Osei V Danquah (C1/45/20) [2024] GHAHC 424 (15 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE ASHANTI REGION, KUMASI HELD ON FRIDAY THE 15TH DAY OF NOVEMBER, 2024BEFOREHER LADYSHIPHANNAH TAYLOR(MRS) J. SUIT NO: C1/45/20 BEATRICEOSEI …PLAINTIFF H/NO. PLOT 12,BLOCK “A1” NYANKYERENEASE–KUMASI/ASHANTI VRS. MR. DAVIDDANQUAH …DEFENDANT OF NYANKYERENEASE –KUMASI/ASH. _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiff seeksthe following reliefs fromthedefendant: - i) An order of the Court declaring title in Plot Number 2, Block “A1” situate at Nyankyerenease in favourofthe plaintiff. ii) Recoveryofpossession. 1 iii) An order of perpetual injunction restraining the defendant herein, his agents, assigns, workmen etc or anybody claiming title through him or for him from furtherhaving anything todo withthe land in dispute. The defendant upon service of the writ of summons on him filed a statement of defence and counterclaimed against the plaintiff forthe following reliefs: - a) Anorderfor declarationoftitle toPlotNo.2A Block ANyankyerenease Kumasi. b) An order for perpetual injunction restraining the plaintiff herein, her agents, assigns, workmen etc or anyone claiming title through her from in anyway interfering withthe defendant’squiet enjoyment ofhisplot orland. c) Cost. PLAINTIFF’S CASE The plaintiff states that she is the owner of Plot numbered Plot 2 Block A1 situate at Nyankyerenease, Kumasi which she acquired in the year 2001. The Plot 2 Block A1 was acquired together with Plot number 12 Block A1 from Nana Appiah Poku II the chief of Kokoso. On acquisition of the two plots, she started developing Plot 12 Block “A1” Nyankyerenease and completed same. She then decided to mould blocks for the construction of a two-bedroom house. For which reason she laid a foundation and super structure onthe disputed plot. 2 However, the structure was demolished on two occasions. She therefore, suspended further development. One Kwame Sarfo came to the land later stating he had a judgement in his favour to recover the land. An action was instituted against the said Kwame Sarfo with other people for a declaration that the judgment was obtained by fraud and for same to be set aside and an interlocutory injunction was obtained. It was then that the defendant entered the land and also started building on the land. When efforts to serve him with a copy of the order of injunction failed, the present action was instituted forthe reliefs prayed for. DEFENDANT’SCASE The gist of the defendant’s case is that he acquired Plot 2A Block A Nyankyerenease, Kumasi from one Francis Okyere in the year 2018 with the acknowledgement and consent of the Odinkyini Akwaamanmu Stool. He immediately went into possession after acquiring his plot and constructed a building to the lintel level. Before acquiring this plot, he conducted the necessary investigations and searches to satisfy himself that it belonged to Francis Okyere. The land Plot No. 2A Block A Nyankyerenease shares boundaries with Plot No. 2B Block “A” Nyankyerenease, a road, Plot No. 3A Block “A” Nyankyerenease formerly described as Plot No. 2 Block “A” Nyankyerenease and one other plot, Plot 2B Block A owned by Mr. & Mrs. Boamoah whiles he owns Plot No. 3A Block A. 3 Denying all the claims of the plaintiff, he averred that Nana Appianin Poku II cannot allocate Nyankyerenease Stool lands since he is not the caretaker of Nyankyerenease lands and that it is the Odinkyini Akwaamanmu Stool which is the caretaker of Nyankyerenease lands for and on behalf of the Golden Stool. He also averred that he did not acquire his land from Kwame Sarfo and therefore, he does not claim title throughhim. Hence, the counterclaim made. REPLYANDDEFENCETOCOUNTERCLAIM AND ISSUESFORTRIAL The plaintiff filed no reply nor a defence to counterclaim. On the failure to file a reply, the established principle of law is that a reply is not mandatory or necessary if the sole purpose was to deny the facts alleged in the defence, for the absence of a reply, there was an implied joinder of issues on the defence. See the cases of RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU AND OTHERS V KOTEY AND OTHERS [2003-2004] SCGLR 420, IN RE PARAMOUNT STOOL OF BAMIANKOR; EFFIA IV &ANOTHER VNANA TAIBA II &OTHERS [2010] SCGLR37at50. On failure to file a defence to counterclaim, same amounts to no defence to defendant’s claim which places the plaintiffas defendant. ISSUESFOR TRIAL Atthe close ofpleadings essentialissuessettled for determinationare:- 4 1. Whether or not defendant acquired his Plot No. 2A Block “A” Nyankyerenease, KumasifromKwame Sarfo. 