MUBARIK VRS EDEM & 2 OTHERS (A1/20/23) [2024] GHADC 92 (29 February 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON THURSDAY 29TH FEBRUARY, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN SUIT NO. A1/20/23 HARUNA MUBARIK [PER HIS LAWFUL ATTORNEY SUALISU IBRAHIM] - PLAINTIFF AND MR. EDEM & 2 ORS. - DEFENDANTS JUDGMENT INTRODUCTION 1. This judgment relates to land. 2. The plaintiff is a businessman and resides in Italy. He brought this action through his lawful attorney, Sualisu Ibrahim who resides in Tamale. The 1st defendant is similarly a businessman in Tamale. The 2nd and 3rd defendants are husband and wife and were joined to this action by an order of this court dated 10th July, 2023. 3. By an amended Writ of Summons and Particulars of Claim filed on 20th July, 2023, the plaintiff seeks against the defendants as follows: a. A declaration of title to all that plot nos. 441, 442, 461 & 462 all lying at Janjori Kukuo Residential Area Block A, near Tamale. b. An order of recovery of possession plot nos. 441, 442, 461 & 462 Janjori Kukuo Residential Area Block A, near Tamale from the defendant. - 1 - c. An order of mandatory injunction directing the defendants, their servants, agents, successors, workmen, etc to remove materials deposited on the said plot nos. 441, 442, 461 & 462 Janjori Kukuo Residential Area Block A, near Tamale. d. An order of perpetual injunction restraining the defendants, their servants, agents, successors, workmen, etc from interfering with plaintiff’s quiet enjoyment of plot nos. 441, 442, 461 & 462 Janjori Kukuo Residential Area Block A, near Tamale. e. General damages for trespass. f. Costs as well as solicitor’s fees. 4. The 1st defendant maintained his Statement of Defence filed on 7th July, 2023 simply stating that he was on the disputed land at the instance of the 2nd and 3rd defendants. The 2nd and 3rd defendant opposed the claim of the plaintiff and counterclaim as follows: a. A declaration of title and ownership of plot nos. 441, 442, 461 and 462 all lying at Janjori Kukuo Residential Area Block A, near Tamale in 2nd and 3rd defendants. b. An order of court to restrain the plaintiff and his assigns, agents, privies, associates, personal representatives, successors howsoever described from interfering with 2nd and 3rd defendants’ peaceful enjoyment of plot nos. 441, 442, 461 and 462 all lying at Janjori Kukuo Residential Area Block A, near Tamale. c. Costs including legal fees. d. Any other relief(s) deemed fit by the Honourable Court. - 2 - 5. Parties were directed to file their witness statements which they did. Below are the respective case of either party. PLAINTIFF’S CASE 6. According to plaintiff’s lawful attorney, Sualisu Ibrahim, sometime in May 2015 plaintiff acquired the 4 plots of land, thus plot nos. 441, 442, 461 and 462 all lying at Janjori Kukuo Residential Area Block A, near Tamale from the then Chief of Nyashei, Alhassan Natogma, and were confirmed by the then Gulkpegu-Naa, Alhassan Abdulai. He explained that plaintiff inspected the said plots and noticed that there was no sign of any previous occupation or possession so went ahead to acquire them. He added that plaintiff was given allocation papers and to which he applied to the Lands Commission for a 99year lease. Thereafter, he took possession of the said plots by depositing trips of sea sand and also moulded blocks on them, for development. He stated further that plaintiff occasionally visited the said plots, but on one occasion plaintiff realised that defendants have entered onto the lands. Plaintiff’s lawful attorney averred that defendants trespassed onto the said plots and carried away plaintiff’s blocks. He also averred that on another visit to the said plots he noticed that the defendants were erecting a fence wall. He explained that the defendants have outrightly refused to vacate the said plots, unless they are compelled by this court. Hence, this present action 7. Plaintiff’s lawful attorney tendered in evidence: Exhibit A - Copy of the Power of Attorney Exhibits B-B3 - Copies of the allocation papers for the said plots together with the site plans Exhibit C Exhibit D - - Copy of the application for lease