ESHUN VRS YANKEY (A1/46/23) [2023] GHADC 878 (11 December 2023)

CORAM: HER WORSHIP MRS. ANNETTE SOPHIA ESSEL, SITTING AS MAGISTRATE, AMASAMAN DISTRICT COURT “B” ON THE 11th DAY OF DECEMBER, 2023 TONY ESHUN VRS: SUIT NO. A1/46/23 PLAINTIFF THERESA YANKEY DEFENDANT JUDGEMENT INTRODUCTORY COMMENT: This suit commenced with a Writ of Summons and Statement of Claim filed in the Registry of this Court on 20TH January, 2023 for the under-listed reliefs as prayed by Plaintiff: a. “A declaration of title in favour of the Plaintiff as the legal and beneficial owner of the entire land situate at Akraman and as described in paragraph 3 of the statement of claim. b. A declaration that the defendant’s wall constructed is in and extends about 13 feet into plaintiff’s land situate at Akraman and as described in paragraph 3 of the statement of claim. c. Interim injunction restraining the defendant, her agents, assigns, workers, labourers and anybody whomsoever and howsoever described claiming through her from further constructing the wall or dealing with the said land occupied by the wall in any way to adversely affect the interest of the plaintiff in he said land. d. Perpetual injunction restraining the defendant, her agents, assigns, workers, labourers and anybody whomsoever and howsoever described claiming through her from further constructing the wall or dealing with the said land occupied by the wall in any way to adversely affect the interest of the plaintiff in he said land. e. Recovery of possession of any of the portions of plaintiff’s land encroached upon or trespassed unto by the Defendant’s wall. f. Damages for trespass. g. Costs. h. Further orders as the court may seem fit. Page 1 of 18 The subject matter of this instant suit is three (3) plots of land situate lying and being at Akraman in the Ga-West District of the Greater-Accra Region of Ghana and bounded on the North/East by Lessee’s property measuring 95.0 feet more or less, on the North/West by Lessees property measuring 100.6 feet more or less, on the South/East by proposed road measuring 85.1 and 22.3 feet more or less, on the South/West by proposed road measuring 80.0 feet more or less containing an approximate area of 0.21 acres or 0.09 hectares. The Plaintiff is a Ghanaian businessman ordinary resident at Akraman. The Defendant is also a trader and a Ghanaian citizen occupying the land adjacent to the subject matter of this suit. THE CASE OF PLAINTIFF: Plaintiff hauled Defendant before the Honourable Court and stated that parties herein were boundary neighbours. He averred that sometime in the year 2001, he purchased three plots of land as above-described from Nii Akrama II, Chief of Akramaman and lawful Head of the Akrama Family of Akraman. It is the plaint of the plaintiff that the defendant had encroached upon his land by thirteen (13) feet and was firmly resolved to deny him of same by deploying tactics of public sympathy. According to the plaintiff this deliberate act of the defendant had stalled his development plan for his land and hence the commencement of this suit. The defendant in the instant suit simply spurned the invitation of the Court despite several notices. PROCEDURE OF TRIAL: Upon service of the Writ of Summons and Statement of Claim on Defendant, he failed, refused and neglected to attend court. Following this, several Hearing Notices were served on Defendant to notify her of the present action and to enable her to attend Court. She did not file any response nor did she appoint an attorney or representative with respect to this suit. At the close of Pleadings, the matter was set down for Hearing. The Court satisfied itself that Defendant was duly notified before commencing trial and allowing Plaintiff to adduce evidence in support of his case in this matter. Order 25 Rule 1 (2) of the District Court Rules 2009 (C. I 59) provides that: “(2) 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 his claim; Page 2 of 18 Plaintiff was self-represented. He testified by himself and called no witness. Plaintiff tendered his witness statement and was not cross-examined on same. Defendant was given an opportunity to attend Court to cross-examine Plaintiff but same was spurned. In the absence of Plaintiff notifying the Court of his intention of calling any other witness to buttress his case, the Court thereafter announced the closure of Plaintiff’s case and adjourned for judgement. The Court proceeded to deliver its judgment on ….. EXHIBITS FILED: In addition to his pleadings and viva-voce evidence, Plaintiff filed the following exhibits to buttress his case: i. ii. Exhibit A: Stamped indenture with site plan between Nii Akrama II, Chief of Akramaman and Lawful head of Akrama Family of Akramaman and Tony Eshun. Exhibit B: Coloured image of wall constructed by defendant’s deceased husband on the land in dispute. iii. Exhibits C & D: Coloured images of the defendant’s activities on the land in dispute. ISSUES FOR DETERMINATION: At the close of pleadings, the following issues were set down for determination in this suit: i. Whether or not Plaintiff indeed held valid title in respect of the land in dispute. ii. Whether or not Plaintiff was entitled to the reliefs he prayed for. BURDEN OF PROOF: In this civil suit, each of