2. Whether or not the plaintiff’s Plot is the same as Plot No. 2A Block “A” Nyankyerenease Kumasi. BURDENOF PROOF It is trite learning that a person who alleges the existence of a fact bears the burden to leadthe requisite credible evidence in proving same before thecourt. Thus, under section 10(1) ofthe Evidence Act, 1975 (NRCD 323) is provided that a party who alleges the existence of a fact bears the burden of persuasion. The section 10(1) of NRCD323statesasfollows: - “For the purposes of this Act the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact orthe court.” Section11(1) and (4) ofNRCD323also provide; - 11. Burdenofproducing evidence (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against him. 5 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind can conclude thatthe existence ofthefact was moreprobable thanitsnon-existence” Thus, the onus is on the party making assertions which have been denied to discharge theburdens ofpersuasionand ofproducing evidence. In DON ACKAH V. PERGAH TRANSPORT [2011] 31 GMJ 174, [2010] SCGLR 728 at 736,Adinyira JSCtherefore held: - “It is a basic principle of 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. It is trite that matters that are capable of proof must be proved by sufficient evidence so that on all the evidence a reasonable mind can conclude thatthe existence ofthefact is moreprobable thanitsnon-existence.” In this case, where the defendant has counterclaimed, he bears the same burden as the plaintiff. Foracounterclaimis anindependent action. In OSEI V. KORANG [2013] 58 GMJ [2013-2014] SCGLR 221, it was espoused that “a counterclaimant is as good as a plaintiff in respect of a property which she or he assays to make his or her own. Also, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he or she is to succeed. This is because a 6 counterclaim is a distinct and separate action on its own which must also be proved according tothe same standard ofproof required under sections11 and14of NRCD323 ofthe Evidence Act, 1975”. In this case though the plaintiff failed to file a defence to the counterclaim, the prayer for declaration of title requires that defendant leads credible evidence to establish his claim, fordeclaratoryreliefs areonlygranted upon evidence being taken. DETERMINATION OFISSUES WHETHERDEFENDANT ACQUIREDHISPLOT FROM KWAME SARFO. The plaintiff in her pleadings and testimony made mention of Kwame Sarfo as having been to the land to lay a claim based on a judgment he has obtained. In paragraph 20 of herevidence in chief perher witnessstatement, plaintiff testified; - “20. Later, it came to my notice that it was one Adu Adjei who sold the land to the defendant forvaluable consideration.” Under cross examination, the plaintiff admitted to applying for an order of interlocutory injunction and a copy of the application for interlocutory injunction was tendered throughher as Exhibit “1”.Plaintiff was thencross examined on Exhibit “1”as follows: - 7 Q. I am putting it to you that per paragraph 10 of your affidavit in support of the motion for your injunction, you stated on oath that it is one Kwame Sarfo who hasfraudulently sold theplot in dispute to thedefendant. A. Itisnot correct. But in paragraph 10 of the affidavit in support per Exhibit “1” deposed to by the plaintiff, Beatrice Oseireads; - “That it is one Kwame Sarfo who has fraudulently sold the plot to the defendant after theHigh Courtrestrained himfromhaving anything to dowiththe land in dispute”. Obviously, plaintiff has not been truthful with her answer under cross examination. Further, in one breath she alleges that the defendant acquired his land from one Adu Adjei