Nuhu Vrs Ampah [2023] GHADC 611 (12 April 2023)

IN THE DISTRICT COURT HELD AT TAKORADI (MARKET CIRCLE) ON WEDNESDAY THE 12TH DAY OF APRIL 2023. BEFORE HER WORSHIP CATHERINE OBIRI ADDO. SUIT NO. A1/ 17/2022 EBUSUAPANYIN IBN KWAME NUHU …. PLAINTIFF (SUING ON BEHALF OF HIMSELF AND ON BEHALF OF THE AWODWINFO FAMILY OF KWESIMINSTSIM TAKORADI) HOUSE NO. 98/8 KWESIMINTSIM VRS: ANTHONY KOJO AMPAH …. DEFENDANT JUDGMENT The Plaintiff in this case initiated the actionagainst the defendants at the registry of this honourable court on the 28th day of March 2022, and claim again the defendant the following: a. Recovery of possession of plot no. 573, west Tanokrom for the following reliefs: i. ii. iii. Non-payment of ground rent from 31/12/ 2001 to date Failure to develop the demised land within three years to date. An order of the court directed to the regional Lands Commission to delete from their records the name of the defendant as owner of plot no. 573, west Tanokrom, Takoradi. EVIDENCE OF THE PLAINTIFF Plaintiff avers, he is a trader and a member of the Awodwene family of Kwesimintim he does not know the defendant. According to the plaintiff he knows one Ebusuapanyin Kwesi Tachie Duku who used to be the head of family of the Awodwene family but deceased now. During the tenure of the Ebusuapanyin Tachie Duku, he granted land to the defendant Tanokrom plot No. 573 in 1968. The late head of family prepared documents to that effect for the defendants but he does not have the agreement between the defendant and the late Ebusuapanyin Tachie Duku in respect of the subject matter land. According to plaintiff, per the agreement between the late Ebusuapanyin and the defendant contains a clause which indicates the defendant is to develop the land within three years and the land was to be used for personal purposes and not commercial purposes. According to the plaintiff from 1968 up till date, the defendant has failed to develop the land. According to plaintiff one Mr, Gyiredu came to see him that he has seen a plot of land at west Tanokrom thus the very land in contention and expressed interest in purchasing same. He informed him that his late great grandfather who was a head of family, gave same to the defendant but the defendant has failed to develop same up till date, he then informed the said Mr Gyiredu to go for cadastral pertaining to the land if he is interested in same since the defendant has refused to develop the land per the agreement. According to the plaintiff a search conducted at the lands commission revealed that the land has not been developed. He tendered the said search report in evidence as Exhibit A. Plaintiff avers in 2018 to 2019, he made his lawyer write to the lands commissioninquired whether the defendant pays ground rent, and for them to furnish him with the agreement between his late great grandfather and the defendant but the lands did not respond to him. He tendered the said letters written by his lawyer to the lands commission in evidence as exhibits B and C respectively. According to the plaintiff, since the land was granted to the defendant in 1968, he has paid rent up to 1991 and afterwardsstopped paying rent. Plaintiff further avers, he made his lawyer write to the administrator of stool lands to determine whether the defendant pays rent or not the administrator of stool lands responded and same is in evidence as Exhibit E. he therefore prays for the recovery of possession of the subject matter land thus plot no. 573 situated at west Tanokrom. ISSUE FOR DETERMINATION WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO RECOVER POSSESSION OF THE SUBJECT MATTER PLOT FROM THE DEFENDANT. EVALUATION OF EVIDENCE AND APPLICATION OF THE LAW. The plaintiff bears the burden of proof in this case to establish his claims. The standard of proof required from the plaintiff is proof by the preponderance of probabilities. It is a basic principle of law of evidence that in a civil case, a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality or credibility short of which his claim may fail. See the case of ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728 at P. 736. PER ADINYIRA JSC. The burden demands that a party produces sufficient evidence such as will lead a reasonable man on all the evidence to conclude that the existence of the fact in issue is more probable than its non-existence. See sections 11(4) and 12(1) of the evidence Act. It is only after the plaintiff has discharged his burden that the defendant is required to adduce evidence in rebuttal of the plaintiff’s evidence. It is trite law that he who alleges must prove. In the case of ABABIO V AKWASI III (1994-1995) 2GBR, 774, the court held that: “The general principle of law is that it is the duty of a 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 scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not his losses on that