AHMED VRS DABANAGUU (UW/WA/DC/A1/03/2022) [2023] GHADC 1249 (18 December 2023)

IN THE DISTRICT COURT, WA HELD ON MONDAY, 18TH DAY OF DECEMBER, 2023 BEFORE HIS WORSHIP, MAXWELL M. TITRIKU DISTRICT MAGISTRATE. SUIT No: UW/WA/DC/A1/03/2022 YAHAYA AHMED, ............ PLAINTIFF SUING PER HIS LAWFUL ATTORNEY, HAKI ADAMS OF H/No. NY 14, NAYIRI, WA, UW/R. V DABANAGUU VINCENT ........... DEFENDANT H/No. 240, MWAABIELIYIRI SECTION, FIAN. PLAINTIFF PRESENT DEFENDANT PRESENT CRISPIN W. ZIEKAH, ESQ., FOR PLAINTIFF HON. CLEMENT ELEDI, ESQ., FOR DEFENDANT. JUDGMENT The Plaintiff, on Friday, 26th day of November, 2021, filed writ of summons against the Defendant, herein and claimed for: a. Declaration of title and ownership to all that piece and parcel of land, with uncompleted building thereon, situate and lying at Nakoripaani Residential Area, and more properly known as Plot No. 225, Block “D”. b. Recovery of possession of the land described in relief (a) above together with the uncompleted building thereon. c. An order of perpetual Injunction restraining the Defendant, his agents, servants, privies, successors etc. from dealing in any way whatsoever with the land in dispute. d. General and punitive damages for trespass onto the land described in relief (a) above. e. Costs, including legal fees. Upon receipt of the Writ of Summons, Defendant, however Counter-Claimed (filed on 17/01/2022) for: i. Declaration of title to all that piece of land lying and situate at Nakoripaani Residential Area, known as plot No. 225, Nakoripaani Residential Area particularly delineated on plan of land executed by Survey and Mapping Division of the Lands Commission, dated 31/10/2017, which is more or less about 0.22acre or 0.09 Hectare. ii. An order of Perpetual Injunction restraining the Plaintiff, whether by himself, his heirs, successors, assigns, workmen or however so called from interfering with Defendant’s quiet enjoyment of the land in dispute. iii. iv. Damages for trespass Costs, inclusive of legal fees. CASE FOR THE PLAINTIFF. In his evidence-in-chief, the Plaintiff’s Lawful Attorney (Haki Adams) (Exhibit “B)”, a Contractor, and Transport Operator, resident at Nayiri, a Section of Wa, stated that, the Plaintiff acquired the land in dispute (i.e. Plot No. 225, Block “D”) from the Jimbina family of Kambale Section of Wa in the year 2002. According to him, at the same time of acquisition of the said land, the head of family was one Yelikore-Naa, who documented the grant by executing a Statutory Declaration (Exhibit “RB”) in respect of the grant of land to the Plaintiff. He said, the Site Plan was also issued in the name of Plaintiff in respect of the land in dispute, and after the said grant, Plaintiff immediately went into possession and started construction of a house on the land through his Lawful Attorney, that is, a Chamber and Hall and a Single Room each being en suite, were under construction. He said, having assumed ownership and now in occupation of the land in dispute, Plaintiff applied to the Lands Commission for the grant of a Lease (Exhibit “RD”), as part of processes to register his interest in the land, and later, the building was erected up to lentil level and construction stalled owing to financial challenges. The Plaintiff further stated that, there were 1,22 Sancrete blocks, two (2) trips of stones and one (1) trip of sand left on the land, and the building materials which were used for the construction were stored in a neighbour’s property that adjoins the land in dispute. He said, even though development on the land stalled, there was conspicuous and pronounced presence on the land as being encumbered to put all persons on notice of ownership to the land, and in the course of time, he noticed that, a telephone number was written on the wall of the uncompleted structure, and that, upon enquiry, it was one Yelsun Hafiz. He said, when Yelsun Hafiz saw that, Plaintiff had a structure on the land, he indicated that, he (Yelsun Hafiz) also purchased the said land but would not contest Plaintiff’s occupation and possession of the land, and thus yielded to Plaintiff by giving Plaintiff his Lease and/or indenture documentation in respect of the land, even though Plaintiff was willing to pay for same. He said avers that, Yelsun Hafiz, who noticed the construction by Plaintiff indicated that, the very