and before the same court per Exhibit “1” she states it was from Kwame Sarfo. I find plaintiff’s claims tobe speculative onwho defendant acquired hisland from. The defendant on the other hand from his pleaded case and evidence, does not lay a claim of title through Kwame Sarfo but relies on a grant made through Francis Okyere in 2018 with the consent of the Odinkyini Akwaamanmu Stool. There is no evidence that Kwame Sarfo and Francis Okyere are the one and the same person. Thus, there is no evidence suggestive thatdefendant had acquired his Plot2A Block “A” fromKwame Sarfo. The claim that defendant acquired his land from Kwame Sarfo is dismissed in the circumstance. 8 WHETHER OR NOT PLAINTIFF’S PLOT IS THE SAME AS PLOT NO. 2A BLOCK ANYANKYERENEASE From the pleadings, it is clear that parties have given different description to the land they each claim. The plaintiff describes her land as Plot 2 Block A1 Nyankyerenease whiles the defendant stateshe owns Plot2A Block ANyankyerenease. Plaintiff in establishing her claim testified and tendered Exhibit “A” an allocation note. The allocation note is dated 24th July, 2001 and it is in the name of Mr and Mrs. Osei for Plot 2 Block A1, Kumasi. Exhibit “A” discloses that the allocation note bears a letter head of Appiannin Stool Lands, Kokoso Extension and same granted by the Kokosohene. Also, tendered is a site plan for Plot No. 2 Block A1 delineated as being at Nyankyerenease, Kumasi. Undercrossexamination, plaintiff answered as follows: - Q. Itis not correct thatyouacquired plotnumber 12Block A1 Nyankyerenease from Nana Appianin II. A. Iacquired it fromKokosohene. Q. I am putting it to you that the land acquired is actually at Kokoso Extension and notNyankyerenease. 9 A. Itiscorrect that theland is at Kokoso Extension. Q. And the occupant of the Appianin Stool which is the caretaker of Kokoso Extension land granted you plot number 2 Block A1 Kokoso Extension. Is that notso? A. Itiscorrect. With Exhibit “A” describing the land allotted to the plaintiff as Plot 2 Block A1 Kumasi, on Appianin Stool Land, Kokoso Extension, throws in for questioning why the site plan Exhibit “B” is describing the land at Nyankyerenease? PW1, Kwame Adu testified that he had led plaintiff to acquire the plot from the chief of Kokoso,Nana Pokufor valuable consideration. Inparagraph15ofhis witness statement, he testified asfollows: - “I was given the allocation note of the land and site plan which are in the name of the plaintiff fromthe chief ofKokoso,Nana Poku”. Exhibit “A” tendered as the allocation note issued is in the name of Mr. and Mrs. Osei and not in the name of the plaintiff as testified her and PW1. No explanation has been givenfor theallocation papernot being inthe name ofthe plaintiff. Undercrossexamination, PW1answered; - 10 Q. In your witness statement at paragraph 15 you have stated that you were given an allocation note of the land and a site plan which were in the name of the plaintiff fromthe chief ofKokoso,Nana Poku. Do youstill stand by that? A. Istand by that. Q. So if we take the allocation note now, we would see plaintiff’s name on it. Is that notso? A. That isso. Q. I am suggesting it to you that the plot of land which Nana Poku allocated to the plaintiff is described asPlot number 2Block “A1”,KokosoExtension? A. That isso. Another noticeable issue is that though PW1 attest to leading plaintiff to acquire land with money sent him by plaintiff’s husband, PW1 had indicated that the allocation note of the land and site plan were issued in the name of plaintiff. Exhibit “A” tends to be in the name of Mr. and Mrs. Osei. PW1 insists that the allocation note is in the plaintiff’s name. Nowhere in plaintiff’s pleaded case did she mention that she had acquired the land with her husband and was issued with an allocation note in the name of Mr. and Mrs. Osei. In her pleaded case as per the paragraph 5 ofthe statement of claim she averred as follows: 11 “The plaintiff avers that she acquired two (2) plots from Nana Appianin Poku II, the chiefofKokoso numberedPlot number 12Block A1and Plot2Block A1.” In her witness statement, she maintained