Preko and Another v Coffie (LD/0319/2021) [2025] GHAHC 197 (21 May 2025)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE (LAND DIVISION 10) HELD AT ACCRA ON TUESDAY THE 21st DAY OF MAY 2025BEFOREHIS LORDSHIP JUSTICE KWAMEGYAMFIOSEI SUITNO.:LD/0319/2021 1. KWEKUPREKO 2. ABENAMANU :PLAINTIFFS VRS MAXWELLCOFFIE :DEFENDANT JUDGMENT The Plaintiffs per their writ of summons claim the following reliefs against the Defendant “a. Declarationoftitle toland. b. Recoveryofpossession c. Anordertodemolish all unauthorized structuresonthe land. d. An order of perpetual injunction to restrain the Defendants, their grantor, assigns, workers, agents and all who cometh unto the land at the 1 instance of the Defendants or their grantor or assigns from interfering in thePlaintiff’s quiet enjoymentofthe land. e. Costofthe suit herein including solicitor’s fees” The case of the Plaintiffs as indicated in their pleadings is that they acquired the disputed land from Nii Arde Nkpa VI, Mantse of Plerno and Nii Ofei II of Kokrobite being the heads of the Nii Arde Nkpa family of Plerno. According to them an indenture dated the 20th of September, 2002 was execution in their favour. They presented the said indenture for registration and went into possession of same by planting corner pillars. They also constructed a single room in which they housed their caretaker. In January 2021 the Defendant trespassed unto the said land and demolished the single room and started construction on the said land. The matter was reported to the Police and were made to write statements. According to the Plaintiffs in spite of the fact that the matter is still under investigations the Defendant is still developing the land hence thepresent action. The Defendant denies the claims made by the Plaintiffs and also claimed that he initially acquired the disputed land from one big daddy but later realized that the said landbelonged to NiiOkaija and re-acquired same fromhim. He said he is in theprocess of registering his title to the said land. According to the Defendant he did not meet any structure ofthe Plaintiffs ontheland andthat he acquired the disputed landin2008 and 2 has walled same and is also putting up a dwelling place on the land. He therefore maintained that thePlaintiffs arenot entitled tothe reliefs they seek. THEISSUES The issues settledfordetermination were “a) Whether or not Plaintiff’s grantors are the rightful owners of the land in dispute. b) Whetherornot Plaintiff is entitled tohis claim c) Anyotherissues thatmay arise fromthe pleadings” Issue “b” is superfluous because the Plaintiff is in court for that relief as ruled by the Supreme Court in the case of DALEX FINANCE & LEASING CO. LTD VRS EBENEZER DENZEL AMANOR & 2 ORS [2012] 171 GMJ 256 at 304 where Pwamang Jsc speaking forthe apexcourt said; “We take this opportunity to deprecate the emerging wrong practice where in setting down issues for trial in a civil case “whether or not the plaintiff is entitled to her claim” is put down as an issue for trial. The whole trial is aimed at determining whether or not the plaintiff is entitled to the reliefs claimed so howcan thatbe adistinct issue?.” Hence issue “a”would be the onlyissue which would engagethe attentionofthis court 3 BURDENOF PROOF ANDSTANDARDOF PROOF In civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made or denied, the party on whom the burden of proof lies is enjoined by the provisions of Sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead such credible and admissible evidence such that on the totality of the evidence on record, the court will find that party'sversionoftherival accounts moreprobable thanitsnon-existence. In other words, the primary burden of proof, which comprises the duty of producing evidence in support of an assertion relevant to the court’s decision, is upon the party who made the assertion. The obligation on the party making the assertion is in two folds. The first involves the production of evidence in proof of the averment, as required by sections 11(1) and 14 of the Evidence Act, 1975 (N.R.C.D 323 The second is to ensure that the evidence adduced meets the standard of proof set by the law. The evidence must be sufficient to be able to persuade the