plot of land being Plot No. 225, Block “D”, was also granted to him by the Jimbina family and gave out his Notice of Allocation (Exhibit “E”) as prove of grant to Plaintiff. According to Plaintiff, Yelsun Hafiz also applied to the Lands Commission for registration of the land in dispute, based on a Site Plan in his name and also yielded the said documents to Plaintiff, since Yelsun Hafiz decided not to contest Plaintiff’s claim and possession of the land, and the Allocation Note (Exhibit “RF”) and the Site Plan issued to him were relinquished to Plaintiff. He said, he regularly visits the site after the construction work was stalled, and later, when he saw someone trespassed unto the land in dispute, he conducted investigations which revealed that, it was the Defendant, and when the Defendant was confronted, he (Defendant) alleged that, the land in dispute together with the uncompleted structure thereon, was sold to him by his Landlords. Hence, this action was thus brought to protect Plaintiff’s interest in the land, and to secure the investment Plaintiff made by constructing a building up to lintel level on the said land. he said, the Defendant has entered the land and he is speedily developing same by depositing construction materials and further developing the uncompleted structure adverse to the interest of Plaintiff. He finally stated that, the land in dispute belongs to the Plaintiff. End of Evidence. Cross-Examination of Plaintiff’s Attorney by Counsel for the Defendant: Q: Where is Yahaya Ahmed? A: He is in Bibiani. Q: Have you seen the Lease document attached to the Witness Statement of the Defendant? A: I have seen it, my Lawyer shown it to me Q: Are you aware that, Defendant’s plot which is also Plot No. 225 is at Nakoripaani Residential Area without a block? A: I can’t tell. Q: So, I am suggesting to you that, Defendant’s plot No. 225 without a block is different from completely from Plaintiff’s plot No. 225, Block “D”? A: If they are not the same, it shows that, Defendant is building on my land, since I started building on the land. Q: Are you aware that, the Defendant has duly registered a Lease in respect of the plot in dispute that, the land belongs to him? A: I have no knowledge about that. Q: The plot you claim is not owned by the family of the Plaintiff as the original owners? A: It is true. Thereafter, Plaintiff called One (1) Witness: PW1 In his evidence-in-chief, PW1 (Richmond Zinbonche), resident at Airport Extension, Wa, stated that, he bought a piece of land situated at Nakoripaani from one Mohammed Alhassan in 2007. According to PW1, the said Mohammed Alhassan is the brother of Yelsun Hafiz, and that, after the purchase, he (PW1) was handed the documents of the land bearing the name of Yelsun Hafiz, but he (PW1) resold the land to Mr. Yahaya Ahmed in 2010. He said, after acquiring the land from Mr. Mohammed Alhassan in 2007, the documents covering the land were still in Yelsun Hafiz’s name, even till the point of resale to Mr. Yahaya Ahmed. PW1 further stated that, he was informed by Mr. Yahaya Ahmed that, the land has been encroached upon, and that, where he (Mr. Yahaya Ahmed) built up to on the land, someone has continued to a point and wanted him (PW1) if he (PW1) has any knowledge of that. He finally stated that, he knew that, the said land was sold to Yahaya Ahmed. End of Evidence. Cross-Examination of PW1 by Counsel for the Defendant: Q: In paragraph 2 of your evidence-in-chief, you claimed you bought a piece of land from Mohammed Alhassan in 2007? A: Yes Q: You alleged in paragraph 4 that, documents were handed over to you in respect of the land being in the name Yelsun Hafiz? A: Yes. Q: The documents you alleged had the name of Yelsun Hafiz, where are the documents? A: I handed over those documents to Plaintiff. EVIDENCE OF DEFENDANT In his evidence-in-chief, the Defendant (Dabanaguu Vincent), a Farmer and a business man, resident in H/se No. 40, Mwaabieliyiri Section, Fian, stated that, he acquired plot No. 225, Nakoripaani Residential Area, Wa, from one Mustapha Dramani, and before he acquired the said plot of land in dispute, he enquired from his grantor, Mustapha Dramani, the person he (Mustapha Dramani) acquired the said plot of land from, and the said Mustapha Dramani then informed him that, he (Mustapha Dramani) acquired the said land in dispute