YARNIE AND OTHERS VRS. NYANKUAO AND ANOTHER (E1/AHC/36/2024) [2025] GHAHC 40 (21 January 2025)

IN THE SUPERIOR COURT OF JUDICATURE AND IN THE HIGH COURT OF JUSTICE, AMASAMAN, ACCRA IN THE GREATER ACCRA REGION HELD BEFORE HIS LORDSHIP JUSTICE ALEXANDER GRAHAM (J) JUDGMENT GIVEN; ON TUESDAY, THE 21ST DAY OF JANUARY, 2025. SUIT NO: E1/AHC/36/2024 1. CHARLES YARNIE - 1ST PLAINTIFF 2. CHRISTIANA DEDE YARNIE - 2ND PLAINTIFF 3. GRACE DEDE YARNIE - 3RD PLAINTIFF VS. 1. SOLOMON NII DODOO NYANKUAO - 1ST DEFENDANT 2. NII LANTEI WINGAH (GYASETSE) - 2ND DEFENDANT JUDGMENT INTRODUCTION Plaintiffs claim is for the reliefs indorsed on the Plaintiffs’ writ of summons and Statement of Claim filed on 1st September, 2023. a) A Declaration of title in favour of the Plaintiffs over ALL THAT PIECE OR PARCEL bounded on the North-East by Lessor’s land measuring 340 feet more or less on the South-East by Lessor’s land measuring 192 feet more or less on the South-West by Lessor’s land measuring 340 feet more or less and on the North-West by Lessor’s land measuring 192 feet more or less as per the Plan attached which shows the relevant measurements. b) A perpetual injunction against the 1st and 2nd Defendants preventing them, their agent and assigns and all persons claiming an interest in the disputed land through them from encroaching the land. 1 c) Damages for trespass. d) Cost, including legal fees. The 1st Defendant was served with the writ of summons on the 6th day of December, 2023 and notwithstanding the fact that there is no proof of service on the 2nd Defendant, Lawyer Peter Kwaku Nti filed an entry of conditional appearance on behalf of the Defendants on 16th October, 2023. It is therefore trite that Lawyer Peter Kwaku Nti having entered appearance on behalf of the Defendants presupposes that 2nd Defendant instructed Lawyer Peter Kwaku Nti to do so on his behalf to defend the suit. The entry of conditional appearance crystalized into unconditional appearance after the provisions pertaining to the time frame elapsed and Counsel for Plaintiff invoked the jurisdiction of this court by filing a motion on notice for interlocutory judgment in default of defence against the Defendants on 9th August, 2024 and there is proof of service on Counsel for Defendants dated 24th September, 2024 and proof of service of a hearing notice dated the same day. Counsel for Plaintiff moved his motion on notice for interlocutory judgment in default of defence against the Defendants on 5th November, 2024 and interlocutory judgment was entered in favour of Plaintiffs against the Defendants on same day. This court made consequential orders that Defendants should be served with a hearing notice and court notes of 5th November, 2024 On the same 8th November, 2024 a hearing notice was issued by Counsel for Plaintiffs and served on Counsel for Defendants on 13th November, 2024 and the court notes of 5th November, 2024 was served on Counsel for Defendants on 29th November, 2024 2 Notwithstanding the hearing notices served on Counsel for Defendants, Defendants or their Counsel failed to defend this action. On 3rd December, 2024, this court ordered Plaintiffs to file their witness statements and documents they intended to rely on during trial for which they complied and filed on 13th January, 2025. Plaintiff mounted the witness box on 14th January, 2025 which culminated in the evidence below. PLAINTIFF'S CASE 1. The Plaintiff's case is that, their family is the allodial owner of a larger tract of land of which the land in dispute forms part. The family has exercised right of ownership over same without any objection for so many years. The Defendants from nowhere have however surfaced laying false claim to the Plaintiffs’ family land. ISSUES 2. The key issue for determination is whether or not the Plaintiffs have led sufficient evidence for declaration of title to be made in favour of the Plaintiffs’ family? BURDEN AND STANDARD OF PROOF 3. The burden of producing evidence and the burden of persuasion is cast on such a party and the standard of proof required to discharge the burden of persuasion in civil matters is one of “preponderance of the probabilities”. Sections 12 (1) and (2) and 11(4) of the Evidence Act, 1975 (NRCD 323) are the statutory provisions that deal with the burden of proof and the standard of proof. These statutory provisions have been the subject of discussion in a plethora of decisions in our courts. Some of the cases on this point are TAKORADI FLOUR MILLS V. SAMIR FARIS [2005-2006] SCGLR 882, WHERE THE SUPREME COURT PER ANSAH JSC EXHAUSTIVELY DEALT with the burden of proof at pages 896-898 of the 3 report and IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU AND ORS. V. KOTEY AND ORS. [2003-2004] SCGLR 420, amongst others. Besides,Section 13(1) of