Nyarko Vrs Anaafo [2023] GHADC 98 (24 July 2023)

IN THE DISTRICT COURT, KENYASI HELD ON MONDAY THE 24TH DAY OF JULY, 2023 BEFORE HIS WORSHIP CLEMENT KWASI ASOMAH AS MAGISTRATE BR/KS/A1/14/2023 SUSUANA NYARKO VRS IBRAHIM ANAAFO JUDGMENT At the instance of the plaintiff a writ of civil summons was issued out of the Registry of this Court claiming the following reliefs. a) An order of the Court compelling the defendant to remove his fence wall from the plaintiff’s portion of land. b) Cost. To these reliefs the defendant denied liability so in the interest of justice, the parties were given a hearing. THE PLAINTIFF’S CASE Besides herself the plaintiff called there (3) witnesses According to the plaintiff, Defendant has trespassed onto her land and constructed a wall and had created holes in the wall so when it rains water passes through the holes and floods her land. Plaintiff stated that notwithstanding calls from CHRAJ, town and country planning and Traditional Council, the Defendant has refused to remove the wall or closed the holes. Hence the instant action. PW1 Okyeame Adu Kwame’s evidence was that the plaintiff once lodged a complaint against the defendant at the queen mother’s house (PW2) that the defendant has trespassed on to her land and contracted a wall and in the wall were holes which collected water into her house PW1 said they invited the town planning office who accompanied the elders onto the land and at the inspection it was detected that what the plaintiff said was true so the Town planning officer marked the trespassing area but the defendant did not come back to the palace for the final verdict. PW2, Oduro Daniel who is a Director of CHARAJ corroborated the evidence of the plaintiff According to the PW 2 with the help of the Town Planning Officer they went onto the land and identified the area but the Defendant did not come back to the commission for their verdict. PW3, R Jokoto, a Technical Officer of Asutifi North Assembly testified that their inspection revealed that the defendant had trespassed onto the defendant’s land by 3 feet. The plaintiff closed her case after the evidence of PW3. THE DEFENDANT’S CASE The evidence of the Defendant was that he sued the plaintiff before this Court becuse the defendant had her kitchen on a portion of land he bought and got judgment so when the other bodies came in he did not heed to their decisions. The defendant closed his case after his evidence. LOCUS INSPECTION This Court at the instance of both parties visited the land in dispute. At the inspection the plaintiff showed us a wall and the holes she complained of Defendant also showed us the boundary, us to his land and maintained that he was within his land and denied any trespassing. The Court observed that the holes in the wall collect water onto the plaintiff’s compound and the wall had protruded a little onto the land between the parties. The inspection ended after both parties have had a bite. ISSUES The following issues arose for determination by this Court. a) Whether or not the defendant had trespassed onto plaintiff’s land. b) Whether or not the holes in the wall are a nuisance to plaintiff. c) Whether or not the plaintiff is entitled to her claim. NOW THE ISSUES Issue one – whether or not the Defendant has trespassed onto plaintiff’s land. It was the case of the plaintiff that the Defendant has trespassed onto a portion of her land. The defendant denied this piece of evidence by the plaintiff and asserted that it was rather the plaintiff who trespassed onto his land and constructed a kitchen but was ordered by this Court in previous suit to remove same which she did. It is worthy of note that the plaintiff could not provide any documentary evidence or specific features to prove that the defendant has trespassed onto her land. I am therefore of the view that she could not discharge the burden of persuasion on that issue. Issue one is accordingly resolved in favour of the Defendant. Because the area the wall had extended to did not belongs to plaintiff but rather a pavement between their land. Issue two – Whether or not the holes in Defendant‘s wall are a nuisance to plaintiff. The plaintiff was emphatic that the Defendant has created holes in his wall which collect water into her compound so her place gets flooded when it rains. The defendant denied this but the locus inspection conducted by this Court revealed that what the plaintiff said was true. I therefore have no difficulty in resolving issue two in plaintiff’s favour. Issue three – Whether or not plaintiff is entitled to her claim. I am satisfied on the preponderance of probabilities that the plaintiff has been able to adduce sufficient evidence to prove her claim that the holes in defendant’s wall are creating problems for her. It is therefore ordered that the defendant should close all the holes created in his wall which collect water onto plaintiff’s compound. Cost of GH¢500.00 awarded against the defendant. H/W CLEMENT KWASI ASOMAH 4