from the Jimbina family of Kambali. According to the Defendant, Mustapha Dramani later led him to the Jimbina family, where they met the representatives of the Jimbina family, namely, Alhassan Mumuni and Ali Yelikore, who both confirmed that, indeed the plot in dispute was part of a larger track of land that was owned by the Jimbina family. He said, the Jimbina family representatives further confirmed that, it was the Jimbina family that granted the said plot of land in dispute to Mustapha Dramani. He said, after he acquired the land in dispute, some time in 2013, he was in undisturbed possession of the plot of land until 2017 when he commenced the process for the registration of the plot with the Lands Commission. He said, he obtained a Plan of the Land from the Survey and Mapping Division of the Lands Commission after the plot in dispute was duly surveyed and demarcated and the Plan of the land was duly signed by the Regional Director of Survey and Mapping Division of the Lands Commission, Wa. The Defendant further stated that, on 4th January, 2021, he duly executed a lease document with Sakara Waahu as the Head of the Jimbina family of Kambali, a Section in Wa. He said, the lease has been duly registered with the Lands Commission as No. U/WR 152/21, and he was given a copy of the lease document (Exhibit “1”). He said, whilst in the process of registering the plot in dispute, he also commenced the development of the plot by building a house on the said plot, and on three (3) occasions, the Plaintiff trespassed on to the disputed plot of land and pulled down parts of the building he was putting up, and he later engaged the Plaintiff together with the landlords to find an amicable solution, but all to no avail. He said, he then built a house (Exhibits “2”, “2A”) on the plot in dispute up to roofing level without any challenge from the Plaintiff, but it was at the time he was about to roof his building that his workmen found some Court documents on the wall of the building and drew his attention. He said, the Plaintiff is therefore unlawfully and falsely claiming the plot in dispute, because the size of Plaintiff’s plot and the location, are different from the size and location of his (Defendant’s) plot. He said, the size of Plaintiff’s land per the extract is 95 feet by 85 feet by 95 feet and 100 feet and it is 0.20 acre, and on the contrary, the size of his (Defendant’s) plot per his Plan of land on the Lease (Exhibit “1”) is75.00 feet by 97.5 feet by 81.1 feet and 126.8 feet and it is 0.22 acre, which is clearly a larger plot than that claimed by the Plaintiff as his plot. According to the Defendant, the claim of the Plaintiff that, he (Plaintiff) acquired the plot of land in dispute from the Jimbina family at the time Yelikore-Naa was the head of the family is not true. He said, if the Jimbina family had granted the plot in dispute to Plaintiff, the same family would not have executed a Lease in his (Defendant’s) favour, and that, the Jimbina family has denied making a grant of the plot in dispute to the Plaintiff. He said, a careful examination of the extract from the Town & Country Planning Department shows the said extract is a forgery, and the writings in respect of “D”, 225 and Yelsun Hafiz (Exhibit “3”) are different from other writings on the extract. He said, the Plaintiff’s claim that, he (Plaintiff) put up a chamber and hall building on the land up to lintel level is false, because when he (Defendant) went on to the land, he did not see any such building, and also did not see any 1,200 sandcrete blocks, Two (2) trips of stone and One (1) trip of sand on the plot as claimed by Plaintiff. He said, he did not also know Yelsun Hafiz, and did not know what transpired between him and the Plaintiff. The Defendant finally prayed that, the claims of the Plaintiff be dismissed and judgment entered on his (Defendant’s) counter-claim. End of Evidence. Cross-Examination of the Defendant by Counsel for the Plaintiff: Q: When you acquired this land as you claimed, you were given a plan of the land at the time? A: Yes, it is true. Q: In whose name was the said plan you were given when you acquired the land? A: My name was on the Plan. Q: So, you are tracing your title to Mustapha Dramani? A: Yes. Q: Do you have any document showing the alleged purchase of the land from Mustapha Dramani? A: