OPPONG VRS OSEI & ANOTHER (C1/07/2019) [2023] GHADC 783 (19 October 2023)

19/10/23 IN THE DISTRICT MAGISTRATE COURT HELD AT AKROPONG-ASHANTI ON THURSDAY THE 19TH DAY OF OCTOBER, 2023. BEFORE HIS WORSHIP ROCKSON A. K. KPODO. THE DISTRICT MAGISTRATE ----------------------------------------------------------------------------------------------- SUIT NO C1/07/2019 ISAAC OPPONG VRS. CHARLES OSEI & 1 OTHER ----------------------------------------------------------------------------------------------- J U D G M E N T Plaintiff’s claims are the following: a) A declaration that all that piece of land measuring 20 x 80 feet and 12 x 12 feet respectively from part of plaintiff’s plot No. A, Abena Bema Lane, Atwima Agogo, Ashanti. b) Recovery of Possession. c) Damages for Trespass. 1 | P a g e d) The recovery of Double Axle two trips of sand or its value at GH₵2, 200.00 at GH₵1, 100.00 per trip. e) Perpetual injunction restraining the Defendants, their agents, workmen/assigns or whoever is claiming though them from interfering with the subject matter. Plaintiff’s evidence as captured on his witness statement which was filed on the 27th day of September 2019 is that he acquired the said plot of land around the 6th day of June, 2017, numbered 12A at Agogo, on the Ama Bema lane for his daughter Yaa Gyamfua from Abena Tawiah and her maternal family who are the custodians of the land in dispute, for a valuable consideration and that the said land shares boundaries with the properties of Agya Nimo AK. A. Policeman and the defendant herein with a road in front. According to plaintiff, after the purchase his grantor introduced him to the chief of Agogo, Nana Osei Kwame who gave him the Allocation and Site Plan in the name of her daughter which he marked as Exhibit 1 and that after he secured the necessary documents covering the land, he cleared same after he went into occupation and started a Four (4) bedroom house on same to the floor level and also deposited Two (2) trips of sand on the land for molding blocks for the building. He added that on the 1st day of September, 2018, his mason who was his caretaker a well called to inform him, which he was in school in Cape Coast, that defendants had trespassed on his land from theirs and that when he came to see things for himself, he realized that defendants had broken down part of his foundation and dug holes on his land after they trespassed on same and even used his trips of sand to build a Two (2) bedroom structure in front of his foundation. According to plaintiff he reported the trespass to police and when they met at the police station and they all produced their documents defendants grantor Yaa Aninwaa 2 | P a g e appeared and told the police that the land she granted to defendants are plot Number 12 on the Opanin Gyiga Street and that from the police station they went to the chief’s palace and he sent his surveyors to accompany them to the land and when the land was measured it was realized that defendant had gone beyond their boundary and trespassed into my land. Plaintiff concluded that after all the exercises were carried out by the chief his family asked him to go for his land and also asked defendants to refund the cost of his sand to him and perpetual injunction decreed for them but defendants did not comply with the chief’s orders. PW1, Abena Tawiah and defendants that she was the one who sold plot No.12A, on the Ama Bema Lane to plaintiff in or around 2017 and that the said plot of land forms part of a large tract of land which belongs to her late mother who sold out other portions of the same land to people. She adduced that it was her siblings, Yaa Aninwaa land Agya Owusu who sold the land to defendants and that the plot sold to defendants are different from that which was sold to plaintiff though they all form part of her late mother’s land, and that the plot he sold belongs to her which is known to his elder brother Agya Owusu. She added that when she introduced plaintiff to the chief of Agogo for the necessary documentations, two (2) years after that 2nd defendant came to tell her that plaintiff had trespassed on their land and so she sent his brother Agya Owusu to go and resolve the issue but her brother came back to tell her that 2nd defendant was rather claiming the land that did not belong to him and that it was after that defendant went to the chief of Agogo without plaintiff to lodge a complaint and the chief sent his elders to the land to survey same after which they advised defendants to take another vacant plot but she refused and that later defendants put up a structure on plaintiff’s property claiming that it belongs to them. 3 | P a g e PW2 added that before the 2nd defendant acquired the land, he was called by the chief to check the land before he issued the Allocation Notes and the Site Plan and that the plot he checked for 2nd defendant was plot No. 12, Opanin Ayiga Street, which is completely different from plot No. 14 Ama Bema lane which 2nd defendant now occupies. He added that when the dispute started and the chief set up a committee, he checked all the boundaries of the land and realized that defendants had gone beyond their boundaries and tendered the report in evidence which was tendered Exhibit 2. PW2 added that defendants had gone beyond his plot No.14 Ama Bema Lane which measures 80 x 80 feet and entered plaintiff’s land. PW3 added that in or around 2017 his ex-wife Abena Tawiah who testified as PW1 sold a plot of land to plaintiff at Agogo, numbered 12A on the Ama Bema Lane and that the property in dispute was passed on to his ex-wife after the death of her mother who owned several parcels in the area and that the plaintiff’s