Akoto v George and Others (C1/02/2024) [2025] GHACC 82 (29 April 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON TUESDAY, THE 29TH DAY OF APRIL, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C1/02/2024 SERWAA AKOTO ----- PLAINTIFF PLOT NO. 104 PARADISE RD DOME PILLAR 2 ACCRA VRS 1. GEORGE (KOFI THEO) 2. MAVIS ADUNI ----- DEFENDANTS 3. PASTOR KOFI ANSAH (ALL OF DOME – PILLAR 2) ACCRA PARTIES: PLAINTIFF ABSENT FRED DARKO DEFENDANTS ABSENT Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 1 of 16 COUNSEL: MATILDA NAA LAMIOKOR LAMPTEY HOLDING THE BRIEF OF K. ADJEI-LARTEY, ESQ. FOR THE PLAINTIFF PRESENT TAWIAH YOYOWAH, ESQ. FOR THE DEFENDANTS ABSENT JUDGMENT FACTS By a Writ of Summons issued from the Registry of this Court on the 30th day of August 2023, the Plaintiff claims against the Defendants the following reliefs: a. Declaration of title to all that piece or parcel of land situate, lying and being at Dome Pillar 2 in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.73 Acre or 0.30 Hectare more or less being Parcel No. 14787 Block 40 Section 161 from Paul Aryeetey Tetteh, Head of the Onamrokor Adain Family. b. Perpetual injunction restraining the Defendants, their agents, assigns and privies from entering the land or doing anything thereon that tends to hinder or prevent Plaintiff from enjoying the said land. c. Recovery of possession d. General damages. By an affidavit of service dated 31st August 2023 deposed to by one Adusei Kwabena Obeng, a former bailiff of this Court, the Writ of Summons together with Statement of Claim were served on the 2nd Defendant at Dome Pillar 2. Following that, the lawyer for the Defendants filed notice of appearance on 15th September 2023 and entered appearance Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 2 of 16 to this suit for the Defendants. A Statement of Defence of the Defendants was subsequently filed by lawyer for the Defendants on 29th November 2023, to which counsel for the Plaintiff filed a Reply on 1st March 2024. On 7th May 2024, when the suit was called for application for directions, the Court noted that there was proof of service of the application for directions filed on 19th March 2024 on the lawyer who entered appearance for the Defendants, Tawiah Yoyowah, Esq. There was also proof of service of Hearing Notice for the said date on the said lawyer for Defendants, however neither the Defendants nor their lawyer attended Court that day. The Court therefore heard Counsel for Plaintiff on the application for directions, adopted the issues therein and gave directions as to the conduct of the case including timelines for the parties to file their respective Witness Statements; and further ordered the Plaintiff to serve hearing notice together with the Court notes for that day on the Defendants. On the subsequent Court sittings, there were proofs of service of hearing notices on the Defendants through their lawyer but neither the Defendants nor their lawyer were in Court. The Defendants had also not filed their Witness Statements however there was no proof of service of the Court notes on the Defendants as ordered by the Court, so the case management conference was adjourned for the Plaintiff to ensure the Defendants had been served with the Court note that indicated the timelines to file their Witness Statement. The Case Management Conference was conducted on the next Court date as there was proof of service of hearing notice and the Court note on the Defendants through their lawyer but neither of them attended Court. The Court upon listening to Counsel for the Plaintiff and relying on Order 32 rule 7A(3b) of C.I. 47 as inserted by C.I. 87, and having also considered that the Defendants have consistently failed to appear before the Court or comply with the orders of this Court Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 3 of 16 given at the directions stage and Case Management Conference, notwithstanding proof of service of several Hearing Notices and Court notes on the Defendants through their lawyer, the Court struck out the Statement of Defence filed for the Defendants on 29th November, 2023. A party has himself to blame for failing to attend Court. In the case of Republic v. Court of Appeal, Accra Ex Parte East Dadekotopon Development Trust, Civil Motion No J5/39/2015, dated 30- 07-15, SC Unreported, it was held that: “There could not be a breach of the rules of the audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him”. Adinyira JSC also in the case of Nana Ampofo Kyei Barfour v. Justmoh Construction Co. Ltd. & Others [2017] 113 G.M.J. 118 at pages 128-129 restated the principle in these words: “In the plethora of cases cited by counsel for the Plaintiff for example, Republic v. High Court (Fast Track Division) Accra; Ex parte State Housing Co. Ltd. (No. 2) (Koranten-Amoako Interested Party) [2009] SCGLR 185; Republic v. High Court (Human Rights Division) Accra, Ex parte Akita (Mancell-Egala & Attorney-General – Interested Parties) [2010] SCGLR 374 at page 379; where the Supreme Court held the principle of the audi alteram partem rule was inapplicable; it was clearly evident, on the face of the record that the party