the parties had a duty to prove their case on the preponderance of probabilities and so no weakness in the case of either can be taken advantage of. The Defendant carries the burden of proving the facts alleged in his defence to the same degree as the burden the Plaintiff carries in proving his claim against the Defendant. This burden of producing evidence by both sides in the suit as well as the burden of persuasion is defined by Section 12 of the Evidence Act 1975 (NRCD 323) which stipulates as follows: Proof by a Preponderance of Probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. Page 3 of 18 (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. It is also trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case. as provided in Sections 10 and 11(1) and (4), 14 and 17 of the Evidence Act, 1975 (NRCD. 323) which provide that: “10. Burden of Persuasion Defined (1) For the purposes of this Act, 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. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of Producing Evidence Defined. (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. Allocation of burden of persuasion Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting. Allocation of burden of producing evidence Page 4 of 18 (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (2) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. In explaining the principles relating to the duty to produce evidence, the learned jurist Maxwell Opoku Agyemang states at page 105 of his book Law of Evidence in Ghana thus; “The general rule is that all facts in issue or relevant to the issue in a given case must be proved, in other words, he who avers must prove. This may be done through testimonial evidence, hearsay statements, documentary evidence, or production of real evidence … If in a moment of forgetfulness, the claimant or prosecutor fails to prove an essential fact his opponent may well succeed on a submission that there is no case to answer although the evidence was really available.” In the case of Essoun v Boham, Civil Appeal No.54/1/2014 [2014] G. H. A. S. C 156 dated 21st May 2014, the Supreme Court, speaking through Anin Yeboah JSC. (as he then was) stated as follows: "It is a cardinal rule of evidence that he who bears the burden of proof must prove his case by producing the required evidence of the facts in issue.” EVIDENCE ADDUCED BY PLAINTIFF: It is the case of Plaintiff that sometime in 2001, he acquired three plots of land from his grantor as above-mentioned. Following this acquisition, he was in possession of same for ten years till defendant and her late husband; Thomas Kwaw Kwarm acquired the land adjoining his. He stated that as at this time, the activities of land guards and sand winning was rife in the vicinity which same they did their best to curtail till the defendant and her late husband informed him that in order to ward off potential buyers and secure their land, they intended to enclose their portion of land. Plaintiff asserted that he supported this decision of the defendant but expressed reservations about his portion of land being encroached upon whilst this plan of theirs was being executed. For this reason, the defendant built a dwarf four-course cement block wall around the land he Page 5 of 18 envisaged to be owned by her. Plaintiff asserted that with the effluxion of time, it was realized by a community surveyor duly appointed by parties herein that the defendant’s fence wall had impinged into his portion of land by thirteen to fifteen (13 - 15 feet) which same the defendant was notified. The defendant together with her late husband were given sufficient notice of this intrusion of their fence wall into that of the plaintiff’s land. Thus, plaintiff together with defendant’s late husband were trying to resolve this problem till he met his untimely death thus stalling their resolution steps and plans made. The pith of the plaintiff’s plaint is that although she was notified of this, the defendant remains unfazed and is resolute at dispossessing plaintiff of this portion of his legally acquired land. In this she has constructed a wooden structure very close to the disputed land thus making it impossible for the plaintiff to recover his portion of land. Not all she has peddled falsehood among his church members and circle of friends with respect to this disputed land to garner public sympathy thus causing grave emotional stress and acrimony for the plaintiff within his circle of relationships. He concluded that due to this encroachment, his plans of developing his land have stalled as same was meant to cover his full three plots of land. He thus prayed for the abovementioned reliefs lest the Defendant continues in his wrongful act and he suffer for same. ANALYSIS: The meaning of land in Ghana can be gleaned from Section 281 of the Land Act, 2020. The said Section provides that: “land’ includes the solid surface of the earth, trees, plants, crops and other vegetations, a part of the earth surface covered by water, any house, building or structure whatsoever, and any interest or right in, to or over immovable property” Firstly, it is trite law that where one’s title to land is disputed; the person has to lead evidence on the acquisition, title, ownership