KAMPIIREH VRS OWUSU & OR (C1/12//2023) [2024] GHAHC 363 (2 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT WENCHI ON TUESDAY THE 2ND DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE MARIAM SALEH SINARE SUIT NO: C1/12//2023 KAMPIIREH RAGAN ) --- PLAINTIFF VRS: 1. OWUSU KWABENA & OR 2. SAMUEL OPOKU alias ANDY BOTH OF TECHIMAN ) --- DEFENDANTS PARTIES PLAINTIFF PRESENT DEFENDANTS ABSENT LAWYERS KOFI GAANAA WITH SAEED ABDUL – MUHMIN FOR THE PLAINTIFF JUDGMENT The Plaintiff issued out of the Registry of this court the instant suit on the 12th January, 2024 claiming the following reliefs jointly and severally against the Defendants: a) Declaration of the title and recovering of possession of all that plot, number 64 Block ‘B’ Sector 1 Extension 21, Old Jama, Techiman. b) General damages for trespass. 1 c) An order of perpetual injunction restraining the Defendants, their agents labourers, assigns, family members etc. and all those claiming through them from interfering or dealing with the disputed plot of land in any manner whatsoever. A party to a case may refuse to participate in the case altogether or fail to lead evidence. The rule is that when a party is given the opportunity to lead evidence in support of a case or in defence of the allegation against him but deliberately declines to void himself of that opportunity the court is entitled to proceed with the trial to conclusion and make deduction, draw inference or conclusion or make a finding on the basis of the available evidence on record. See In RE WEST COAST DYEING INDUSTRY LIMITED; ADAMS AND ANOTHER VRS TANDOH {1984 – 1986} 2GLR 561 (CA). The Defendants were duly served with the writ of summons together with the statement of claim on the 12th January, 2023. The Defendants failed to enter appearance. After failing to enter appearance within the statutory period per the rules of court, Counsel for the Plaintiff filed motion on notice for judgment in default of appearance dated 9th March, 2023 and same was served on the Defendants on the 13th March, 2023.The motion was granted by the court on the 6th April, 2023. The court then ordered the Plaintiff to proceed to file his witness statement and intended exhibits on or before 19th May, 2023. The case was adjourned to 23rd April, 2023 for case management conference (CMC) and which same was done and completed. The court then adjourned the case to 2nd June, 29023 for hearing. However, the case could not be heard and at the instant of Counsel the case was further adjourned to 14th July, 2023 for the Plaintiff to open his case. The Plaintiff gave evidence by himself and called two witnesses. The Defendants, as at the time of hearing of the case have not filed any appearance and defence to show that they were interested to contest the case. The court then took it to mean that the Defendants were not interested to file any appearance let alone to file defence to contest the case. 2 The Plaintiff mounted the witness box and relied on his witness statement as well as Exhibits “A” to Exhibit “F” in support of his case. The case of the Plaintiff is simple. To proof his case the Plaintiff gave a chronological account of how he came to own the land the subject matter of dispute. The Plaintiff averred that, he is a businessman and lives at Jama near Techiman. That the 1st Defendant represented to him that, the land in dispute is the property of one Adu Gyasi Emmanuel and that, Adu Gyasi Emmanuel has instructed (him) 1st Defendant to sell the land the subject matter in dispute to any prospective purchaser. He Plaintiff said upon this information from the 1st Defendant, he asked 1st Defendant to furnish him with Adu Gyasi Emmanuel’s contact which the 1st Defendant did. He then called Adu Gyasi Emmanuel on phone and asked him about the sale of his land which he had instructed 1st Defendant to sell on his behalf. According to Plaintiff, on the phone, Adu Gyasi confirmed that assertion of 1st Defendant. Adu Gyasi Emmanuel went further and told him (Plaintiff) that he is the owner of the land in dispute and it is he who has instructed the 1st Defendant to sell the land in dispute to any prospective purchaser and that he Plaintiff should deal with the 1st Defendant. Plaintiff stated that, he then expressed the interest to buy the land. He negotiated the cost of the price of the said land in dispute with the 1st Defendant who at all material time was acting on behalf of Adu Gyasi. They finally agreed on fifteen thousand Ghana cedis (GH₵15,000.00) as the purchase price of the said land in dispute. It is the case of the Plaintiff that, he paid the amount of GH₵15,000.00 to the 1st Defendant in the presence of the three witnesses. One Bright Takyi Ameyaw, Mansana Mubarik and Dr. Emmanuel. That upon payment of the land in dispute, Adu Gyasi Emmanuel on the 18th January, 2022 executed a Statutory Declaration to the effect that he (Adu Gyasi Emmanuel) is the legal and lawful owner of the disputed land and that he has transferred the ownership of the whole land to him (Plaintiff) and that by virtue of the said transfer, he has become the 3 legitimate owner of the land. Plaintiff tendered EXHIBIT “A” being the original copy of the Statutory Declaration. It is the case of the Plaintiff that the 1st Defendant handed over to him the Statutory Declaration, EXHIBIT “A” and in addition, a site plan covering the disputed plot of land bearing the name of Adu Gyasi Emmanuel and directed him to take the said two documents that is exhibit