Okyere v Amissa & Anor (C1/13/2022) [2025] GHACC 34 (27 January 2025)

IN THE CIRCUIT COURT, OFFINSO, ASHANTI HELD ON WEDNESDAY, THE 27TH DAY OF JANUARY 2025 BEFORE HIS HONOUR PAUL ODURO ESQ SUIT NO.: C1/13/2022 BENJAMIN KWADWO OKYERE PLAINTIFF H/NO. PLT N. A.T. 16 VRS 1. OSEI KOFI AMISSA ERIC DEFENDANTS 2. NICHOLAS AMPONSAH J U D G M E N T On 3rd March 2022, the plaintiff caused a writ of summons to be issued against the Defendants jointly and severally for the following reliefs: 1. A declaration of title to building plot No. 26, Asamankama on the Offinso stool land. 2. Perpetual injunction restraining the defendants, their agents, workmen, assigns, privies etc. from disturbing the plaintiff's peaceful stay on the disputed plot. 3. Recovery of possession of the trespassed area. 4. General damages for trespass. 5. Cash the sum of Twenty - Five Thousand (GHc 25, 000.00) being the general damages for trespass. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 1 of 28 6. Cost On 28th March 2022, the defendants entered Appearance to the plaintiff’s writ of summons and proceeded to file a joint statement of defence and counterclaim on 8th April 2022. They asked for the following reliefs by way of counterclaim: a) A declaration of title to Plot Number 7 and 9, Offinso. b) Damages for trespass. c) Recovery of possession of any portion of the land in dispute trespassed onto by the plaintiff. d) An order of perpetual injunction restraining the plaintiff, his agents, assigns, hirelings, family members, workmen and all others claiming through him from interfering with the 1st defendant’s ownership, possession and control of the land in dispute. e) Cost including legal fees. f) Any further Order (s) that the Honorable Court may deem fit. The plaintiff filed a reply to the defendants' statement of defence and counterclaim on 25th April 2022. On 7th September 2022, the defendants filed an appointment of solicitor thereby appointing Chris Baffour Awuah Esq. as their Lawyer. On 16th November 2022, counsel for and on behalf of the defendants filed a motion on notice to amend their writ of summons and statement of claim and same was accordingly granted by the Honourable Court differently constituted. By an amended writ of summons and BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 2 of 28 statement of claim filed on 16th January 2023, the plaintiff claimed against the defendants as follows: 1)A declaration of title to building plot No. 26, Asamankama on the Offinso stool land. 2)Perpetual injunction restraining the defendants, their agents, workmen, assigns, privies etc from disturbing the plaintiff from his peaceful stay on the disputed plot. 3)Recovery of possession of the trespassed area. 4)General damages for trespass. 5)An order that the defendants shall remove and carry away the debris of their offending and obstructing structure from the plaintiff’s plot of land or in the alternative, an order authorising the plaintiff to pull down and demolish and carry away the debris and surcharge the defendants jointly and severally with cost. 6)Cost including solicitor’s fee. PLAINTIFF’S CASE The plaintiff by his amended statement of claim says that he acquired building plot No. 26, Asamankama on the Offinso Stool land on or about 5th August 2021, and he was issued an allocation certificate and a site plan. The plaintiff stated that his plot shares a boundary with the defendants building plots number 7 and a half plot of plot 9. The plaintiff contended that in March 2020, he detected that the defendants had trespassed onto his building plot BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 3 of 28 No. 26. According to the plaintiff, the 1st Defendant brought officials from the Town and Country Planning Department, Offinso, onto the disputed land. The plaintiff stated that the said officials carried out a demarcation exercise and confirmed that the defendants had trespassed onto his plot. He said that the defendants were adamant and went on with their development of the disputed area. The plaintiff says the defendants have further trespassed by constructing a man-hole and a fence wall on the disputed area. It is his case that he reported the behaviour of the defendants to the Surveyor of the Offinso Traditional Council who delegated one of his staff to go to the locus in quo. Plaintiff contended further that the 2nd defendant disallowed the Offinsoman Municipal Surveyor to finish his work on the land through threatening and insults. The plaintiff stated that the 2nd defendant threatened him that if dared to demolish the structure in the trespassed area, he would kill him. The plaintiff stated that he reported the 2nd defendant to the Offinso Police and after investigations, the 2nd defendant was arraigned before the District Court, Offinso. The plaintiff stated that he demolished the man-hole on the disputed land and the 1st defendant reported him to the police. Plaintiff says he was charged and at the time of filing this case, the criminal case was also pending before the District Court. Plaintiff contended that 1st defendant wrongfully erected a wall and a man-hole on his plot of land and prayed the Court for an Order to cause the 1st defendant to remove the offending structure or suffer them to be demolished and the debris carted away by the Plaintiff and the cost surcharged to the defendants jointly and severally. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 4 of 28 DEFENDANTS CASE The defendants told the Court that Plots numbers 7 and half of Plot 9 were acquired by the 1st defendant from the Asamankama Traditional Council through the caretaker chief in or around the year 2010. According to the 1st Defendant, the documentation on the land was finalized in 2014 when the site plan and allocation note were issued to him. The 1st defendant stated that he acquired a building permit from the Offinso Municipal Assembly in June 2014 before he started the construction of his building. According to the 1st Defendant, they did not face any challenge or disruption from the plaintiff during the construction until 2021, when the plaintiff claimed that the construction of their wall had trespassed onto his plot number 26. It is the case of the defendants that the plaintiff subsequently demolished their manhole. When the plaintiff failed to restore the same, he was arrested and arraigned before the Offinso District Court where the Court found him guilty and fined him accordingly. The defendants denied the trespass assertions made by the plaintiff and stated that the manhole and the wall were erected on plot number 9. After the close of pleadings, the plaintiff filed Applications for Direction on 17th May 2022 and therein raised the following issues: 1) Whether or not the defendant is liable to the plaintiff. 2) Whether or not the plaintiff claims declaration and title endorsed on the writ of summons. 3) Any other issue (s) arising from the pleadings BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 5 of 28 4) The cost of this application be made costs in the cause with liberty to apply. On 15th June 2022, the defendants also filed an Additional Issue which is: Whether the alleged trespassed land or area falls within Plot No. 26 or 27, Asamankama. It is settled law that a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence if, in the opinion of the court, few issues could legally settle the case in accordance with the law. See: Vicentia Mensah v. Numo Adjei Kwanko II (2018) 117 GMJ 76 SC. The issue the Court differently constituted set down for resolution is: Whether or not the alleged trespassed land or area falls within Plot No. 26 Asamankama belonging to the Plaintiff or Plot No. 7 and half of 9 belonging to the 1st defendant. The hearing of the suit commenced on 13th December 2023 after the Case Management Conference had been conducted. BURDEN OF PROOF It is settled law that in civil cases, he who asserts must prove. The standard of proof required is on the preponderance of probabilities only. See Sections 14 (4) and (12) of the Evidence Act, 1975 (NRCD 323). Consequently, in an action for declaration of title, a plaintiff cannot succeed without proving his case on a balance of probabilities. In a claim for declaration of title, the plaintiff must establish positively the identity and limits of the land being BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 6 of 28 claimed. In the case of Nortey (No.2) v. African Institute of Journalism and Communication & Others (No.2) [2013-2014] 1 SCGLR 704 @ 713, the Supreme Court held: “In an action for declaration of title to land, recovery of possession and injunction, a plaintiff must establish by positive evidence the identity and limits of the land he claims. The onus of proof required by law as regards the identity of land would be discharged by meeting the following condition: The plaintiff must establish the identity of the land and all his boundaries; and where there was no precise-oriented plan drawn to scale, which made compass bearings vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title. Furthermore, having enumerated his new boundaries to include boundary owners, the plaintiff was bound to fail should he decline to call such owners who were material witnesses.” The defendant who counterclaims also bears the burden to prove the counterclaim on a balance of probabilities as required by law. The defendants in the instant case who counterclaimed against the plaintiff bear the burden of winning on the strength of their case and will not be granted their reliefs in a counterclaim on a silver platter. See: Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 @ 900. EVIDENCE LED BY THE PLAINTIFF To prove his case, the plaintiff testified and called one witness in support of his case and stated that he acquired building plot No. 26, at Offinso BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 7 of 28 Asamankama from the elders of the Offinso Stool Land on or about 5th August 2021. He said he was given an allocation note and a site plan as proof of his root of title. He tendered in evidence Exhibit A series which are the said allocation note and the site respectively. The plaintiff stated that his plot shares a boundary with the defendants building plots number 7 and a half plot of plot 9. The Plaintiff contended that in March 2020, he detected that the defendants had trespassed onto his building plot No. 26. The plaintiff stated that he caused