and possession of the land. In the case of Asante Appiah v Amponsah alias Mansah [2009] SCGLR 715 the Supreme Court stated as follows: “The law is well established that where a party’s claim are for possession and perpetual injunction, he puts his title in issue: He thereafter assumes the onus of proving his title by a preponderance of probabilities, like any other party who claims declaration of title to land.” Page 6 of 18 Also, in the case of Yaw Kwesi v Arhin Davis & Or [2007-08] SCGLR 580 the Supreme Court stated that: “Since the Plaintiff –appellant sued not only for declaration of title but also damages for trespass and order for perpetual injunction, he assumed the onerous burden of proof of title to the disputed land by the preponderance of the probabilities as required by sections 11 (1) and (4) and 12 of the Evidence Act NRCD 325 of 1975” It is again settled in law that to successfully maintain an action for declaration of title, the Plaintiff has to prove with certainty by positive evidence the identity and limits of the land he or she claims, the boundaries of the land claimed, how much the land was bought for, the documentary proof establishing his or her title, root of title, mode of acquisition, overt acts of ownership. In the case of Mondial Veneer (GH) Ltd v Amua Gyebu XV [2011] I SCGLR 466 at 475 Her Ladyship Georgina Wood CJ. (Mrs.) stated as follows: “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in this instant case, to prove the root of his title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation”. In law the evidential and the persuasive burden was on Plaintiff to lead positive evidence to this assertion. This is a matter capable of proof. How did Plaintiff discharge this duty? In the celebrated case of Awuku v Tetteh [2011] 1 SCGLR 366, the Supreme Court stated that: “This court has decided that in an action for a declaration of title to land, the onus was heavily on the Plaintiff to prove his case, he could not rely on the weakness of the defendant’s case. He must, indeed, show clear title”. In the wise words of Brobbey J. (as he then was) in the case of Duah v Yorkwa [1993-1994] 1 GLR page 217 at page 224: “In our Jurisprudence, if two parties go to Court to seek redress to a dispute, it is Plaintiff who initiates the litigation and literally drags Defendant into Court. If both parties decide to lead no evidence, the order which will be given will necessarily go against Plaintiff. Therefore, it is Plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him.” Page 7 of 18 Plaintiff asserted that he acquired three plots of land inclusive of which the land in dispute formed part from his grantor sometime in the year 2021. He narrated that he entered unto vacant possession and narrated the various acts of possession he had undertaken on the land as at time of purchase to date. It is received learning that once a party seeks declaration of title he can only succeed if he is able to positively identify his land as stated in the wise words of Ollenu JSC in the case of Anane v. Donkor; Kwarteng v. Donkor (Consolidated) [1965] GLR. 188 “Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgment for declaration of title to land should operate as res judicata to prevent the parties re-litigating the same issues in respect of the identical subject-matter, but it cannot so operate unless the subject-matter thereof is clearly identified. For these reasons a claim for declaration of title or an order [p.193] for injunction must always fail if the plaintiff fails to establish positively the identity of the land to which he claims title with the land the subject-matter of the suit. Plaintiff described the land as “land situate lying and being at Akraman in the Ga-West District of the Greater-Accra Region of Ghana and bounded on the North/East by Lessee’s property measuring 95.0 feet more or less, on the North/West by Lessees property measuring 100.6 feet more or less, on the South/East by proposed road measuring 85.1 and 22.3 feet more or less, on the South/West by proposed road measuring 80.0 feet more or less containing an approximate area of 0.21 acres or 0.09 hectares.” Plaintiff also bore the burden of producing the documentary proof establishing hi title, root of title and mode of acquisition in the case of Nsowaa & 2 Others v Bamba & Another (2015) 86 GMJ @ 21 -24the court held that; Page 8 of 18 “In law, title to land may take the form of possession or it may take the form of documents or series of documents. It is however stipulated in Section 23 (5) of the Land Title Registration Act, 1986 (PNDCL 152) that a good title is always documentary.” To this end the Plaintiff tendered Exhibit A which are the indenture with site plan issued to him by his grantor. In the case of Ackah v Pergah Limited & Others [2010] SCGLR 728 the Supreme Court speaking through Her Ladyship Sophia Adinyira (Mrs.) JSC. held that: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described 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 or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.” In respect of the indenture, after analyzing same, I find that this said instrument did bear the signature of Plaintiff’s lessor. The oath of proof on the indenture was also duly