I have a Lease document (Exhibit “1”). Q: I am putting it to you that, there is nothing in the said Lease showing that, you purchased the land in dispute from Mustapha Dramani? A: He (Mustapha Dramani) sold the land to me. Q: Did Mustapha Dramani give you any document suggesting that, he purchased that land from Jimbina family? A: He did not give me any document Q: I am suggesting to you that, Mustapha Dramani could never have subsequently passed interest in the land to you because he never acquired it? A: When Mustapha granted me the plot, he assisted me to go to Lands Commission where the Lease was prepared through a Lawyer for me. Thereafter, Defendant called One (1) Witness: DW1 In his evidence-in-chief, DW1(Mustapha Dramani), a trader, resident at Mangu, a Section of Wa, stated that, he knew the Defendant, but Plaintiff is not known to him. He said, he got to know the Defendant, because he sold his land (i.e. plot No. 225, Nakoripaani Residential Area, Wa) to the Defendant. According to him, he acquired the said plot from the Jimbina family of Kambali more than twenty (20) years now, where one Alhassan Mumuni and Ali Yelikore, who were authorized by the said family to sell same to him, and they showed him the location of the said plot of land, and later paid for the said land. He said, after he (Mustapha Dramani) acquired the land from the Jimbina, he took control and possession of same and built foundation of a bungalow on the plot in dispute. He said, Defendant later expressed interest in the said land, and he sold same to him, as he was in possession of the said land for more than ten (10) years but Plaintiff never challenged his title to the land in dispute, until he sold same to the Defendant. He said, after he sold the said land to the Defendant, the Defendant executed a Lease document with the Jimbina family of Kambali, whose family head was then Sakara Waahu, and the said Lease has been duly registered with the Lands Commission, Wa. He said, before he sold the said land to the Defendant, he took the Defendant to the Jimbina family of Kambali to satisfy the Defendant that, the Jimbina family of Kambali are the true owners of the plot, and that, they made a valid grant of the land in dispute to him. DW1 further stated that, he is aware that, the Defendant has put up a building on the plot of land in dispute to roofing level, and it was at that stage when the Defendant informed him that, someone was challenging his title to the land, and he (DW1) went and informed the Jimbina family and when they sent for the Plaintiff, he refused to honour the invitation of the family. He said, Defendant later informed him that, the Plaintiff has summoned him before this Honourable Court. DW1 finally stated that, the plot in dispute belongs to the Defendant, and the Plaintiff has no title to the plot in dispute, as the Plaintiff never challenged him (DW1) until he sold same to the Defendant, and therefore prayed that judgment be entered in favour of the Defendant for the reliefs he (Defendant) seeks before this Honourable Court. End of Evidence. Cross-Examination of DW1 by Counsel for the Plaintiff: Q: When did you acquire the plot in dispute as you claimed? A: It is over Twenty (20) years now. Q: Did they issue you with any document showing that, they sold the said plot of land to you? A: No, I was not given any document Q: Do you also know the plot No. as you bought from the Jimbina family? A: Yes, they wrote on the pegs 225 as the plot Number. Q: I am putting it to you that, plot No. 225, Block “D” Nakoripaani Residential Area was once sold to Yelsun Hafiz by Jimbina family? A: Not true Q: So, apart from your bare accession that, the Jimbina family gave you plot No. 225, you don’t have any document? A: I was not issued with any document, but the Defendant prepared a Lease and the Jimbina family signed. Q: I am putting it to you that, the plot in dispute was granted by the Jimbina family to Yelsun Hafiz? A: I was not informed that, the said plot was granted to any other person. Thereafter, the Defendant closed his case. The legal issue that emerged for determination by this Honourable Court after the trial was: 1. WHETHER OR NOT THE PLAINTIFF IS ENTLED TO HIS CLAIM 2. WHETHER OR NOT DEFENDANT IS ENTITLED TO HIS COUNTER-CLAIM. In every civil case, the general rule is that, the burden of proof rests on a party whether plaintiff or defendant, who substantially asserts the affirmative of his case. In the Supreme Court case of: ABABIO v AKWESI III [1994-95] GBR 774-777, it was held per Aikins JSC, as follows: “The general principle of law is that, it is the duty of the plaintiff to prove his case, i.e. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scale in his favour, when on a particular issue the plaintiff leads some evidence to prove his case. If the defendant succeeds in doing this, he wins, if not he loses on that particular issue.” ANALYSIS OF THE EVIDENCE After the trial, the following fact findings and observations were made by this Honourable Court: i. It was evident that, both Plaintiff and the Defendant claimed their respective title to the Jimbina family of Kambali. Whereas Plaintiff claimed plot No. 225, Block “D”, Nakoripaani Residential Area, Wa, the Defendant however claimed, plot No. 225, Nakoripaani Residential Area, Wa, without a block (Exhibit “1”). .......... ALSO, Plaintiff’s Site Plan (Exhibit “F”) bearing the name Yelsun Hafiz has the size of his plot No. 225, Block “D”, Nakoripaani Residential Area, is 0.20 acre, but that of the Defendant (Exhibit “1”), bearing the name Dabanguu Vincent is 0.22 acre or 0.09 hectare. .......... AND, in cross-Examination, Plaintiff’s Attorney, answered the following questions among others from Counsel for the Defendant: Counsel : You say Plaintiff’s plot is at Nakoripaani Residential Area, Block “D”? Attorney : Yes, plot No. 225, Block “D”, Nakoripaani Counsel : Do you know the size of the land Plaintiff is claiming? Attorney : I am not a professional, I can’t tell. Counsel : From Exhibit “C”, the size of the plot claim by the Plaintiff is 95ft. x 85ft., is that correct? Attorney : It is true Counsel : It is about 0.20 of an acre? Attorney : Because, it is in professional written format, I can’t tell. Counsel : To your knowledge, has the Lands Survey Division surveyed and demarcated plot No. 225, Block “D”? Attorney : It is because they surveyed my plot that is why I have plot No. 225, Block “D”, Nakoripaani. Counsel : Which Surveyor surveyed the plot and marked it plot No. 225, Block “D”? Attorney : I can’t tell, because there were many surveyors who come and go. Counsel : The size of Defendant’s plot is 0.22 of an acre? Attorney : I can’t tell. Counsel : I am putting it to you that, Defendant’s plot on which he has built is bigger than the Plaintiff’s plot he is claiming? Attorney : I don’t know. ......... ALSO, in his cross-examination, PW1, who claimed he bought the said land in dispute from one Mohammed Alhassan, and sold same to the Plaintiff (Yahaya Ahmed) answered the following questions from Counsel for the Defendant: Counsel : Will you be surprised that, all the documents filed in this Court, the Plaintiff never mentioned your name as the person who sold the land to him both in his written statement and evidence-in-chief? PW1 : I will not be surprised Counsel : In your evidence-in-chief, you have not described the piece of land you alleged Mohammed sold to you? PW1 : Yes Counsel : You have not even told the Court the size of your alleged piece of land? PW1 : Yes Counsel : You have not testified as to the dimensions of this piece of land? PW1 : Yes. In the Course of Appeal case of: NYIKPLORKPO v AGBEDOTOR [1987-88] 1 GLR 165 @ 171, it was held, per Abban J (as he then was), as follows: “To succeed in an action for the declaration of title to land, injunction and recovery of possession, the plaintiff must establish by positive evidence the identity and the limits of the land he claims.” In the instant case, plaintiff failed to establish by positive evidence, the identity and the limits of the land he claims. Moreover, it was evident that, Plaintiff’s plot No. 225, Block “D”, Nakoripaani Residential Area, is far different from that of the Defendant’s plot No. 225, Nakoripaani Residential Area. ii. In another development, Plaintiff’s Attorney claimed in paragraphs 15, and 16 of his evidence-in-chief that, one Yelsun Hafiz, acquired the said land in dispute from the Jimbina family. ........... BUT, interestingly, in cross-examination, Plaintiff’s Attorney answered the following questions among others from Counsel for the Defendant: Counsel : Your long story about Yelsun Hafiz and the role he played is