REV. JOSEPH PADI ODONKOR VRS YOHANNE (MANTSE) (A1/33/2021) [2024] GHACC 304 (11 October 2024)

IN THE CIRCUIT COURT, HELD AT ODUMASE KROBO, IN THE EASTERN REGION, ON THE 11TH DAY OF OCTOBER 2024, BEFORE HIS HONOUR KWESI APPIATSE ABAIDOO SUIT No. A1/33/2021 REV. JOSEPH PADI ODONKOR ) H/No. GW-0333-2642 ) === PLAINTIFF MEDIE NEAR ACCRA ) VRS MR. YOHANNE (ALIAS MATSE) ) MANYA KPONGUNOR ) === DEFENDANT ODUMASE – KROBO ) COUNSEL: GABRIEL ODAME ADUFU FOR THE PLAINTIFF JUDGMENT The plaintiff on the 13th day of October 2020, issued a writ of summons against the defendant seeking the following reliefs; 1. Declaration of ownership to all that that parcel of land at Manya-Kpongunor near Odumase in the Lower Manya District of the Eastern Region of Ghana and bounded in the North-West by a road and land of his siblings; in the South-West by the late Kofi Page 1 of 9 Agbo’s property; on the East by one Prophet Lamptey Emma; on the South-East by Auntie Alice’s property now by the defendant. 2. Genereal Damages for trespass. 3. Recovery of possession of the area encroached. 4. Perpetual injunction restraining the defendant by himself, his heirs, successors, privies, agents and workmen from interfering with the land or laying down to any portion of it. The facts necessitating the issuance of the writ of summons are adequately stated in the accompanying statement of claim. The plaintiff, a retired minster of the Church of Pentecost and a native of Odumase-Krobo but ordinarily lives at Medie near Accra. The defendant is also a native of Odumase-Krobo and lives near the plaintiff’s house at Manya-Kpongunor. The plaintiff alleges to have purchased three plots of land which shares a common boundary with each other. He then developed two of the plots leaving one of them undeveloped for future use. The measurements of the three plots are not the same as he acquired them from three different people. The plaintiff avers that he had the first plot which measures 50ft X 30ft as his share of his father’s land at Manya-Kpongunor. He bought the second plot which measures 50ft X 50ft from one Mr. Arteh Padi in the year 1995, and later bought the third land measuring 80ft X 50ft from the Late Rev. Joseph T. Konotey of Konopiem, Manya Kpongunor in the year 1999. The plaintiff upon the acquisition of the land caused a surveyor to prepare a combined site plan of the three plots for him and planted coconut trees and others at the boundaries of the merged plots. One day upon his return to Manya-Kpongunor he realized that two groups of cement blocks have been packed on the undeveloped portion of his land which he bought from Rev. Joseph Konotey. Upon an enquiry from his mother, his mother told him that she gave the permission for the defendant and another man to put those blocks there temporarily. When the plaintiff mother died the family decided to do the funeral at the undeveloped portion and the other man came and packed his blocks from the land leaving that of the defendant. So he Page 2 of 9 caused the defendant’s blocks to be packed unto the defendant’s land which he the defendant bought from Madam Alice who originally shared boundary with the plaintiff. However, the defendant reported the matter to the police. Thereafter, the plaintiff reported the defendant’s conduct to one Nene Sasraku, the Chie of Manya Kpongunor, to attempt mediation but yielded no result as the defendant failed to participate in same later removed the corner pillars and uprooted all the trees along their common boundary and threw them away. The plaintiff decided to put up a single room on the land to protect it, but the defendant went and threatened the mason and his workers to leave the land and they did. The entire plots acquired by the plaintiff measures 0.20 acres and measures 100ft X 100ft in total. It is on the basis of these that the plaintiff issued a writ of summons against the defendant seeking the reliefs endorsed therein. In arguing the case of the plaintiff, counsel for the plaintiff in his written address made the following submissions. Counsel was of the opinion that the instant case is devoid of legal complexities as the case hinges mainly on whether the area in dispute belongs to the plaintiff or the defendant, as it is a border dispute. Counsel therefore did not analyze the case on point of law, but recounted the facts as given by the plaintiff and an extract from the examination of the court witness, i.e., the surveyor, and concluded that the land in dispute belongs to the plaintiff. Based on this submission, counsel prayed the court to grant the reliefs been sought for by the plaintiff. It is the