executed. Plaintiff signed his part on the indenture and also that of his witness was signed. On the face of the indenture, it was commissioned at the High Court, Accra. This indenture was duly prepared by a lawyer and solicitor and barrister of the Supreme Court of Ghana in accordance with Section 33 of the Land Act, 2020 (Act 1036). The indenture was also stamped in accordance with Section 15(1) of the Stamp Duty Act, 1965 (Act 311) as amended by Sections 4 of the Stamp Duty Act, 2005 (Act 689) which stipulates that a conveyance must be duly stamped with an impressed stamp at any time within two months after its execution on payment of the unstamped duty. It provides as follows: “Section 4—Impressed and adhesive stamp (1) Stamp duties chargeable under this Act or any other enactment on an instrument shall be paid and denoted in accordance with this Act. (2) Except otherwise provided expressly by this Act or any other enactment, stamp duties shall be denoted by impressed stamps only. Page 9 of 18 (3) A stamp duty of an amount not exceeding ten thousand cedis may be denoted by adhesive stamps. (4) Where duties are permitted to be denoted by adhesive stamps, they may be denoted by stamps issued by the Commissioner for the purpose of this Act. (5) Each stamp impressed on an instrument, other than an instrument stored electronically or in cellulose material shall contain figures denoting the actual date on which that stamp was impressed. Secondly, the site plan was signed by the Regional Director of the Lands Commission. With respect to the site plan, in the case of Nortey No. 2 v African Institute of Journalism and Communication and Others (No. 2) 1 SCGLR [2013 – 2014 @ 703, Akamba JSC. in his erudite judgment in holding 4 affirmed that: “The court of Appeal had rightly held that Exhibit A (a site plan), tendered in evidence by the plaintiff in apparent proof of his claim of title to the disputed land, i.e. as his root of title, had no probative value because it was not signed by the Director of Surveys (Supervision and Approval of Plans) Regulations, 1989(L. I1444). The said regulation 3 (1) made it mandatory for plans of any parcel of land attached to any instrument for the registration of such instrument to be approved by the Director of Surveys or any official surveyor authorized in that behalf. ….. The courts had a duty to ensure compliance with statutes including subsidiary legislation like LI 1444.” Regulation 3 (1) of the Survey (Supervision and Approval of Plans) Regulations, 1989 (L. I1444) provides that: “No plan of any parcel of land attached to any instrument for the registration of such instrument shall be accepted by the Chief Registrar of Lands or the Registrar appointed pursuant to the provisions of the Land Registry Act, 1962 (Act 122) unless the plan has been approved by the Director of Surveys or any official surveyor authorized in that behalf in accordance with regulation 2 of these Regulations.” The above statutes make land instruments registrable and any such registration conclusive evidence of the holder of the interest specified in the land register. Page 10 of 18 It was crucial that Plaintiff disclosed his grantor identity. In the case of Awuku v. Tetteh [2011] SCGLR 366 the Supreme Court through Ansah JSC. stated as follows: “We believe we state the law correctly that where the appellant’s title was derivative, he ought to demonstrate that the predecessor-in-title held a valid title for if the foundation was tainted, the superstructure was equally tainted” Also, in the case of Sanbaye Basilde Kangberee v Alhaji Seidu Mohammed [2012] 51 GMJ 173 Dotse JSC. stated that: “This principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance.” In the case of Abrahams v Akwei [1961] GLR 676 – 679 in the wise words of Ollenu J. (as he then was): “For where a grantor stands by in a case between his grantee and a third party involving the validity of the title he has conveyed, and is content to see the battle fought by the grantee, he the grantor, will be bound by the result of the case and will be estopped by conduct from re-opening the issue determined in that case.” Plaintiff mentioned his grantor as Nii Akrama II, Chief of Akramaman and lawful Head of the Akrama Family of Akramaman in the Greater-Accra Region of the Republic of Ghana. The indenture also clearly stated that this transaction was undertaken with the concurrence of the principal members of the grantor family. To date no member of that family has challenged the lease of same to Plaintiff and he had been in peaceful enjoyment of same until the untoward conduct of Defendant. What’s more, it is settled in law that the Plaintiff bore a duty to state the acts of ownership he had asserted to the land acquired. In the case of Elizabeth Osei v Madam Alice Efua Korang [2013] G. M. J 26 – S. C in the wise words of Ansah JSC.: “a plaintiff in possession has a good title against the whole world except one with a better title It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it.” Page 11 of 18 Also, in the case of Ababio v. Mensah (No. 2) [1989-90] 1 GLR. 573 at 595 Taylor JSC. reiterated this hackneyed position when he said: "[T]he... principle is that a person in possession is entitled to retain his possession