particular issue.” Similarly, in the case of BISI V TABIRI ( 1987-1988) 1GLR 360 the court stated thus: “ the standard of proof required of a plaintiff in a civil action was to lead such evidence as should tilt in his favour the balance of probabilities on a particular issue”. I will proceed to determine the issue. It must be noted that the defendant failed to appear in court after the writ of summons and hearing notices were served on him. Order 25 rule 2(a) states: “Where an action is called for trial and a party fail 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……” Similarly in the case of REPUBLIC. V CIRCUIT COURT JUDGE EX PARTE DZAKA (1984-86) 1GLR 741 at holding 1 the court held “……. situations where both parties were aware of or had been served with hearing notice and yet one party failed to appear at trial, in such a case, the party who failed to appear could be said to have deliberately abstained from taking advantage of an opportunity to be heard and no breach of the audi alteram partem rule could be said to have occurred……” Base on the above position of the law, the court called on the plaintiff to proof his claim. According to the plaintiff, he is praying the court to re-enter the land granted to the defendant by his great grandfather who according to the plaintiff was once a head of family at the time that he leased the subject matter land plot no. 573 situated at west Tanokrom to the defendant in 1968. Plaintiff avers the defendant has breached a covenant in the lease to develop the land within three years and has failed to pay ground rent in respect of same since 1991. According to the plaintiff per exhibit A, thus the search conducted at the lands commission reveals that the land is not encumbered. A cursory look at the said Exhibit A, signed by the regional lands officer Phyllis Mensah reveal that the land granted to the defendant by the said Tachie Duku of Kwesimintsim whom plaintiff claims to be his great grandfather is not encumbered. In fact, it has on the face of the said Exhibit A “ENCUMBRANCE: No known recorded encumbrance” In addition to the above, the plaintiff tendered exhibit D, in evidence a letter written by his lawyer to the administrator of stool lands, to determine whether the defendant pays ground rent. A response which is the said Exhibit E reveal that the defendant paid ground rent up till 1995. The plaintiff in his evidence to the court avers he does not have the agreement between the defendant and the said Ebusuapanyin Tachie Duku as they wrote to the lands commission for same but the lands commission failed to respond to same. This piece of evidence was corroborated by exhibits B and C thus the letter written by plaintiff counsel to the lands commission requesting for the lease document between the defendant and the said Ebusuapanyin Tachie Duku but the lands commission failed to respond. If indeed the plaintiff himself have no copy of the lease agreement between the defendant and the said Ebusuapanyin Tachie Duku, how did he then got to know that there was a covenant in the lease agreement to develop the land within three years and to pay ground rent and failure to do so will entitle the lessor to re-enter the land and to recover possession of the subject matter land. The agreement between the defendant and the said Ebusuapanyin Taschie Duku is very important in this suit. Although I accept the fact that per exhibit E, A, the response of the administrator of stool lands and exhibit D from lands commission, they indicated that the defendant herein paid ground rent up to 1995 and no encumbrance on the subject matter land that alone is not sufficient, plaintiff needed to show the said lease agreement containing the said terms for the court to satisfy itself that those terms alleged by the plaintiff forms part of the terms of the said lease as alleged by him and defendant is in breach of same however, plaintiff failed to tender the lease agreement he relied on between the defendant and the alleged plaintiff great grandfather, which states that upon failure of the defendant to pay rent and to develop the land within three years, the plaintiff family has a right to re- enter the land and to recover possession of same. In the case of MAJOLAGBE V LARBI (1959) GLR 190 P. 192, the ersteemed Ollenu J (as he then was) opined as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g by producing g documents, description of things, references to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”. The failure of the plaintiff to tender the said agreement is very fatal to his case. All that he said to the court in respect of the defendant breaching some covenant in the lease between him and the said Ebusuapanyin Tachie Duku are just bare assertions without more which cannot constitute proof. Assuming without admitting that, the plaintiff was able to prove breach of such terms in