ATIKAAKUM V FOBI (C1/08/2024) [2025] GHACC 40 (16 January 2025)

IN THE CIRCUIT COURT, OFFINSO, ASHANTI HELD ON THURSDAY, THE 16TH DAY OF JANUARY 2025 BEFORE HIS HONOUR PAUL ODURO ESQ SUIT NO.: C1/08/2024 USMAN ATIKAAKUM PLAINTIFF OF DOME, OFFINSO VRS YAW FOBI DEFENDANT OF DOME, OFFINSO J U D G M E N T The plaintiff per his amended writ of summons and statement of claim filed on 8th day of December 2023, claims the following reliefs against the defendant: a) A declaration of title to that parcel of land described in paragraphs (3) and four (4) of the amended statement of claim. b) Recovery of possession of the said land. c) General damages for trespass. d) An order of perpetual injunction to restrain the defendant, his servants, agents, assigns, workmen etc. from interfering with the disputed piece of land. The defendant responded per an amended statement of defence and counterclaimed against the plaintiff as follows: USMAN ATIKAAKUM VRS THOMAS APPIAH 1 of 15 a) A declaration of title to Plot Number 31 Block IV measuring 90 x 100 situate, lying and being at Asamankama Residential Area off Kumasi- Takyima Road. b) Recovery of possession of Plot Number 31 Block IV measuring 90 x 100 situate, lying and being at Asamankama Residential Area off Kumasi-Techiman Road. c) General Damages for trespass d) A perpetual injunction restraining the plaintiff, his agents, assigns, privies, workmen or anybody claiming title through him from dealing or interfering with Plot Number 31 IV at Asamankama Residential Area off Kumasi – Techiman Road. PLAINTIFF’S CASE The Plaintiff by his amended statement of claim says that in 2010, he acquired an interest in building Plot No. 27 Block X11 located at Asamankama in the Offinso Municipality in the Ashanti Region of the Republic of Ghana. The plaintiff stated that the land in dispute is bounded in the north by river Mma Sofoa, in the west by Plot No. 26, in the east by the Techiman road and in the south by Plot No. 31. The plaintiff contended that he was issued a certificate of allocation in August 2010 by the Offinso Traditional Council headed by the late Offinsohene, Nana Wiafe Akenten III. The plaintiff said he subsequently registered the allocation note with the Lands Commission in 2019. According to the Plaintiff, he started developing the land in 2010. In 2017, the Defendant began laying adverse claim to his plot of land and has been harassing and preventing him from developing the land in dispute USMAN ATIKAAKUM VRS THOMAS APPIAH 2 of 15 using intimidation tactics such as arrest by the police. It is the case of the Plaintiff that the Defendant has sent building materials to his land to develop part of the plot. DEFENDANT’S CASE The defendant’s case is that he acquired Plot Number 31 Block IV measuring 90 x 100 lying at Asamankama, a suburb of Offinso in 2009 from one Akwasi Afari and has since owned the said plot for the past fourteen (14) years without any adverse claim or possession from anyone. According to the Defendant, his grantor Akwasi Afari acquired the plot in 1999 from the then chief of Asamankama. The defendant stated that when he purchased the plot from Akwasi Afari, he caused the chief of Asamankama to change the name on the allocation note from Akwasi Afari to his name Thomas Appiah at a cost. The defendant contended that he owns plot number 31 but not plot number 27. According to the defendant, he shares a common boundary with the plaintiff and it is the plaintiff who has trespassed unto his land. The defendant stated that he has enjoyed quiet possession of plot number 31 for the past 41 years until 2017 when the plaintiff trespassed unto his plot and claimed that portion to be his. The defendant contended that he has never claimed plot number 27 as his land and as such the dispute between him and the plaintiff is a boundary dispute one that can be resolved with the help of a surveyor. USMAN ATIKAAKUM VRS THOMAS APPIAH 3 of 15 ISSUES FOR DETERMINATION After the close of pleadings, the defendant filed Applications for Directions on 21st December 2023 and therein raised the following issues for determination by the Court. The said issues are as follows: 1) Whether or not the defendant is the owner or has title to Plot 31 Block IV measuring 90 x 100 lying at Asamankama Residential Area off Kumasi – Takyiman Road. 2) Whether or not the plaintiff has trespassed unto some portions of Plot 31 Block IV which is the bonafide property of the defendant. 