his Lawyer to write a letter to the Regional Director of the Lands Commission instructing him to determine the measurement of the plot of the parties in this suit per the site plan measurement and the extent of the encroachment. The plaintiff tendered in evidence the said letter as Exhibit B. It must be put on record that the said Exhibit B is a Survey Instructions filed for and on behalf of the plaintiff by his lawyer. According to the plaintiff, the 1st Defendant brought officials from the Town and Country Planning Department, Offinso onto the disputed land. The plaintiff stated that the said officials carried out a demarcation exercise and confirmed that the defendants had trespassed onto his plot. He noted that the defendants were adamant and went on with their development of the disputed area. The plaintiff says the defendants further trespassed onto his plot by constructing a man-hole and a fence wall. He tendered in evidence Exhibit C which are pictures evidencing the said trespass. It is his case that he reported the behaviour of the defendants to the Surveyor of the Offinso Traditional Council who delegated one of its staff to go to the locus in quo. The plaintiff contended further that the 2nd defendant disallowed the Offinsoman Municipal Surveyor to finish his work on the land through BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 8 of 28 threatening and insults. According to the plaintiff, the 2nd defendant threatened him that if he dared to demolish the structure in the trespassed area, he would kill him. According to the testimony of the plaintiff, he reported the 2nd defendant to the Offinso Police and after investigations, the 2nd Defendant was arraigned before the District Court, Offinso. The plaintiff stated that he demolished the man-hole on the disputed land and 1st defendant reported him to the police. The plaintiff says he was charged and at the time of filing this case, the criminal case was also pending before the District Court. EVIDENCE OF KWASI OWUSU AMOH (PW1). The plaintiff’s witness, Kwasi Owusu Amoh testified that he is a native of Offinso Asamankama and that he knows all the parties in the suit. According to him, the lands at Asamankama were plotted in the year 1956 by Opanin Kofi Asare alias Koo Sommere since at the time, the Department of Town and Country Planning were not in existence. PW1 stated that as the years went by, he was voted by the township as the committee chairman and was handed over the rest of the lands to see to its demarcation. According to him, he employed the surveyors from the Town and Country Planning to aid in plotting the rest of the Asamankama lands. He further stated that he solicited the help of the Town and Country Planning to survey the land and did the demarcation on a layout. According to PW1, he gave the layout to surveyors to erect pillars on the land before they were being sold. He said that he had been in charge of the demarcation of the Asamankama lands for the past 34 years. PW1 stated further that all the lands at Asamankama were BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 9 of 28 demarcated and plotted except plots numbered 1, 3, 5, 7, 9 and 11 on the cemetery lane. According to PW1, on or about the year 2014, directed by Nana Kofi Owusu acting per the instructions of his brother the chief of Asamankama, Lawyer Kwame Okyere, he surveyed and plotted out plots numbered 1, 3, 5, 7, 9 and 11 with the help of licensed surveyors. PW1 stated somewhere last two years, he was informed by two elders of the Offinso township, namely, Kofi Amoateng and Opanin Yeboah that the plaintiff and the defendants had a boundary dispute in court at Offinso and he was asked to settle the matter since he had been in charge of the demarcation of the area in dispute. He stated that he advised the plaintiff to settle the matter but the plaintiff intimated to him that the 1st defendant insisted that he had not trespassed onto his land and as such he wanted the court to determine the matter. PW1 stated that he went to the disputed area recently and met some surveyors there together with the parties. He said he noticed that the 1st defendant had trespassed onto the plaintiff’s land with his wall and manhole. PW1 concluded his testimony by saying that the trespassed area belongs to the Plaintiff. EVIDENCE LED BY THE 1ST DEFENDANT. The 1st defendant relying on his witness statement filed on 22nd May 2023, testified that he acquired Plot No. 7 and half of Plot No. 9 from the Asamankama Traditional Council through the caretaker around the year 2010. He stated that the documentation on the land was finalized in 2014 when the allocation note was issued to him. He tendered in evidence the BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 10 of 28 said allocation note as Exhibit 1. According to him, the area within which the land is situate was subsequently rezoned by the Town and Country Planning Division, and both plots were consolidated and labelled as Plot 7. 