Ayiagba Vrs. Atamdzi (E1/02/2020) [2024] GHAHC 386 (23 July 2024)

1 INTHESUPERIOR COURT OF JUDICATURE INTHE HIGH COURT OF JUSTICE,DENU HELDTHIS TUESDAY 23 JULY2024BEFORE JUSTICEGEORGE BUADI, J SUITNO. E1/02/2020 KODZOAHIAGBA } …… PLAINTIFF Versus AKAKPO ATAMDZI } …… DEFENDANT JUDGMENT 1.0 Introduction 1.1 I deem it needful to state at the outset that I took over this suit in October 2023 when the hearing had been concluded by my esteemed late sister Naana Bedu-Addo (Mrs) who had then adjourned it for judgment. The parties filed and conducted the case without lawyers, evidencing patent pitfalls in drafting of the pleadings, resulting not unexpectedly in avoidable disconnect between their claims and the evidence produced in support. Court users need no advice about the risks associated with commencing and defending suits involving disputes over interests and ownership in land. The judgmentis based onthe evidence available onthedocket. 1.2 On 26 August 2019, Plaintiff, claiming to the head of the Ahiagba family commenced the suit against the defendant forthese reliefs: Page1of9 2 1 Declaration of [the] rightful title of ownership to the piece or parcel [of land] being a purchased property of Plaintiff’s father Huinugbe Ahiagba and same devolved ontothe Plaintiff and his siblings through inheritance from his father is situate, lying and being Kpogluand bounded asfollows: - Ontheone side bythe propertyofAzuma Akakpofamily Ontheanotherby the propertyoftheAhiagba family Ontheanotherby the propertyofAhiagba family and Onanotherby Adenyofamily. 2 General Damages for trespass committed onto the land referred to supra and for currently developing same to the disadvantage of the Plaintiff being the Customary Successor to his deceased fatherHuinugbe Ahiagba. 3 Recoveryofpossession ofsame. 4 Perpetual Injunction order be decreed restraining the Defendants either by themselves their agents, privies, assigns and workmen from entering onto and or having anything to do withthe land aforesaid. 5 Punitive costs. 2.0 Parties’statement ofcase. 2.1 Plaintiff claims to be the head and a principal member of the Ahiagba family. He initiated the action for himself and on behalf of the Ahiagba family claiming that his great-grandfather Torgbui Ahiagba originally founded the land in dispute. He recounts the genealogy of the Ahiagba family, claiming that Torgbui Ahiagba’s landed properties were shared during his lifetime among his fatherand his siblings, whichultimately had devolved untohim. Page2of9 3 2.2 He described the land in dispute as lying at Kpoglu and bounded on one side by the property of the Azuma Akakpo family; on the other side by the property of the Ahiagba family; on another by the property of the Ahiagba family; and another by the Adenyo family that devolved through inheritance ontohis father,Huizunugbe Ahiagba. 2.3 Plaintiff avers that some years ago, the great-grandfather gave a portion of the land to Defendant’s great-grandfather as a gift to lie on but the Defendant’s great-grandfather later trespassed onto a portion of land outside the grant. Plaintiff avers that his grandfather summoned Defendant’s grandfather before Dzodze Local Court for trespass and obtained a judgment in his favour. The court ordered the Defendants, their labourers, and agentsto refrainfromany furtheruse oftheland without theplaintiff's consent. 2.4 Plaintiff states that Defendant who is not a member of their Ahiagba family had also trespassed onto their land and had currently built on a portion of the land without Plaintiff's consent for which reason on 24January 2019, he summoned Defendant before the Assistant Chief of Kpoglu (Atsu Miga) who warned and advised Defendant to stay away from the land but had remained adamant. The plaintiff avers that their family has been in possession and occupation of the disputed land for a long time without let or hindrance. 2.5 Defendant denies Plaintiff’s case, acknowledging however, first the identity and location of the land in dispute and its boundaries, and second, the grant of the land to his grandparents by Plaintiff’s family in the Dzodze local court case during the lifetime of his grandfather, over five decades ago. He adds that since the demise of his parents, he had been in peaceful occupation of the disputed land within the boundaries his parents occupied. Neither had he gone beyond the existing known boundaries the court ordered. Page3of9 4 Defendant counterclaims for declaration of ownership of the same land and boundariesasdescribed by the plaintiff, perpetualinjunction, and costs. 