the lease agreement which the court have found supra that he failed to prove same, plaintiff failed to comply with the requirement of notice under section 29(1) of NRCD 175. Section 29(1) of the conveyancing Act, 1973 (NRCD 175) provides as follows: “A right of re- entry or forfeiture under a provision in a lease for a breach of a covenant, condition or an agreement in the lease is not enforceable by action or otherwise, until: a) The lessor serves on the lessee a notice I) II) Specifying the particular breach complained of Requiring the lessee to remedy the breach, if the breach is capable of remedy III) Requiring the lessee to make reasonable compensation in money for the breach except where the breach consist of a non-payment of rent b) The lessee has knowledge of the fact that such notice has been served and c) The lessee fails within a reasonable time after the service of the notice under paragraph (a), to remedy the breach if it is capable of remedy and except where the breach consists of a non-payment, to make reasonable compensation in money to the satisfaction of the lessor for the breach. Section 30(1) and (2) also provides thus: 1. “Where a lessor is proceeding by action or otherwise to enforce a right of re- entry or forfeiture under a provision in a lease, or for non-payment of rent, the lessee of the property and also sub lessee of the property comprised in the lease or a part of the lease may in the lessor’s action or in an action brought by that person for those purposes, apply to the court for relief. 2. Subject to subsection (1) of section 29, where a lessee applies to the court for relief, the court may grant or refuse the relief having regard to then proceedings and conduct of the parties and the other circumstances” As can be deduced from the stipulations of section 29 above, upon a breach of a covenant in a lease, the lessee must first be notified of the breach complained of and must have knowledge of the fact that such notice has been served. Also, it is a requirement that the enforceability of the re-entry be done through an action or otherwise while it is the law under section 30 (1) that where the lessor proceeds by action or otherwise to enforce his right of re-entry of forfeiture under any provision in a lease of for non-payment of rent, the lessee may in the lessor’s action apply to the court for relief. The case of WESTERN HARDWOOD ENTERPRISE LTD AND ANOTHER V WEST AFRICA ENTERPRISES LTD (1998-99) SCGLR 105 is apt in this regard. It is undeniably that the plaintiff as head of the Awodwinfo family of Kwesimintsim and suing on his behalf and on behalf of the Awodwinfo family of Kwesimintsim took action in court but evidence is so clear that no notice of the breach was served on the defendant herein as the plaintiff failed to lead evidence in respect of same. Under section 29 of the conveyancing Act, 1973 the plaintiff’s action is thus flawed. In the case of DAHABIEH V. S. A TURQUI AND BROTHERS (2001 -2002) SCGLR 498, ADZOE JSC stated “……………. Indeed section 29 of the NRCD 175 only sets out the process by which the right of re-entry or forfeiture shall become enforceable. The lessee must be given adequate notice and time to remedy the breach or make reasonable compensation or both. In our opinion, those provisions are just procedural and whether or not they have been complied with in any given case is a question of fact rather than law to be determined on the evidence…….” Per the evidence before the court, the plaintiff did not comply with the requirement of notice to enable the defendant to remedy the breach in the lease if any. In fact, the plaintiff as found supra, failed to tender the lease agreement in evidence for the court to satisfy itself that those covenants complained of by the plaintiff has been breached by the defendant herein or not. In the case of TEI & ANOTHER V CEIBA INTERNATIONAL (2017-2018) 2GLR 906 at 919, Pwamang JSC opined as follows: “It must be remembered that the fact that a defendant does not appear to contest a case does not mean that the plaintiff would be granted all that he asks for by the court. The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim”. The court finds that, the evidence on record and the law on the subject, the plaintiff has not been able to proof his case on the balance of the probability that what indeed the defendant has breached terms in the lease agreement and also failed to satisfy the requirement of notice under section 29 of the conveyancing Act, NRCD 175. In conclusion, the plaintiff having failed to proof his case, it is the candid resolve of this court that, the plaintiff is not entitled to recover possession of the subject matter land thus plot no.573 situated at West Tanokrom. Suit is hereby dismissed. (SGD) H/W CATHERINE OBIRI ADDO ESQ: (MAGISTRATE) REPRESENTATION PLAINTIFF- J. K. M ASEMPA ESQ: DEFENDANT – ABSENT. Ladd*. 10