3) Whether or not the defendant is entitled to his counterclaim. On 11th January 2024, the Plaintiff also filed the following Additional Issues: 1)Whether or not the plaintiff is the owner of Plot No. 27 Block XIII located at Asamankama in the Offinso Municipality. 2)Whether or not the defendant/counterclaimant has trespassed unto Plot 27. 3)Whether or not the plaintiff is entitled to his claim. 4)Any other issue (s) arising out of the pleadings. USMAN ATIKAAKUM VRS THOMAS APPIAH 4 of 15 Upon studying the oral and documentary evidence on record, I am of the view that the issues germane to this case are issue 2 of the defendant’s Application for Directions and issue 2 of the plaintiff’s Additional Issues. On the authority of the court to set down what issues are relevant in a case, I shall make reference to the case of FIDELITY INVESTMENT ADVISORS v. ABOAGYE ATTA (2003-2005) 2 GLR 188, CA, in which it was held that what issues were relevant and essential was a matter of law entirely for the judge to determine. See also DOMFE v. ADU (1986) 1 GLR 653, CA per Abban JA (as he then was) in which he stated that although several issues were set down in the Summons for Directions for trial, most of them could hardly be described as relevant. To his mind, which issues were relevant were those that could dispose of the case one way or the other. In FATAL v. WOLLEY [2013-2014] 2 SCGLR 1070 @ 1076 Georgina Wood CJ (as she then was) posited as follows; “…Admittedly, it is indeed sound basic learning that courts are not tied down to only the issues agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an issue is found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issues. USMAN ATIKAAKUM VRS THOMAS APPIAH 5 of 15 Having carefully considered the issues filed by both parties, the Court has identified the following essential and pertinent issues as germane to resolving this matter: 1) Whether or not the plaintiff has trespassed unto the defendant’s Plot No. 31 Block IV. 2) Whether or not the defendant has trespassed unto the Plaintiff’s Plot No. 27. BURDEN OF PROOF AND PERSUASION A land dispute of this nature is a civil litigation and like all civil cases, the standard of proof is one on the balance of probabilities or preponderance of probabilities and the plaintiff bears the legal burden of proof throughout the case. Thus, the plaintiff bears the burden of persuasion which is “the obligation of a party to establish the requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court”. See section 10 (1) of the Evidence Act, 1975 (Act 323). The Plaintiff also has the burden of producing evidence which is “the obligation of a party to introduce sufficient evidence to avoid a ruling against him in this issue. See Section 11(1) of Act 323. The burden of persuasion in all civil cases is proof by preponderances of probabilities.”. Proof by a preponderance of probabilities is the degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that USMAN ATIKAAKUM VRS THOMAS APPIAH 6 of 15 the existence of a fact is more probable than its nonexistence. See Section 12 (2) of Act 323. The succinct dictum on the burden of proof by the Supreme Court in ACKAH VRS. PERGAH TRANSPORT LTD [2010] SCGLR 736 per Adinyira JSC bears reiteration as follows: “It is a basic principle of the law on 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 testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real 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 than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.” His Lordship Anin-Yeboah, JSC (as he then was) in ACQUIE V TIJANI (2012) 2 SCGLR 1252 at 1258 also stated as follows: “In any case, the law does not require a party to prove his case with absolute certainty in civil proceedings. A court must, however, satisfy itself that the evidence led on a particular issue is proved in accordance with the requisite standard required by law. In Hawkins v Powells Tillery Steam Coal Co Ltd (1911) KB 988 at 996, Buckley, L.J said: USMAN ATIKAAKUM VRS THOMAS APPIAH 7 of 15 ‘When it is said that a person who comes to the Court for relief must prove his case, it is never meant that he must prove it with absolute certainty. No fact can be proved in this world with absolute certainty. All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. That may be done either by direct evidence or by inference