3 Issues fordetermination The Court adopted the myriad issues for the trial the parties filed. Relevantly, theyare: ……… ii Whether or not the land the subject matter of the instant suit is a portion of larger tract of land originally owned and founded by TorgbuiAhiagba. iii Whether or not the Torgbui Ahiagba’s landed properties were shared amongPlaintiff fatherand his siblings. iv Whether or not the disputed land devolved through inheritance ontothePlaintiff father,Huizunugbe Ahiagba v Whether or not the Plaintiff great grandfather gave a portion of his landtothe Defendant’sgreat-grandfatheras agift. vi Whether or not the Plaintiff’s grandfather summoned the Defendant’s grandfather who encroached on the land before Dzodze Local Court and Judgment was delivered in the favour ofPlaintiff’s grandfather. vii Whether or not the court ordered the Defendants their labourers, agents etc to refrain from further use of the land perpetually but they can only use the land by the consent and permission of the Plaintiff. viii Whether or not the Defendant trespassed onto the land and he iscurrently building onthe portion ofthe land in question. 1 Whetherornot Plaintiff hascapacity to sue Defendant. 2 Whether or not Defendant lives within the periphery of his boundaries Page4of9 5 3 Whether or not Plaintiff is estopped from re-litigating the matter. 4 Whether or not Plaintiff's case is statute-barred … (Emphasis added) 4.0 Evaluation ofthe evidence and the applicable law 4.1 Factsfindings: preliminary and primary The parties filed their witness statements as their evidence in chief. The plaintiff relies on two witness statements: that of his own and that of Kwame Ahiagba per an amended pretrial checklist. The plaintiff’s witness statement is a 2-page 14-paragraph deposition attached with two unmarked exhibits – a judgment of the Dzodze local court dated 30 December 1964, and a land site plan, the property of Yao Ahiagba, Ayivor Ahiagba, Oklu Ahaigba, and GbodzinshiAhaigba withReference No. S.A.K.A.76/17. 4.2 Defendant’s case is per two witness statements: the one he filed comprising a 3-page 15-paragraph deposition attached with pictures of old semi-detached houses, and curiously a statement of claim in this suit and the first-page statement of claim in a suit at this court - Ernest Kpotakey & Anthony Ahiagba vs. Annumu Ladzaka & 7 Others that include Akakpo Kodzo – E1/04/2020. Atsu Agboglatsi (DW1) filed a 2-page 11-paragraph deposition in support ofthe defendant’s case. 4.3 The court evaluates the evidence of a suit in the light of the parties’ pleadings. Hammond vs Odoi & Anor [1982-83] GLR 1215, at 1235. I set off to identify the primary facts that are not in dispute; claims that were undenied both on the pleadings and at the trial including claims deemed admitted at the cross-examination for which reason the law does not require further proof. Fori vs Ayirebi & Ors [1966] GLR 627; Bank of West Africa Ltd vs Ackun [1963] 1 GLR 176SC;Kusi& Kusivs Bonsu [2010]SCGLR 60. Page5of9 6 4.4 The plaintiff gave the impression in the pleadings that he commenced the suit as head of the Ahiagba family. The defendant contested the claim, culminating in the setting down plaintiff’s capacity as an issue for determination. In his evidence-in-chief, however, the plaintiff appeared to have negated the claim and in its place contended that the subject matter land devolved onto him by inheritance from his father who also inherited the same from his father. The plaintiff’s action now appears not to be a family action, nor a representative one but rather a personal suit. Defendant did not by way of cross-examination challenge this new claim. Short of any such challenge, I hold that the plaintiff cannot be denied the requisite capacity as the alleged presentowner ofthe disputed land tomount the action. 4.5 The plaintiff’s case mainly is that the land in dispute forms part of a larger tract of land his great-grandfathers founded, who he claims allowed, indeed, gifted portions to the defendant's ancestors to settle on. The crux of his suit is that the defendant’s great-grandfather “trespassed onto another portion of the land that was not given to his father” for which reason the plaintiff’s grandfather sued the defendant’s grandfather at the Dzodze Local Courtand secured judgment overthe landagainst defendant’sgrandfathers. 4.6 Per this claim, which the defendant does not appear to deny, one wonders why Plaintiff is not executing the judgment over the subject matter land against the defendant rather than commencing this action. Indeed, the defendant doesnot deny but acknowledges the plaintiff’s claim as theoriginal owners of the land and the fact of the grant of portions to the defendant’s ancestors by the plaintiff’s ancestors about a hundred years ago. The defendant admits the location and the boundary owners of the disputed land as put up by the plaintiff except to add that his grandparents never went beyond the boundaries of the grant and that, like his grandparents, he had Page6of9 7 lived within the confines of the grant and had also not gone contrary to what thecourt ordered. 