Awale v Bashiru (A1/15/2022) [2025] GHACC 60 (7 August 2025)

INTHE CIRCUITCOURT,ASAMANKESE,EASTERNREGION HELDONTUESDAY,7TH AUGUST2025BEFORE HIS HONOURDR. BEDIMA DUUT, ESQ.,SITTINGAS CIRCUITCOURTJUDGE SUITNO. A1/15/2022 IBRAHIMAWALE VS ZAKARIBASHIRU Parties Plaintiff Absent, represented by Ibrahim Muniru, ProSe Defendant Present, Prose Judgment Introduction 1. The parties involved in this lawsuit are maternalcousins, astheir mothers aresisterswho share thesame father.The disputed land was originally acquired by the parties' grandfather, Mohammed Aguru. Uponhis death, themale descendants inherited theland according tocustomary law, whichfollows patrilinealinheritance system. The childrenthe land later decided tosellthe inherited land. Itis this sale that led tothe current dispute, bringing the parties to court. 2. The plaintiff commenced this suit by the issue of a writ of summons. The defendant filed a defense and counter claim, necessitating the plaintiff to respond with areply and defense to the counterclaim. The case proceeded totrial and conclusion. 1 Case of the Plaintiff 3. Inhisstatement ofclaim, theplaintiff statesthat in 2013he purchased the disputed land (Plot No.130, Sector 3Block C)fromSalisu Mohammed,a sonofthe original owner.According tothe plaintiff,hisgrantorprovided documents tocoverthetransaction.The plaintiffsubsequently registered thedocuments with theAsamankese TraditionalCouncil andthe Stool Lands Secretariat. 4. Afterthe sale ofthedisputed land, the plaintiff'sgrantorinformed the defendant,who was operating amechanic shoponthe land, to vacatethe premises, butthe defendant failed, therebypreventing the plaintifffrom developing the plot.The plaintiffsays evenwhen he attemptedmolding blocksonthe land, the defendant prevented him fromdoing so. Consequently,the plaintiff initiated this actionseeking adeclarationof title, recoveryofpossession, aperpetual injunction, anddamages Case of the Defendant 5. The defendant, in his statementofdefense, deniesthat theplaintiff owns thedisputed land throughpurchase. He assertsthatthe land originally belonged totheparties grandfather. Their grandfatherbuilt amud house ontheland and lived withhis family, but the family relocated to Togoin 1969due topolitical upheavalsin Ghana. 6. The defendant statesthat he returned toGhana fromTogoin 1972and found the land overgrownwith weedsand turnedinto arefuse dump. He tookpossessionofthe landand cleaned it up. There were instances when individuals fromthe chief's palace threatened totakeoverthe land, but he paid themoff. According tothe defendant, his uncles and aunts in Accra 2 advised himto takecare and protect theland.He periodically hired laborerstoclear weeds offthe land. The defendant said hehas beenin adverse possessionofthe land since his return. 7. According tothedefendant, he attempted constructing ahouse onthe disputed land, but unfortunatelyfell ill. The landremained fallowuntil 2013when he allowed mechanics tooperateashop onit. The defendant statedthat the mechanicsoperating ontheland have beenpaying rentto him. 8. The defendant assertsthatsometime ago,the plaintiff intimated tohim thathe had boughtthe disputed land andwas going to constructahouse ontheland forthe defendant.The defendant saidhe inquired withsome family members, and theydenied selling the land to theplaintiff.The defendant saysas acaretaker,he should have beengiventhe first option topurchase theland ifthe family wanted tosell it. 9. The defendant counterclaims forperpetualinjunctionagainst the plaintiff and for anorderfor theplaintiff totransfer alldocuments covering the land tohim. The defendant statesthathe will refund tothe plaintiff the amount ofmoneythe plaintiff incurred inpurchasing the disputed land. Issues forTrial 10. Atthe Applicationsfor Directions stage, theplaintiff filed anumber of issuesfor trial. The court,forthe purpose ofthis judgment,will treatthe issuesunder the following (a) Whetherornot Salisu Mohammed sold the disputed land tothe plaintiff (b) Whetherornot the plaintiffvalidly acquired the land indispute 3 (c) Whetherornot the defendant hasbeen in adverse possession Burden ofProof 11. Incivil mattersthe plaintiff who initiatesalawsuit initially carriesboth theburden ofpersuasionand burdenofproducing sufficient evidence regarding each fact thatis essential tohisclaim. Boththe legaland evidentialburdens remain ontheplaintiff unless or until it isshifted onto thedefendant (Section 14and 17,Act323). InOkudzeto Ablakwa (No. 2)vsAttorney-General &Obetsebi Lamptey (No. 2)(2012) 2SCGLR845,the Supreme Courtdealtwiththe burden of proofinthe following words: “...he whoasserts, assumes the onus of proof...if aperson goes to Courtto make an allegation, the onusis on him tolead evidence to prove that allegation...” The burden ofproof, which means theplaintiff establishing arequisite degree ofbelief concerning afact in the mind ofthe court,must satisfy the standard required under law, that is"onapreponderance ofthe probabilities."