Mensah V Owusu-Donkor (C1/141/19) [2024] GHAHC 433 (18 October 2024)

IN THE HIGH COURT OF JUSTICE ASHANTI REGION KUMASI HELD ON FRIDAY THE 18TH DAY OF OCTOBER, 2024, BEFORE HER LADYSHIP HANNAH TAYLOR(MRS) J. SUIT NO.: C1/141/19 SAMUELKWABENA MENSAH - PLAINTIFF H/NO. PLOT 18BLOCK 11 NEW SUAMEEXT. KROPO –KUMASI VS. ERICKWAKUOWUSU-DONKOR SUBSTITUTEDBY AGNES OWUSU-DONKOR - DEFENDANT H/NO. 417,OTINSHIE, EAST LEGON. ACCRA. _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiff seeks the following reliefs endorsed on the amended writ of summons filed on20thApril, 2022;- 1. A declaration that Plot No. 15 Block “B”, Nana Konadu Yiadom Stool (Yasore family) land near Asenua in the Kwabre East District of Ashanti is vested in the plaintiff’s family exclusively. 2. Recoveryofpossession. 3. Damagesfor trespass. 4. Any or other reliefs as shall be just in the circumstances of this case especially on order of perpetual injunction restraining the defendant, either by himself or by his servants, agents, assigns, workmen or any other person claiming through the defendant or for and on his behalf from setting foot on the plaintiff’s said plot or remaining thereon, or in any way interfering with the plaintiff’s exclusive title to, or possession of the said plot or otherwise dealing with the said plot contrary to or adverse to the plaintiff’s exclusive title to, and possession of the said Plot No. 15Block “B”Nana KonaduYiadomStool(Yasorefamily) land. The defendant during the pendency of the case passed and was substituted with the wife, AgnesOwusu- Donkor, anamed executorinhis will. PLAINTIFF’S CASE Plaintiff claims the disputed Plot No. 15 Block “B” Yasore in the Ashanti Region is for his Yasore Royal family of which he is its head of family and caretaker of the family’s land. However, he observed that the original defendant, Eric Kwaku Owusu Donkor had taken possession of same and was seeking to develop a building on it. His family confronted the defendant to stop the development and to provide his document on the land. The document provided was found to be fictitious and covering land which was nowhere near the said Plot No. 15Block “B”Nana KonaduYiadom Stool (Yasorefamily land). Therefore, thefamily rejecteddefendant’s claim tothedisputed plot. Consequently, the defendant stopped the development. However, about three months thereafter, defendant resumed the development. The conduct of the defendant was reported to the District Assembly at Mamponteng which caused the inscription “Stop Work” to be written on the wall on 7th March, 2018 but the defendant paid no heed. Withdefendant’sact constituting trespass, the present actionwas commenced. DEFENDANT’SCASE It is the defendant’s case that the disputed land indeed forms part of the plaintiff’s family land, but the land was allocated to the original defendant by the then head of family as far back as 9th September, 1992. The plaintiff’s then head of family having allocated Plot No. 10 Block B to the original defendant, trespassed same and allocated the land to another person. Upon threat of reporting the then head of family’s conduct to the police, the disputed plot was allocated as a replacement for the earlier grant. The defendant thus had since 9th of September, 1992 been in possession of the land and finished developing the plot about 12 years ago, counting from the date, the statement ofdefence was filed on10th May,2022. The defendant further contends that his possession is known to the plaintiff and his family all this while without any challenge until 2019 when plaintiff caused the arrest of his caretakerclaiming he hastrespassed thedisputed plot. The defendant at the police station reiterated the allocation to him and the plaintiff did not raise any issue about a fictitious document. The claim of a fictitious acquisition is denied by the defendant. Further, in putting up the structure, defendant duly procured abuildingand allotherrelevant permits needed forthe structure. In the circumstance therefore, it is rather the plaintiff who has no further interest in the disputed plot following the allocationofsame byhis family. REPLYANDISSUES FORTRIAL The plaintiff denied the claim of the allocation of the Plot No. 15 Block “B” Yasore, Ashanti to the defendant but insisted that the plot allocated to the defendant by his predecessor is Plot No. 10 Block “B” Yasore. Joining issues with defendant on his statementofdefence, the following issues were setfor determination: - 1. Whether or not the plaintiff’s matrilineal family or the plaintiff himself has ever allocated or granted building Plot No. 15 Block “B” Yasore, Ashanti to the defendant. 