complaining of a breach of his/her right to be heard, was present in Court on the day the case was adjourned for hearing or was served with hearing notice but chose not to be present either by himself or counsel to be heard on the due date.” Order 1 rule 1 subrule 2 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides that: “These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 4 of 16 dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.” Order 37 rule 2 of C.I. 47 on the duty to avoid delay provides that: “It is the duty of the parties, their lawyers and the Court to avoid all unnecessary adjournments and other delays, and to ensure that causes or matters are disposed of as speedily as the justice of the case permits.” Sophia Akuffo JSC (as she then was) reiterated the above principles in the case of Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003- 2004] SCGLR 21 where she said: “… in its remedial or practical character, the rules of procedure should serve the purpose of facilitating the sound management of litigation and process efficiency. It is these basic characteristics of civil procedure rules that facilitate the realization of the overall objective of the judiciary which is to assure access to justice for all...” The case was fixed for hearing and on the day of hearing, there was proof of service on the Defendants through their lawyer but yet again, neither the Defendants nor their lawyer attended Court. The Court therefore proceeded with the hearing. It is common knowledge that declaratory reliefs cannot be granted when the Plaintiff or his witness(es) have not mounted the box to prove the claim and the absence of the Defendants in Court did not automatically result in the Plaintiff’s claims being granted. See the cases of Rev. Rocher de-graft Sefa& Others v. Bank of Ghana, Civil Appeal No. J4/51/2015, SC (Unreported), per Gbadegbe JSC and Republic v. High Court, Ex parte Osafo [2011] 2 SCGLR 966. Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 5 of 16 THE CASE OF THE PLAINTIFF In her Witness Statement the Plaintiff herein, testified that she is the lawful owner of all that parcel of land situate, lying and being at Dome Pillar 2 in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.73 Acre or 0.30 Hectare more or less being Parcel No. 14787 Block 40 Section 161. That she lawfully acquired the land described above, being the subject matter of this suit, sometime in 1994, from its rightful owners, being the Onamrokor Adain Family, with Paul Aryeetey Tetteh acting as the Head of the Family. According to the Plaintiff, her grantors duly issued her with a Deed of Indenture dated 4th March 1994 evidencing her lawful purchase and acquisition of the land, the subject matter of this suit. That she registered the indenture as LVDGAST145412019C at the Lands Commission and which same was certified on 10th June 1994. She tendered a copy of the said indenture in evidence as exhibit as exhibit ‘A’. The Plaintiff further testified that she registered her title at the Land Title Registry at Land Certificate No. GA 71394, Volume 69, Folio 534 and delineated on Registry Map No. 006/161/1993. She tendered in evidence a copy of her Land Certificate as exhibit ‘B’. That upon acquisition, she immediately took effective possession of the land which by then was a bare land and in that same year, started developing the land by putting up structures. That she constructed three (3) unit two (2) bedroom apartments on two (2) plots of the land, which same is currently at lentil level, and dug foundation footings on one (1) plot and same is also walled. That the remaining one (1) plot of land was sold by her cousin without her consent and has put up a building and currently living in same. The Plaintiff continued that she travelled to the United Kingdom and upon her return she found out the Defendants have trespassed and encroached upon her land. That the Defendants have roofed her three (3) unit two (2) bedroom structures and occupying same. Also, they have put wooden structures on the other one (1) plot of land which is fenced and has only foundation footings on it. She tendered exhibit ‘C series’ to that effect. That she immediately caused her son, Nana Kwame Darko to inform the Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 6 of 16 Defendants to vacate from her land, however, the Defendants did not heed to the notice, alleging however that they are licensees of one Madam Elizabeth Twene. That she further caused her lawyer to write to the Defendants to vacate her land but the Defendants continued to refuse to heed to the notice. Exhibit ‘D’ was also tendered being a copy of the said letter. The Plaintiff concluded that the Defendants have adamantly refused to vacate the land and all attempts to ward off the Defendants from same have failed. That neither the Defendants nor their purported licensor have an interest whatsoever in the land, the subject matter of this suit. That she is the true owner of the said land and humbly prays this Honourable Court to grant her all the reliefs as indorsed in her Writ of Summons and Statement of Claim. The Plaintiff closed her case thereafter. LEGAL ISSUE On 7th May 2024, the following issues were adopted and set down as the issues for trial by this Court: 1. Whether or not Plaintiff duly acquired her title to the disputed parcels of land, from Paul Aryeetey Tetteh, acting as Head of the Onamrokor Adain Family? 