AMANTUO VRS ZACK (AR/KD/DC/A1/25/2023) [2023] GHADC 809 (5 December 2023)

CORAM: IN THE DISTRICT COURT HELD AT KODIE IN THE ASHANTI REGION ON TUESDAY THE 5TH DAY OF DECEMBER, 2023 BEFORE HER WORSHIP MRS. CHRISTIANA ODARKOR BRUCE-ASHIRIFIE (ESQ.), THE DISTRICT MAGISTRATE. SUIT NO. AR/KD/DC/A1/25/2023 ]- PLAINTIFF ]- DEFENDANT OWUSU AMANTUO OF H/NO. PLOT 29 BLOCK “A” KWAMANG VRS MALLAM ZACK OF KWAMANG TIME: 9:30AM JUDGMENT The Plaintiff instituted this suit against the Defendant by a writ of summons filed on the 21st of February, 2023 praying for the following reliefs: 1. A declaration of title to all that piece or parcel of building plot of land described as Plot No. 6 Abena Adwo Close Street, situate and lying at a place commonly known and called Broni Krom Kwamang in the Afigya Kwabre North District. 2. Recovery of Possession of the subject matter in dispute. 3. General Damages for trespass 4. Cost incidental to the suit 1 | P a g e 5. Perpetual injunction restraining the defendant, his agents, privies, assigns, workmen or any person claiming title through him from any further development and/or interfering with the plaintiff’s ownership, possession and enjoyment rights of the Plot of land in relief (1) supra. The Defendant was served with the Plaintiff’s writ of summons and summary of subject matter on the 24th of February, 2023 and proof of service was executed by the Bailiff attached to the court on the same day. The Defendant however did not appear in court or file any process to defend the action. The court therefore made an order for the Plaintiff to serve the Defendant with his witness statements for the trial to proceed pursuant to Order 25 rule 2(a) of the District Court (Civil Procedure) Rules, 2009 (C. I. 59) which states as follows: “Where an action is called for trial and a party fails to attend, the trial magistrate may (a) Where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.” On the 17th of July, 2023 when the Plaintiff was to mount the witness box to prove his claim, the Defendant appeared in court and prayed the court to allow him defend the action of which the court obliged and ordered him to file all the necessary processes. The Defendant thereafter, failed to either file any process or appear in court to take part in the proceedings and so on the strength of Order 25 rule 2(a) stated supra the plaintiff was made to prove his claim. 2 | P a g e THE PLAINTIFF’S CASE The Plaintiff by his witness statement filed on the 27th of April, 2023 averred that the land the subject matter of this suit is his bonafide property. According to the Plaintiff the land is a family land and also a farm land that was demarcated by the chief of Kenyase. The Plaintiff averred that after the demarcation of the land into building plots by the Kenyase Chief, his family had twenty-six (26) plots of the land. The Plaintiff tendered into evidence Exhibit “A” which is a copy of the plan of land allocated to the Owusu Amantuo’s family by the Kenyase Stool. It is the case of the Plaintiff that he is the Head of Family and he shared the land among the family members and he had one plot out of the twenty-six plots given to the family, which is the plot in contention. He testified that the chief of Kenyase issued him an allocation note and a site plan which he tendered copies into evidence as Exhibit “B” and “C” respectively. The Plaintiff testified that somewhere in December, 2022 he went onto the land and saw that the Defendant has moulded cement blocks on same and has erected profile on it. He stated that he destroyed the profile and warned the Defendant to stop developing the land because it belongs to him. According to the Plaintiff, the Defendant told him that the land has been sold to him and so he the Plaintiff gave a copy of his documents over the land to the Defendant to show same to the one he claimed sold the land to him. He added that he requested to see the documents of the Defendant but he refused to let him see it. 3 | P a g e The Plaintiff averred that he reported the matter to Saanahene, a sub-chief of Kenyase who invited the Defendant to a meeting and inform him that the land he is developing belongs to the Plaintiff. He stated that the Defendant refused and subsequently constructed a foundation up to floor level on the land. It is the case of the Plaintiff that all efforts to get the Defendant out of his plot has proved futile and hence this instant action. The Plaintiff called one Nana Kofi Agyemang as his witness. According to his witness statement filed on the 27th April, 2023 he testified that he is the Saasahene of Kenyase at Kwamang. He averred that he is the custodian of all the lands on Kenyase and Kwamang Stool. PW 1 stated that the land in dispute was a family land and also a farm land that was demarcated into building plots by the Kenyase chief. He averred that after the demarcation of the land into building plots, the chief of Kenyase gave 26 building plots to the Plaintiff’s family. He stated that the Plaintiff being the head of family of the Amentuo’s family shared the land among his family members and he had one plot which is the plot in dispute. It is the case of PW 1 that somewhere in December, 2022 the Plaintiff came to inform him that the Defendant has trespassed on his plot of land. He stated that he invited the Defendant for a meeting to resolve the issue but he failed to honour the invitation. He maintained that the land belongs to the Plaintiff. 