2. Whetherornot thesite plan produced by thedefendant is atotalforgery. BURDENOF PROOF From the plaintiff’s pleaded case, he denies an allocation of the Plot No. 15 Block “B” Yasore to Eric Kwaku Owusu-Donkor but the defendant disputes this contention. It is thus, required of the plaintiff to prove that indeed no such allocation has been made. This burden would be discharged only in accordance with settled principles of law and provisions relating to the burden of proof in civil suits as set out in the Evidence Act, 1975 (NRCD 323). Where the plaintiff has led such evidence, which has the quality of credibility, then defendant is required to adduce evidence of the fact essential to the defence set. Itis onthe preponderance ofprobabilities provided for under section12of theEvidence Act, 1975NRCD323thatthe evidence led by the partieswill be weighed. In TAKORADI FLOUR MILLS V. SAMIR FARIS [2005 – 2006] SCGLR 882 at 900, the SupremeCourtspeaking throughAnsah JSCstated the lawasfollows: - “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence required that the plaintiff produces sufficient evidence to make out his claim onthe preponderance ofprobabilities, asdefined in section 12(2) ofthe Evidence Decree [NRCD 323]. Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving ofafavourableverdict”. In this case, the defendant seeks no reliefs from the court, but desires the court to make a finding, favourble to the version of the rival claims, it is required that evidence be led for the court to arrive at such favourable conclusion. See IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSI & ORS V. KOTEY & ORS. [2003 – 2004] 1 SCGLR 420, BROBBEY JSC’Sdirection. DETERMINATION OFISSUES; CAPACITYOF THE SUBSTITUTEDDEFENDANT TODEFENDTHESUIT. Capacity is fundamental to the prosecution of a suit and its absence will delve a serious blow to the prospects of a case. The plaintiff’s lawyer in cross examining the substituted defendant had asked the following questions after the probate with Will annexed for the estate of the deceased, Eric Kwaku Owusu-Donkor has been tendered through her and same marked asExhibit “C”;- Q. In paragraph 10 of the Will of your late husband, Plot number 15, Block B was devised toKwame Owusu Okyere.Isthat so? A. Yes. Q. The said Kwame Owusu Okyere has not given you any authority to litigate this case onhis behalf. A. From the explanation my lawyer gave, until the vesting assent is done, I can stand infor thebeneficiary. Indeed, from the Exhibit “C”, house on Plot No. 15 Block “B”, Yasore in the Ashanti regionis devised toKwame Owusu Okyere. From the line of questioning, plaintiff’s lawyer sought to attack the capacity of the substituted defendant. It is for this reason that the substituted defendant’s capacity is being addressed. The Exhibit “C” shows that she is a named executor in the Will of the deceased Eric Kwaku Owusu Donkor and also probate has been granted by the High Court on 12th day of October, 2020 to Agnes Owusu Donkor and Kwame Owusu Okyere. The law on devolution of movable and immovable properties of a deceased person is provided for by the Administration of Estates Act, 1961 (Act 63). Sections 1,2(1) and 108 ofAct 63provides asfollows: - 1(1) The movable and immovable properties of a deceased person shall devolve on his personalrepresentatives witheffect fromhis death. 2(1) The personalrepresentatives shall be the representative ofthe deceased in regard tohis movableand immovable properties. 