BEMPONG VRS. IBRAHIM (GJ1/32/2025) [2025] GHAHC 60 (14 January 2025)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD AT KUMASI ON TUESDAY 14TH DAY OF JANURY, 2025 BEFORE HIS LORDSHIP, JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE ------------------------------------------------------------------------------------------------------------- SUIT NO. GJ1/32/2025 RICHARD BERKO BEMPONG - PLAINTIFF H/NO. GZ-142-8545 AB 36 KING WELENTSI LN BAATSONA – SPINTEX ROAD - ACCRA AND SALIU IBRAHIM - DEFENDANT H/NO. AE-2040-7152 AE 73 FILEST STREET BOMFA ZONGO - ASHANTI ------------------------------------------------------------------------------------------------ TIME: 2:36PM. JUDGMENT: The subject matter of the instant suit is a piece of land described by the Plaintiff, as site for commercial purposes, Bomfa layout. In material particular, he describes the Land as follows: a) ALL THAT piece of land known as Site for Commercial Purposes. Bomfa in the Bomfa layout of the Juaben District of the Ashanti Region of the Republic of Ghana commencing at a control pillar marked SGA A010/16/27 for 76619.6 feet to a pillar marked 1 which marked the north western edge to a pillar marked 2 for 213.0 feet to a pillar marked 3 on 94.1 feet to a pillar marked 4 for 140.8 feet to a pillar marked 5 for 101.8 feet to a pillar marked 6 for 89.9 feet to a pillar marked 7 for 210.3 feet to a pillar marked 8 for 180.9 feet to a pillar marked 9 for 23.8 feet to a pillar marked 10 for 275.1 feet to the point of commencement and thence also from pillar marked 10 for 766609.0 feet to close on the control pillar marked SG GPS2/06/13 thus enclosing an approximate area of 2.73 acres or 1.11 hectares and marked on the cadastral plan attached to the lease between the Plaintiff and the Bomfa Stool registered at the Lands Commission under file No. 25029 and Serial No. 53/2020. This description is contained in Plaintiff's reliefs and paragraph 19 of the Statement of Claim. The Defendant despite being served with the Writ of Summons accompanied by a Statement of Claim did not file an Appearance and Statement of Defence. He has also failed to take part in the proceedings despite Notice to him. Order 36 r 1(1) and (2) of C. I. 47 provides that, where an action is called for trial and the Plaintiff attends but the Defendant fails to attend, the Court may dismiss the Counter- Claim of the Defendant, if any, and allow the Plaintiff to proof the claim. The Defendant has refused to participate in the proceedings or lead evidence in same despite the opportunity given to him to do so. The Court is therefore entitled, as it has done, to proceed with the trial to conclusion. See In Re West Coast Dyeing Industry Ltd; Adams v Tandoh [1984 – 86] 2 GLR 561, CA. 2 The facts on which the Plaintiff is before this Court, seeking the substantive relief of a declaration of title, to the Land described supra is that, he acquired approximately 1.22 acres of Land sometime in 1998 and developed it into a hotel. The Plaintiff further states that, in 2018, one Rexford Oppong Danso, Ama Serwaa, Wilberforce Kwame Yeboah, Charity Kune and Akosua Tenewaa who were owners of 1.40 acres of Land, lying opposite the aforesaid hotel offered their said Land for sale to him. Therefore, according to Plaintiff, two parcels of Land, being cocoa farms, the subject of the present dispute covering an approximate an area of 2.73 acres were offered to him by the owners. He states that, after diligent search and local enquiries, he confirmed that, the persons offering the Land to him, were the actual owners. In consequence of transfer made by Opanin Kwaku Okyere Amoh on one hand and Rexford Oppong Danso, Ama Serwaa, Wilberforce Kwame Yeboah, Charity Kune and Akosua Tenewaa on the other in respect of two farms to him, the Plaintiff, the grantors executed Statutory Declarations and receipts of payment in his favour as evidence of transfer and which made him became owner of the area of Land covering 2.73 acres. According to Plaintiff, he took immediate possession and control of the Land and exercised various overt acts of ownership on same without any hindrance from any quarter. On 24th October, 2019, according to Plaintiff, the Bomfa Stool executed a Lease over the subject matter in his favour and registered same at the Lands Commission without any caveat whatsoever and further caused Juaben Municipal Planning Authorities to re-zone the Land from farming purposes to commercial purposes. 3 He avers also that, he caused to be deposited heaps of sand on the Land and also placed some metal containers and a concrete mixer on portions of the Land and has been in active possession of the Land for the past five years without any hindrance from any quarter. It is the Plaintiff's case that, his caretaker informed him, that the Defendant has encroached on a portion of the Land covering an approximate area of 0.36 acres and started moulding sandcrete blocks on same. According to Plaintiff, his caretaker informed the Defendant to cease his trespassory act and move out from the Land but the Defendant has failed, refused and/or neglected to do so but is now zealously moulding sandcrete blocks on the Land without any colour of right. The Plaintiff states that, he also visited the Land and cautioned the Defendant to desist from his trespassory act but he has refused to heed to the caution and from his conduct is doing everything necessary to unlawfully, illegally and wrongfully deprive him of his Land. To all these, allegation of facts, same has not been controverted or denied by the Defendant, who as the record stands has filed no process in the suit. Generally, the averments are deemed to have been admitted. See Fori v Ayirebi [1966] GLR, 627 SC. Burden of Proof. 