from facts. But the matter must not be left to rest in surmise, conjecture or guess.” Since the defendant has counterclaimed, that counterclaim is a separate action from the claim in which case the defendant also bears the burden of proving his counterclaim on the preponderance of probabilities. In the case of SASU BAMFO VRS. SIMTIM [2012] 1 SCGLR 136 at 155 Rose Owusu JSC held as follows: “A counter-claim is a different action in which the Defendant, as a counter claimant is the Plaintiff and the Plaintiff in the action becomes a Defendant. In the instant case, where both parties are seeking a declaration of title, recovery of possession and perpetual injunction in respect of the disputed piece of land, each of them bore the burden of proof to prove, on a balance of probabilities, that he was entitled to the reliefs claimed. Thus section 11 (1) of the Evidence Act,1975 (NRCD 323), enjoins the defendant in its capacity as plaintiff in the counterclaim to introduce sufficient evidence to avoid a ruling on the issue against him. In ARYEH & AKAKPO VRS AYAA IDDRISU [2010] SCGLR 891 at 901 Brobbey JSC said: USMAN ATIKAAKUM VRS THOMAS APPIAH 8 of 15 “A party who counter-claims bears the burden of proving his counterclaim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent’s case.” ANALYSIS OF THE ISSUES. I now proceed to resolve the issues together which are Whether or not the plaintiff has trespassed onto the defendant’s Plot No. 31 Block IV and whether or not the defendant has trespassed onto the plaintiff’s Plot No. 27. In the instant case, the plaintiff claims he owns Plot No. 27 Block XIII situate at Asamankama in the Offinso municipality and that the defendant has trespassed unto same. The defendant denied the plaintiff’s assertion that he has trespassed unto his land and also counterclaimed against the plaintiff that he has rather trespassed unto his plot 31 Block IV Measuring 90 x 100 lying at Asamankama Residential Area off Kumasi–Takyiman road. It is instructive to note that there is no issue with the title of the respective parties' lands. What is in contention is who has trespassed on the other person’s plot of land. To assist the court in resolving the dispute between the parties, on 1st February 2024, the Court ordered the appointment of the Regional Surveyor from the Lands Commission, Kumasi to survey the disputed land to determine which one of the parties has trespassed unto the other’s plot. The court also ordered the parties to file their survey instructions. On 22nd USMAN ATIKAAKUM VRS THOMAS APPIAH 9 of 15 October 2024, the court expert surveyor, Frimpong Manso tendered the survey report in evidence without objection as Exhibit CW2. Exhibit CW2 revealed that the plaintiff trespassed unto the defendant’s plot by 105 feet by 20 feet. These are some of the extracts when the court expert was being cross-examined: Q. You claim that I have entered into a portion of the defendant’s land. Apart from where I have put up my building, there is no more space for me to move my house to. A. There is a space on the north of the plaintiff’s land but unfortunately, there is a gutter running through the plaintiff’s plot on the ground. Q. The space you are talking about is now Plot No. 23. Is that correct? A. No, my Lord because there is no plot number 23A Block XII on the approved local plan provided by the Physical Planning Department of the Municipal Assembly, Offinso and which has been approved by the Spatial Planning Committee of the same municipality. Q. How much is the size of the space you claim I should have moved my building to? A. It is 125 feet by 81 and that is supposed to be the plaintiff’s land which is plot number 27 Block XIII. Q. If I have trespassed unto the defendant’s land, it was not my fault but rather it is due to the people who granted me the said plot. A. Very well. It is worthy to note that when the defendant cross-examined the court expert, he posited that indeed the plaintiff is the one who trespassed unto USMAN ATIKAAKUM VRS THOMAS APPIAH 10 of 15 defendant’s plot. This is what ensued under cross-examination of the court expert: Q. On your composite plan, you labelled my land with a green mark/colour. A. That is correct. Q. The Plaintiff’s land has also been marked/labelled with a blue colour. A. That is correct. Q. If you study the composite plan and your labelling, you will see that the plaintiff has trespassed