she acquired the plot and in paragraph 16 of her witness statement she testifies. “I already have an allocation paper and a site plan of the land in dispute which was given to me by Nana Appianin Poku II”. The acquisition of the plot as asserted by plaintiff was by herself as she has pleaded and testified, without indicating that her husband provided the money and coupled with the PW1’s insistence that the allocation note was issued to plaintiff, shadows of doubts and incredibility hover around the Exhibit “A” which is in the name of Mr. and Mrs. Osei withoutadisclosure ofplaintiff’sname “Beatrice Osei”. The defendant testified and his evidence per the witness statement reflected his pleaded case. He tendered Exhibit “1” an allocation note, dated 12th September, 2018 which disclosed that Nana Akwamu Nkosuahene had allocated Plot 2A Block A Nyankyerenease to David Dankwah, Exhibit “2” a plan of land delineating Plot No. 2A Block A for David Dankwah reflecting Exhibit “1”, the allocation note so issued for Plot 2ABlock A at Nyankyerenease. He also tendered Exhibit “3” an allocation note, dated 19th May, 2006 for David Danquah for Plot number 3A Block “A” and Exhibit “4” a plan of land delineating Plot 12 “3A” as pleaded and testified that he had two plots. The Exhibits “2” and “4” show that thetwo plotsarenext toeachotherat Nyankyerenease. Defendant again, tendered Exhibit “7” and “8” being an allocation note and a plan of land in the name of Comfort Boamah for Plot 2B Block A as testified. The Exhibit “8” shows that Plot 2B Block A lies at the northern side of Plot 2A Block A. Exhibit “5” is a plan of land delineating Plot 3B Block A for Mr and Mrs. Daniel Agyei Poku. Their Plot 3BBlock Alies at thesouthernside ofPlot 2A Block A. The plots for Mr. and Mrs. Daniel Agyei Poku and Comfort Boamah all allude to the fact thattheir land whichlies close toPlot2A Block A areallat Nyankyerenease. Under cross examination, defendant testified that Nyankyerenease and Kokoso are two distinct places yet plaintiff states she had an allocation from Kokoso but her land lies at Nyankyerenease. Plaintiff had alluded to having built on land close to the disputed land, though the said land is not the subject matter of this suit, where she had acquired the land as alleged, it would aid an appreciation of her claims which I find fraught with more questions as alreadypointed out. Defendant called Nana AduAgyei II, Asafo AkwamuNkosuohene asDW1. In his witness statement, he testified as knowing the defendant and not knowing the plaintiff. PW1 in his testimony stated that Odinkyini Akwaamanmu Stool is the 13 caretaker stool for all Nyankyerenease lands on behalf of the Golden stool and that the stool had granted Plot 2A Block A to one Francis Okyere and later the land was transferred to the defendant. He insisted that the plaintiff’s Nana Appianin Poku II is the chief of Kokoso and cannot grant lands at Nyankyerenease to any allottee as he is notacaretakerofNyankyerenease Stoollands forandonbehalf ofthe Goldenstool. Inparagraph9ofhis witness statement,he testified “thedefendant is therightful owner ofthe Plot indispute andhence Ipray this honourable courttogranthis reliefs”. Undercrossexamination, DW1 wasasked; Q. Do youknowthatNana Pokuwasthe chief ofKokoso? A. Yes, he was mybrother. Q. In2001he was chief ofKokoso. Isthatnot so? A. That iscorrect, but whenhe was installed aschief ofKokoso,I wasnot there. Under cross examination, he added that the plot described as Plot 2 Block A1 by the plaintiff and Plot2A Block A by thedefendant areone andthe same land. DW1 had answered: - Q. Youare aware, aren’t you, that the two parties are fighting over the ownership of onecommon land. A. Yes, Iknow. 