108 “Personal representative” means the executor, original or by representation, or administratorforthe time being ofadeceased person”. Thus, until a vesting assent is executed for the beneficiaries under the Will, the propertiesofthe deceased, vestin theexecutor(s). The answer given by the substituted defendant is a correct restatement of the law. She cansue and be sued as anexecutorforthetime being until avesting assent is executed. Accordingly, in the absence of a vesting assent, Kwame Owusu Sekyere could neither sue or be sued. The case of OKYERE (DECEASED) (SUBSTITUTED BY) PEPRAH V APPENTENG & ADOMA [2012] 1 SCGLR 65 points out that beneficiaries and devisees have no locus standi over any portion of the estate until vesting assent has beenexecuted tothem. In the case of ADELAIDE OWUSU-MENSAH V. REBECCA WELSING [2022] 178 GMJ 576, the Court of Appeal in determining whether the 1st Respondent/Executrix has capacity to initiate an action, opined that at the time ofissuance ofthe writ ofsummons, the 1st respondent no longer had any interest in the property and could not have instituted the action because the issuing of a vesting assent to the 2nd respondent had predated the issuing of the writ of summons. Thus, the 1st respondent’s name was struck outfromthe suit. With no vesting assent issued, Agnes Owusu Donkor has been properly substituted for thedeceased defendant. WHETHER OR NOT THE PLAINTIFF’S FAMILY OR PLAINTIFF HIMSELF HAS EVER ALLOCATED OR GRANTED BUILDING PLOT NO. 15 BLOCK B YASORE ASHANTI TODEFENDANT From the pleadings and evidence there is no contention that the disputed Plot 15 Block B does not belong to the plaintiff’s Nana Konadu Yasore Stool family. The plaintiff acknowledges the presence of the defendant on the disputed land and denies the claim of an allocation to him by himself or his predecessor. He imputes criminality to the defendant’s claim of allocation of the disputed land to him. For plaintiff insists that the defendant’sdocuments arefictitious. Order 11 rule 12 of the High Court [Civil Procedure] Rules 2004, CI 47 provides as follows: - “1. Subject to subrule (2) everypleading shall contain necessary particulars ofany claim, defence or othermatterpleaded including but without prejudice tothe generality ofthe foregoing words, (a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence onwhich the partypleading relies; “ From the plaintiff’s statement of claim and reply, though the plaintiff stated that the defendant produced fictious documents and forged document respectively, he did not give out particulars that spell out the fictitious or fraudulent nature of the documents. In AMUZU V. OKLIKAH [1998 – 1999] SCGLR 141 at page 183, the Supreme Court held that fraud could be inferred from the evidence during the trial even when it is not captured in the pleadings. Gbadegbe JSC, speaking on behalf of the Supreme Court in the case of ECOBANK NIGERIA PLC V. HISS HANDS HOUSING AGENCY & ACCESS BANK GHANA LTD. Civil AppealNo,J4/49/2016 dated6th December, 2017stated:- “The above pronouncement of Supreme Court in the Oklikah case supra was unfortunately not considered by the Court of Appeal in its judgement, although as a matter of law, by virtue of the doctrine of judicial precedence, the court was bound to follow it. We are of the view that if the attention of the learned justices of the Court of Appeal has been drawn to the said decision, they would in all probability have come to the view espoused in the Oklikah case (supra), the effect of which that notwithstanding the failure to particularize the fraud, they were bound to have taken into account the evidence tendered before them by the plaintiff in support of its case that the transfer of theamount into the account ofthe 1stdefendant was done fraudulently. Accordingly, we are ofthe opinion that the learned justices of the Court ofAppeal erred when they rejected the case pressed on them by the plaintiff, turning on the allegation offraud.” Wherefraud fromis inferred the courtwill notignoresame. Inparagraph3ofthe reply, plaintiffpleaded as follows: - 3. However, the plaintiff states that his (plaintiff’s) head of family at the time (i.e 1992) called Kwabena Assumang allocated only plot No. 10 Block “B”, Yasore, Ashanti to the defendant as shown by the relevant allocation note and site plan dated 9th of September, 1992. Plaintiff testified perthe paragraph14ofthe witness statementasfollows: - “I say that my predecessor (head of family) allocated only plot No. 10 Block “B” Yasore StooltoEric KwakuOwusu (defendant).” With these admissions one would conclude that there was an earlier grant of Plot No. 10 Block “B” Yasore, Ashanti to the defendant. The defendant then would not be required to lead evidence to prove the earlier grant of Plot No.10 Block BYasore to him. The legaleffect ofanunequivocaladmission made beforea courtin respect ofaclaimor part thereof and not withdrawn cannot in principle be any objection to a decision based thereon. See the case of OPOKU &OTHERS [NO. 2]V. AXESCO. LTD. NO. 2 [2012] 2 SCGLR1214at 1227per Gbadegbe JSC. However, under crossexamination, plaintiff answered asfollows: - Q. In paragraph 14 of your witness statement, you stated that your predecessor allocated Plot10Block BYasoreto thedefendant. A. Ido not knowwho allocated it tohim. Q. I am putting it to you that in paragraph 14 of your witness statement, you stated thatyourpredecessor allocated onlyPlot 10,Block “B”Yasore tothe defendant. A. Itisnot correct. Q. In paragraph 3 (sic) of your Reply, you stated that your predecessor Kwabena Assumang allocatedPlot number 10Block “B”to the defendant. A. It is not correct I have not mentioned Kwabena Assumang. I succeeded Kwabena Poku. Q. Whois Kwabena Assumang? A. He is my uncle, he was occupying astoolandhe was destooledin1992. Q. In the same paragraph 13 of your reply you gave a date of the allocation of the Plot number 10Block B, Yasore tothe defendant. A. It was the defendant who stated that the land was allocated to him in 1992. I did notallocate the land tohim. From the answers given by the plaintiff he seeks to deny his pleaded case as earlier reproduced aswell ashis ownevidence in his witness statement. The defendant maintained the position that an earlier grant was made. The substituted defendant, tendered into evidence, the Exhibit “AOD 3” an allocation note dated, 9th September, 1992 to buttress the claim of an earlier grant. The Exhibit “AOD 3” discloses that Plot No. 10 Block “B” was allocated to E.K. Owusu Donkor and same thumb printed by Opanin Kwabena Assumang as Yasore Abusua Panin and witnessed by two otherpersons. The principle of law in respect of pleadings is that a person is bound by his/her pleaded case. There is instructive direction given in such circumstance where a pleading is inconsistent with evidence whiles that of his opponent is consistent with his pleadings, in a plethora of cases, inclusive is the Supreme Court case of ADWOA BORKOR V. AGBOODDOYE [2021] 174GMJ 641at681 where it was held that; - “The principle must be noted that where a party’s evidence is inconsistent with his pleaded case while that of his opponent is consistent with his pleadings, the opponent’s case must be found preferable to the one who departs from his pleadings. See the directions given in ZABRAMA V. SEGBEDZI [1991] 2 GLR 221 at 227 to 229 and APPIAHV.TAKYI [1982–1983]GLR1at page7. Per the foregoing answers given by the plaintiff, his pleaded case which formed the basis of his claim, I am inclined to make a finding that the plaintiff’s predecessor and indeed, his family made agrantofPlot 10Block B tothe deceased defendant. It has also been the defendant’s claim that the said Plot 10 Block “B” Yasore has been allocated to one Gyedu Baah after the allocation to him by the plaintiff’s family, necessitating a replacement of the Plot 10 Block “B” Yasore with Plot 15 Block “B”. This assertion bythe defendant is denied by the plaintiff. The defendant tendered Exhibit “AOD4” a letter from the Kwabre District Assembly dated 25th May, 1993 with the recipient being Mr. Gyedu Baah. The Exhibit “AOD4” is on the subject “Putting up a structure without permit Plot 10 Block “B”. The first paragraphofthe Exhibit “AOD4”reads: - “It has been observed that you are putting up a structure at Yasore near Asenua on Plot number10Block Bwithout obtaining apermit fromthe District Assembly.” The letter “AOD4” also invited Gyedu Baah to submit his documents to the assembly. Though no document on the allocation of Plot No. 10 Block “B” to Gyedu Baah was presented to the court, the Exhibit “AOD4” is suggestive that Gyedu Baah was developing the land and there is no challenge to Gyedu Baah’s development by the plaintiff or denial of his possession based onan allocation made to him by the plaintiff’s family. So,wasPlot 15Block “B”givento thedefendant toreplace the Plot10Block “B”,Yasore? Plaintiff