4 It is trite that, in an action for declaration of title to land, the burden of proof rest on the Plaintiff. See Ago Sai & Others v Kpobi Tetteh Tsuru III [2010] SCGLR 762 @ 779 per Ansah JSC. In Fosua & Adu-Poku v Dufie (deceased) & Adu Poku-Mensah [2009] SCGLR 310 @ 325 – 327, Atuguba JSC Opined: “This being an action for declaration of title and recovery of possession, the issue is what must a plaintiff do in order to succeed? In this regard, Sections 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323) come in handy in answering this question.” In Odoi v Hamond [1971] 2 GLR 375, CA, Azu Crabbe JA (as he then was) stated thus: “It is now common learning in this country that, in an action for declaration of title to land, the onus is heavily on the Plaintiff to prove his case and he cannot rely on the weakness of the Defendant’s case. He must indeed “show clear title”: per Yates Ag CJ in Kuma v Kuma [1934] 2 WACA 178 @ page 179. In Kponuglo v Kodadja [1933] 2 WACA 24 @ page 25, the Judicial Committee of the Privy Council observed that, in action for declaration of title the ‘first question logically and chronologically, to consider in the appeal is the traditional evidence regarding the acquisition of a title to the disputed territory.’ For a stool or family to succeed in an action for a declaration of title, it must prove its method of acquisition conclusively, either by traditional evidence or by overt acts of ownership exercised in respect of the land in dispute.” The Evidence Adduced and Evaluation. 5 The Plaintiff this morning adduced evidence per his Witness Statement filed on 10th December, 2024. He tendered Exhibits “A” – Statutory Declaration. The declarant is one Kwaku Okyere Amoh. This is what he said inter alia: “1. That I am the declarant herein. 2. That I am the original allottee of “SITE FOR FARM LAND” situate at Bomfa in the Ejisu-Juaben District in the Ashanti Region of the Republic of Ghana. 3. That I have never personally sold, pledged, mortgaged or assigned the said land to any person or group of persons. 4. That I am from the date of this Statutory Declaration transferring all my rights and interest in the said Land to RICHARD BERKO BEMPONG of P. O. Box GP 1912 – Accra in the Greater Accra Region of the Republic of Ghana. 5. That my name in all documents relative to the said land be deleted and RICHARD BERKO BEMPONG be inserted therein. 6. That I have hereby authorized the Lessor and the Lands Commission, Kumasi to prepare a FRESH LEASE in respect of the said land in favour of RICHARD BERKO BEMPONG.” 6 He further tendered Exhibit “B”, receipt for full payment of the Land sold to him by Kwaku Okyere Amoh, the declarant of Exhibit “A” as well as Exhibit “C” the cheque evidencing the said payment. According to Kwaku Okyere Amoh, he authorized his Lessor and the Lands Commission to prepare a fresh lease of the Land in favour of Richard Berko Bempong, who is the Plaintiff herein. Exhibit “E” was tendered by Plaintiff as evidence of the said Lease in his favour by the Bomfa Stool on 24th October, 2019, accompanied by a Site Plan. Exhibits “F” and “G” are evidence of possession by the Plaintiff. The Plaintiff has put beyond doubt the identity of the Land that he described in his pleading without challenge. Exhibit “C” is the evidence of the description of Plaintiff's Land totalling approximately 2.73 acres out of which the Defendant has trespassed approximately 0.36 acres. The Plaintiff has therefore satisfied the principle of law that, a party seeking declaration of title to Land and possession thereof must describe his Land. As to his root of title, the Plaintiff pleaded at paragraph 11 of the Statement of Claim that, Opanin Kwaku Okyere Amoh made a transfer of his Land to Rexford Oppong Danso, Ama Serwaa, Wilberforce Kwame Yeboah, Charity Kune and Akosua Tenewaa. According to Exhibit “A”, Kwaku Okyere Amoh transferred his Land described as “Site for Farm Land” situate at Bomfa in the Ejisu-Juaben District in the Republic of Ghana by a Statutory Declaration to Richard Berko Bempong. 