(see: sections10,11,and12of Act323) 12. Incases fordeclaration oftitle toland, theburdenofproof, though initially ontheplaintiff, is notfixed. Itshifts frompartytopartyat variousstagesofthe trial depending onthe issuesasserted and/ordenied. (See: Section 14on Act323and the holdingof the SupremeCourt inRe: Ashalley Botwe Lands; Adjetey Agbosu &Ors vsKotey &Ors(2003-2004) SCGLR420) 4 Wherethe plaintiff hasbeen able tolead sufficient evidence insupport ofhis case, thenit behovesonthedefendant to leadsufficient evidence in rebuttal otherwise the defendant risksbeing ruledagainst onthat issue orissues(See: Ababio vsAkwasiIV (1994-95) GBR 774). Burden ofProofWhere there is aCounter Claim 13. A counterclaim is adifferentactionin which the defendant asacounter claimant becomesthe plaintiff and the plaintiff in the action becomesa defendant. Where boththe plaintiff and defendant areasserting title to thesame piece ofland, the onusisonbothparties toprovetheir respective titles in accordance withsections11and 14of Act323.In the SupremeCourtcase ofOsei vsKorang(2013) 58GMJ, AnsahJSC noted thatinan action where theparties claim and counterclaimfor declaration oftitle tothe same piece ofland, each party bearstheonus ofproof, because acounterclaimant is asgood asaplaintiff inrespect ofa propertywhich he assertstomake his own. 14. Intheinstant case, the defendant filed astatementofdefense anda counterclaim. Consequently, thedefendant assumes thesame burdenof proofasthe plaintiff withrespect to proving his title tothe land indispute. 15. A plaintiff in anactionfordeclaration oftitle toland puts histitle inissue and isrequired toprove theroot ofhis title, modeofacquisition, acts of possession, etc. The converse is equally true foradefendant who files a counter claimfordeclaration oftitle, as in the instant case. (See: The holding ofGeorgina Wood,C.J, inMondialVeneer (Gh) Ltd vs Amuah Gyebu XV(2011) SCGLR 466) 5 Evidence Ledby the Plaintiff 16. The plaintiff testified forhimself and called three witnesses, PW1 (Salisu Mohammed), PW2(Adama Yussif), and PW3(IbrahimSaritu). The plaintiff also tenderedthefollowing exhibits. Exhibit A - Affidavit oftransferfromSalisu Mohammed to the plaintiff Exhibit B - Site planofthedisputed land Exhibit C - AllocationCertificate fromAsamankese TraditionalCouncil tothe plaintiff 17. The plaintiff, inhis evidence, reiteratedthe claims made in hisstatement ofclaim and reply.He stated thathe, thedefendant, and the grantorare ofthesame family, all sharing thesame grandfather. The land in question wasinherited by the grantorthroughpatrilineal inheritance. He explained thatwhen the grantorand his siblingsdecided tosellthe land, theycontacted him. A meeting was held inAccra where allparties agreed tothe sale, the plaintiff paid the purchase price, and the ownership ofthe land was thentransferred tothe plaintiff. 18. PW1,the grantorofthedisputed land, testified thatthe land is family property. He and his siblingsinherited it fromtheir father. Following their father'sdeath, theywere unable to developthe land, so theydecided tosellit to theplaintiff, who is also amember oftheextended family. As thehead ofthe family, PW1convened afamily meeting inAccra where thesale ofthe disputed land wasfinalized and ownership was transferred tothe plaintiff. 19. PW2,Adama Yusif, corroborated thetestimonies oftheplaintiff and PW1. PW3,Ibrahim Saritu, inwhose presence the parties met toconclude the 6 sale ofthe disputed land, testified thatthe agreement tosellthe disputed land tothe plaintiff was concluded athis house in Accra. He indicated thatthe plaintiff paid the purchase price in his presence and other witnesses. Evidence Ledby the Defendant 20. The defendant testified for himself. He did notcall awitnessor tender any exhibit. Inhis evidence he reiteratedthat theplaintiff did not purchase theland in dispute. He maintains thathe has beenin adverse possessionoftheland in dispute forsuchalong time thatthe court should decree title in his favor. Findingsof Fact, Analysis, and Resolution ofIssues Findingsof Fact 21. Based onthe evidence presented,the court makesthe following findings offact: (i) One Mohammed Aguruoriginally acquired the disputed land. (ii) SalisuMohammed, the grantorofthedisputed land, is one ofthe childrenofthe lateMohammed Aguru, along withthe plaintiff's motherand the defendant's mother. (iii)Asamale child, SalisuMohammed inherited the land according tothe patrilinealsystem ofinheritance. (iv)The plaintiff purchased the land fromSalisu Mohammed and completed the necessary documentationforthe transaction. 