Agyepong v Aquaye (A1/62/2021) [2024] GHACC 404 (2 December 2024)

INTHE CIRCUITCOURT, HELD ATODUMASE KROBO,INTHE EASTERNREGION, ONTHE 2NDDAY OF DECEMBER2024,BEFORE HISHONOURKWESIAPPIATSE ABAIDOO SUITNo.A1/62/2021 AGYEPONGAKUACHENILLE ) H/No. D89/1 ) === PLAINTIFF ADJIKPO –SOMANYA ) VRS JOSEPHAQUAYE ) ADJIKPO -SOMANYA ) === DEFENDANT JUDGMENT The plaintiff on the 10th day of June 2021, issued a writ of summons against the defendant claiming thefollowing reliefs; 1. Declaration of title to a piece or parcel of land measuring about 0.18 acres and situate at Adjikpo, suburb of Somanya, and bounded by survey pillars numbering SGE B2371/19/1, SGE B2371/19/2, SGE B2371/19/3, and SGE B2371/19/2. 2. Recoveryofpossession ofthe said land. 3. Generaldamagesfortrespass. 4. Perpetualinjunction restraining the defendant fromdealing withtheland. 5. Cost. The facts upon which the suit was brought against the defendant are adequately stated in the statement of claim. The plaintiff a caterer, purchased the land in dispute measuring about 0.18 acres from Narh Ogbordjor Agbo family of Adjikpo, Somanya as evidence by “Exhibit A”, a deed executed on the 29th day of October 2019. The defendant who is laying Page1of6 claim to the same parcel of land has erected a wooden structure with trips of sand and stonesdeposited onthe land, and using thepropertyforchurch activity. The plaintiff upon realizing the activities of the defendant, reported the event toPWD and her grantor, who warned the defendant to stop developing the land. The defendant defiled the warning and all attempts at settling the matter has proved futile hence the institutionoftheinstant actionseeking theabove mentioned reliefs. It is the case of the defendant that he purchased the land in the instant case from one Mr. Evans Kwaku Tomene on the 12th day ofJuly 2016, and obtained areceipt for the payment. Upon the purchase of the land he went into occupation of same by putting thereon a hundred pieces of blocks, trip of sand and stones. The defendant tendered exhibit A1 and exhibit A2, a conveyance and a receipt of payment, respectively. The defendant argues that he was surprised when the plaintiff approached him claiming ownership of the land. Based onthese avermentsthe defendant prayedthe court todismissthe plaintiff’saction. The issues fordeterminationare; 1. Whether or not the plaintiff has title to the piece or parcel of land measuring about 0.18 acres situate at Adjikpo, Somanya, and bounded by survey pillars numbering SGE B2371/19/1, SGE B2371/19/2, SGE B2371/19/3, and SGE B2371/19/2. 2. Whetherornot theplaintiff is entitled to recoverpossession ofsame. 3. Whether or not the defendant is to be injuncted from dealing with the land in dispute. 4. Whether or not the plaintiff is entitled to recover general damages from the defendant fortrespassing onthe land in dispute. It is important to state at this point that the resolution of issues 2 to issues 4 will depend uponthe resolutionofissue 1,asthey areancillary innature. Now, in the instant case where the parties are ad idem as to the boundaries of the land, but are of opposing view or interest as to the ownership of the land in dispute, there is a duty cast on the parties to prove their ownership of the piece or parcel of land by preponderance ofprobabilities. Page2of6 This obviously situate the instant litigation in the realm of trespass. It is trite learning that, in as much as in civil litigations the standard of proof is proof by preponderance of probabilities, the parties in a land litigation must as ofnecessity prove their respective title to the land in order to succeed. Failure of which the defaulting party’s action must fail (especially where the defaulting party is the plaintiff). The plaintiff only proves his case when he leads admissible evidence in proof of his assertion that he owns or has a superior title tothe land in dispute. In the case Of Majolagbe V. Larbi & Ors. [1959] GLR 190, Ollenu J. (as he then was) stated theprinciple succinctly atpage 191,thus; “The law as to trespass is that if a person proves merely that he is in possession of land, that is sufficient to enable him to maintain trespass against anyone who cannot show a better title. Upon that [p.192] principle, granting for the moment that the case is trespass