4.7 The thrust of the suit, indeed the cause of the plaintiff’s action is the alleged trespass by the defendants onto lands that he claims did not formpart of the original grant. Indeed, in responding to a question under cross- examination, this is what the plaintiff said: Ans: … I am sacking [defendant] because [he is] not confining [him]self to the area given to [his] grandfather by my grandfather and [he is] trespassing ontoportions ofourland.(Emphasis added) 4.8 Having denied any trespass and contending to still be occupying the original grant by the plaintiff’s ancestors to his grandparents, the evidential duty shifts onto the plaintiff to provide satisfactory evidence firstly, of the limits or boundaries of the grant, and secondly the alleged trespass by the defendant. The satisfactory evidence required here, in my view is not any of the exhibits the plaintiff produced, nor the evidence of his witness PW1 who curiously under cross-examination did not know the extent and the boundaries of the grant of the land the plaintiff’s ancestors granted to the defendant’sancestors. 4.9 In actions for declaration of title to land that turns principally on trespass as in the instant suit, a composite site plan drawn by a surveyor that shows, indeed, juxtaposes the respective site plans of the parties and as a result identifies the distinct area in dispute is most ideal proof of whether there had been a trespass. In this suit, there was no such composite site plan. The evidence of contiguous neighbours therefore becomes a corroborative factor. Page7of9 8 5.0 In proof of title to land, the evidence of contiguous land owners plays an indispensable part for a variety of reasons. Their evidence does not only assist in defining the limits of the land in dispute, they also confirm in large measure, occupation, possession and user. Indeed, who else could give an unbiased account of the person with whom they had shared a relationship of physical contiguity of the land over the years? None of the parties called any of the adjoining boundary owners they have named to vouch not necessarily for the party who owns that stretchof the disputed land but most importantly in the context of the instant suit to provide corroborative evidence of the trespassand the extentthereof. 5.1 The Court ofAppeal in Akoto II vKavege [1984-86] 2GLR 365CA laid in pithy terms that in an action for declaration of title to land a plaintiff must prove on the preponderance of probabilities to secure a verdict by the court in his favour. Besides, as held in Majolagbe vs. Larbi & Ors [1959] GLR 190, at 192, proof in law is the establishment of facts by proper legal means. That is, where a party makes a claim that is capable of proof in some positive way by documents, description of things, reference to other facts, instances, or circumstances, and the claim is denied, he does not establish proof of the claim by just going into the witness-box andbe repeating the claim onoath, or having it repeated on oath by his witness. The claim is proven by producing other evidence of facts and circumstances from which the Court can be satisfied that the claim is truthful. I do not have any such requisite corroborating evidence onrecord forafavourable response. 6.0 Conclusion 6.1 The burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. The totality of evidence must lead a reasonable mind to conclude the Page8of9 9 probability of the existence of the fact than its non-existence. On the face of the evidence, indeed the claim of trespass, I am not certain that the plaintiff hascrossed the legalthreshold. The plaintiff's actionfails. 6.2 Not unlike the plaintiff, the defendant counterclaimant also failed to provide the requisite corroborative proof. Indeed, his evidence in proof of his claim was incomplete. This is what the court on 25 April 2023 has to say in respect ofhis counterclaim: Since November 2020, the Defendant has been consistently absent from court. He has refused to come and continue with his case. He has been served with several hearing notices yet he has ignored them all. It is herebydeemed that theDefendant has closed his case. The Defendant's counterclaim also fails and is dismissed for lack of proof. The court makes no award of costs. Parties to bear their costs. Ordered accordingly.1 Justice George Buadi HighCourt, Denu. 1 Theendofthejudgment–KodzoAhiagbavs.AkakpoAtamdzi(SuitNo.E1/02/2020) Page9of9