neither in your witness statement before the Court? Attorney : It is true. Counsel : Where is the said Hafiz Yelsun? Attorney : He is in Wa Counsel : Indeed, Yelsun Hafiz has not filed any witness statement in this Court to support your claim that, he handed over any documents to you? Attorney : It is true. In the High Court case of: OWUSU v TABIRI & ANOR [1987-88] 1 GLR 287, it was held (Holding 2), as follows: “It was a trite principle of law that, he who asserted must prove and must win his case on the strength of his own case, and not on the weakness of the defence.” In the opinion of this Court, since Plaintiff alleged that, the said land was first in time bought by Yelsun Hafiz and he later allowed Plaintiff to occupy same, the non-calling of Yelsun Hafiz, who is currently in Wa, as a witness was fatal to his case. ............ ALSO, the Plaintiff’s Attorney stated in paragraph 4 and 5 of his evidence-in-chief respectively as follows: Paragraph 4: “That Plaintiff acquired the land in dispute from the Jimbina family of Kambali Section of Wa in the year 2002,” Paragraph 5: That, at the time of the acquisition, the head of family was one Yelikore-Naa, who documented the grant by executing a statutory declaration................” ........... BUT, Plaintiff’s Attorney answered the following questions among others from Counsel for the Defendant: Counsel : Indeed, I am suggesting to you that, the original owners of the plot in dispute occupied is the Jimbina family of Kambali? Attorney : I can’t tell. Counsel : Have you ever heard of the name Yelikore-Naa? Attorney : No. Counsel : Have you ever heard of the name Sakara Waahu? Attorney : No. Counsel : I am suggesting to you that, it was Sakara Waahu as head and representative of Jimbina family who made the grant to the Defendant of this land? Attorney : I can’t tell. Counsel : I am suggesting to you that, following the grant of the land, Defendant occupies by the Jimbina family, Sakara Waahu duly issued lease to Defendant? Attorney : I don’t know, but my land, there is a structure on it. .............. This evidence adduced by the Plaintiff’s Attorney, was in conflict with paragraphs 4 and 5 (supra), and also names such as, Jimbina family, Yelikore-Naa respectively appeared on Exhibits “RD” and “E” of the Plaintiff. • HAYFORD v EGYIR [1984-86] 1 GLR 682, CA, • ATADI v LADZEKPO [1981] GLR 218, CA, Applied. iii. On the evidence, the sole witness of the Plaintiff, PW1 testifies in paragraph 6 of his evidence-in-chief as follows: Paragraph 6: I say that, after acquiring the land from Mr. Mohammed Alhassan in 2007, the documents covering the land were still in Yelsun Hafiz’s name even till the point of resale to Mr. Yahaya Ahmed (Plaintiff). ........... BUT, interestingly, Plaintiff’s Attorney stated in paragraph 4 of his evidence- in-chief as follows: Paragraph 4: That, the Plaintiff acquired the land in dispute from the Jimbina family of Kambale Section in Wa in the year 2002. .......... These were conflicts or inconsistencies or contradictions in the evidence adduced by the Plaintiff’s Attorney and his witness. In the Court of Appeal case of: OBENG v BENGPOMAA [1992-93] 3 GBR 1027, it was held as follows: “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflicts in the evidence of the plaintiff and his witnesses weakened the merit of his case, and proved fatal to his claim.” • OGBAMEY TETTEH v OGBAMEY TETTEH [1993-94] 1 GLR 353, SC. iv. It was also evident that, Plaintiff’s Attorney failed to trace his root of title to the land in dispute and also failed to call or join any member of his grantors’ family to prove his case, as he (Plaintiff’s Attorney) admitted same in the following cross-examination by Counsel for the Defendant: Counsel : Do you have personal knowledge of the plot in dispute? Attorney : Yes Counsel : Who are the alleged grantors of Yahaya Ahmed (the Plaintiff) ? Attorney : The people are at Kambalipaani Counsel : Do you know their names? Attorney : The sole person who requested to grant the land is Abdulai and Abudu. Counsel : To your knowledge, has any member of Abdulai family filed witness statement in support of Plaintiff that, they are the grantors of Plaintiff? Attorney : None prepared witness statement, with a reason that, when the land was granted, I built on the land and I was challenged, and I told the person that, I was not issued any document, but I asked the person to produce document and they produced a lease in the name of Yelsun Hafiz. Counsel : In your answer, you could not mention the names of your grantors? Attorney : Yes, it is true. Counsel : Throughout your evidence-in-chief before this Court, you have not been able to testify about who are your grantors or landlords of the plot you claim? Attorney : It is true. ............ It was Interesting to note that, Plaintiff who seeks declaration of title to the disputed land failed to join his grantor of the land in dispute to the suit to prove his root of title, mode of acquisition, and various acts of possession exercised over the disputed land. • MONDIAL VENEER (GH) LTD v AMUA GYEBU XV [2011] 1 SC GLR 466, SC. • AWUKU v TETTEH [2011] SCGLR 366, SC. Applied. In the Supreme Court case of: SUSU BAMFO v SINTIM [2012] 1 SC GLR 136 @ 158, it was held, per Owusu JSC, as follows: “How does a party who seeks a declaration of title to land fail to join his grantor as a party to the action or call him as a witness when his title is hotly contested. His action is bound to fail.” v. Evidence also showed that, in his cross-examination, the Plaintiff’s Attorney corroborated the evidence of the Defendant that, he (Defendant) acquired the said plot in dispute from Mustapha Dramani (DW1), as he (Plaintiff Attorney) answered the following questions from Counsel for the Defendant: Counsel : The Jimbina family of Kambali never made any grant of any land to Plaintiff? Attorney : It was because they granted Defendant the said land that is why he proceeded to develop the said land. In the Supreme Court case of: AGYEIWAA v P & T CORPORATION [2007-2008] 2 SCGLR 985 @ 990-991, it was held per WOOD CJ, as follows: “The rule is that, where the evidence of an opponent corroborates the evidence of the opposite party, and that opponent’s remain uncorroborated, the court is bound to accept the corroborated evidence, unless there are compelling reasons to the contrary.” In the instant case, the corroborated evidence of the Plaintiff that, the Defendant duly acquired the land from the Jimbina family of Kambale and thereafter, executed a lease (Exhibit “1”) with the said family, confirms the claim of the Defendant, herein. • MANU v NSIAH [2005-06] SCGLR 25, SC, Applied. vi. In the instant case, the Defendant counter-claimed against the Plaintiff on 17/01/2022. It is therefore the Plaintiff who alleges, generally must prove his case on the preponderance of probabilities. The fact that the Defendant has counter-claimed does not lessen the burden on Plaintiff. • AKOTO II & ORS v KAVEGE & ORS [1984-86] 2 GLR 365 @ 371, CA. • YOGUO v AGYEKUM [1966] GLR 482 @ 486, SC. • EVIDENCE ACT, 1975 (NRCD 323), S.11(4) However, when the Defendant files a counter-claim, then the same burden of proof would be used in evaluating and asserting his case, just as used to evaluate or assess the case of the Plaintiff against the Defendant. • YEBOAH v AHELE (2012) 44 GMJ 37, CA • JASS CO. LTD v APAU & ANOR [2009] SCGLR 265, SC. • GBEDEMA v AWOONOR WILLIAMS [1970] C. C. 12, SC. In the case before this Honourable Court, on the strength of the oral evidence and authentic documentary evidence of the Defendant, Exhibit “1” (i.e. the Lease), duly registered by the Lands Commission, Wa, clearly proved a valid contract between the Defendant and his Lessor (i.e. Jimbina Family of Kambale) on acquisition of the said land, as against the conflicting oral evidence of the Plaintiff and his witness, as well as Plaintiff’s unauthentic documents, such as; Statutory Declaration, which was rejected by the Court and marked (Exhibit “RB”) for non-compliance with Section 4 of Statutory Declaration Act, 1971 (Act 389), and his Unsigned Site Plan (Exhibit “C”), and Indenture, which was also not signed and same rejected by the Court, and marked (Exhibit “RD”), which disclosed no root of title to the Plaintiff. • MAJOLAGBE v LARBI & ORS [1959] GLR 190 @ 192 • ABBEY & ORS v ANTWI V [2010] SC GLR 17 @ 26-27, SC, ANSAH, JSC, Applied. Moreover, evidence showed that, Plaintiff tendered two (2) Site Plans (i.e. Exhibits “C”, and “F”. Interestingly, the Unsigned Exhibit “C” bears the name of the Attorney of the Plaintiff (Yahaya Ahmed), while Exhibit “F”, bears the name of Yelsun Hafiz, with anomalies, as admitted by