trier of fact under section10 (1), Act 323. The test applied by the trier of fact in determining whether the evidence adduced was persuasive, is “proof by a preponderance of probabilities’’, as required by section 12 of Evidence Act 1975 [Act 323]. If the plaintiffs in this case adduce sufficient evidence in discharge of the primary burden regarding their claims, the burden would shift onto the Defendant as stipulated under Section 14 of the Evidence Act 1975 [Act 323] 4 EVIDENCE LEDBY THE PLAINTIFFON ISSUE “a” The evidence led by the Plaintiffs on their grantors what that in 2002, they acquired disputed land from Nii Arde Nkpa VI, Mantse of Plerno and Nii Ofei II of Kokrobite being the heads of the Nii Arde Nkpa family of Plerno. An indenture evidencing the grant of the land the subject matter of this action was executed in their favour on the 20thofSeptember,2002.He tendered same as Exhibit A. The Plaintiff called Daniel Awuley Abobonua as their first witness. His evidence was that in 2002 the 1st Plaintiff approached him and his brother for a piece of their family land which they granted. According to him all lands at Kokrobite are family lands and the practice is thatif someone expressed interest in one’s family land, same is granted to the grantee by the family and thereafter the one is taken to the Chief of Kokrobite for an indenture to be executed for the said grantee. The Plaintiffs went through the said process culminating in the execution of an indenture for them by Nii Arde Nkpa vi Mantse of Plerno and Nii Ofei II of Kokrobite being the heads of the Nii Arde Nkpa family of Plerno. He said the Defendant’s grantor Nii Okaija Aryeetey who is from the Gbese family haveland at Kokrobitebut their land is distinct fromthe Plaintiffsland The last to be called was Nii OfeiIII . His evidence was that the disputed land is owned by Daniel Nii Abobonua’s family. The said family granted the disputed land to the Plaintiffs. He further claimed that the Defendant’s grantor Nii Okaija Aryeetey’s family 5 even though they own land at Kokrobite their land is not the disputed land and that their said landis locatedsomewhere else. EVALUATIONOF THE EVIDENCE LEDBY THE PLAINTIFF. From the Plaintiffs evidence the disputed land forms part of Daniel Nii Abobonua’s family. The Plaintiffs alluded to the fact that the Defendant’s grantor’s family land shares no boundary with their family land. From the Plaintiff’s account therefore, the Defendant’s grantor has no capacity to grant their family land to the Defendant. In the circumstance the Plaintiff’s grantor were to prove their boundaries strictly. There however failed to do same by calling their boundary owners. Since they claim Kokrobite lands are family lands they invariably share boundaries with other family lands and it was incumbent on them to have called their boundary owners. Secondly, since they claim the disputed land is in reality their family land, they were duty bound to have traced their root of title, which they also failed to demonstrate. These are weaknesses inthe Plaintiff’scase. EVIDENCE LEDBY THE DEFENDANT Notwithstanding these weaknesses I would proceed to examine the evidence led by the Defendant regarding his right to the disputed land. The Defendant’s evidence is that he initially acquired the disputed land from one big daddy but later realized that the disputed land belonged to Nii Okaija . This fact was confirmed by a search at the Lands 6 Commission. He tendered Exhibit 1A which is an indenture executed between the said grantor and the Defendant. The Defendant called his grantor Nii Okaija Aryeetey as his witness. The witness Nana Okutupa aka Nii Akaija Arteetey told the court that he acquired a large stretch of land including the land in dispute from the Chiefs of Kokrobite. He tendered Exhibit 3 which is an indenture executed between the chiefs and himself in evidence. The witness said he has since registered his interest in the land and has been issued with a Land Title Certificate. He tendered the Certificate in evidence and same was marked Exhibit 4. He added that he has granted the disputed landtothe Defendant. EVALUATIONOF THE DEFENDANT’SEVIDENCE The Defendant’s title is derivative and his grantor’s