unto my land leaving a very small portion. Is that not the case? A. Yes, my Lord. Q. How many feet has the plaintiff trespassed unto my land? A. 105 feet by 20 feet. It can therefore be gleaned from the above answers given by the court expert that indeed it is the plaintiff who has trespassed unto the defendant’s land. Again, it became clear that the plaintiff did not even know the exact measurement of his plot when he was being cross-examined by the defendant. This is what transpired when the plaintiff was under cross- examination: Q. I am putting it to you that the officers of Town and Country Planning have inspected the disputed land and taken measurements on three occasions and their findings are that you have trespassed unto my land. A. That is not correct. USMAN ATIKAAKUM VRS THOMAS APPIAH 11 of 15 Q. What is the size of your land? A. I cannot tell the exact measurement but I was told that my land measures 80 by 100 feet. Q. I put it to you that you do not know the size of your plot and that is why you encroached unto someone’s land. A. Because I do not have the technical knowledge of lands, I always invite the Town and Country Planning Officers to show my pillars before I undertake any activity on same. From the above evidence, it seems that the plaintiff does not know the measurement of his own plot. He went further and stated he was told that his land measures 80 by 100 feet. A party who wants a declaration of title to land has a duty to establish the identity of the land. In Tetteh vrs Hayford [2012] 1 SCGLR 417, Dotse JSC (as he then was) held at page 426 as follows: “The position of the law, following from the decision in Fofie v Wusu [1992- 93] GBR 877 is that it is the plaintiff who bears the burden of establishing the identity of the land she is laying claim to. Failure to prove this identity is fatal to a claim for declaration of title”. On the evidence, the plaintiff failed to prove the identity of the land claimed and this is fatal to his claim for declaration of title. It is well settled in law that in general, expert evidence does not bind the court, but the law is equally clear that a trial court must give good reasons USMAN ATIKAAKUM VRS THOMAS APPIAH 12 of 15 why the expert evidence is to be rejected. See: Tetteh v. Hayford [2012] 1 SCGLR 417 @ 423-423 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 evidence before the court indicates that the plaintiff has trespassed unto the defendant’s land. I have no reason to disbelieve the evidence of the court expert. Since the evidence before the court indicates that the plaintiff’s building as appeared in Exhibit CW2 is on land that has not been given to the plaintiff, the plaintiff cannot succeed. The defendant per its relief (c) is requesting for the award of damages for trespass against the plaintiff. 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 CW2, it is clear that the plaintiff did trespass unto the defendant’s land. Trespass to land occurs when a person directly enters upon another’s land without permission or remains upon the USMAN ATIKAAKUM VRS THOMAS APPIAH 13 of 15 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 defendant would be entitled to damages since the plaintiff 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 to 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 the instant case, the Court has taken into account the amount of expenses, 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 Defendant has discharged his burden and therefore succeeds on his counterclaims. I hereby enter Judgment for the Defendant on his counterclaim as follows: USMAN ATIKAAKUM VRS THOMAS APPIAH 14 of 15 a) Title is declared to the defendant to Plot Number 31 Block IV measuring 90 x 100 situate, lying and being at Asamankama Residential Area off Kumasi – Takyima Road. b) Defendant is to recover possession of the above land described in (a) with immediate effect. c) Damages of GHc 10, 000.00 is awarded to the defendant against the plaintiff for trespass. d) Perpetual injunction is granted the defendant against the plaintiff, his agents, workmen, assigns, privies etc. from entering the land described above in (a) or having anything to do with the said land the subject matter of this suit. e) Cost of GH¢5,000.00 is awarded to the defendant against the plaintiff. (SGD) PAUL ODURO (CIRCUIT COURT JUDGE) PARTIES PRESENT USMAN ATIKAAKUM VRS THOMAS APPIAH 15 of 15