1st defendant stated that he acquired a building permit from the Offinso Municipal Assembly in June 2014 before he started the construction. He tendered in evidence the said building permit as Exhibit 2. According to the testimony of the 1st Defendant, when he started the construction works on his land, he did not face any challenge or disruption from any quarters until 2021 when the plaintiff claimed that the construction of his wall had trespassed onto his land. 1st defendant stated that he invited the Offinso Town and Country Planning Division to review or re-measure the disputed land to ascertain whether he had trespassed onto the plaintiff’s plot of land or not. According to 1st defendant, using the original map of the area, and in the presence of his representative and the plaintiff, the Municipal Building Inspector and the Surveyors declared that he had not trespassed onto the plaintiff’s land but the plaintiff insisted that he had trespassed onto his land. According to 1st defendant, to ensure peace, he invited the Offinso Manhene’s Surveyor to further review the demarcation of the disputed plot of land. 1st Defendant stated that in the presence of Nana Dwendabi, Busua Chief, the plaintiff and himself, the Offinso Manhene Surveyors established that he had not trespassed unto the plaintiff’s land. According to 1st defendant, the plaintiff subsequently demolished his manhole and when he was requested to restore it, he failed to do so. He said he reported the matter to the Police and the Court subsequently found him guilty and fined him accordingly. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 11 of 28 EVIDENCE LED BY 2ND DEFENDANT. The 2nd defendant also relied on his witness statement filed and testified that he was tasked by his father (1st defendant) to assist in the construction of his building after the acquisition of the plot in dispute. He stated that he was part of those who uprooted the trees on the land and started the profiling of the foundation of the building. According to the 2nd defendant, at a point in time, the plaintiff removed all the pillars on the land since in his view, pillars do not work on the lands in that area. 2nd defendant further stated that the plaintiff protested against the construction of the wall at the frontage of his house and stated that they had encroached on his plot of land. 2nd defendant further stated that 1st defendant invited the Town and Country Planning Division at Offinso to review the demarcation and directed his father to where the wall boundary should end. 2nd defendant stated that his father directed him to spearhead the construction of a manhole on the area in dispute and the plaintiff demolished same claiming that it had encroached on his plot of land. According to the 2nd defendant, the destruction caused to their manhole became a subject matter in the District Court of Offinso where the plaintiff was found guilty and fined. Before I proceed to resolve the issue set down, the Honourable Court on 15th June 2022 per His Honour Frederick Kwabena Twumasi Esq. (as he then was) ordered the appointment of a surveyor from the Lands Commission, Kumasi to survey the disputed land to determine whether or not the defendants have encroached onto Plot Number 26 belonging to the Plaintiff. The court also ordered the parties to file their survey instruction and the BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 12 of 28 parties accordingly filed the same. On 12th July 2023, the court expert surveyor, Patrick Armah tendered his survey report in evidence as Exhibit Z without objection. It must also be placed on record that after the appointment of the Court expert surveyor, the defendants also sought leave of the court and filed a witness statement for their surveyor by the name Elvis Boakye. After the conclusion of the case, counsel for both parties filed their respective written addresses. ANALYSIS. In the instant case, the plaintiff claims he owns Plot Number 26 whereas the defendants also claim they own Plot Number 7 and half of Plot 9 cemetery lane. There is no issue with the title of the respective parties' lands. The controversy concerns the alleged trespassed land or area that falls within Plot No. 26 or 27, Asamankama. In his bid to establish ownership and possession of his property, Plaintiff tendered in evidence an allocation paper and a site plan without objection. According to the Plaintiff, he acquired Plot 26 about seventeen (17) years ago but was issued an allocation note in 2021. The defendants acknowledged the plaintiff as the owner of Plot 26. In paragraph 5 of his witness statement, 1st Defendant stated he knows the complainant in this case as someone whose house shares a boundary with him. Again, during cross-examination of 1st defendant, he also confirmed that he shares a common boundary with the plaintiff. This is what ensued under cross- examination of 1st Defendant: BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 13 of 28 Q. You will agree with me that plots Numbers 7, 9 and 10 share boundaries with the plaintiff. A. That is so. The court-appointed expert also confirmed the respective plots of the parties on 12th July 2023. These are some of the extracts when the court expert was being cross-examined: Q. Per your report, you can say you know the plots of the parties. A. Yes. Q. State the Plot Number of the plaintiff. A. Plot Number 26, Techiman-Kumasi Road. Q. Kindly also state the plot number of