A” and the site plan bearing the name of Adu Gyasi Emmanuel to Techiman Traditional Council to be issued with a chit covering the disputed plot of land. Plaintiff stated that he did as directed. It is the case of the Plaintiff that, he went to the Techiman Traditional Council and presented the Statutory Declaration and the site plan. He was asked to pay an amount of GH₵500.00 upon which a chit was issued out to him by the Council which is EXHIBIT “B” and was directed by the Council to take the said chit, the statutory declaration and the site plan covering the disputed land bearing the name of Adu Gyasi Emmanuel to the Physical Planning Department of the Techiman North District Assembly for them to prepare a new site plan covering the disputed land in his name as the new owner of the disputed land. Plaintiff says he followed the instructions of the Council to the letter. At the Physical Planning Department and upon presentation of the said documents, a new site plan was prepared for him covering the land in dispute bearing his name as the new owner of the land. Plaintiff tendered a copy of the site plan as EXHIBIT “C”. It is the case of Plaintiff that, after obtaining a site plan, now in his name he has to go through three stages of approval for further authentication of the site plan. First he has to present the said site plan, EXHIBIT “C” before the Omanhene Oseadeyor Akumfi Ameyaw IV of Techiman Traditional Area for their approval. At this place the Plaintiff stated that he has to pay amount of GH₵90.00 for the said approval to be given. Plaintiff tendered EXHIBIT “D” indicating a receipt of such approval. 4 The next institution that has to give their approval was the Customary Land Secretariat of Techiman Traditional Council. At this place Plaintiff stated that he has to pay an amount of GH₵410.00 for the acceptance of the said site plan. Plaintiff tendered EXHIBIT “E” to support this assertion. The final place of approval was at the Administration of Stool Land where he has to pay an amount of GH₵50.00 for the approval of the Site Plan EXHIBIT “C”. Plaintiff tendered EXHIBIT “F” to indicate the receipt of the GH₵50.00 in support. It is the case of the Plaintiff that, having done all the necessary documentation in respect of the sale of the land, he deposited some sand on the land and engaged one Maldedon Gordon to mould some blocks for him. That around March, 2022 while Maldedon was on the land moulding the blocks, 2nd Defendant came to stop him from moulding the blocks and claimed that the land belongs to him. It is the case of the Plaintiff that when the action of the 2nd Defendant was made known to him he was later invited by the Techiman Traditional Council for a complaint against him by the 2nd Defendant. At the meeting with the Council he gave his side of his story as to how he came by the said land in dispute as already stated in this judgment. That the 2nd Defendant told the council that it was the 1st Defendant who sold the land to him. The1st Defendant who was present at the said meeting admitted before the Council that, he sold the land to 2nd Defendant even though he had already sold it to the Plaintiff upon the instruction of Adu Gyasi Emmanuel the owner of the land. According to the Plaintiff, the Council chastised the 1st Defendant and asked him, (Plaintiff) to go and work on the land as he is the rightful owner of the land. However the 2nd Defendant did not obey the orders of the Council and continue persisting in taking possession of the land. Plaintiff reported the 2nd Defendant’s trespassory act to the police. The police then advised him to proceed to court as they the police have no power to determine ownership of land. Hence the instant action. 5 The Plaintiff slated two witnesses who gave evidence in support of the case against the Defendants. I have carefully read the evidence of the witnesses i.e. PW1 and PW2. As per their witness statements the court thinks that it is collaboration of Plaintiff’s evidence in every material particular and would be a repetition of the Plaintiff’s evidence if it has to be written down. It is worthy of note that the Defendants have not expressed any desire nor intention to contest this matter. They have been duly served with Writ of Summons and Statement of Claim but they failed to enter appearance and have not filed any process to this suit. Before determining this case one way or the other I shall refer to the law and consider the burden of proof on the party. It is trite that in a civil action the party who makes an assertion ought to lead evidence to proof it especially as in the instant case where the Plaintiff is for a declaration of title. Thus, the person who alleges the existence of a fact must lead sufficient evidence to prove his/her claim. Thus the burden of proof on the Plaintiff is to prove the existence of the facts he alleges. This is the law as provided for in section 11(1) of the Evidence Act 1973 NRCD 323 which provides that; “For the purpose 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 that party” .Where a party fails to lead sufficient and credible evidence in support of his/her claim, his claim is bound to fail. Section 11(4) of the Evidence Act also provided that; “In other circumstance the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence” 6 In the case OF ACKAH VRS PERGA TRANSPORT AND ANOTHER (2010) SCGLR 728, the Supreme Court speaking through Sophia Akuffo (as she then was) stated the position of the law