ENGLEBERT VRS. PARRY AND OTHERS (C1/154/2023) [2023] GHAHC 676 (12 December 2023)

IN THE HIGH COURT OF JUSTICE SITTING AT KOFORIDUA ON TUESDAY THE 12TH DAY OF DECEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE SENYO AMEDAHE SUIT NO:C1/154/2023 BLACK MORE – MOSES ENGLEBERT PLAINTIFF VRS: 1. GEORGE OSEI PARRY 2. EMMANUEL NOI OMABOE DEFENDANTS 3. LANDS COMMISSION, KOFORIDUA _______________________________________________________________________ JUDGMENT _______________________________________________________________________ PLAINTIFFS' CASE The Plaintiff, on the 30th of May 2023 filed a Writ of Summons accompanied by a Statement of Claim on 30th May, 2023 claiming the following reliefs; a) A declaration of Plaintiff's title to all that piece of land at Peduase measuring approximately 0.63 acres and bounded on two (2) sides by road and on the other side Keda Developers (Mrs. Vandyke). b) An order directed at the Lands Commission, Koforidua to expunge from their records the recorded transaction between George Osei Parry and Emmanuel Noi Omaboe and register the Plaintiff's interest in same. c) Perpetual Injunction to restrain the Defendants by themselves, privies, assigns, workmen, agents and all persons claiming the land in dispute through the Defendants from interfering or entering unto the land in dispute. d) Damages for Trespass. e) Cost including cost of litigation. The Plaintiff claims to be the bona fide owner of the land in dispute. That the 1st Defendant is the purported Vendor of the land in dispute, the 2nd Defendant is the purported or the supposed purchaser of the parcel of land in dispute whilst the 3rd Defendant is the State Institution In charge of the plotting and registration of lands within the Eastern Region of Ghana. According to the Plaintiff he first acquired the land in dispute from Nana Ankrah sometime in the year 2000 and after his demised in 2001 his family represented by Obaa Panyin Kyeiwaa resold the same portion of land to him. Hence the land in dispute on document was acquired in the year 2001 from Obaa Panyin Kyeiwaa, Head and Lawful Representative of the Asona family of Kitase. Plaintiff avers that his land measures approximately 0.95 acres and shares boundary at the time of the purchase with Vendor's land on all 3 sides and a proposed land on one side. He told the court that he had to cede portions of his otherwise 0.95 acres of land to be used as access road by his neighbours and so his land now measures approximately 0.63 acres and shares boundary with access road on two (2) sides, the property of Keda Developers (Mrs. Vandyke). According to him the whole area was declared a security zone by 2001 when he acquired the parcel of land which explains why he could not register same at the time however he immediately went into physical possession and built on the land his dwelling house and has since been living in the house thereon since the year 2002 without challenge or adverse claim from anyone. That Plaintiff said he has also constructed a fence or concrete wall around the entire boundary of his parcel of land purchased from the Asona family for more than 21 years now. The Plaintiff added that the area has now been declared a non-security zone by the Government and intended to have same registered however an attempt to register his land in recent time revealed a recorded transaction between one George Osei Parry as Vendor and Emmanuel Noi Omaboe as Purchaser. The Plaintiff states that on the ground his land is clearly and distinctly demarcated with concrete wall constructed around it since the year 2002 and that the 1st and 2nd Defendants are estopped by section 10 of the limitation Act assuming without admitting that the 1st and 2nd Defendants have any interest at all in the land in dispute. In conclusion the Plaintiff avers that the land was purchased in the year 2000 and have been in physical possession of the said land for about 21 years or more now and therefore cannot in anyway be the property of the 1st and 2nd Defendants whose names appeared in the search report. DEFENDANTS' CASE The 1st and 2nd Defendants failed to file appearance as well as a Statement of Defence and judgment in default of appearance was granted against them after they were served by way of substituted service In his addresses filed before this Court Counsel for the Plaintiff listed the following issues as being germane for the determination of the instant action. ISSUES l. Whether or not the Plaintiff is the owner of the land in dispute. 2. Whether or not the Plaintiff has been in undisturbed possession of the land in dispute since 2001. 3. Whether or not the I St and 2nd Defendants are estopped from laying adverse claim to the land in dispute. A search conducted at the registry of this court by the plaintiff on the 10th day of July, 2023 showed that the Defendant had not filed a statement of defence or any other process. The answer was a no. The Plaintiff applied for and was granted interlocutory judgment in default of appearance and defence on the 14th of July, 2023. The interlocutory judgment was served on the Defendants per the order of the Court together with Hearing Notices. The Plaintiff was also ordered to file his Witness Statements and serve same on the Defendants so he could mount the witness box and prove his case against the Defendants. The Evidence It must be noted that the defendants who did not participate in the entire hearing of this case was given the opportunity to do so but she refused to participate. The Court per its order had the 1st and 2nd Defendants served by substituted service per Order 7 Rule 6 of C. I. 47, when the Defendants had failed to enter appearances and file a defence. The common law is clear that a party must not receive adverse ruling by a court of competent jurisdiction unless he or she is heard. This is popularly referred to in Latin as the audi alteram partem rule. Commenting on the said rule, His Lordship Kpegah JSC (as he then was), in the case of AWUNI vs. WAEC (2003-2004) SCGLR 471, indicated that. . .