has averred that no such plot has been given to the defendant and the documents produced and seen by him are fictitious. The reason for taking this position in his evidence is as found in paragraph 9 of his witness statement reproduced as follows: - “However, the defendant produced a fictitious document in respect of a different plot of land which was nowhere near the said plot No. 15 Block “B” Nana Konadu Yiadom Stool(Yasorefamily) land”. Undercrossexamination, plaintiff testified asfollows: - Q. On the last adjourned date, you indicated you have documents covering the land thatyourefertoasfictitious. A. He has not shown me his documents, so I have not stated that I have any documents. Q. In paragraph 9 of your witness statement, you stated that defendant produced a fictitious document in respect of a different land which was nowhere near the said plot 15Block “B”,Nana KonaduYiadomStool(Yasorefamily) land. Notso? A. He produced a site plan indicating that he has purchased the land and I told him they are not valid. On some of the documents, it is stated as Fawode Yasore and some of them, it is written on it as Fawode Mamponteng but Mamponteng is not partofthe land. Q. Whereare these documents? A. Ihave produced themincourt. They arepartofmy exhibits. In the trial, plaintiff did not produce the documents which he attacks as fictitious. The only documents tendered by plaintiff are two letters, one fromTwere Nyame Chambers dated 3rd December, 2018 with the Lands Officer, Lands Commission Mampong as recipient, the Exhibit “A” and a letter dated 10th December, 2018 from the Kwabre East Municipal Assembly, the Exhibit “B”. Exhibit “A” is a request for an up-to-date search onPlot No.15, Block “B” Yasore,in the Kwabre East of Ashanti Region. Exhibit “B” is the search response to the Exhibit “A” in whichit isstated: - “Irefer toyour letterdated 3rd December, 2018onthe abovesubject matter. The subjectplot hasno recordsin the Receiving andDispatch Books in ouroffice. Moreover, we do not have any documents of permit approval to the subject plot in the office”. In this case, the defendant did not produce any building permit to show that he had permission to build on the Plot 15 Block B though she insisted that there is a building permit. The Exhibit “AOD3” tendered by the defendant is a receipt issued to E. O. Donkor disclosing that payment of seventeen thousand cedis (old currency) has been made for Plot fees, permit fee and building permit and jacket. The Exhibit “AOD3” does notdisclose the Plot in respect ofwhich the paymentwas made. Undercrossexamination the defendant testified; - Q. At the police station, your late husband was asked by the police to produce buildingpermit and hecould notdo so. A. Yes, what I know is that he had a building permit to start the building on the old plotso is thecurrent plot. Q. He could not produce any document by the District Assembly in respect of the newplot. A. Ido not know. Building permits among documents like building plans, receipts and title documents do not confer title on their holders per se, but are nevertheless strong acts of ownership. See the case of OSEI (SUBSTITUTED BY) GILARD V. KORANG [2013 – 2014] 1 SCGLR221. In this case, defendant failed to produce a building permit that would even be suggestive ofhaving title orownership tosame. But, in DZADE V. ABOAGYE [1982 – 1983] GLR 209, it was held that it was a suspicious and unreasonable behaviour to start the building before getting the building permit. These did not showgood faithbut mala fides. It is thus, required that where defendant asserts a replacement of Plot 10 Block B with Plot 15 Block B, and desires a favourable ruling on her behalf, she must present evidence that would lead the court to rule or conclude that there was such replacement asexpressed by Brobbey JSC inthe case ofIN REASHALLEY BOTWE LANDS supra. The defendant tendered in evidence Exhibits “AOD5”, “AOD6” and “AOD7” to support her claim of an allocation made for the benefit of the defendant of the Plot 15 Block “B”toreplace thePlot 10Block B. Exhibit “AOD5” is a letter written by Joe Osei-Wusu of G. Sarpong Legal Services dated 13th July, 1995 on behalf of the defendant as an original allottee of Plot No. 10 Block “B” and