Plaintiff’s Attorney as follows: Counsel : On the face of Site Plan (Exhibit “C”), it was not signed by anybody? Attorney : Yes, there is no signature. Counsel : Look at Exhibit “F”, the name Yelsun Hafiz is different from the rest of the writing in Exhibit “F” (i.e. the character)? Attorney : It is so. Counsel : If you also look at Block “D”, in Exhibit “F”, “D” is also deeper than the Block before the “D”? Attorney : It is a photocopy Counsel : Point two Zero acre (i.e. 0.20 acre) is also deeper? Attorney : It is true. In the opinion of this Honourable Court, the authentic documents and Exhibits of the Defendant were clear evidence that, the legal title to the land in dispute at all material times stood and still remains in the name of the Defendant (Dabanaguu Vincent), who is therefore presumed to be the owner, and holds the legal title to the property in dispute. • ASANTE-KORANTENG v TAMAKLOE & DERBAN [2007-08] 2 SCGLR 852 @ 858, SC, WOOD CJ, • EVIDENCE ACT, (NRCD 323), S. 35, 136 (1). • KUSI & KUSI v BONSU [2010] SCGLR 60 @ 73, Sc, WOOD CJ, Applied. In another development, Exhibits “2” and “2a”, which were not challenged by the Plaintiff, clearly showed that, Defendant put up a building to roofing level on the said plot in dispute (i.e. plot No. 225, Nakoripaani Residential Area). Plaintiff also claimed in paragraphs 9 and 10 of evidence-in-chief, respectively as follows: Paragraph 9: “That, a building was erected up to lentil level and construction stalled owing to financial challenges.” Paragraph 10: That on the site were 1,200 sancrete blocks, 2 trips of stones and one (1) trip of sand. .......... AND, in cross-examination, Plaintiff’s Attorney answered the following questions from Counsel for the Defendant: Counsel : You also claimed that, the Plaintiff had a building on plot No. 225, Block “D” up to lintel level? Attorney : Yes, he actually built to the lintel level. Counsel : You have not exhibited that building? Attorney : Yes, it is true. Counsel : Did you engage a Mason and built to lintel level? Attorney : Yes Counsel : That Mason has not filed any witness statement in this Court to confirm that, you built up to lintel level on the land? Attorney : Yes. Counsel : It is not part of your evidence that, 1,200 blocks, 2 trips of stones and one trip of sand, are no longer on the plot claimed by the Plaintiff? Attorney : Yes, it is true. ........ Interestingly, Plaintiff failed to exhibit the said building of his, and the said materials to prove his claim. However, per Defendant’s Exhibits “2” and “2a”, it was therefore evident that, after the acquisition of the land in dispute, the Defendant was in actual possession and occupation, and took physical control of the said land, and even constructed a building up to roofing level on the said plot (i.e. Plot No. 225, Nakoripaani Residential Area). • BROWN v QUASHIGAH [2003-2004] 2 SCGLR 930 @ 951, SC, KLUDZE, JSC. • AKOTO v GYAMFI-ADDO & ANOR [2005-06] SCGLR 1018 @ 1024 & 1031, Applied. In the Court of Appeal case of: DUAGBOR & ORS v AKYEA DJAMSON [1984-86] 1 GLR 697 @ 709, CA, it was held as follows “Where the plaintiff’s evidence is unsatisfactory, the judgment should be in defendant’s favour on the ground that, it is plaintiff who seek relief but has failed to prove what he claims.” • FRIMPONG II v BREMPONG II [1952] 14 WACA 13, Applied. Accordingly, on the balance of probabilities, I hold that, Plaintiff failed to lead satisfactory and credible evidence to prove title to the said land in dispute. The Plaintiff could not succeed in convincing the Court that, his claim is more probable than that of the Defendant’s counter-claim. In the circumstances, I hereby dismiss the claim of the Plaintiff, and enter judgment for the Defendant on his counter-claim for: i. ii. Declaration of title to the land (i.e. Plot No. 225, Nakoripaani Residential Area, Wa), the boundaries of which Defendant spelt out in his evidence. Perpetual Injunction restraining the Plaintiff whether by himself, his heirs, successors, assigns, workmen or however so called from interfering with Defendant’s quiet enjoyment of the said land in dispute. I assess the costs of this action at Eight Thousand, Seven Hundred and Fifty Ghana Cedis (GH¢8,750.00) against the Plaintiff, in favour of the Defendant. MAXWELL M. TITRIKU MAGISTRATE DISTRICT COURT, WA, UW/R, 18/12/2023. 24