THE NANUMBA NORTH MUNICIPAL VRS SALIFU (NR/BB/DC/A1/05/23) [2024] GHADC 422 (27 March 2024)

IN THE DISTRICT COURT HELD ON WEDNESDAY THE 27TH DAY OF MARCH, 2024 AT BIMBILLA BEFORE HIS WORSHIP PETER KOBBLAH AMETSOWU. SUIT NO. NR/BB/DC/A1/05/23 THE NANUMBA NORTH MUNICIPAL ASSEMBLY PER MUNICIPAL CO. DIRECTOR, BIMBILLA PLAINTIFF VRS DEFENDANT ALHASSAN SALIFU@ GONGONG INTRODUCTION JUDGMENT 1. The Plaintiff is a statutory body responsible for day to day running of the local governance machinery of the Nanumba North Municipality on behalf of the Central government. The Defendant is a retired educationist, as he described himself and resides in Bimbilla. 2. On the 21st day of November, 2022 the Plaintiff through the Coordinating Director issued out of the registry of this court a Writ of Summons together with Ex Parte Motion for Interim Injunction against the Defendant and claimed for the following reliefs: (i). Declaration that all that land known as Bimbilla New Market are public lands vested on Nanumba North Municipal Assembly, Bimbilla and only the Assembly who can grant an individual portion of the land at the Bimbilla New Market. (ii).An order directing the Defendant to stop developing and demolish the structures he is building at the public land (Yam Market Bimbilla) which portion of the land is a public land reserved for future development by the Municipal Assembly. (iii). An order of perpetual injunction restraining the Defendant and his agents, representatives and his workmen from developing the said structures at the public land (New market) that is Yam Market, Bimbilla. 3. As a result, the Defendant pleaded not liable to all the reliefs sought by the Plaintiff. The court differently constituted ordered the parties to file their respective Witness Statements. PLAINTIFF’S CASE. 4. The Plaintiff in its Writ of Summons and Summary of Subject Matter of Claim sought for declaration of title of the disputed land and some ancillary reliefs. It is the case of the Plaintiff that the disputed land is a public land vested in Nanumba North Municipal Assembly. Plaintiff went on to say that the disputed land is part of the total landmass that was acquired as a market with total land area of 10.1 acres measuring 817 feet as the length and 541 feet as the width. DEFENDANT’S CASE. 5. The Defendant, on the other hand, contended that the land the subject matter of this dispute is a residential plot within the Yapalsi scheme which he bought from Dahamani Abdulai and not part of the New Market as captured in the layout. ISSUES FOR DETERMINATION. 6. The court after perusing the processes filed by both parties concluded on one main issue for determination, and that is: (i) Whether or not the disputed land forms part of the Bimbilla Central Market lands. STANDARD OF PROOF, ANALYSIS AND EVALUATION. 7. The issue identified above by the court will be analyzed and evaluated by considering both the fact and evidence put forward by both parties vis a vis the applicable laws. The issues are determined when the party with the burden to establish the existence or nonexistence of an allegation is able to produce credible evidence to that effect. This is provided under section 14 of the Evidence Act, 1975 (NRCD 323) as follows: “Except as otherwise provided by law, unless and until 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 he is asserting.” 8. In the case of ABABIO VRS AKWASI III (1994-95) GBR 774 at 777, AIKINS JSC stated the principle thus: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie 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 he loses on that particular issue. See Bank of West Africa Ltd v Ackun [1963] 1 GLR 176”. 9. In a similar case of ACKAH VRS. PERGAH TRANSPORT LTD [2010] SCGLR 728 at page 736 Adinyira, JSC stated that: “It is a basic principle of the law of 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…” 10. In effect, the task to produce sufficient evidence to prove or establish one’s case is the responsibility of the Plaintiff to adduce credible evidence to enable him or her win his or her case on the balance of the probabilities. 11. The burden of producing credible evidence by the parties as well as the burden of persuasion are provided under section 12 (1) of NRCD 323 which reads as follows: “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.” Subsection (2) of section 12 of NRCD 323 defines what preponderance of probabilities means as follows: "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.” 12. It is important to make mention of the fact that the Plaintiff on the 28/1/2022 filed a repeated application for interlocutory injunction to preserve the disputed land. This application was abandoned by the Plaintiff due to whatever reason unknown to the court. 13. As the case progressed to the stage where DW4 was in the Witness Box and tried to tender a document counsel for Plaintiff objected and same was partially ruled upon with an order. This order was to the effect that the registrar of the Nanumba Traditional Council, Bimbilla should produce the original source document from which a confirmation of a grant of a parcel of land was made to Mr. Alhassan Salifu @ Gungong dated 20th September, 1978 with Dahamani Abdulai being the one who requested for the allocation. This order was made on 27/06/2023, when the court was differently constituted. 14. This source document, on record, has not been produced due to the fact that the said source document could not be traced nor produced to assist the court in the determination of this matter. I will revisit this source document in the course of the judgment. 