2. Whether or not Plaintiff's title to the disputed parcels of land is duly registered at the Land Title Registry as Land Certificate No. GA. 71394, Volume 69, Folio 534 and delineated on Registry Map No. 006/161/1993 in the Land Registration Division? 3. Whether or not Plaintiff is the owner of the disputed parcels of land? 4. Whether or not Defendants' presence on the land without Plaintiff's consent constitutes trespass? 5. Whether or not Plaintiff have built on two (2) plots of the land in dispute to lentil level and dug foundation footings on the other two (2) plots? Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 7 of 16 6. Whether or not the Plaintiff is entitled to the reliefs endorsed on the Writ of Summons. BURDEN AND STANDARD OF PROOF It is trite that in a civil matter where a party sues for declaration of title to land, that party assumes the burden to prove on a preponderance of probabilities ownership of the land in dispute. See: Adwubeng v. Domfeh [1996-97] SCGLR 660 In Re Koranteng (Decd); Addo v. Koranteng & Others [2005-2006] SCGLR 1039. In the case of Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah & 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S.C. (Unreported), Appau JSC held: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - See sections 11 (4) and 12 of the Evidence Act, 1975 [NRCD 323]”. Section 12(1) of the Evidence Act, 1975 (NRCD 323), provides that: “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: “In other circumstances, 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”. In In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-04] SCGLR 420, the Supreme Court per Brobbey JSC reiterated the position of the law that: “… it is the duty of the Plaintiff who took the Defendant to Court to prove what he claimed he is entitled to, from the Defendant.” Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 8 of 16 In the case of Fosua & Adu-Poku v. Adu-Poku Mensah-Ansah [2009] SCGLR 310, the Supreme Court held that where the Plaintiff is able to produce sufficient evidence to prove his case then the onus shifts to the Defendant to lead evidence that would tilt the balance of probabilities in his favour. This principle is found in Section 14 of the Evidence Act, supra, which provides as follows: “Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact, the existence or non-existence of which is essential to the claim or defence that party is asserting.” ANALYSIS 1. Whether or not Plaintiff duly acquired her title to the disputed parcels of land, from Paul Aryeetey Tetteh, acting as Head of the Onamrokor Adain Family. The Plaintiff testified that she lawfully acquired the subject matter land described above, sometime in 1994, from its rightful owners, being the Onamrokor Adain Family, with Paul Aryeetey Tetteh acting as the Head of the Family. That her grantors duly issued her with a Deed of Indenture dated 4th March 1994 evidencing her lawful purchase and acquisition of the said land. That she registered the indenture as LVDGAST145412019C at the Lands Commission and same was certified on 10th June 1994. In support of her assertions, she tendered in evidence exhibit ‘A’ being a copy of the said indenture. From a careful perusal of exhibit ‘A’, it was executed in between March and June 1994 between the said Paul Aryeetey Tetteh acting as the head of the Onamrokor Adain Family and Madam Serwaah Akoto, the Plaintiff herein. From the above evidence on record, it can be gathered that the Plaintiff acquired the land in dispute from the Onamrokor Adain Family, with Paul Aryeetey Tetteh acting as the Head of the Family in 1994 with a lease being exhibit ‘A’. It is therefore not in doubt from Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 9 of 16 the evidence on record that Plaintiff did acquire the land in dispute from Paul Aryeetey Tetteh, acting as Head of the Onamrokor Adain Family. Consequently, I find from the evidence on record that the subject matter land was properly acquired by the Plaintiff from the Onamrokor Adain Family through the head of the family. I therefore answer issue one in the affirmative. 2. Whether or not Plaintiff's title to the disputed parcels of land is duly registered at the Land Title Registry as Land Certificate No. GA. 71394, Volume 69, Folio 534 and delineated on Registry Map No. 006/161/1993 in the Land Registration Division? The Plaintiff further testified that she registered her title at the Land Title Registry at Land Certificate No. GA 71394, Volume 69, Folio 534 and delineated on Registry Map No. 006/161/1993. To substantiate this claim, the Plaintiff tendered in evidence exhibit ‘B’ which is a copy of her Land Certificate. From exhibit ‘B’, it indicates that Land Certificate dated 8th December 2022 was issued in the name of the Plaintiff herein with respect to the subject matter land. Exhibit ‘B’ also establishes the Plaintiff’s assertion that the said land was delineated on the Registry Map as No. 006/161/1993 as well as the Land Certificate No. GA 71394, Volume 69, Folio 534p. From the evidence on record which has not been challenged by the Defendants, I find that the Plaintiff's title to the disputed parcels of land is duly registered at the Land Title Registry as Land Certificate No. GA. 71394, Volume 69, Folio 534 and delineated on Registry Map No. 006/161/1993 in the Land Registration Division; and accordingly answer issue two in the affirmative as well. 3. Whether or not Plaintiff is the owner of the disputed parcels of land? Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 10 of 16 The Court expert witness, Mr. Seidu Baba Mahama, a geometric surveyor at the Survey and Mapping Division of Lands Commission led evidence to the effect that upon the Court’s order the surveyor experts visited the land in dispute with the Plaintiff, as the Defendants failed to be part of the survey exercise, where the Plaintiff showed her boundaries. That they picked the points on the ground to compare to the site plan produced by the Plaintiff, and the structures on the land. The expert witness tendered in evidence exhibits ‘CE1’ and ‘CE2’. From exhibit ‘CE2’, the land shown to the surveyor by the Plaintiff which is edged red is even a little smaller than the land shown on the site plan of the Plaintiff which is edged blue. From the exhibit ‘CE2’, the land Plaintiff is claiming on the ground clearly falls within her site plan in relation to the said land. From the evidence on record; and from the findings above on issues one and two, and in the absence of any evidence on record discrediting the evidence adduced by the Plaintiff on the first two issues, as well as the evidence led by the Court expert witness, it can be safely concluded that the Plaintiff is the owner of the land in dispute and I accordingly make a finding to that effect. 4. Whether or not Plaintiff have built on two (2) plots of the land in dispute to lentil level and dug foundation footings on the other two (2) plots? The Plaintiff testified that upon acquisition, she immediately took effective possession of the land which by then was a bare land and in that same year, she started developing the land by putting up structures. That she constructed three (3) unit two (2) bedroom apartments on two (2) plots of the land, which is currently at lentil level, and dug foundation footings on one (1) plot and same is also walled. That the remaining one (1) Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 11 of 16 plot of land was sold by her cousin without her consent and has put up a building and currently living in same. The Court expert witness, Mr. Seidu Baba Mahama, a geometric surveyor at the Survey and Mapping Division of Lands Commission also led evidence to the effect that the structures claimed by the Plaintiff which are edged black are well within the land the Plaintiff produced her site plan on. The Plaintiff also has land certificate on the same land, as in exhibit ‘B’. Under cross examination, the expert witness agreed with counsel for the Plaintiff that the land shown by the Plaintiff on the ground as well as the structures claimed by the Plaintiff fall within the land on the site plan and the structures are also visible on the land. Exhibit ‘CE2’ confirms the evidence above. In view of the pieces of evidence on record on the above issue, I hereby find that the Plaintiff has built on the two (2) plots of the land in dispute to lentil level and dug foundation footings on the other two (2) plots. 5. Whether or not Defendants' presence on the land without Plaintiff's consent constitutes trespass? The Plaintiff continued that she travelled to the United Kingdom and upon her return she found out the Defendants have trespassed and encroached upon her land. That the Defendants have roofed her three (3) unit two (2) bedroom structures and occupying same. Also, they have put wooden structures on the other one (1) plot of land which is fenced and has only foundation footings on it. She tendered exhibit ‘C series’ to that effect. That she immediately caused her son, Nana Kwame Darko to inform the Defendants to vacate from her land, however, the Defendants did not heed to the notice, alleging however that they are licensees of one Madam Elizabeth Twene. That she further caused her lawyer to write to the Defendants to vacate her land but the Defendants continued to refuse to heed to the notice. Exhibit ‘D’ was also tendered being a copy of Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 12 of 16 the said letter. That the Defendants have refused to vacate the land and all attempts to ward off the Defendants from same have failed. The Defendants waived their right to partake in the hearing and also failed to comply with the orders of this Court therefore they do not have any evidence on record to challenge the evidence adduced by the Plaintiff. Accordingly, considering that the Plaintiff’s evidence stood uncontroverted, I find that the Defendants’ presence on the Plaintiff’s land without her consent amount to trespass. 