the defendants. A. Plots Numbers 7 and 9 cemetery lane. It can therefore be gleaned from the above answers from the court- appointed expert that the issue of the plaintiff’s plot 26 is not in dispute. The area in dispute is where the 1st defendant has erected a manhole and a wall. The 1st Defendant also claims that the said area in dispute forms part of his land. In respect of the root of title, both the Plaintiff and the 1st Defendant bear equal responsibility to lead evidence to prove the root of title on the preponderance of probabilities. The Plaintiff called PW1, Kwasi Owusu Amoh to corroborate his evidence. According to him, as the years went by, he was voted by the Asamankama township as the committee chairman and was handed over the rest of the lands to see to its demarcation. He said he employed the surveyors from the BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 14 of 28 Town and Country Planning to aid in plotting the rest of the Asamankama lands. He said that he had been in charge of the demarcation of the Asamankama lands for the past 34 years. According to PW1, in or about the year 2014, directed by Nana Kofi Owusu acting per the instructions of his brother the chief of Asamankama, Lawyer Kwame Okyere, he surveyed and plotted out plots numbered 1, 3, 5, 7, 9 and 11 with the help of licensed surveyors. According to PW1, somewhere last two years, he was informed by two elders of the Offinso township, namely, Kofi Amoateng and Opanin Yeboah that the plaintiff and the defendants had a boundary dispute in court at Offinso and he was asked to settle the matter since he had been in charge of the demarcation of the area in dispute. PW1 stated that he went to the disputed area recently and met some surveyors there together with the parties. He stated that he noticed that the 1st Defendant had trespassed onto the plaintiff’s land with his wall and manhole. PW1 testified to corroborate the plaintiff’s evidence to the effect that where 1st Defendant has erected his manhole and a wall forms part of the Plaintiff’s land. Under cross-examination by counsel for the Defendants, PW1 maintained that he was the one who demarcated all the plots at Asamankama including the 1st defendant’s plots. This is what transpired when PW1 was being cross- examined by counsel for the Defendants: Q. In paragraph 4 of your witness statement, you indicated that you know both parties in this suit. In what way do you know the 1st Defendant? BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 15 of 28 A. I was in charge of allocating plots at Asamankama for the past 34 years. 1st defendant bought land from me. We also marry from the Antoa, a suburb of Offinso. Q. In paragraph 14 of your witness statement, you indicated that the initial plots demarcated were bigger in dimension than the last 6 plots you demarcated in the year 2014. What was the dimension of the initial plots demarcated then? A. From 1988, some of the plots were measured 140 by 120 and subsequently others were also measured 120 by 120. Q. In paragraph 7 of your witness statement, you indicated that you were voted by the township as the community chairman and handed over the rest of the land to see to its demarcation. Which year was this? A. 1988. It is instructive to note that from the answers given by PW1, he maintained that he was in charge of the demarcation of the Asamankama lands and that he did the same for the past 34 years. It should be noted that Counsel for the Defendants did not deny these pieces of evidence proffered by PW1. The law is settled that when material evidence was not denied in cross- examination, no issue was joined and the party need not lead any further evidence on it. Similarly, when a party has failed to deny material evidence, no duty is cast on the other party to prove it. See: Western Hardwood Enterprise Limited and Another vs West African Enterprise Ltd. [1998-99] SCGLR 105. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 16 of 28 In further cross-examination of PW1, he indicated that the disputed area is part of the plaintiff’s land and that when he even visited the disputed area, he noticed that 1st defendant had trespassed onto the plaintiff’s land. These are what ensued under cross-examination: Q. Is the disputed land especially that of the 1st Defendant part of the lands you demarcated? A. Yes, it is part. Q. In paragraph 13 of your witness statement, you indicated that Nana Kofi Owusu Ansah acting per the instruction of the chief of Asamankama who was lawyer Kwame Okyere surveyed the disputed plots. This is an indication that you did not spearhead the demarcation of the disputed land but rather Nana Kofi Owusu Ansah who is properly known as the owner. A. That is not correct. I was the one who spearheaded the demarcation of the 1st Defendant’s land. Q. In paragraph 20 of your witness statement, you indicated that you went to the disputed area recently and there were some surveyors together with the parties and you noticed that the 1st defendant has trespassed onto the plaintiff’s land with his wall and manhole. Since you were not undertaking the measurement, how did you casually come to that conclusion? A. I came to the said conclusion because I was the one who demarcated the plot to the defendants. I also observed where I placed the initial pillar has changed. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 17 of 28 Q. Mr. Amoh, I put it to you that since you were not involved in the demarcation and sale of the disputed plot, you do not have full appreciation of the issues and for that matter, you lacked the capacity to testify in this matter. A. I have the capacity to testify in this matter. I was clothed with authority to demarcate the plot and I demarcated the same. It should also be noted that the material evidence led by regarding the defendants’ trespass onto the plaintiff’s land was not denied by Counsel for the Defendants. I, therefore, find as a fact that the evidence of PW1 in the disputed area is probable. I wish to add that the statement of claim, defence and counterclaim filed by the parties are pleadings and not evidence. Therefore, if an averment of material evidence is denied in the pleadings, it must also be denied in cross-examination and this is trite law. See: Boi & Anor. vrs Adjei [2014] SC [Unreported]. It should be noted that the defendants also counterclaimed and per the ratio in Jass Co. Ltd. & Anor vrs Appau & Anor [2009] SCGLR 269, a defendant who files a counterclaim has the same burden as the plaintiff in a declaration of title to land to satisfy the Court on the balance of probabilities that he has title to the land. The law requires him in a declaration of title just like the plaintiff to prove his root of title, the identity of the land, positive overt act of possession or the right of possession or use of the land. See Aikins v. Dakwa [2013] GMJ 187 at 213. However, physical possession alone cannot ripen into ownership. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 18 of 28 The 1st Defendant claims he acquired Plot No. 7 and half of Plot No. 9 from the Asamankama Traditional Council through the caretaker around the year 2010. He stated that the documentation on the land was finalized in 2014 when the allocation note was issued to him. 1st Defendant failed to call his grantor to buttress his case. The Supreme Court in the case of Hayford v Tetteh (Substituted by Larbi & Decker) (2012) 1 SCGLR 417 applied the principle of a grantor’s obligation to a grantee as espoused by Ollenu J. in the case of Bruce v Quanor & Ors (1959) GLR 292 at 294 when it was held that: “…It is therefore the responsibility of the grantor where the grant to the land is challenged or where the grantee possession is disturbed to litigate his (grantor’s) title to the land. In other words, to prove that the right title or interest which he purported to grant was valid” The 1st defendant grantor failed to step in to set the records straight that he made the grant of the land to him. It is trite learning that in an action for declaration of title to land, the party who seeks the declaration in his favour must establish the root of title and this 1st defendant failed in that regard. The 1st Defendant also failed to call either the Municipal Building Inspector and the Surveyors or Nana Dwendabi, Busua Chief whom he claimed declared on various occasions that he had not trespassed onto the plaintiff’s land to corroborate his evidence. The 1st defendant, however, called one Elvis Boakye to support his case. He told the Court he was not a licensed surveyor and he did not have the survey instructions of the plaintiff to carry BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 19 of 28 out his findings. He stated that he did not attach any report to his witness statement and confirmed under cross-examination that the composite plan he used to undertake his survey of the disputed land was not signed by the Director of Surveys or a Licensed Surveyor because it was not up to standard. The following ensued during the cross-examination of the defendant's surveyor: Q. Mr. Boakye, are you a licensed surveyor? A. No, my Lord. But I work under someone who is a licensed surveyor. Q. You will agree with me that you did not take any survey instructions from the plaintiff in conducting your supposedly investigation on the plot in issue. A. That is correct. Q. Is it the case that you did the survey instructions yourself? A. That is so. Q. You will also agree with me that you have not attached any surveyor’s Report to your witness statement as you claim you investigated the plot. A. I attached a copy of my witness statement. Q. Kindly have a look at your witness statement and identify the surveyor’s report you attached as you are alleging. A. I did not attach the same to my witness statement but I earlier submitted the surveyor report to my lawyer. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 20 of 28 Q. You will also agree with me that Exhibit 5 is not signed by a Licensed Surveyor for that matter the Director of Surveyors as required by law and practice. A. It is not signed because it is not up to the standard that will require the Director of Surveyors or a Licensed Surveyor to sign. From the answers given by DW1, I find as fact that he does not possess the requisite expertise as a Licensed Surveyor to assist the Court in determining the issue of encroachment. As earlier mentioned, the Court differently constituted ordered the appointment of a Surveyor from the Lands Commission, Kumasi to survey the disputed land to determine whether or not the defendants have trespassed onto the plaintiff’s Plot No. 26. Parties were also ordered to file their survey instructions and same was complied. The plaintiff filed his Survey Instructions on 24th November 2022 and instructed the court- appointed Surveyor to draw a survey plan to indicate the following: 1. The size and measurement of Plot No. 26, Asamankama as indicated on the attached site plan. 2. Indicate whether the location of the defendants’ wall and manhole encroached on Plot No. 26. 3. Indicate, if any, the extent to which the defendants’ wall and manhole encroach on Plot No. 26. 4. Any other feature or development of significance. The defendants also filed their survey instructions to the court-appointed surveyor on 29th June 2022 to do the following: BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 21 of 28 1. To demarcate and delineate Plot No. 7 and 9 in accordance with the approved layout of Asamankama, Offinso. 2. To determine the size and boundaries of the parties' respective lands as per the attached site plan. 3. To ascertain whether in accordance with the approved layout of Asamankama -Offinso, the land in dispute forms part of Plot No. 26 (belonging to the Plaintiff) or Plot No. 7 and 9 (belonging to the 1st defendant). 4. To determine whether or not the defendants have trespassed onto the plaintiff’s land or not. 5. To show other observations that might help the Court to determine the issues in controversy. The court-appointed surveyor tendered his findings per the survey instructions and site plans submitted by the parties in evidence as Exhibit Z without objection. He mounted the witness box on 12th July 2023 and testified. He was cross-examined by both Counsel for the parties. Under cross-examination by the plaintiff’s Counsel, this is what transpired: Q. In your findings, was there any trespass by the defendants on the Plaintiff’s land? A. Yes. Q. In your findings, will you say that the defendants entrance of his house extended to the plaintiff’s land? A. Yes. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 22 of 28 Q. Per your findings, did the defendants manhole encroach on the plaintiff’s land? A. Yes. Q. Did they ever show that the plaintiff in any way trespassed onto the defendants’ land? A. No. Q. Is the defendants land supposed to have access via the cemetery loop? A. No. Q. But on the ground does it have access? A. Yes. Q. Would you say that it infringes on the layout plan? A. Yes. Q. Have you measured the question of trespass? A. Yes. Q. What is it? A. Per the analysis the defendants' fence wall extended onto the plaintiff’s premises by six feet. Q. What about the manhole? A. The manhole is within the encroachment. BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 23 of 28 From the above cross-examination, the court expert confirms the case of the plaintiff that indeed the defendants have trespassed onto the plaintiff’s land. Counsel for the defendants also took his turn to cross-examine the court expert, and this is what transpired: Q. Where was the defendant at the time of conducting the survey? A. Defendant was present. Q. When you were focusing on the area of the plaintiff, where was the defendant? A. The defendant was present. Q. I put it to you that the defendant was not present when you were measuring the area of the plot. A. He was present. Q. I put it to you that because the defendant was not present, you only relied on the statement of the plaintiff. A. The report is based on the layout of the area. Q. Did you take into consideration Plot number 9 in your survey? A. Yes. Defendants land is No.7 and a portion of No. 9. From the above cross-examination, Counsel for the defendants in an attempt to discredit the survey report sought to create the impression that at the time the court expert undertook the survey work, the defendants were not present but he stood his ground and maintained that the defendants were present. It is well settled in law that in general, expert evidence does not BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 24 of 28 bind the court, but the law is equally clear that a trial court must give good reasons why the expert evidence is to be rejected. See: Tetteh v. Hayford [2012] 1 SCGLR 417 @ 423. Per Dotse JSC (as he then was); Sasu v. White Cross Insurance Co. Ltd [1960] GLR 4 and Darbod v. Ampah [1989] 1 GLR 606. It is worth noting that the court expert is not related to any of the parties. His evidence was unshaken during cross-examination. The law is settled that where the evidence of such an independent witness on a vital issue corroborates the evidence of one party or the other, a Court is bound to accept the case of the party so corroborated by the independent witness unless there are good reasons for discrediting the independent witness. See: Boateng vrs Boateng [2009] 5 GMJ 58 CA; Asare vrs Donkor & Serwah II [1962] 2 GLR 176 SC. The superimposition of the respective site plans of the parties showed that the area in dispute falls within the Plaintiff’s land. I have no reason to disbelieve the evidence of the court expert. Per the