case of the defendant that, he acquired a parcel of land which shares boundary with that of the plaintiff. The area the subject matter of the dispute forms part of his acquisition from one Henry (alias Cashier) in the year 2006. He then caused to be on the land some quantity of concrete blocks and the plaintiff destroyed it and the defendant reported the plaintiff to the Nuaso Police Station. Later the plaintiff planted some flowers on his boundaries and extended his boundary by planting some of the flowers on the defendant’s portion of land. The defendant removed those flowers planted on his land and the plaintiff reported him to one Nene Sasraku, the Chie of Manya Kpongunor, to attempt mediation but yielded no result as Page 3 of 9 the defendant failed to participate in same. The plaintiff attempted to construct a building at the disputed portion and the defendant stopped the mason of the plaintiff from doing so. To secure the land, the defendant cemented area in litigation so as to prevent the growth of weeds. The defendant therefore prayed that the action of the plaintiff be dismissed. The issues that comes up for determination are rightly set out by counsel for the plaintiff in his written address to the court, namely; 1. Whether or not the area in dispute belongs to the plaintiff or the defendant, and 2. Whether the defendant has trespassed unto the plaintiff’s land by extending his building project unto the plaintiff’s land. In dealing with issue one as stated above, I think it is necessary to comment about the legal opinion of counsel for the plaintiff and the parties themselves concerning the cause of action in the instant case, as they seem not to appreciate the issues at stake very well. The defendant, an ordinary man who has no acquaintance with the law and not represented by counsel stated at paragraph 11 of his witness statement that, “that the dispute is not over the ownership of the land but rather over the boundaries of our lands.” Counsel in his written address to the court at the end of the trial, stated at page 4, under the heading “EVALUATION OF THE EVIDENCE ADDUCED BY THE PARTIES” that, “[t]he case is devoid of legal complexities as the case hinged mainly on whether the area in dispute belongs to the plaintiff or the defendant. It is a border dispute.” The plaintiff stated the size of the land in dispute to be about five (5) feet into his land in paragraph 24 of his witness statement, but same was not pleaded for in the statement of claim. With the greatest of respect to learned counsel I believe he had wrong appreciation of the case. In any litigation where a parcel of land is involved (however small, be it an inch, a foot, a meter, etc.) the ownership of the land comes into play in resolving the issue. It is the ownership of the parcel of land in dispute that gives rise to the litigation or gives the plaintiff a cause of action. A cause of Action is defined in Letang v. Cooper (1964)2 All ER 929 at page 934;(1965) 1 QB 232, Diplock LJ., Stated, “[a] cause of action is simply a factual situation the existence of which Page 4 of 9 entitles one person to obtain from the court a remedy against another person.” Although their Lordships were reasoning about the continuing relevance of distinguishing between trespass and negligence (case), in the face of the law on statute of limitation of actions, it is in all force necessary in determining the meaning of cause of action. This is so especially in our instant case where counsel and the parties were not sure as to the requirements of the law in relation to what to plead for and the consequent remedy to seek for. In an action where a plaintiff is seeking declaration of title to a particular land, the plaintiff must of necessity supply the following information, the size of the land and the boundaries of it. This is especially so where the boundaries of two adjoining plots are in dispute and with varied measurements. Both parties were under a mistaken apprehension that there is no dispute as to ownership of their respective land. If that is so, why seek relief 1, i.e., declaration of title. Substantively, the greater portion of each person’s land is not under dispute. However, the portion which is in dispute when resolved, will increase the successful parties land size, and the vice versa for the losing party. This means that the ownership of the disputed area is in issue, hence relief one been sought for by the plaintiff. However, the court having noticed the anomaly and in the interest of justice ordered for a survey work to be conducted, of which the surveyor placed the size of the area