captured in paragraph 33 of their witness statement; “In the process of reclaiming the land in dispute, the first defendant spen the following: Trip of sand GHC 40,000.00 Hiring of excavators GHC 25,000.00 Labourers GHC 15,000.00 Water GHC 20,000.00 Total GHC 100,000.00.” Defendant then tendered exhibit 3 series consisting of, four photographs of the disputed land and other adjourning lands plaintiff is alleged to have destroyed by galamsey activities. Plaintiff challenged these photographs as not showing the disputed land, anyway. And I must say, that without any further clarification, the court equally finds it very difficult to identify the actual destruction defendant is alleging. Defendant’s evidence is therefore saddled with a lot of lacunas. What actually was the nature of the destruction on the land by way of description besides the unclear pictorial evidence, that warranted the need and use of the various items so listed? What was each item used for in the reclamation exercise? Specifically, what was done on the land to reclaim it, or what did the whole exercise entail? Put differently, what went into the process of reclamation defendant is talking about? Defendant’s evidence is silent on all these facts. For instance, but for the clarification of defendant’s witness on the amount stated against water during cross – examination, any meaning at all could have been ascribed to same. But per the witness this is what the GHC 20,000.00, water means; Q. Per paragraph 33 of your witness statement, you stated that GHC 20,000.00, was for water not so? A. The money was not used for water for the reclamation exercise, but the open pits left on the land had collected water so before the reclamation there was the need for all the water to be pumped out by means of pumping machines and this accounted for the GHC 20.000.00 cost. How does the above explanation translate into the item water, stated above? If in actual fact, this is what defendant did prior to the reclamation, what prevented the committee from stating all the details including the rest in its witness statement? Thus, not only is the money defendant allegedly expended in its reclamation legally unenforceable against the plaintiff; evidentially too, the exercise, insufficient evidence produced on the whole counterclaim, tilts the balance away from the committee. In respect of the final issue of whether or not defendant upon re – entry onto plaintiff’s land caused damage to her properties, defendant denies causing any such damage. However, plaintiff has produced both oral and documentary evidence in establishing otherwise. There is ample evidence on record that, after unlawfully entering her land in the name of reclamation, defendant did cause damage to plaintiff’s properties. Plaintiff did not only particularize her special damage but also led evidence to the effect that until the destruction, she had structures for her church activities on the land. She equally had crops on it. In fact, defendant’s witness admitted that when they went on the land, they saw the said structures on the land. He however denies that they destroyed them. Exhibits B and C are photographs of the grader used in the said destructions and the structure and crops so destroyed. These were tendered by plaintiff without any challenge whatsoever. And with the fact of an injunction order placed on the land at the very inception of this case, these destructions could have only occurred in the course of defendant’s unlawful entry onto plaintiff’s land the activities therefrom. Similarly, defendant’s unlawful encroachment onto plaintiff’s land without any doubt, amounts to an infringement of her absolute right of her quiet enjoyment of her demised land. It is such as the law implies general damages. The Supreme Court in the case of Yungdong V Roro Services and three others [2006] 1M. L. R. G. 1, held inter alia that general damages are such as the law will presume to be the natural or probable consequences of defendant’s act. It arises by inference of the law and therefore needs not be proved by evidence and may be averred generally. The law implies general damages in every infringement of an absolute right. Hence, in the present case, with defendant’s conduct being a transgression of plaintiff’s absolute right, she is entitled to general damages. Engrossingly, Counsel for plaintiff in his address listed some inconsistencies in plaintiff’s case, particularly between her pleaded facts and evidence before the court. It is imperative to state that, none of the alleged inconsistencies relates to material facts in issue. It is trite learning that for inconsistencies to be fatal to a party’s case, it must be on material facts in issue. In the instant case, the fact of who questioned the alleged trespassers and at where became irrelevant when defendant admitted that it indeed, went onto plaintiff’s land. Again, defendant admitted that, it saw structures on the land. And if Counsel disputed any other thing plaintiff alleges was on the land, he could have questioned her on same. Furthermore, if inconsistencies are to be considered then it should be in its entirety. Defendant never pleaded and particularized any fraud or forgery in its statement of defence, but testified about same in respect of plaintiff’s two plots granted to her earlier on in May 2009. And because, the witness by then was not even a member of the committee, he could not establish the allegation of fraud on the part of the plaintiff regarding, exhibit D, the allocation certificate covering the said two other plots. Hence, defendant’s testimony of plaintiff extending her boundaries to cover two more plots turned out to be untrue with the existence of exhibit D. From the foregoing, it obvious that, plaintiff per her evidence has been able to create the balance of probabilities in her favour having convincingly discharged the onus of proof regarding her entire claim. Defendant committee on the other hand has failed to establish its counterclaim satisfactorily, to be entitled to same. Consequently, I will dismiss defendant’s counterclaim and same is hereby dismissed. I hereby enter judgment in plaintiff’s favour thus; 1. Plaintiff is hereby declared owner in equity of all that piece or parcel of land being and lying at a place commonly known and called Pararubber at Kyebi, measuring 160ft by 200ft and bounded by a road on two sides and undeveloped land on the other two sides. She should however, expedite the processes involved for a formal lease from the stool concerned on whose behalf defendants acted in the issuance of the allocation certificate, exhibit A. She should therefore recover possession from the defendant committee, of the said land or any part thereof so occupied by it. 2. Accordingly, defendant herein, its agents, workmen and personal representatives or assigns are hereby perpetually estopped from dealing with the land the subject matter of this action. Defendant is hereby ordered to pay general damages of GHC 10,000.00 to plaintiff for trespassing onto her land. 3. The committee is further directed to pay sixty – one thousand, two hundred and seventy cedis (GHC 61, 270) as special damages to plaintiff for destroying her property in the course of its unlawful entry onto her land. Costs of GHC 10, 000.00, for plaintiff and against the defendant. SGD H/W MRS JULIET OSEI – DUEDU ESQ DISTRICT MAGISTRATE 19/12/2023