as against the whole world except the true owner.” Plaintiff testified that he entered into vacant possession of the land; the subject matter of this dispute and chronicled his acts of possession upon entering same. In sum Plaintiff to a very large extent has secured the land and changed the character of the land. To this end the Court accepts and admits the testimony of the plaintiff as Defendant did not dispute the claims of Plaintiff. In the case of Takoradi Flour Mills v Samir Faris [2005-06] SCGLR 882, the Supreme Court held that: “The law is well settled, (as held by the trial court and affirmed by the Court of Appeal) that where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court”. As can be gleaned from the facts of this case Plaintiff moved into vacant possession of the land and commenced development of the land. Plaintiff duly registered and stamp his instrument covering the land. The instrument held by Plaintiff is therefore in compliance or adequate to constitute true and valid title. The plaintiff stated that he was in possession of the land and had taken steps to commence development on the land, the legal principle as expounded is that if a purchaser of land whose conveyance is not registered takes possession of the land, then any subsequent purchaser cannot pretend to be a bona-fide purchaser without notice. The earlier purchaser in possession can rely on his possession which could not have escaped the notice of the subsequent purchaser if the latter made the requisite enquiries which a prudent purchaser would have made into the title of his vendor. This set of facts is similar to the case of Boateng v Dwinfour [1979] GLR 360 C. A at 366 Anin, J. A. stated as follows: “The general principle of equity is that a purchaser is deemed to have notice of all that a reasonably prudent purchaser would have discovered. Thus, where the purchaser, like the plaintiff in his case, had actual notice that the property was in some way encumbered, she will be held to have Page 12 of 18 constructive notice of all that she would have discovered if she had investigated the encumbrance…. ……” Also, in the case of Kabba v Young [1944] 10 WACA 135 where Kingdom, 30 C. J., quoting from Dart on the Law of Vendors and Purchasers, 6th ed., at 975 (1888), said (10 W. A. C. A. at 139): “Notice of the land, being in the occupation of a person other than the vendor, is notice to a purchaser that the person in possession has some interest in the land, for possession is prima facie evidence of seisin, and a purchaser having notice of that fact is bound to enquire what that interest is, or to give effect to it whatever it may be.” In the respectful view of the court, the evidence adduced in this case by Plaintiff in support of his title to the property meets the required evidential standard and as such the case of Plaintiff having title to the property will succeed. I therefore conclude under this head that the Plaintiff has convinced the court to its satisfaction that he has full and proper title to the land. The second issue for determination by the Court was whether or not Plaintiff was entitled to the reliefs he was seeking. It is trite learning that unless and until an instrument affecting any land or interest in land is registered, it cannot pass any title in the land to the transferee unless after the execution of the instrument the transferee takes possession of the land in which case his possession will be good title against the whole world except someone with a better title or right to possession. In the case of West African Enterprise Limited V Western Hardwood Enterprise Limited & Ors Civil Appeal No 86/93 dated 18thApril, 1996 (unreported) the Supreme Court affirmed the Appeal Court decision. By the facts of that case, the appellant was in effective possession and occupation of the land pursuant to a lease. The instrument evidencing the lease was not registered and therefore inadmissible evidence Acquah JSC. held as follows: “Now when in a trail any exhibit is found to be ineffective and invalid and as in the instant case, inadmissible exhibit, there is no other admissible evidence and materials on record to sustain the party’s claim, If there are other admissible evidence and materials on record to support the party’s claim, then the court is duty bound to consider those other matters. The inadmissibility or invalidity of an exhibit does not mean the automatic failure of that party’s claim unless from the pleadings and evidence the claim cannot be sustained on any other ground. Page 13 of 18 The right to own property here in the Republic of Ghana is clearly stipulated in Section 18(1) of the 1992 Constitution of the Republic of Ghana as follows: “18. Protection of privacy of home and other property 1. Every person has the right to own property either alone or in association with others. 