in dispute to be 0.01 acre into the land of the plaintiff with the coordinates as described in the composite plan filed on the 12th April 2022 as, D1, D2 ,P3, P4, D1. See the unanimous decision of the Supreme Court in the case of Osei Yeboah v. Osei Karikari, S.C, Civil Appeal No. J4/28/2020, at page 21, delivered on the 26th July 2023. Now, having settled the issue as to the identity of the land, both parties are claiming ownership of the portion of land as identified by the surveyor. The plaintiff claims he bought the land including the area in dispute from Rev. Joseph T. Konotey sometime in the year 1999, whiles the defendant claims he bought his land including the area in dispute from one Henry, alias Cashier, sometime in the year 2006. Page 5 of 9 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 of necessity 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). In the case Of Majolagbe V. Larbi & Ors. [1959] GLR 190, Ollenu J. (as he then was), stated the principle succinctly at page 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 land at the date when he alleged the defendants entered thereon.” 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 to exist.” Corollary to the statement of the law as made by Ollenu J. in the Majolagbe case (supra), 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, thus; “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.” Page 6 of 9 The second is section 14 which 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 the claim or defence he is asserting.” These sections of NRCD 323 clearly require a defendant who wishes to win his case to lead evidence on issues he desires to be ruled in his favour. The effect of sections 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 realise that the determination cannot be made on nothing. If the defendant desires the determination to be 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 no choice but to evaluate the entire case on the 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 serve the best interest of the litigants, even if he is a defendant.” In our instant case the plaintiff tendered “Exhibit A”, a site plan and attached to it is a receipt of payment dated 20th day of August 1999, in respect of the land containing the land in dispute. Exhibit A, stated the plaintiff’s land size as 0.20 acres and the receipt attached to the site plan placed the measuring at 80ft X 50ft. Page 7 of 9 The defendant traced his root of title by tendering two deed of conveyance, Exhibit 1 and Exhibit 2. Exhibit 1 is executed between Ama Tackie and Gladys Ayerkie Adjei, and exhibit 2 was executed between Gladys Ayerkie Adjei and Ogbordjor Tettey Henry. All these two conveyances states the measurement of the land including the land in dispute to be 100ft X 50ft, as per “Exhibit YA 1”. Exhibit 3 is a proposed building plan of Gladys Ayerkie Adjei. It must be noted that there is no conveyance executed in favour of the defendant by his vendor, but he is relying on the documents as given to him by his vendor. The most relevant of the defendant’s exhibits are exhibits 1 and 2. Now the surveyor drew up a composite site plan in respect of the lands of the parties. He did a good job. Having considered the various plans submitted by the parties, he concluded per the composite plan that the land in dispute forms part of the plaintiff’s land. This is clearly borne out in the cross examination of the surveyor by counsel for the plaintiff: Q. I suggest to you that the area in dispute is part of the plaintiff’s land as shown on the composite plan and the plan on the ground. A. Yes. Given the evidence of the surveyor, and considering all the evidence adduced at the trial by the parties, I find on preponderance of probabilities that the plaintiff’s evidence are reliable and accurate than that of the defendant. I rule that the disputed land forms part of the plaintiff’s acquisition. Accordingly, I order as follows; 1. That the plaintiff is declared the title holder to the land in dispute measuring about 0.01 acres, with the coordinates stated by the surveyor as per the composite site plan dated 11th April 2022. 2. The plaintiff is to recover possession of same. Page 8 of 9 3. General damages of Gh¢5,000.00 is awarded against the defendant. 4. The defendant, his agents, assigns, workmen and any other person(s) deriving title through the defendant are perpetually injuncted from dealing or interfering with the said parcel of land, i.e., 0.01 acre of land. 5. Cost of Gh¢5,000.00 is awarded against the defendant. H/H KWESI APPIATSE ABAIDOO (CIRCUIT COURT, ODUMASE KROBO) Page 9 of 9