15. In resolving the sole issue (i) which is, Whether or not the disputed land forms part of the Bimbilla Central Market lands, the principle of law is that in land suits, the Plaintiff is required to prove his or her case by adducing credible evidence. In the case of DOWUONA II VRS OLEWOLON (2006-2007) 7 MLRG 1534, the Supreme Court succinctly stated the principle as follows: “It is trite learning, plaintiff seeking title, the onus rests upon him to prove his case.” 16. Plaintiff in discharging this burden of producing credible evidence stated, at paragraphs 6 and 7 of the Witness Statement of Issah Yakubu Fuseini Physical Planning Officer of the Plaintiff, that the disputed land is part of the total landmass that was acquired as a market with total land area of 10.1 acres measuring 817 feet as the length and 541 feet as the width. They went further to say that the general layout known as Yapalsi Planning Scheme captures the Bimbilla Market within ‘Block A’. This planning scheme due to its bulky nature could not be placed on the court’s docket but a Site Plan was carved out of it and tendered and marked as Exhibit ‘A’. 17. Exhibit ‘A’ being a document affecting land is chargeable to duty and same must be stamped at the Lands Commission. Exhibit ‘A’, on the face of it, has not been stamped as required by section 32 of the Stamp Duty Act, 2005 (Act 689). Subsection 1 of Act 689 tasks the judge, arbitrator or referee to take notice of an omission or insufficiently stamped documents produced before them as evidence. 18. As a magistrate I have dutifully taken notice of the fact that Exhibit ‘A’ which is chargeable to duty has not been stamped. The admissibility of Exhibit ‘A’ in this case is dependent upon payment of duty and subsequent stamping of same. For the fact that Exhibit ‘A’ has not been stamped same cannot be admitted into evidence. See the cases of LIZORI LTD VRS MRS EVELYN BOYE & SCHOOL OF DOMESTIC SCIENCE suit No J4/8/2012 dated 26/7/2013, and FRANCIS APPIAH- MENSAH VRS. GIFTY ANANE-WIREKU, suit No. J4/28/2023 dated 19th day of July 2023. Hence, no probative value is placed on Exhibit ‘A’ albeit it being admitted earlier when the court was differently constituted. 19. Aside exhibit ‘A’ overt possessory acts have been demonstrated by the Plaintiff that the disputed land forms part of the Bimbilla Market, and the fact that selling and buying activities are carried on in this area of the market. This issue of whether the disputed land forms part of the market was settled by defence counsel in cross examination of Plaintiff’s witness. For the avoidance of doubt this is a portion of what transpired between counsel for Defendant and Plaintiff’s witness on 27/03/2023: Q. Locate exhibit B1 and B2 of your exhibit and describe the proposed development structures coming up. A. It is concrete blocks and cement blocks with iron rods. Q. They are proposed market stall coming up? A. Rightly so. Q. And market stalls are for market or commercial activities in an area marked for market? A. Yes. 20. There is no doubt from the above that the disputed land is in an area marked or demarcated for market or commercial activities, and shall so remain a market despite the existence of private houses in close proximity with market structures within the 10.1 acre land demarcated for the market. 21. The court on 29/01/2024 went on locus inspection so motu to have first-hand information related to the disputed land. The material issue that necessitated the locus in quo was the location of the disputed land which was not made clear to court. It was revealed that the entire land for the market shares boundaries with the Bimbilla-Chamba Road to the North, Eastern Corridor Road to the East and the Presbyterian School to the West. It was further said that the Presbyterian School was part of the market’s land but was carved out of it. 22. Also, there are government bungalows one of which houses the staffs of Agric. Ministry along the Bimbilla-Chamba Road. There are other dilapidated government structures and some undeveloped lands within the 10.1 acre land alleged to belong to some individuals. The disputed land is just close to one side of the main market. Adjacent to the disputed land on two sides are structures used by market women to store their yams. In front of the disputed land is a lane for vehicular passage to the market and out of the market. Not too far from the lane is a Mosque in front of a house which belongs to Alhaji Abdulai Mohammed Saani (DW2) where some yam sellers do their yam businesses on market days and any ordinary days. At the back of the disputed land is another house which shares boundary with the disputed land. 23. Defendant on 17/10/2022 applied for Work Permit to enable him carry out a building project on the disputed land which was not grant as early as possible for the fact that the disputed land is within the market’s land and reserved area for future development by the Municipal Assembly. Notwithstanding the delay in granting the Permit the Defendant went ahead and erected some number of stalls to this level as depicted in Exhibits ‘B’ and ‘B1’ of Plaintiff’s evidence. 24. All these existing houses and undeveloped lands including the disputed land, the court observed, are within the 10.1-acre land for Bimbilla New Market per the boundary description given by Plaintiff’s witness. Some questions remain that baffle the mind of the court, and that is, how did the owners of these houses which are within the 10.1 acre land of the Plaintiff acquire those portions with their houses thereon. Were they granted Work Permits prior to putting up those buildings? If they were granted Permits didn’t the Plaintiff know that those portions belong to the Assembly? These houses did not suddenly emerge. They started from foundation to roofing. The Assembly though might have seen these houses but chose to ignore them including their owners. 