2. No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well- being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.” Moreso, Section 48 of the Evidence Act, 1975 (NRCD 323) provides that: “Ownership 48 (1) the thing which a person possesses are presumed to be owned by him. (2) A person who exercises acts of ownership over property is presumed to be the owner of it. In the considered view of the Court, once Defendant had notice of Plaintiff’s possession of the land and also this pending litigation regarding the subject matter of this suit, to ignore the Court processes and not defend his title to the land in dispute was his own undoing. The Court expected that Defendant knowing full well that her title to the land in dispute was being challenged reserved the option to have heeded to the summons of the court. In the instant suit, the Court did not just enter judgement based on the fact that Defendant was not in Court or “invent her own rules”. The court satisfied itself that the service on Defendant was proper and therefore allowed Plaintiff to mount the witness box to lead evidence to prove his case. Defendant was thus given an opportunity to be heard and there has been therefore, no breach of the natural justice rule of “Audi Alteram Partem” when the Court goes ahead to determine the matter and give its judgment. This court expected that Defendant knowing full well that his title to the disputed land was being challenged would have heeded to the summons of the court. In the respectful view of the court, in the circumstances, once Defendant had notice of the litigation regarding the land in dispute, to ignore the court processes and not participate in the proceedings to defend her title to the land was her own undoing. Once Defendant failed Page 14 of 18 to participate in the trial in court, she cannot raise any issue of irregularity in the proceedings because she was offered every opportunity to be heard but she declined. In the case of Vasquez v Quarshie [1968] GLR 62 where Amissah JA. sitting as an additional High Court Judge stated in holding (3) of the head notes as follows: “a court making a decision in a case where a party did not appear because he had not been notified would be doing an act which was a nullity on the ground of absence of jurisdiction”. In another case of Boye-Doe and Another v Teye and Another [1997-98] 1 GLR 997-1005 Baddoo JA. stated that: “But what are the rules of natural justice? There are two basic principles of natural justice recognized in English law, according to de Smith in his Judicial Review of Administrative Action (3rd ed), p 134. The first is expressed in the Latin maxim nemo judex in causa sua. Literal translation means, an adjudicator or judge should be disinterested and unbiased. The second is that the parties should be given adequate notice and opportunity to be heard. This is the audi alteram partem rule. These two rules are so basic to any judicial proceedings in this country that any violation will necessarily result in setting aside the decision of the tribunal.” The authorities are numerous that a person who deliberately spurns the opportunity to be heard cannot rely on the audi alteram partem rule and accuse an adjudicator of breaching the rules. In the circumstances, this Court, noting the deliberate failure of Defendant to participate in the proceedings, despite notice to him, the Court proceeded to consider the case on its merits and made the appropriate pronouncements. It must further be noted that the judgment that has been delivered on this date is not interlocutory; it is a full judgment of the Court. Evidence was taken and the case was decided on the merits and therefore final. Defendant cannot ever say that the judgement pronounced in this suit was obtained fraudulently. In sum, a party who is aware of the hearing of a case, but willfully elects to stay away out of his own decision could not complain that he was not given a hearing. He could only appeal on the merits of the judgment. I therefore hold that the Plaintiff’s first reliefs of a declaration of title to all that piece or parcel of land above described; the subject matter of this suit succeeds in its entirety as accordingly a declaration of title is hereby made in favour of Plaintiff against the Defendant for the subject matter of this suit as above described and same described in Plaintiff’s site plan attached to his Page 15 of 18 indenture which same Plaintiff described supra. The standard of proof in civil cases including land is proof on the preponderance of probabilities. Sections 11(1) and (4) and 12(1) of the Evidence Act (NRCD 323) and the decisions of the Supreme Court in the following cases: Adwubeng v Domfeh [1996 – 1997] SCGLR 660, Sarkodie v F. K. A Co Ltd [2009] SCGLR 65; Asante-Appiah v Amponsah [2009] SCGLR 90 are emphatic on that. With respect to Reliefs (iv) and (v), of Plaintiff, the law is that possession is nine points of the law. There being no other issues raised by the pleadings and the evidence, the Court will proceed to grant Plaintiff a relief of recovery of possession of the land; the subject matter of this suit in his favour against Defendant. To this end the Court hereby orders a recovery of possession of same and hereby perpetually restrains forthwith Defendant, his agents, workmen and assigns, privies, successors from operating, interfering, entering, constructing and anyone obtaining title from or through the Defendant from interfering and dealing in the land in dispute. I find fortitude in the wise words of Ansah JSC. in the case of Elizabeth Osei v Madam Alice Efua Korang [2013] GMJ 26 – SC where he held that: “a plaintiff