as; “It is the 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. The method of producing evidence is varied and it includes the testimony of the party and material witness, admissible hearsay, documentary and things (often described as evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable that its non-existence. This is the requirement of the law on evidence under Section 10(1) and Section 11(1) and Section 11(4) of the Evidence Act 10975 NRCD 323” In the instant case the Plaintiff’s root of title was represented by EXHIBIT “C” which is the site plan and how he came to acquire it. There is no contrary evidence before me that the land is not for the Plaintiff. The evidence of the Plaintiff is that, when he paid for the price of the land through 1st Defendant to Adu Gyasi Emmanuel (his grantor) he executed a statutory declaration to the effect that he has transferred the ownership of the land to him and by virtue of the said transfer he has become the legitimate owner of the land. This, he has exhibited as EXHIBIT “A”. The Plaintiff stated that with EXHIBIT “A”, the original copy of the site plan bearing the name of this grantor, Adu Gyasi Emmanuel and the chit he procured from Techiman Traditional Council and upon presentation at the Physical Planning 7 Department he was issued with a new site plan covering the said disputed plot of land in his name as the new owner of the land. This has not been challenged. If a party fails to challenge a case, it is assumed to have admitted the assertion made by the other party. See ARYEETEY VS EFFRIM 1972 IGLR pg 52-56. In this case the court held that where a party fails to file a defence or challenge the evidence presented by the other party, the court can assume that the party has admitted the claims made against him. AMPOMAH VS VOLTA RIVER AUTHORITY (2003 -2004) 1 SCGLR 775 In this case the supreme court reinforces the principle that if a party does not contest the claims made against it in a legal dispute, those claims are deemed to be admitted. Also see the Yeboah vs. DANSO (2003-2004)1SCGLR 775: The supreme highlighted that failure to deny or respond to allegations in a legal proceedings amounts an admission of those allegations The Plaintiff as part of his reliefs claimed damages to trespass to the land. Trespass to land is committed by injury to or interference with one’s possession thereof. The cardinal principles in an action for trespass to land are that the Plaintiff must be in exclusive possession of the land at the time of the trespass and that the trespass is without justification. So the Plaintiff must have actual and lawful possession of the property and the Defendants’ entry was intentional and illegal. See EDGARTON VRS H.P WELCH CO; 321 MASS. 603; 612 – 613 (1947). The principle in KPONUSLO VRS KODADJA was stated by their Lordships of the Privy Council. In this manner; “The respondent’s claim being one of damages for trespass, and for an injunction against further trespass, it follow that he has put his title in issue. His claim postulates, in their Lordships’ opinion, that he is either the owner of Bunya Land, or has had, prior to the trespass complained of, exclusive possession of it”. 8 In the instant case the Plaintiff was put into possession of the land after satisfying the needed consideration in respect of the land. In his evidence in chief, the Plaintiff has shown act of possession of his physical occupation on the land by depositing sand on the land with the intention of moulding blocks until such time the 2nd Defendant came unto the land to stop his man on the land. The Plaintiff stated that when he and the 2nd Defendant met the Council, the Council chastised the 2nd Defendant after listening to their respective story in respect of the land and ordered him Plaintiff to go and take his land. As at the time of writing this judgment the Defendants have not filed any process upon service of the writ summon and statement of claim him. It therefore means that they have no defence to the action and any step whatsoever to be taken by them (Defendants) to enter the land will amount to a trespassory act. The following cases establish the fact that the Plaintiff does not need to prove the intent or negligence of the trespasser the mere act of unauthorized entry or interference is sufficient to establish a claim for trespass, AMUZU VS OKLIKAH {1998-1999} SCGLR 141. KWAME VS AMOAH {2008-2009} SCGLR 44, MANSAH VS DODOO {1978} GLR 239, TUFFOUR VS ATTA {1969} GLR 64, ADJORNOR VS KRAINE {1966} GLR 28 From the totality of evidence before me, I find that the Plaintiff, legitimately acquired the land in dispute from Adu Gyasi Emmanuel. Plaintiff is therefore entitled to the declaration of title which I hereby declare in the Plaintiff. The Plaintiff is entitled to recover possession of the land from the Defendants. The Defendants are restrained either by themselves, their laboureres, agents, assigns, family members etc. and all those claiming through them from interfering or dealing with the disputed plot of land in any manner whatsoever. 9 Though the Plaintiff indicated in his evidence of trespassory act of the Defendants, on the disputed land he did not demonstrate that the Defendants’ actions directly led to a loss or injury. In the circumstance the court will award the Plaintiff nominal damages of GH₵3,000.00. Costs of GH₵10,000.00 will be awarded in favour of the Plaintiff against the Defendants. H/L MARIAM SALEH SINARE (JUSTICE OF THE HIGH COURT) mea/ 10