25. Again, does the Assembly know the identity of the alleged owners of the undeveloped lands within the 10.1 acre land for the Bimbilla Market? If they know the alleged owners what steps have they taken to ascertain how the said individuals acquired those land? 26. The law as provided by section 14 of NRCD 323 (Supra) has been discharged by the Plaintiff. Plaintiff has demonstrated that the disputed land forms part of the land for the market in its witness statement, maintained this assertion in cross examination and during the locus in quo. This, in my mind, shifts the burden of persuasion to the Defendant to controvert the assertions made by the Plaintiff. 27. For the Defendant to avoid ruling against him he has the obligation to introduce sufficient evidence as he alleged at paragraph 5 of his Witness Statement that the land in dispute is a residential plot he purchased from Dahamani Abdulai (DW4). Defendant in his Witness Statement did not indicate when he acquired the disputed land and for how long he has been in possession of same. 28. DW4 who testified in support of the Defendant case alleged that he earlier bought the disputed land in 1978 from one Fuseini Pusiga (Deceased) and allocation document was handed to him but lost same during the Nanumba-Konkomba Conflict in 1981. It was on the basis of the said misplaced allocation document and the purported Extract of Land Allocation document from the original source document with Confirmation letter that the court differently constituted ordered the registrar of the Nanumba Traditional Council to produce the original document. 29. I stated earlier at paragraph 14 of this judgment to revisit the issue of the original source document. DW4 attempted to tender a document marked ‘DA’ in evidence as a proof of the fact that the disputed land was allocated to him but was objected to. The said document is in two parts (Forms A and B). It was not admitted in evidence due to the fact that the original source document was not produced as ordered by the court. The said document is on record for what it is worth and nothing else. 30. It therefore surprising and mind boggling how DW4 was issued with the document marked ‘DA’ if the original source document could not be traced and produced before this Honourable Court? The Form B document bears the stamp of the office of the regent of Nanung and the signature of the occupier of that office in the person of His Royal Highness Nyelinboligu Naa Yakubu Andani Dasana. Also, on the face of this document is the stamp and signature of the registrar of the Nanumba Traditional Council in the person of Rosemary Sorri who acted as a witness to this document dated 22/06/2021. So how was the confirmation done without the original source document? 31. DW4 who allegedly bought the disputed land from Fuseini Pusiga in 1978 and later sold it to the Defendant could not produce a ‘Deed of Transfer’ to persuade the court that he truly acquired this land lawfully from Fuseini. At the time of the purported purchase of the disputed land the law in force was the Conveyancing Act, 1973 (NRCD 175). Section 1 of NRCD 175 that transfer of interest in land must be in writing and signed by the transferor or his authorized agent. The said section reads as follows: ‘A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of section 3’. 32. This provision above quoted is in pari materia with subsection 1 of section 35 of the Land Act, 2020 (Act 1036) which repealed NRCD 175. Assuming without admitting that DW4 transferred his alleged interest in the disputed land to the Defendant at the time Act 1036 has been in existence, subsection 1 of section 35 binds him to document this transaction. At least this will serve as evidence of the sale and purchase. None of these Deed of Transfers has been exhibited neither by DW4 nor the Defendant who alleged he acquired the disputed land from DW4 without any such evidence. 33. On the totality of evidence put forward by the parties in respect of the disputed land, it is so obvious that the disputed land forms part of the Bimbilla Market and not a residential plot. The fact that some existing private houses are within the 10.1 acre land demarcated purposely for market have been ignored by Plaintiff does not automatically rezone any undeveloped land within the 10.1 acre perimeter of the market as residential plot. CONCLUSION. 34. The court, after evaluation and analysis of evidence adduced by both parties and their witnesses, has found that the Plaintiff’s evidence weighed vis a vis that of the Defendant carried convincing and uncontroverted evidence. It is highly improbable that the Defendant or WD4 lawfully acquired the disputed land as a residential plot. 35. With the combine effects of section 12 (1) and (2), section 14 of NRCD 323 (Supra) and ABABIO VRS AKWASI III (Supra) Plaintiff has discharged the burden of proving its case against the Defendant and deserves to be given judgment. Accordingly, the court makes the following orders: (i) It is declared that all that land known as Bimbilla New Market are public lands vested on Nanumba North Municipal Assembly which the disputed land forms part of. (ii) It is ordered that the Defendant stops developing the disputed land and demolish the structures erected on the public land reserved for future development by the Municipal Assembly (Plaintiff). Failure of the Defendant to demolish the said structures within a reasonable period, the Plaintiff shall do so at the expense of the Defendant. (iii) Recovery of possession of the said land. (iv) Perpetual injunction restraining the Defendant, his agents, representatives and his workmen from developing the said land. (v) Cost of GHȼ10,000.00 is awarded against the Defendant in favour of Plaintiff. SGD