ownership In the first place the Defendant’s evidence was consistent with his pleadings as regards his grantor’s right to the disputed land. Unlike the Plaintiffs, the Plaintiffs pleaded that they acquired the disputed land from Nii Arde Nkpa vi Mantse of Plerno and Nii Ofei II of Kokrobite being the heads of the Nii Arde Nkpa family of Plerno. In the Plaintiffs evidence they claimed the Daniel Nii Abobonua’s family were the actual owners of the land and that the Nii Arde Nkpa family were only contacted for documentation as Kokrobite lands are family lands. Where one party’s evidence is consistent with his pleadings whilst the other’s evidence is inconsistent or a departure from the pleadings and former should be preferred. Inthe premise I preferthe evidence ofthedefendant. 7 Closely related to the above issue is the fact that the Plaintiff’s Exhibit A is a bit doubtful This is because the Plaintiffs own witness PW2, admitted under cross- examination that Nii Okaija’s grantors namely Nii Ofei II and Asafoatse Emmanuel Ayitey Tagoe acted as heads of the Nii Arde Nkpa family after the death of Nii Arde Nkpa IV. For emphasis when PW2 was under cross-examination on the 19th of October 2022he was asked “Q. Can you tell this court if you know the period within which Asafoatse EmmanuelAyiteyTagoe became the family headofNii Arde Nkpa Family? A.Yes, it was after the death of Nii Arde Nkpa IV that Emmanuel Ayitey Tagoe wasappointed to be the acting headof the Nii Arde Nkpa Family” The indenture executed in favour of the Defendant’s grantor by the said family heads is dated 10th May 2004. It means that Nii Arde Nkpa IV died before 10th May 2004. Surprisingly the indenture executed in the Plaintiffs favour marked Exhibit A is dated 20th September 2002 and this was signed by Nii Arde Nkpa VI. How could Nkpa the 6th execute a document in 2002 when Nkpa the 4th passed away before 2004. Clearly the Plaintiff’s indenture is not genuine no wonder Exhibit 4 which is a notice from Nii Arde Nkpa Viiaffirms the grant made tothe Defendant’s grantor. Again from the evidence the claim by the Plaintiffs that the Defendant’s grantors land lies somewhere else could not be proven by them. Indeed the composite plan shows 8 that the Defendant’s grantor’s land is not lying somewhere else but falls directly on the larger tract of land owned by the Defendant’s grantor. That claim made by the Plaintiffs wouldtherefore be takenwithapinch ofsalt. Lastly the evidence is clear that the Defendant is in effective occupation of the land. Indeed at the time this action was instituted the Defendant was in possession of the land and has constructed a structure on same. This possession as the evidence has disclosed is backed by title. It is not mere possession.The learned authors B.J. da Rocha and C.H.K. Lodoh in their book GHANA LAND LAW AND CONVEYANCING [2nd Ed]at page 101had this tosay about what I just said “ If a person in possession cannot show that his possession is based on some title, then he is a mere squatter.Although the squatter’s possession by itself is treated as title, he is exposed to the risk of being challenged by someone claiming superior title. In the face of such a challenge, he cannot simply rely on hispossession alone if the challenger producessome evidence oftitle.” The Plaintiffs in my view could not adduce evidence to establish their title to the disputed land. The Defendant’s grantor has been issued with a Land Title Certificate whichvestsanindefeasible title in him. This is a land suit hence the Plaintiff should have led credible and admissible evidence to prove their root of title, mode of acquisition and various acts of possession exercised 9 over the disputed land. They failed woefully in that bid. See the case of Mondial Veneer (Gh) Ltd v Amissah Gyebi XV [2011] 1 SCGLR 466. On the totality of evidence before me I hold the Plaintiffs account relative to title to the disputed land is less probable on the balance of preponderance of probabilities and accordingly dismiss their entire reliefs. Iaward cost ofGHC 15000.00against thePlaintiffs infavour ofthe Defendant. (SGD) KWAMEGYAMFIOSEI JUSTICEOF THE HIGH COURT LANDDIVISION10 COUNSEL: PAULOPOKU FOR THEPLAINTIFF ISAACAIDOO FOR DEFENDANT 10