“the phrase,…” to act fairly and reasonably”, in my opinion necessarily import a duty to observe the common law maxim of audi alteram partem and the principles of natural justice which is very much part of our jurisprudence….”. Upon the strength of the above the plaintiff after obtaining an interlocutory judgment against the defendants was asked to prove her case against the defendants. In doing so the plaintiff himself Blackmore-Moses Engelbert on 27th July, 2023 mounted the witness box and gave his evidence by tendering her Witness Statement together with the attached exhibits as his evidence in chief in the absence of the defendants who although had been served with the said Hearing Notice failed to appear for the hearing. BURDEN OF PROOF The law on the burden and quantum of proof in civil cases is provided for in sections 10 to 12 of the Evidence Act 1975 (NRCD 323) which reads as follows: Section 10(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. Section 11(1). For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Section 12(1). Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) Preponderance of the probabilities means 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 SARKODIE VRS. FKA COMPANY LTD (2009) SCGLR 65, the Supreme Court held that, The burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. In ABABIO VRS. AKWASI ILL (1995-96) GBR 774, the Court noted that, a party whose pleadings raised an issue essential to the success of his case assumed the burden of proving such issue. The burden only shifted to the defendant when the plaintiff has adduced evidence to establish his claim. The Plaintiff in a bid to discharge his burden gave evidence by filing witness statement and subsequently relied on same. EVIDENCE OF PLAINTIFF The Plaintiff gave evidence through his witness statement filed on 19/7/23 and relied entirely on same as his evidence in chief. He tendered in evidence exhibits A, B, C and D being Deed of Conveyance, site plan photograph of his house and a search report dated 18/4/23 respectively. The Plaintiff in the discharge of his evidential burden to succeed as a bona fide owner of the land in dispute was to trace to the satisfactory of the Court his root of title as well as the identity of his land as stated in the case of NYIKPLORKPO V. AGBODOTOR 11987- 881 1 GLR165-174. "To succeed in an action for declaration of title to land, recovery of possession and for an injunction the plaintiff must establish by positive evidence the identity and the limits of the land which he claimed". The Plaintiff in his witness statement particularly at paragraph 6 led evidence to the fact that he originally acquired the land in dispute from Nana Ankrah in the year 2000 and after his demise in 2001 Obaa Panyin Kyeiwaa resold the same portion of land to him. This meant that the land in dispute was acquired twice to the benefit of the family of his vendors. In the year 2001 Obaa Panyin Kyeiwaa in her capacity as the Head and Lawful Representative of the Asona family of Kitase resold the same portion of land to him. The Plaintiff tendered in evidence particularly at paragraph 8 of his witness statement exhibit 'A' being the deed of conveyance executed by the said Head of the Asona family of Kitase, Obaa Panyin Kyeiwaa. Again, the Plaintiff in an attempt to meet the standard and the burden placed on him by law tendered in evidence a bar code cadastral site plan marked as exhibit B and also stated at paragraph 10 of his witness statement that his land shares boundary with access road on two (2) sides, the property of Keda Developers (Mrs Vandyke) and an unknown neighbour whose house is also walled. From the tot stated at paragraph 12 of his witness statement that he has built on the land, walled it and has been living in it from the year 2002 without any challenges or adverse claim from anyone including the Defendants. He tendered in evidence "exhibit C" which is a photograph of his house on the land. The Defendants have nothing on the land. SECTION 48(2) OF NRCD 323 provides that 'A person who exercises acts of ownership over property is presumed to be the owner of it‘. In the case of DUAH VRS YORKWA [1993-94] 1 GLR 217—241, it was held that, "It was a settled principle that a person in possession and occupation was entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title" The activities and developments undertaken by the Plaintiff on the land including the pictures he tendered as Exhibit ‘C’ is enough proof that the Plaintiff was and is still in legal possession of the land in dispute without any challenge from any other person or persons. It must be noted the Plaintiffs possession has not been challenged in Court by the Defendants. From the evidence before this Court the Plaintiff has been in possession of the land for the past 21 