14 From DW1’s evidence as well, this common land lies at Nyankyerenease. I find that the parties are ligating over the same plot. This is so because the site plan tendered by parties largely suggest that the disputed land lies at Nyankyerenease and same is confirmed by DW1. Fromthe entire evidence, both parties are relying onallocation note and site plan with a claim ofpossessionto assert title. The law assettled is that allocationnote cannot by itself constitute anacquisition ofland but connotes an initial step towards an acquisition of plot of land or a parcel of land. In the case of BOATENG (NO. 2) V. MANU (NO. 2) AND ANOTHER [2007 – 2008] 2 SCGLR 1117, the Supreme Court held that an allocation note when admitted into evidence it can only show that some transaction had taken place to signifying that the owners or holders of land had purported to give some land to an individual or a corporate body. The grantee will there after proceed to perfect the title by obtaining the appropriatedocuments whichwill have tobe registered. The site plan tendered by the parties obviously seek to delineate the land which is the subjectoftheallocation note. 15 In this case, plaintiff’s allocation note suggests that it is for the allocation of Plot No. 2 Block A1 Kumasi on Appianin Stool land, Kokoso Extension, the site plan Exhibit “B” describes theplot aslying atNyankyerenease. The defendant’s allocation note, Exhibit “1” describes the land allocated being Plot 2A Block A Nyankyerenease. The Exhibit “2” the site plan for the defendant also delineates the plot so allocated as being at Nyankyerenease. In NII AFLA V BENJAMIN KWAKU BOATENG [2003] 183 GMJ 368 at 425, Kulendi JSC noted that “[I]n consistencies in site plan and an indenture may not however, always be fatal unless it can be shown that the land described by the site plan is in fact, on the grounds different from what is recorded inthe indenture towhichthe planis attached. Reasoning that the site plan should reflect the land so allocated, where the site plan is inconsistent as in the plaintiff’s case and the evidence that Nyankyerenease and Kokoso are two distinct places, the inconsistency herein will have fatal consequences for her claims. The consistency of defendant’s allocation note with its site plan makes his claim probable. Both parties have also testified on being in possession albeit plaintiff stating that defendant took over the land from her. The defendant tendered the Exhibits 9 series to showthat he hasput upastructureonthe land. 16 Ansah JSC, in the case of Osei Korang supra held “Now in law, possession is nine points of law and a plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to ownership and it being good against the whole world except the true owner, he cannot be ousted fromit” The Evidence Act, 1975, NRCD 323 provides under section 48(2) that a person who exercises acts of ownership over property is presumed to be the owner of it. The ownership herein is presumptive. However, possession cannot ripen into ownership no matter how long it has been held or had. Therefore, in the circumstance of this case, for declaration of title it was required that by evidence same must prove the root of title, mood of acquisition and various act of possession. See the case of MONDIAL VENEER (GH) V. AMUAH GYEBU XV [2011] 1 SCGLR 466. The parties’ efforts were gathered to prove root of title, mood of acquisition and possession but defendant’s account showed consistency unliked the plaintiff. CONCLUSION On the totality of the evidence the plaintiff’s claims in respect of the reliefs sought on the preponderance of probabilities deserve no favourable ruling. In the circumstance, plaintiff’s reliefs arehereby denied assame are dismissed. 17 On the other hand, I find the defendant’s claims probable when weighed on the preponderance of probabilities and will enter judgement for the defendant on the counterclaim. Accordingly,judgement is entered forthe defendant as follows: - a) An order for declaration of title to Plot No. 2A Block A Nyankyerenease Kumasi (also described by plaintiff asPlot2Block A1). b) An order for perpetual injunction restraining the plaintiff herein, her agents, assigns, workmen etc. or any one claiming title through her from in anyway interfering withthe defendant’squite enjoyment ofhisPlot ofland. CostofGH¢15,000.00awarded against theplaintiff. [SGD] JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS FRANCIS APPIAH BOAKYE HOLDING THE BRIEF OF WILLIAM KUSI FOR THE PLAINTIFF KWAKUYEBOAHAPPIAHFORTHE DEFENDANT 18