addressed to Opanin Kwabena Assumang as Yasore head of family. Exhibit “AOD5”, discloses a complaint against the plaintiff’s family for allocating the Plot No. 10 Block “B” to another person who is developing it and family’s decision to allocate another plot of land to replace the earlier grant. But have since not done so. The defendant therefore demanded for areplacement ofthe land within one month. The Exhibit “AOD6” is an allocation note dated 17th June, 1994 allocating Plot No. 15 Block “B” for the benefit of Eric Kwaku Owusu-Donkor. A cursory glance at the dates onExhibit “AOD5”and “AOD6”reveals that thoughin 1995,the defendant complained about inaction in allocating a replacement plot, on 17th June, 1994, there was an allocation made to the defendant. Is it a case that defendant was allocated Plot 15 Block B and yet he was not aware of same, hence the complaint lodged? It is expected that in the normal course of things, the allocation made upon the complaint lodged in 1995 should bear a date after the lodgment of the complaint and cannot predate the complaint. It is however, observed that, plaintiff did not challenge any of the signatures on the Exhibit “AOD6” as not belonging to the Yasore family, that is the Yasore Odikro and the elder who made the grant albeit with the signature of Nana Afua Kobi Serwaah Ampem II. In this case it is the defendant’s stance that, defendant has been on the land since and developed same. She tendered the Exhibits “AOD2” series being pictures of a roofed building, thoughit hasnot beenplastered and the windows temporaryfixed. Plaintiff under cross examination admitted that before becoming the head of family of the Konadu Yiadom Stool he was actively involved in the allocation of plots under the stool. However, when asked, whether he had adequate information on all the plots under thestool, he refused to answer the question. On Exhibit “AOD7” a site plan delineating Plot 15 Block “B” bears the signature of the Yasore Odikro same as found on the Exhibit “AOD6”. There is also the witness signature and the name is S.K. Mensah. The substituted defendant has testified that the witness S.K. Mensahis theplaintiff. Undercrossexamination, the substituted defendant hastestified as follows: - Q. The site plan is notfromthe plaintiff’s stoolland. A. I disagree. Because fromthe document I tendered there arewitnesses tothat land and one ofthe signatures is forthe plaintiff who has sued inthis case. Q. I put it to you that the plaintiff’s name does not appear on the site plan (Exhibit AOD7). A. No. As earlier pointed the plaintiff did not challenge any of the signatories on the allocation note. But was attributing his complaint of a fictitious document to the description given as Yasore Mamponteng Kwabre on Exhibit “AOD7”, the site plan. Indeed, on Exhibit “AOD7”, the site plan is titled, Yasore Mamponteng Kwabre, Plot No. 15 Block “B” for Eric Kwaku Owusu-Donkor. The site plan should reflect the plot allocated by the Exhibit “AOD6”. It seems the plaintiff seeks to take advantage of the description of the land on the Exhibit “AOD7” to deny the allocation by Exhibit “AOD6” which has been signed by the family’s representatives as a replacement for the Plot 10 Block B and even attempting to deny the allocation of Plot 10 Block B by his predecessor and for that matter his family pleaded by him and testified on in his witness statement. The plaintiff as a head of family has not allocated land to the defendant but the predecessor did and forthatmatter his family did. On allocation note, the settled principle of law as espoused in the case of BOATENG (NO. 2)[2007 – 2008]SCGLR1117is that “whenadmitted inevidence, it can onlyshow that some transaction had taken place to signify 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 his title by obtaining the appropriate documents which willhave tobe registered. The allocation note thus, strongly suggest a transaction took place to give land to the defendant asit were toreplace the earlier grant. On whether inconsistencies in a site plan and an indenture will be fatal and the exception thereto, Kulendi JSC in the case of NII AFLAH V BENJAMIN KWAKU BOATENG [2023] 183 GMJ 368 at 425 noted that “[I]nconsistencies in the 