4 | P a g e ISSUE At the end of the trial the issue that fell for determination was whether or not the Plaintiff is entitled to his claim. EVALUATION OF THE LAW AND EVIDENCE Notwithstanding the absence of the Defendant, the burden of proof on the Plaintiff remains unchanged. This position is supported by the dictum of the much celebrated Ollenu J in Barima Gyamfi and Another v. Ama Badu [1963] 2 GLR 596 where he said as follows: “… there is no onus upon the defendant to disprove a claim made by the Plaintiff, so that, however conflicting or unsatisfactory his defence may be, the same cannot avail the Plaintiff…” This dictum implies that it always falls entirely upon the Plaintiff to make a satisfactory case and the fact that the Defendant makes an unsatisfactory defence or failed to appear in court as in this case, does not in any way ease the burden placed on the Plaintiff by law. The law requires a party who comes to the Court to prove his case. This requires that the party establishes a degree of belief about the existence or non-existence of the fact that he alleges. This is captured in Section 10 of the Evidence Act, 1975 (NRCD 323) as follows: (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court 5 | P a g e (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond reasonable doubt. In section 11(1) of NRCD 323, the burden of proof requires that the party produces sufficient evidence to avoid a ruling against him on the issue. This obligation placed on an alleging party is crucial throughout the case and accordingly Section 14 of NRCD 323 provides that: “Except otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. The above requires that as a Plaintiff in the instant case making allegation of facts, he has the burden to prove the existence of the facts by producing sufficient evidence. In a civil action, this burden is discharged if the facts are proved by preponderance of probabilities. Section 12 of NRCD 323 defines the preponderance of probabilities as: “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence” In Acquie v Tijani [2012] 2 SCGLR 1252, Anin Yeboah JSC. explained this as follows: 6 | P a g e “In any case, the law does not require a party to prove his case with absolute certainty in civil proceedings. A court must, however, satisfy itself that the evidence on a particular issue is proved in accordance with the requisite standard required of law.” The Plaintiff must therefore prove his case on the balance of probabilities in order to obtain judgment in his favour. The law is that a Plaintiff who institutes an action for a declaration of title must positively prove the identity of his land else his action must fail. The Plaintiff is required by law to prove the identity of his land but the proof is not to be of mathematical precision. Knowing the boundary owners would be sufficient and it would not defeat the purpose of the action if a party does not know the size of the land and the number of hectares or acres it contains. See the case of Agyei Osae & Others vrs Adjeifio & Others [2007-2008] SCGLR 499. The onus of proof required by law as regards the identity of land would be discharged by meeting the conditions clearly stated in the case of Tetteh vrs Hayford [2012] SCGLR 41 citing the case of Kwabena Atuahene [1981] GLR 136 thus: (i) the Plaintiff has to establish positively the identity of the land to which he claimed title subject matter of the suit, (ii) Plaintiff also has to establish all his boundaries, (iii) where there is no properly oriented plan drawn to scale, which made compass bearing vague and uncertain, the court would hold that the plaintiff has not discharged the onus of proof of his title. The various methods of producing evidence include the testimonies of the party and material witnesses, admissible hearsay, documentary and other things referred to as real evidence, without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court. 7 | P a g e In this instant suit the Plaintiff attached Exhibits “A”, “B”, and “C” being documents in respect of the land subject matter of dispute that were executed in his favour. Based on the evidence on record, the Plaintiff has successfully proved his claim. As stated earlier, the Defendant did not attend court to refute any of the evidence given by the Plaintiff and so the court was duty bound to accept it without further proof as stated in Quaigraine v Adams [1981] GLR 599 as follows: “When a party makes an averment and his opponent fails to cross examine him on it the opponent will be deemed to have acknowledged sub silentio, that averment by the failure to cross examine”. Furthermore, the law as enunciated in the case of Alpha Musa v Dr. Francis Asante Appeagyei [2015] DLCA 4532, that: “failure to deny the assertion of the respondent contained in a pleading amounted to an admission requiring no proof” Therefore, the Plaintiff’s evidence stood uncontroverted. After considering all the evidence adduced before me, I am satisfied that on the balance of the probabilities the Plaintiff has led sufficient evidence to convince the court that his claim is more probable than not. In light of the above, I enter judgment in favour of the Plaintiff in respect to all his reliefs as endorsed on the writ of summons as follows: 1. The Plaintiff is granted declaration of title to all that piece or parcel of building plot of land described as Plot No. 6 Abena Adwo Close Street, 8 | P a g e situate and lying at a place commonly known and called Broni Krom Kwamang in the Afigya Kwabre North District. 2. Recovery of Possession of the land in dispute described supra. 3. Damages for trespass of GH¢2,000.00 is awarded in favour of the Plaintiff against the Defendant. 4. Cost of GH¢2,000.00 5. Perpetual injunction restraining the Defendant, his agents, privies, assigns, workmen, personal representatives or any person claiming title through him from further development and/or interfering with the Plaintiff’s ownership, possession and control of the land in dispute. ................................................ CHRISTIANA BRUCE-ASHIRIFIE, ESQ., (DISTRICT MAGISTRATE) PARTIES: PLAINTIFF PRESENT, DEFENDANT ABSENT 9 | P a g e