in possession has a good title against the whole world except one with a better title It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it.” With respect to Reliefs (ii) and (vi), trespass to land (trespass quare clausum fregit) at law is the direct interference with land in the possession of another. In Blackstone’s Commentaries Vol. 3 p 208 this tort is described as: “Every unwarrantable entry on another’s soil, the law entitles a trespass by breaking the close; the words of the writ of trespass commanding the defendant to show cause quare clausum fregit. For every man’s land is in the eye of the law, enclosed and set apart from his neighbour’s; and that, either by a visible and material fence, as one field is divided by another by a hedge; or, by an ideal visible boundary, existing only in the contemplation of the law, as when one man’s land adjoins to another’s in the same field.” For an act to constitute trespass, the act must be direct, it should be a positive and also a voluntary action, there must be physical interference, consent must be absent. As in all cases Plaintiff must prove that Defendant acted either negligently or intentionally and the tort which is actionable per se will succeed without the necessity of proving damage. Proof of ownership Page 16 of 18 is prima facie proof of possession. In the case of England v. Palmer (1955) 14 WACA. 659, the defendant's appeal was dismissed, and reading his judgment, in which the other members of the court concurred, Coussey J. A. said at p. 660: "In a trespass action an averment of ownership is consistent with and in my view amounts to an averment of possession, for ownership may be proved by proof of possession. 'As mere possession is sufficient to maintain trespass against anyone who cannot show a better title, the plaintiff's allegation that the defendant broke the close of the plaintiff, (the use of the word 'close' being an averment of ownership), 'is satisfied prima facie by proof that the defendant broke a close in the possession of the plaintiff; and this is not only prima facie, but ultimately, sufficient against anyone who cannot avoid the effect of it by shewing that, notwithstanding the actual possession by the plaintiff, he the defendant has a better right to it…” It is the plaint of Plaintiff that Defendant came unto his land and continued to occupy same without his consent thus Defendant had trespassed and or encroached unto his land by thirteen feet (13 ft). He narrated that in doing this, Defendant had erected a wooden structure on that portion of land belonging to him. Additionally, the plaintiff tendered Exhibits C and D evidencing the activity of the defendant on the land in dispute which same was tendered without objection and same went in as evidence. According to Plaintiff, all his efforts to recover same had yielded no fruit. The Court holds therefore that Defendant has trespassed unto Plaintiff’s land; the subject matter of this suit. The Court relies on the authority of the Supreme Court in the recent case of Appiah v Anane [2017 -2020] 2 SCGLR 828 in Holding 2 @ 831 where the Supreme Court held that: “Where evidence was tendered and not objected to, the party who should have objected would be deemed to have admitted it. Again, where evidence was rendered and a party failed to cross- examine so as to challenge its veracity, subject to some exceptions the party will be deemed to have admitted the contents of the evidence.” This reprehensible conduct of Defendant having been proven by Plaintiff, and Defendant being found to be a trespasser, Plaintiff is entitled to compensation for the injury caused him by Defendant’s actions. This is to enable Plaintiff to recover loss of market value, loss of use of the property, the emotional distress, discomfort and annoyance caused him. In awarding this compensation, regard also has to be had to the acreage of the land on which the trespass was Page 17 of 18 committed, the period of wrongful occupation and the damage caused by Defendant. In the case of Laryea v Oforiwah [1984 – 86] 2 GLR 410 Abban JA. in his erudite judgement stated that: “In awarding damages for trespass to land, regard should be given to the acreage of the land on which the trespass was committed, the period of wrongful occupation and the damage caused. Similarly in the case of Delmas Agency Ghana Limited v Food Distributors International Ltd [2007-2008] SCGLR 784, the Supreme Court per Dr. Twum JSC. held that: “General damages are such as the law will presume to be the natural or probable consequences of the defendant’s act. It arises by reference to the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right”. Having declared Defendant to have trespassed by thirteen feet unto land belonging to Plaintiff, this Court would award General Damages the intentional and wrongful act of Accordingly, the court awards damages of Five Hundred Cedis (GH¢ 500.00) only against Defendant in favour of Plaintiff. As incidentals for the filing of this suit Cost of Two Thousand Cedis (GH¢ 2,000.00) only is awarded against Defendant in favour of Plaintiff in view of the multiplicity of Hearing Notices and other processes served on Defendant. (SGD) H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 18 of 18