6. Whether or not the Plaintiff is entitled to the reliefs endorsed on the Writ of Summons. The Plaintiff per her reliefs is seeking for declaration of title to the subject matter land, perpetual injunction against the Defendants, recovery of possession and general damages. In an action for declaration of title to land, the person claiming ownership ought to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation as established in Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466. The Supreme Court per Adinyira JSC in the case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 at page 8 held: “It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and iii) various acts of possession exercised over the land … This can be proved by either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must prove the title of his grantor. Awuku v. Tetteh [2011] 1 SCGLR 366. Further, to prove ownership through possession, the possession must be long, peaceful and uninterrupted…” Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 13 of 16 In the case of Delmas Agency Ghana Limited v. Food Distributors International Limited [2007-2008] SCGLR 748, the Supreme Court held that an award of general damages is such as the law would presume to be the natural or probable consequence of the Defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. In the case of Mensah v. Peniana (1972) 1 GLR 337, the Court of Appeal speaking through Azu Crabbe J.S.C. held as follows: “Where the Plaintiff seeks damages for trespass and is met with a claim to the ownership of the trespassed area by the Defendant, and the Defendant fails to establish his own title to the area, then the Plaintiff is entitled to succeed in his claim, provided he satisfactorily proves possession. [Emphasis provided] Applying the above authorities to the instant case, the Plaintiff adduced evidence to prove the root of title between her lessor (Onamrokor Adain Family) and herself being the lessee, as well as her mode of acquisition as in exhibit ‘A’. The evidence on record also indicates that the Plaintiff exercised acts of possession over the subject matter land. Moreover, the Plaintiff adduced evidence to the effect that the Defendants trespassed onto her land. The Plaintiff also satisfactorily proved possession. The Plaintiff therefore discharged the obligation on her to prove her case on preponderance of probabilities. From the above findings of the Court, I consider from the entirety of the evidence before this Court that on a preponderance of probabilities, the Plaintiff has been able to adduce substantial credible evidence for a declaratory judgment with its ancillary reliefs as endorsed on the Writ of Summons, in her favour. Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 14 of 16 The principles governing the award of damages for trespass as stated by the Court of Appeal in the case of Laryea v. Oforiwah (1984-86) 2 GLR 411, is that: "In awarding damages for trespass to land regard should be to the acreage of land on which the trespass was committed the period of wrongful occupation and the damage caused". Thus, in the instant case, taking into consideration the acreage of the land in dispute and the evidence on record particularly exhibits ‘C’ and ‘D’, I will award an amount of GHS30,000.00 as damages for trespass against the Defendants herein. From the above analysis and considering the entire evidence before this Court, I find that the Plaintiff is entitled to the reliefs endorsed on the Writ of Summons. This is because the Plaintiff on the balance of probabilities has been able to prove her claims against the Defendants. CONCLUSION On the basis of the entire evidence on record as well as the findings above and in the absence of contrary evidence by the Defendants to discredit the evidence adduced by the Plaintiff, I hereby find on the preponderance of probability that the Plaintiff has been able to discharge the legal burden placed on her. In the circumstances, I hereby enter judgment for the Plaintiff as against the Defendants as follows: 1. I hereby grant a declaration of title to all that piece or parcel of land situate, lying and being at Dome Pillar 2 in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.73 Acre or 0.30 Hectare more or less being Parcel No. 14787 Block 40 Section 161 from Paul Aryeetey Tetteh, Head of the Onamrokor Adain Family, in favour of the Plaintiff. Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 15 of 16 2. I hereby grant an order of perpetual injunction, in favour of the Plaintiff restraining the Defendants, their agents, assigns and privies from entering the land or doing anything thereon that tends to hinder or prevent Plaintiff from enjoying the said land. 3. Recovery of possession of all that piece or parcel of land situate, lying and being at Dome Pillar 2 in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.73 Acre or 0.30 Hectare more or less being Parcel No. 14787 Block 40 Section 161 from the Defendants. 4. I award an amount of GHS30,000.00 as general damages in favour of the Plaintiff against the Defendants herein. Counsel for Plaintiff has waived costs against the Defendants. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Serwaa Akoto v. George (Kofi Theo) & 2 Others Page 16 of 16