and nothing more, the onus is upon the plaintiff to prove that he was in possession of the landat the datewhen he alleged thedefendants enteredthereon.” Ollenu J., continued his exposition of the law on the standard of proof required in land litigation, thus; “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true)is certain toexist.” Corollary to the statement of the law as made by Ollenu J (as he then was) in the Majolagbe case, the Supreme Court in the case of Abgosu And Others v. Kotey And Others [2003-2005] 1GLR 685, explained sections 11 (1) and 14 of the Evidence Act (NRCD 323), Brobbey JSC, in the case of Abgosu And Others v. Kotey And Others [2003-2005] 1GLR 685, at pages 731 and 732, and I wish to quote it in estenso for our understanding of theburden ofproof, thus; Page3of6 “11. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” The second is section14which reads: “14. Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to theclaim ordefence he is asserting.” These sections of NRCD 323 clearly require a defendant who wishes to win his case to leadevidence on issues he desires to be ruled in his favour.The effect ofsections 11(1)and 14 and similar sections in NRCD 323 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination tobe made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with nochoice but toevaluate the entire case onthe basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on the record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant. In the light of the statutory provisions, literally relying on the common law principle that the defendant does not need to prove any defence and therefore does not need to lead any evidence may not always servethe best interest ofthe litigants, evenif he isadefendant.” It is therefore important for us to examine the evidence adduced by the parties in proof of their respective cases. The plaintiff in proof of her case, stated that he bought the property from the Narh Ogbordor family of Adjikpo, Somanya, represented by the family head, Page4of6 Nene Narh Ogbordjor, on the 12th day of October 2019, and obtained Exhibit A, a conveyance to that effect. This piece of evidence by the plaintiff was corroborated by a member of her grantor’s family, Ebenezer Ogbordjor, who is one of the witnesses to the executionofExhibit A. On the other hand, the defendant in his evidence evinced that he acquired the land from one Evans Kwaku Tomene on the 2nd day of July 2016, and upon acquisition of the land, he entered into possession of same by putting a trip of stones, hundred pieces of blocks and erected a wooden structure on it (which he is using as a church). The defendant tendered Exhibit A1, in proof of his title to the land. A perusal of Exhibit A1, presented by the defendant reveals that the deed is executed between one Isaac Teye Fio and Emmanuel Addae, and not the defendant’s supposed grantor. The defendant did not call on any of the parties who executed exhibit A1 to testify on his behalf. Neither did he call any of the witnesses to that deed to testify. He in fact did not call on any witness to testify on his behalf whether in respect of exhibit A1 or Exhibit A2, which is a receipt of purchase ofabuilding plot. This case being a civil case, the court must of necessity decide on it by looking at the evidence so adduced by the parties on preponderance of probabilities. Having examined the evidence of the plaintiff and the defendant, I am of the firm and unshaken conviction that the case ofthe plaintiff is moreprobable thanthat ofthe defendant, as she did not just only lead oral evidence in proof of her case, but tendered exhibit A and called a key witness ofhergrantorto testify onherbehalf. Accordingly,I herebyenterjudgment in favourofthe plaintiff asfollows; 1. The plaintiff is declared title holder to the land in dispute, and as such he is to recoverpossessionofsame. 2. General damages of GH¢5,000.00 is awarded in favour of the plaintiff against the defendant fortrespassing onthe land in dispute. 3. The defendant, his agents, assigns and other persons deriving authority from the defendant areinjuncted fromdealing withthe land in dispute. 4. CostofGH¢3,000.00is awarded against the defendant. Page5of6 H/HKWESIAPPIATSE ABAIDOO (CIRCUITCOURT,ODUMASE KROBO) Page6of6