7 In his book LAND LAW, PRACTICE AND CONVEYANCING IN GHANA, SECOND EDITION, the Learned Author, Dennis Dominic Adjei, has this to say, on Statutory Declaration at page 409 of the book: “The law is that, a Statutory Declaration is not a conveyance under the Conveyancing Act and therefore does not pass title but it is used as evidence of some sort of land transaction. A Statutory Declaration as a writing affecting land in Ghana is neither a deed nor a conveyance and cannot purport to create or convey an interest in land. Statutory Declarations are not registrable under both the Land Registry and Land Title Registration Acts. It does not create proprietary rights in its holder even though it may be used as evidence to prove title.” The Conveyancing Act, the Land Registry Act and Land Title Registration Act have been repealed by the new Land Act (Act 1036) of 2020. However, the Statutory Declaration, Exhibit “A” predated the repeal of these pieces of registration as same was sworn to by the declarant on 8th July, 2019. The legal effect here is that, Exhibit “A”, the Statutory Declaration could not have effected a transfer of an interest in land from Opanin Kwaku Okyere Amoh to the Plaintiff as he thought per paragraph 11 of his Witness Statement. Further the Plaintiff pleaded at paragraph 11 of his Statement of Claim that, Opanin Kwaku Okyere Amoh transferred his Land to Rexford Oppong Danso, Ama Serwaa, Wilberforce Kwame Yeboah, Charity Kune and Akosua Tenewaa. If that was the case, then how could the same Land had been transferred by Opanin Kwaku Okyere Amoh to the Plaintiff per his Witness Statement at paragraph 11. 8 Having transferred his interest to the persons named at paragraph 11 of his Statement of Claim, he had no interest anymore in the Land to be heard to have transferred that same interest to the Plaintiff. The persons who can transfer Opanin Kwaku Okyere Amoh’s Land to the Plaintiff are the joint owners namely Rexford Oppong Danso, Ama Serwaa, Wilberforce Kwame Yeboah, Charity Kune and Akosua Tenewaa. The Plaintiff pleaded at paragraph 4 of his Statement of Claim that, these joint owners offered 1.40 acres of their Land lying opposite his hotel to him and indeed, acquired the said Land together with Opanin Kwaku Okyere Amoh’s Land also being 1.33 acres and totalling 2.73 acres. It is the finding of the Court that, the portion of the Land transferred by Opanin Kwaku Okyere Amoh to the joint owners supra could not have been validly transferred to the Plaintiff. From the Exhibits before the Court, there is no evidence of transfer of an interest in Land jointly by Rexford Oppong Danso, Ama Serwaa, Wilberforce Kwame Yeboah, Charity Kune and Akosua Tenewaa to the Plaintiff. A thorough check have been made by the Court, through the documentary evidence before it and there is nothing showing any such transfer. Does that mean that, the Plaintiff’s relief for Declaration of Title to the Land, the subject matter of this suit, must fail? The evidence is undisputed that, the allodial owners of the Land, the subject matter of the suit belongs to the Bomfa Stool. The Bomfa Stool per Exhibit “E” 9 have executed a Leasehold Interest in their Land approximately 2.73 acres to the Plaintiff, Richard Berko Bempong on 24th October, 2019. This Exhibit “E” is a game changer for the Plaintiff since all his troubles relative to the analysis so far made in respect of the transfer to him by Opanin Kwaku Okyere Amoh has been saved by this document. The Court finds that, the Plaintiff has a valid transfer of the Land, the subject of this suit to the Plaintiff per Exhibit "E" and therefore declares title of the Land in his favour. The principle of law that, a party seeking declaration of title to Land must be able to proof his root of title has been satisfied by the Plaintiff. He has proved that, his root of title is traceable to the Bomfa Stool, the allodial owners who have carved out 2.73 acres of their Land to the Plaintiff. The evidence is unchallenged that, the Land trespassed by the Defendant being approximately 0.36 acres forms part of the Plaintiff's 2.73 acres. The Court finds that, the Defendant has trespassed to Plaintiff’s Land and he is entitled to recover from the Defendant that portion of the Land. The Plaintiff has proved undisputedly per Exhibits “F” and “G” that, he is in possession of the Land he acquired from the Bomfa Stool. The possession is shown by Electric Poles he has used to secure the boundaries or perimeters of the Land. 10 Further, the possession is proved by the clearing of the Land and the deposit of heaps of sand at vantage points on the Land and also placed metal containers and a concrete mixer on portions of same per Exhibit “G”. Conclusion. From the totality of the evidence adduced by the Plaintiff, the Court did not find the evidence of Charity Kune, PW1 of any relevance to the fortunes of the Plaintiff in law because the success of the Plaintiff in this suit rather has turned on the Leasehold acquisition by Plaintiff from the Bomfa Stool of which PW1 is a stranger to. The Court grants Plaintiff’s reliefs (a) and (b) in their entirety for Declaration of Title and an Order for the Recovery of the Land, the subject of Exhibit “E”. In terms of relief (c) for General, Punitive and Exemplary Damages against the Defendant for trespass, the Court awards to Plaintiff, an amount of Twenty Thousand Ghana Cedis (GH₡20,000.00). In terms of relief (d), the Defendant whether by himself, servants, workmen or agents or otherwise are perpetually restrained by an Order of Injunction from trespassing or undertaking any development of, dealing with or in any manner interfering with Plaintiff's ownership or right or his possession of the Land, the subject matter of the suit. In terms of relief (f), costs of Ten Thousand Ghana Cedis (GH₡10,000.00) is awarded in favour of the Plaintiff against the Defendant. 11 (SGD.) H/L JUSTICE CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Jeff Owusu Asamoah holding the brief of Angelina Awa for the Plaintiff. No legal representation for the Defendant. 12