for the said plots Copy of the Deed of Lease dated 4th November, 2015 - 3 - Exhibit E Exhibit F - - A picture depicting the moulded blocks on the land A picture depicting the fence wall erected by the defendants Plaintiff’s witness 8. Plaintiffs called a witness, Alhaji Adam Baba (PW1). He testified that he was the former secretary to the Janjori Kukuo Planning Scheme lands. He averred that the disputed plots fall under the Nyashei Skin and that same were allocated to the plaintiff by the then Chief of Nyashei, Alhassan Natogma and later confirmed by the Gulkpegu-Naa, Alhassan Abdulai. He added that he witnessed the allocation papers of the plaintiff. DEFENDANTS’ CASE 1st Defendant’s case 9. According to 1st defendant, he does not know the plaintiff or the plaintiff’s lawful attorney, save getting to know them through this case. He averred that he was on the disputed plots at the instance of the 2nd and 3rd defendants. He disputed the allegation of the plaintiff that he carried away the said blocks. To him, the said plots were acquired by the 2nd defendant. 2nd and 3rd defendants’ case 10. 2nd defendant, Mr. Godsway Mensah Dordor, testified for himself and on behalf of the 3rd defendant. He stated that the 1st defendant is his brother. According to him, the disputed plots fall under the Nanton Skin. He stated that the said plots used to be farm lands of the Janjori Kukuo Wulana and his family. He explained that the Janjori Kukuo chief, Alhassan Mahama, got the area zoned into development plots in 2007 before he acquired the said plots. After acquiring the said plots, he then gifted 2 out of the 4 plots to his wife, 3rd defendant. He averred that he deposited sea sand, quarry - 4 - dust, cement, chippings and blocks for the construction of a fence wall. He explained that apart from a failed attempt by one Afa Siiba to deposit blocks on a portion of the said plots, there has never been an adverse claim by anyone until this action. He added that it was one Abukari Imoro who was working on the said plots and that he foiled the trespass of the said Afa Siiba. He added that he does not know the plaintiff or the plaintiff’s lawful attorney, saving getting to know them by this case. He contended that plaintiff cannot claim interest in land which are within Janjori Kukuo from a Nyashei chief. 11. 2nd defendant averred that he had informed the Janjori Kukuo palace of all developments on the said plots including payment of ground rent to the Office of the Administrator of Stool (Skin) Lands. He tendered in evidence the following exhibits: Exhibit 3 – Copy of Allocation papers together with site plans, cadastral plans and application for lease covering the said plots. Exhibit 4 - Copy of the Planning Scheme of Janjori Kukuo. Exhibit 5 - Copy of the Receipts of the Office of the Administrator of Stool Lands covering the said plots as well as Rent Demand Notices Defendants’ Witness 12. Defendants called a witness, Abukari Imoro (DW1) and Yakubu Yahaya (DW2). According to DW1, he does not know the plaintiff, rather he knows the plaintiff’s lawful attorney. He presented a similar story as that of the 2nd defendant and added that his father, Imoro Yahaya was the secretary to the then Chief of Janjori when the plots were allocated to the 2nd defendant. He averred that the 2nd defendant engaged him to undertake construction works on the said land. He tendered in evidence pictures of attempted trespass on 2nd defendant’s plots as Exhibit 1. - 5 - 13. DW2 stated that was testifying for and on behalf of the Nanton-Janjori Kukuo Naa, Mahama Yakubu. He explained that the predecessor of the present Nanton-Janjori Kukuo Naa granted the said plots to the 2nd defendant. He tendered in evidence copy of the authorization letter by the said chief as Exhibit 2. He similarly recounted the story of the 2nd defendant and added that the purported claim by the plaintiff that he acquired the said plots from Nyashei Skin is inaccurate. ISSUE FOR TRIAL 14. The issues borne out of the facts are: a. Whether or not the disputed plots nos. 441, 442, 461 and 462 all lying at Janjori Kukuo Residential Area Block A, near Tamale regard skin boundary lands between Nyashei Skin and Nanton Skin? b. Whether or not the plaintiff or 2nd defendant was validly granted the said plots? c. Whether or not plaintiffs or 2nd defendant trespassed onto the said plots? BURDEN OF PROOF 15. In civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression ‘burden of persuasion’ and in section 14 that expression has been defined as relating to, ‘each fact the existence or non-existence of which is essential to the claim or defence he is asserting.’ See also ss. 11(4) and 12(1) and (2) of NRCD 323. 16. With regards to what is required of the plaintiff in land cases, the law is that the he must succeed on the strength of his own case and not on the weakness of the - 6 - defendant’s case, see Odametey v Clocuh [1989-90] 1 GLR 14, SC. In Kodilinye v Odu [1935] 2 WACA 336, the court puts it simply that “in case of doubt, …the party who asserts must lose.” 17. Lastly, where there is a counterclaim, the counter claimant must also prove his case. The Supreme Court speaking through His Lordship Ansah JSC in the case Osei v Korang [2013] 58 GMJ 1, stated as follows: “… each party bears [the] onus of proof as to which side has a claim of title against his/her adversary, for a counter claimant is as good as a plaintiff in respect of a property which should he assays to make his/her own.” ANALYSIS OF THE ISSUE Issue ‘a’ 18. I will start with issue a, whether or not the disputed plots nos. 441, 442, 461 and 462 all lying at Janjori Kukuo Residential Area Block A, near Tamale regard skin boundary lands between Nyashei Skin and Nanton Skin? Section 1 of Stool Lands Boundaries Settlement Act, 2000 (Act 587) provides as follows: “Jurisdiction of High Court in stool land boundaries disputes From the date of coming into force of this Act, the High Court shall have original jurisdiction to hear and determine any dispute arising from, in respect of or related to stool land boundary.” 19. Also in the case, Frimpong v Nyarko [1998-1999] SCGLR 743, the Supreme Court stated that, “…a court of law has no authority to grant itself jurisdiction in matters where the relevant statutes does not confer such power”. In effect, once the trial court comes to the determination that it is not seized with jurisdiction to determine such a matter, it does not have to go into the merits of same, see also the cases of Sarkodie v - 7 - Boateng II [1982-83] 1 GLR 715 SC, Fosua & Adu Poku v Dufie (Dec’d) v Adu Poku Mensah [2009] SCGLR 310, Duah v Yorkwah [1992-1993] 1 GBR 278 CA. 20. From the instant case, the plaintiff claims that the land belongs to the Nyashei Skin whereas the defendants also contend that the land belongs to the Nanton Skin. During the trial, this court called on the counsel for both parties to address it on the issue of whether or not the case is affected by s. 1 of Act 587. Both counsel indicated that the issue did not bother on s. 1 of Act 587, yet either counsel maintained that their grantor is the rightful person to so grant. From the evidence, this is what ensued when plaintiff’s lawful attorney was under cross-examination: “Q: I am suggesting to you that the alleged grantor of the plaintiff’s land has no interest in the disputed plots to grant same to the plaintiff? A: That is not true. Q: Has it come to your attention that your Exhibit B series identify the lands in dispute as lands forming part of Janjori Kukuo? A: Yes. Q: You also admit that the plaintiff alleged grantor does not claim the land from the chief of Janjori Kukuo who has authority over Janjori Kukuo planning scheme? A: The grantor resides at Nyashei, but the land in dispute is under his skin. - 8 - Q: I suggest to you that the lands in dispute together with the neighboring plots forming part of Janjori Kukuo Planning Scheme have never been under the jurisdiction of the plaintiff’s alleged grantor at Nyashei? A: I do not agree.” 