land shares boundaries with the plot of land defendants occupy. According to PW3, a year after the acquisition of the land, plaintiff reported to him about the dispute over the land after plaintiff started his building on the land in dispute and that later, the matter went before the chiefs but 2nd defendant did not attend the meeting hence the chiefs directed plaintiff to go for his land after the committee set up by the chief reported to him. In her defence, defendant says that her plot of land is plot No. 12 on the Opanin Gyiga Street, at Agogo in the Ashanti Region measuring 80 x 100 feet. Defendants adduced that about Four (4) years ago, D1 purchase the plot of land through her from one madam Abena Aninwaa, Kwaku Owusu and Maame Tawiah who are the custodians of the land in dispute and that the land shares boundaries with the properties of Maame Sofo and a 4 | P a g e policeman with pillars marking the said boundaries, and documents covering the land were prepared for them marked ‘A’ after which they advised them to take the allocation Note from the chief’s which they did and they were given one marked ‘B’ attached and that after this the 1st defendant her son built Four (4) rooms and a hall on it for Rent on the land and that Two of them built their houses on the land plaintiff started trespassing on their land so she lodged a complaint with the chief of Agogo and plaintiff was invited but he refused to respond to the chief’s call hence the chief invited her grantors and constituted a panel and after listening to them and after the committee’s work the chief advised them to take their land and build a wall around it, hence they built the wall and also built a second house on the same land but plaintiff went to demolish the fence wall as well as their new house and tendered photographs of the damages caused by plaintiff to their house which were marked ‘C’. 2nd defendant concluded that it was after plaintiff demolished her wall that he sued them before this Court and added that plaintiff is not entitled to his relief and prayed the Court to grant their reliefs as endorsed in their counter-claim. Upon hearing the parties herein, the Court has identified the following issues for settlement. (1) Whether or not plaintiff acquired the land in dispute before defendants? (2) Whether or not plaintiff encroached on defendants’ land? (3) Whether or not defendants encroached on plaintiff’s land? (4) Whether or not plaintiff is entitled to his claim. Plaintiff claims he acquired the said plot of land marked 12 in 2017 but his Allocation Note shows that his grant was recognized by the chiefs in 2019. 5 | P a g e 2nd Defendant on the other hand claims that she acquired the said plot No. 12 in 2015 as per the Allocation Receipt given by the grantor, Yaa Aniwaa but the Allocation Note was issued by the chiefs in 2018. It is therefore case from the above that defendants have acquired their land Two (2) years before plaintiff’s acquired his and this falls within the principal of the first in time shall prevail. Now, the Court has to determine whether or not the plaintiff has encroached on defendants. Defendant alleged that it was one Maame Tawiah sold part of her land to plaintiff, of course a visit to the locus revealed that while defendants have completed their house and living in same plaintiff has just started his foundation which is at the flooring level all attest to the fact that plaintiff has indeed encroached on defendants’ land. In facts, the Court has taken judicial notice of the fact that in this part of the Country, family members are found of selling portions of lands already sole by their family members and the Court believe that this is exactly what happened in this case, especially in a situation where defendants land is a full plot while plaintiff’s is a half plot numbered 12A. The Court is of the considered view from the above analysis that it was plaintiff who was misled by his grantors to encroach on defendants’ land. In fact, the survey report submitted to this Court by the Physical Panning Department of the District Assembly indicates that the plots of both parties are located on Numbers 12, 14 and 24 instead of occupying their real plots being plots Numbers 14 and 24 which were 6 | P a g e occupied by plaintiff Number 12 on the ground. This again, attest to the fact that defendants are indeed occupying the plot Number 12 granted to them by their grantors. Again, it is clear from the visit to the locus in quo that defendants are in possession of the land before encroached. It is trite law that when a possession of a property, a party claiming same must prove a better title to the property in dispute. From evidence adduced so far plaintiff has not been able to prove his title, either documentary or evidential. Thus, plaintiff has not been able to adduce sufficient evidence in order to avoid a ruling against him as entitled in section 11 (1) of the Evidence Decree, NRCD 323 of 1975, which says: ‘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’. Defendants on the other hand have been able to prove on the balance of probabilities that the land in dispute belongs to them. Judgment is hereby entered for defendants on their counter claims (i), (iii), (v) and (vi). Defendants are not entitled to claim (ii) as they have not been able to show any proof that their damaged fence wall was done by plaintiff when the Court visited the locus and even in their evidence in chief. 7 | P a g e Plaintiff is however not entitled to his claims as he couldn’t prove same. Cost of GH₵2, 500.00 is hereby awarded against plaintiff for each defendant. SGNED H/W ROCKSON A. K. KPODO (DISTRICT MAGISTRATE) 8 | P a g e