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 recited in the indenture towhich the planis attached.” Along the same path of reasoning, the defendant has established that an earlier grant has been made to the defendant, same has been taken over by the allotor plaintiff’s family and the disputed plot offered to replace same as per the allocation note Exhibit “AOD6”. For all intent and purposes, it is the same family’s land that will be used to replace same and not land lying else where to which the plaintiff’s family lays no claim. On the ground, it is the land allotted per Exhibit ‘AOD6” on Plot Allocation Form Konadu Yiadom Stool Land Yasore that is occupied. The description on the Exhibit “AOD7”notwithstanding, thedefendant’s claim is probable. To assert that the documents possessed is fictitious, the only statement made by the plaintiff to prove his stance is that he has been shown a site plan and the description of the land as being at Fawode Yasore and Fawode Mamponteng but Mamponteng is not partofthe land. To assert that the document is fictitious is to impute a crime and the plaintiff is enjoined to lead evidence to establish that belief in the mind of the court beyond reasonable doubt as required under section 13(1) of the Evidence Act, 1975NRCD 323,which states that “in any Civil or Criminal action the burdenof persuasion as to the commission by a partyofcrime which is directly in issue requires proofbeyondreasonable doubt”. Seethe case ofREPUBLICV. NII ACHIA II EX-PARTEJOSHUA NMAI ADDO[2015] 83 GMJ 7 at 13 and WRANGLER GHANA LTD. V. SPECTRUM INDUSTRIES PVT LTD.&ANO. [2023] 183GMJ 258at308–309. The claim of fictitious documents is misplaced and neither has same been proved beyondreasonable doubt. Itisbased onthis grantthat thedeceased defendant has beenonthe land since. DW1, Kofi Oduro testified that he has been the caretaker of defendant’s plot since 1998 and even before 1998 when the property on the disputed land had reached the lintel level. He also added that he has been in peaceful possession of the property without any challenge. It was until 2018, that plaintiff claiming to be the new Odikro and insisting that the defendant had passed, accused him of taking over the property withoutthe knowledge and consent ofhis family. The plaintiff, DW1 testified, continued to harass him for taking over the house as the owner is dead and ended up reporting the case to police claiming he is a trespasser. Beyond the foregoing, DW1 evidence on what happened at the police cannot be relied on as he has testified that when the deceased defendant got informed about his arrest, he came to the Police Station to bail him, He testified under cross examination as follows: - Q. Your arrest by Mampong Police forced the late Owusu-Donkor to come from Accra. Isthatnot so? A. That iscorrect. Owusu-Donkor came fromAccra tobailme. Q. He was arrestedby the police. A. AfterI wasbailed, I left. But he was emphatic that Owusu Donkor came with a witness to the police station to assert his ownershipofthe disputed plot.He gavethe witness’sname asOsofo. This being a land suit, the plaintiff ought to win on the strength of his own case, by building evidential points and not on the weakness of the defendant’s case. As it were, the plaintiff was shopping for weakness in the defendant’s case. However, if he made a case which would entitle him to relief if the defendant offered no evidence, then if the case offered by the defendant when he did give evidence disclosed any weakness which tended to support the plaintiff’s claim then in such a situation the plaintiff was entitled to rely on the weakness of the defendant’s case to strengthened his case. See the case of ODAMETEY V CLOCUH [1989- 1990] 1 GLR 14. In all, the defence put up by the defendant is probable. CONCLUSION Having considered the pleadings and evidence as adduced and weighed same on the preponderance of probabilities, the plaintiff’s claim does not deserve a favourable ruling. Consequently, the reliefs sought by the plaintiff are hereby refused as same are dismissed. CostofGH¢10,000.00awarded against theplaintiff. JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS LAWRENCE ASUMADU SAKYI FOR JOHN KWAME KODUAH FOR THE PLAINTIFF ABASSKALIMBA AMANKWAHFORTHE DEFENDANT