21. When PW1 was also under cross-examination, below ensued: “Q: You agree with me that the chief of Janjori Kukuo is under the Nanton-Naa and his letters of allocation of lands are confirmed by the Nanton-Naa? A: That is not true. Q: I am putting it to you that you have misled the chief of Gulkpegu to purport to have confirmed the said Exhibit B which land is under the Janjori Kukuo Planning Scheme? A: All that part are under the Gulkpegu-Naa’s jurisdiction, either than that he would not have signed to that document. … Q: You are aware that the land in dispute was allocated to Mr. Dordor and his wife, it used to be the farm land of Janjori Kukuo Naa? A: That is not true.” 22. When DW1 was cross-examined, below is what transpired: “Q: I am putting it to you that the disputed lands fall within the jurisdiction of Nyashei chief? - 9 - A: That is not true. Q: You are aware that Nyashei chief has validly allocated those plots of land to the plaintiff herein since 2010? A: I have been hearing that the chief of Nyashei has allocated those lands, but I do not agree to the allocation of those lands in this case. Q: I am putting it to you that Gulkpegu-Naa has confirmed the allocation to the plaintiff? A: I cannot tell what the plaintiff did to Gulkpegu-Naa for his allocation to be confirmed. All I know is that the Gulkpegu-Naa has his own boundaries and the Nanton-Naa has his own boundaries. Gulkpegu-Naa cannot go beyond his boundaries into that of Nanton-Naa’s boundaries. Q: But you agree with me that the Gulkpegu-Naa did not go beyond his boundaries because Nyashei falls under Gulkpegu? A: I do not agree. Reason being that where Nyashei is situate is under the jurisdiction of Nanton-Naa. … Q: The Janjori Kukuo Planning Scheme is a planning scheme which covers Janjori Kukuo and Nyashei lands? - 10 - A: That is so, but it covers part of Nyashei but not the whole. It covers the new site but not the old site of Nyashei. Q: You agree with me that aside the disputed plots the Nyashei chief has allocated other plots to different people which have been confirmed by the Gulkpegu-Naa? A: I agree to part of it, but not all. Because, the demarcations do not cover the entirety of Nyashei. The Nyashei-Naa can allocate the old site that are not part to other people and Gulkpegu-Naa can equally confirm. Q: I am putting it to you that it is not only the old site that the Nyashei-Naa can allocate, but the new site? A: I do not agree.” 23. Lastly, when 2nd defendant was under cross-examination, below transpired: “Q: But you agree with me that the subject matter of the disputed plot falls under the jurisdiction of the Nyashei chief? A: That is not true. Q: Nyashei falls under Gulkpegu-Naa’s paramountcy? A: That is so. - 11 - Q: You agree with me that all allocations that have always been made by the Nyashei Naa have always been confirmed by the Gulkpegu-Naa? A: That is not so. Q: You want the court to believe that Gulkpegu-Naa has never confirmed any allocation by Nyashei chief? A: What I know is that all the plot lying at the right side of the road when you are going from here is signed by Janjori Kukuo Naa.” 24. From the above, it is clear in my mind that the the plaintiff claims his grantor is the Nyashei Skin whiles defendants claim their grantor is the Nanton Skin. There exist in my opinion a boundary dispute which ousts the jurisdiction of this court per s. 1 of Act 587 and I so hold, without more. 25. In the circumstance, issues ‘b’ and ‘c’ are therefore moot. CONCLUSION 26. In effect, there is no need to waste the time of this court as this court is not seized with jurisdiction to go into the merits of this matter, see Frimpong v Nyarko (supra). Suit is, therefore, struck out for want of jurisdiction. Parties to pursue the matter at the High Court, see s. 1 of Act 587. H/W D. ANNAN ESQ. [MAGISTRATE] - 12 - ABRAHAM N. DAMTAR ESQ., HOLDING THE BRIEF OF ALHAJI M. S. ABDULLAH FOR THE PLAINTIFF ASURO NAPARI ESQ., FOR THE DEFENDANTS Reference 1. ss. 11(4), 12(1) & (2) and 14 of the Evidence Act, 1975 (NRCD 323) 2. s. 1 of Stool Lands Boundaries Settlement Act, 2000 (Act 587) 3. Faibi v State Hotels Corporation [1968] GLR 471 4. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420 5. Odametey v Clocuh [1989-90] 1 GLR 14, SC 6. Kodilinye v Odu [1935] 2 WACA 336 7. Osei v Korang [2013] 58 GMJ 1 8. Frimpong v Nyarko [1998-1999] SCGLR 743 9. Sarkodie v Boateng II [1982-83] 1 GLR 715 SC 10. Fosua & Adu Poku v Dufie (Dec’d) v Adu Poku Mensah [2009] SCGLR 310, Duah v Yorkwah [1992-1993] 1 GBR 278 CA. - 13 -