7 (v) The defendant gained access tothe land because he is a grandchild ofMohammed Aguruand anephewto Salisu Mohammed. However, he doesnotpossess the legalcapacity to inherit theproperty. Resolution ofthe Issues 22. Iwill addressissues (a) and (b) together, astheybothpertain tothesale and purchase ofthedisputed land. 23. The plaintiff traceshistitle tothe disputed land back toSalisu Mohammed, who inherited it fromhis father,Mohammed Aguru. The plaintiff purchased the land and provided thenecessary consideration. He thenpreparedthe appropriate documents toformalize the transaction and the ownershipofthe land. The plaintiff's account was corroborated by hisgrantorand twootherwitnesses whowere present when the transactionwas finalized. The defendant did notchallenge theplaintiff's evidence during cross-examination. 24. Wherethe evidence led by apartyis not challenged by his opponentin cross-examinationand the opponentdoesnot tenderevidence tothe contrary,the factsdeposed tointhat evidence aredeemed tohave been admitted bythe opponentand must be accepted by the trial court (See: TakoradiFlourMills vsSamir Faris(2005-2006) SCGLR 882) 25. The commonlaw principle is thatadefendant inacivilcase is not required toprove anything. Instead,it isthe plaintiff, who initiated the lawsuit, thatmust prove their claims against the defendant. However, if thecourt needs tomakeadeterminationregarding afact oran issue, this decision willdepend onthe evaluationofthe facts and evidence presented byboththe plaintiff and defendant. 8 26. Ifthedefendant wishesfor thecourt torule inhis favor, he hasa responsibility topresent factsor evidence that will persuade the court.If thedefendant doesnotprovide any suchevidence, the courtwill have no choice but toevaluatethe case based solely ontheevidence available, whichmay only be thatofthe plaintiff. Consequently,the plaintiff may winthe case, while thedefendant may lose,potentially due toafailure by thedefendant topresent adequateevidence. (See: the dictum ofBrobbey JSCin Re: Ashalley Botwe Lands; Adjetey Agbosu&Others (2003-2004) SCGLR400,425-426) 27. The holding inthe Re: Ashalley Botwe Landscase isconsistent with provisionsunder the Evidence Act whichrequires thatthe burdenof producing evidence implies theobligation ofapartyto introduce sufficient evidence toavoid aruling against himonanissue (section 11 and 14). 28. Based onthe evidence adduced, Ihold that theplaintiff validly acquired thedisputed land. Whether or notthe defendant wasin adverse possession? 29. Adverse possessionrefers toasituationwhere apersontakespossession oflandbelonging toanotherand occupies the land adverse tothe interest ofthelegalowner. Adverse possession must beopen, visible, continuous, and unchallenged so that it gives notice tothelegalowner thatsomeone isasserting aclaim adverse to his. The personwho is in adverse possessiondoesso without permissionofthe trueowner. Suchapersonis 9 termedasquatter(That is someone who livesonunoccupied land orina vacant building without permission fromtheowner). (See: Boiand OrsVsAdjei andOrs (2014)GHASC 133) 30. UnderSection 10ofthe Limitation Decree, 1972,NRCD54,ifaperson takespossession ofland belonging to anotherand remains in possession for12yearstotheexclusion ofthe owner,that representsadverse possessionand accordingly, at theend of12years, thetitle oftheowner is extinguished. The adverse possessor acquirestitle tothe land by prescription oflaw. 31. Inthepresent case, the defendant admittedin his testimony thatthe land indispute belongs tohisgrandfather, Mohammed Aguru, who is also the fatherofthe plaintiff's grantor. The defendant claims thathe was protecting thedisputed landbecause he understood it tobe family property. 32. Whensanitationofficersand thechief disturbed him, he reportedthe incident to thelegalowner. The defendant said he went to theland owners, hisuncles, and informed themabout the disturbance. The defendant said his uncles instructed himtotake stepstoprotect the disputed land. 33. Fromthis narrative, the defendant wasoccupying the land withthe permissionofthe legalownerand notasquatter.As aresult,the defendant cannot be classified as anadverse possessorseeking protection under theLimitation Decree, NRCD54 34. Itherefore dismiss thecontention ofthedefendant thathe is anadverse possessor. 10 Conclusion and Orders 35. Inconclusion, the courtdeclarestitle ofPlot No. 130,Sector 3BlockC, Asamankese in theplaintiff. The defendant, hisagents, assigns, servants, and otherpersonsoflike descriptionare perpetuallyinjuncted from interfering withthe plaintiff's quiet enjoymentofthe land Orders The court makesthe followingorders (i) The defendant, his agents, assigns, servants, and otherpersonsoflike descriptionareperpetuallyrestrained frominterfering with theplaintiff's quiet enjoyment ofPlot No. 130,Sector3Block C,Asamankese (ii) The defendant must renderaccounts tothe plaintiff ofrentsthe defendant hasreceived fromtenantsonthe land from2013till dateofvacation ofthe land (iii)Costof3,000Ghana Cedis awarded against the defendant in favorofthe plaintiff Signed Dr. Bedima Duut, Esq Circuit CourtJudge 11