years. Exhibit D is a search result showing a transaction in the records of the 3rd Defendant purporting a grant of the land in dispute from the 1st Defendant to 2nd Defendant. This exhibit states that the land in dispute was acquired by the 2nd Defendant from the 1st Defendant sometime in 1993. It is strange that when the Plaintiff went onto the land in the year 2001 and started his construction the 1st and 2nd Defendants did not see or notice the beginning of the construction, its completion and habitation by the Plaintiff for the past 21 years. In the language of Sections 10(1) and (6) of the Limitation Decree 2nd Defendant's title if at all had become extinguished and the Plaintiff's title falls in the nature of an adverse possessor assuming without admitting that the subject matter of dispute belongs to the 2nd defendant. Counsel for the Plaintiff rightly cited his Lordship Dr. Justice Baah. My Lord in GIHOC REFRIGERATION HOUSEHOLD PRODUCTS LTD. V HANNA ASSI (2005 - 2006) SC GLR 458 at 468 - 469. Dr. Justice Date-Bah JSC as he then was who stated the legal position of an adverse possessor as follows: "The combination of the extinguishing of the original owner's rights under section 10(6) of the Limitation Decree, 1972 (NRCD 54), with the barring of action against the adverse possessor under section 10(1), must in logic result in the adverse possessor being construed to have gained a right that is enforceable by action. Otherwise, there would be the risk of "ownerless lands" resulting from a contrary interpretation of section 10(6) of the Limitation Decree. Indeed, there is authority in support of the view that an adverse possessor of land in relation to which the original owner's rights have been extinguished has rights in relation to which he can sue. The adverse possessor gains a new estate of his or her own, which is not by transfer from the original owner whose rights have been extinguished by the limitation statute". The evidence adduced by the Plaintiff however does not allow this Court to conclude that the Plaintiff is an adverse possessor, but rather, this Court concludes that the 2nd Defendant is not the legal title holder of the disputed land despite the fact that he has a register Deed processed and deposited by the 3rd Defendant in his name. The Court in the case of KWAME BONSU VRS KWAME KUSI and GIFTY KUSI AMPOFOWAA [2009] SCGL citing with approval BOTCHWAY VRS. OKINE [1987- 881 2 GLR C. A states as follows; "It ought to be emphasized that the registration does not prevent the court from ascertaining who has a valid title to a piece of land, and it must also be borne in mind that registration will not confer any legal right or title on any party who took his grant from a person who had no legal title to convey... " In our view and in the circumstance of this case mere registration of deed of conveyance at the Lands Commission or the lands registry will not confer title on the 2nd Defendant. If therefore the title is proved to be defective, mere registration cannot cure the defect. My Lord, the failure of the opponent to cross examined the Plaintiff or tender any evidence to the contrary must be deemed as admission. This position is in line with the Supreme Court case of TAKORADI FLOUR MILLS VRS. SAMIR FARIS (2005/2006) where the court concluded as follows; " Where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence contrary, the facts deposed to in that evidence are deemed to have been admitted and must be accepted by the trial Court. " In conclusion I hold that the Plaintiff was successful in proving that he purchased the land in dispute first from Nana Ankrah and in 2001 from Oba Panyin Kyeiwaa who resold it to him. I am also satisfied this Court gave the Defendants enough opportunities for them to defend the action against the Plaintiff but they all failed to appear in Court. The Plaintiff having met the requirements explained in Sections 10(1), 11(1and 4) and 12(1and 2) in enter judgment in favour of the Plaintiff and grant to him the following reliefs; a) I declare title in favour of the Plaintiff's to all that piece of land at Peduase measuring approximately 0.63 acres and bounded on two (2) sides by road and on the other side Keda Developers (Mrs. Vandyke). b) I order the office of the Lands Commission, Koforidua to expunge from their records the recorded transaction between George Osei Parry and Emmanuel Noi Omaboe and register the Plaintiff's interest in same. c) Perpetual Injunction to restrain the Defendants by themselves, privies, assigns workmen, agents and all persons claiming the land in dispute through the Defendants from interfering or entering unto the land in dispute. d) Damages for Trespass. e) Cost including cost of litigation. By Counsel for the Plaintiff: We will be glad if we are offered a costs of GH¢30,000. The Defendants have caused us a lot of inconvenience by registering the land in their name. The Plaintiff has incurred cost in litigating this matter. By Court: I have listened for the plea for the award of cost to the Plaintiff in this matter. I take into consideration the plea of Counsel for the plea and the rather high cost involving in litigation and award cost of GH¢20, OOO against each of the 1st and 2nd Defendants in favour of the Plaintiff. SGD: JUSTICE SENYO AMEDAHE JUSTICE OF HIGH COURT Counsel: Benjamin Lartey holding the brief of Abigail Ofori Appiah for the plaintiff present. Parties: Absent. 11