the Evidence Act, 1975 (NRCD 323) states that: “In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” In commenting on Section 13(1) of the Evidence Act 1975, the Supreme Court ruled in ARYEH & AKAKPO VRS AYAA IDDRISU [2010] SCGLR 891 opined as follows: “This rule emphasizes that where in a civil case crime is pleaded or alleged, the standard of proof changes from the civil one of the balance of probabilities to the criminal one of proof beyond reasonable doubt.” Without dispute, the subject-matter of this suit is land with reliefs of declaration of title amongst others. The law and the evidence required for a party to succeed in a land action is therefore necessary in this suit. The Supreme Court in MONDIAL VENEER (GH.) LTD. V. AMUAH GYEBU XV (2011) SCGLR 466, set out the nature of the evidence that a party who seeks declaration of title to land has to lead evidence in order to get a ruling in that person’s favour. The Supreme Court speaking through Georgina Wood C.J. noted at page 475 of the report as follows: “In land litigation … the law requires the person asserting title and on whom the burden of persuasion falls … to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim.” [Emphasis mine]. 4. Also, in the case of MRS. VINCENTIA MENSAH (SUBSTITUTED BY BEATRICE TSOTSO ADJETEY) V. NUMO ADJEI KWANKO II; CIVIL APPEAL NO. J4/17/2016 4 [2017] GHASC 22 (14TH JUNE 2017), the Supreme Court speaking through Anin-Yeboah JSC (as he then was) held as follows: “In land suits in which title is in issue, the party claiming title must always plead and prove his root of title to enable him succeed.” The privy council appears to have set in motion the first rule to be applied when evaluating traditional evidence in the case of ADJEIBI KOJO V. BONSIE (1957) 3 WALR 257, in that case, the court held that: “the most satisfactory method of testing the traditional history is by examining it in the light of such more recent facts as can be established by evidence in order to establish which of the two conflicting statements of tradition is more probably correct.” 5. Also in the case of OHIMEN V. ADJEI 1957 2 WALR 275, the court held that “allodial interest is acquired through discovery, gift, conquest and purchase.” If land was first settled upon before the earliest date to which the “no unowned land” 6. doctrine is applicable, legal doctrine can recognise that the allodial title was created by settlement on unowned land. 7. Admitted facts need no further proof per NII TAFO AMON II VRS AKORTIA OWARSIKA III substituted by LARYEA AYIKU III [2005-2006] SC GLR.637. ANALYSIS & EVALUATION OF EVIDENCE The Plaintiffs at paragraph 2 of the witness statement testified that, their family; Yarnie Family or Amanfro Family is the owner of the large tract of land known as the Amanfro land. The said large tract of land was admitted and marked as Exhibit ‘A’. Besides the above, the Plaintiffs per the 1st Plaintiff also testified that, their family have exercised ownership rights over the larger tract of land of which the land in dispute forms part without any challenge. In exercising the rights of ownership, the Plaintiffs per it then head of family granted portions of its family’s’ land to. “A& HA”/Mr A.T Ankrah. “A& HA”/Mr A.T Ankrah farmed of the portions 5 granted to him in the public space. During the farming by Ankrah, Defendants never laid any claim to being the owner of the said land. It is also the case of the Plaintiffs that, part of Fise where the Defendants hails from in the past belongs to the Plaintiffs. This evidence is from Plaintiff Exhibit ‘A1’ which shows that Plaintiffs previous head of Family Osaadu put in a claim for part of the family’s land which was acquired for the railway development by government. Indeed, it is part of this piece of land which was given to the Defendants’ ancestors. Through Mr. Fisher. This evidence has been articulated at paragraphs 8 to 10 of the Plaintiffs witness statement without any challenge. CONCLUSION The Plaintiffs have led evidence as to their root of title and act of possession. The Defendants herein have not and indeed refused to challenge the Plaintiffs evidence by refusing to participate in the trial notwithstanding the reasonable countless opportunities. Plaintiffs have successfully proved their case of the balance of probabilities. Judgment is hereby entered in favour of Plaintiffs against Defendants for the reliefs endorsed on the writ of summons. GH¢5,000 Damages for trespass is awarded in favour of Plaintiffs against Defendants. Cost of GH¢10,000.00 is awarded in favour of Plaintiffs against Defendants. (SGD) H/L. ALEXANDER GRAHAM (J) (JUSTICE OF THE HIGH COURT) PARTIES: 1ST PLAINTIFF PRESENT REPRESENTING 2ND & 3RD PLAINTIFFS DEFENDANTS ABSENT COUNSEL: YAW DANKWAH ESQ. FOR PLAINTIFFS PRESENT 6