written address filed by Counsel for the defendants, he contended that when the plaintiff was issued with his site plan and allocation note in August 2021, 1st defendant had started the construction of his building on the disputed plot in 2014. That is to say, the 1st defendant had been in possession of the disputed land for 7 years and therefore he had a better title than the plaintiff. This argument with respect to Counsel for the defendants is not the correct position of the law. It is trite law that possession cannot ripen into ownership if a better title is proved. In Osei (substituted by Gillard) v. Korang [2013-2014],1 SCGLR 221 at 234, the court held BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 25 of 28 that possession is nine-tenths of the law and a plaintiff in possession has a good title against the whole world except one with a better title (emphasis mine). The 1st defendant who claims to have been in possession of the disputed land since 2014 had a good title against the entire world except one with a better title. From the analysis of the court, the plaintiff has provided his root of title as well as proper identification of the land with corroboration from PW1 and the court expert witness. The 1st defendant’s current possession cannot oust the better title of the plaintiff. From the totality of evidence on record, the plaintiff succeeded on a balance of probabilities that he owns the portion of land where the 1st defendant has erected the manhole and a fence wall and therefore succeeds on his claim for trespass. The 1st defendant on the other hand failed to prove his counterclaim against the plaintiff, and therefore his counterclaim in its entirety is hereby dismissed. This Court cannot gloss over or fail to determine or pronounce on the relief sought by the plaintiff herein against the defendants. In the Supreme Court case of Nyamah vrs Amponsah [2009] SCGLR 361 at 365, the court speaking through Baffoe Bonnie JSC stated the position of the law as follows: “It is the duty of the court to make pronouncement on the reliefs that a party seeks. An omission by a trial judge to determine a relief sought by a party must be explained with reasons. In all, the court is to ensure that the issues that it sets down to deal with will aid it in making justifiable decisions on the reliefs sought” BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 26 of 28 The Plaintiff per its relief (4) is requesting for the award of damages for trespass against the defendants. Trespass is actionable per se and therefore the party whose land is entered upon may sue even if no actual harm is done and for that matter, the court may award some damages. Per Exhibit Z, it is clear that the Defendants did trespass onto the Plaintiff’s land. Trespass to land occurs when a person directly enters upon another’s land without permission or remains upon the land or places any object upon the land. See the case of Pearson vrs Coleman Bros [1948] 2 KB @ 359; Perera vrs Vandiyar [1953] 1 ALL ER @ 1109. The Plaintiff would be entitled to damages since the Defendants did trespass unto his land. In the case of Ayisi vrs Asibey and Others [1964] GLR @ 695, it was held in holding 5 that: “In assessing damages for trespass, consideration should be taken not only of the extent of the land on which the trespass has been committed by the individual defendants but also the length of time that the plaintiff had been wrongfully kept off the land”. In awarding damages for the trespass, the court would be guided by the above authority about the extent and the length of time. Order 74 Rule 1 (1) of C.I. 47 states: “Subject to this Order the costs of and incidental to proceedings in the Court shall be at the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid”. Order 74 Rule 2 (4) is on assessment of cost by the Court and Rule 2 (4) speaks on what the Court is to regard in awarding cost. In awarding cost in BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 27 of 28 the instant case, the Court has taken into account the amount of expenses, the amount of court fees, and the length of the proceedings. It is clear from the evidence adduced before this Court that on the preponderance of probabilities, the plaintiff has discharged his burden and therefore succeeds on his claims. I hereby enter Judgment for the plaintiff as follows: I) Title is declared to the plaintiff to building plot No. 26, Asamankama on the Offinso stool land. II) Plaintiff is to recover possession of the trespassed area or land which is six feet in measurement on Plot No. 26 Asamankama, Offinso. III) Perpetual injunction is granted by the plaintiff against the defendants, their agents, workmen, assigns, privies etc. from entering the land described above in (1) or having anything to do with the said land the subject matter of this suit. IV) Damages of GH¢10,000.00 is awarded in favour of the plaintiff against the defendants for trespass. V) Cost of GH¢5,000.00 is awarded in favour of the plaintiff against the defendants. (SGD) PAUL ODURO (CIRCUIT COURT JUDGE) COUNSEL: CHRIS BAFFOUR AWUAH ESQ. FOR THE PLAINTIFF DAVID KWARTENG ESQ. FOR THE DEFENDANTS BENJAMIN KWADWO OKYERE VRS OSEI KOFI AMISSA ERIC & ANOR 28 of 28