DJABENG VRS. ANSAH AND OTHERS (GR/KB/CCT/A1/06/2020) [2024] GHACC 364 (26 August 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON MONDAY THE 26TH DAY OF AUGUST, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE SUIT NO. GR/KB/CCT/A1/06/2020 PATIENCE DJABENG PLAINTIFF VRS KOFI AGYEI ANSAH & 2 OTHERS DEFENDANTS PLAINTIFF ABSENT 1st DEFENDANT ABSENT 2nd & 3rd DEFENDANTS PRESENT ALEX GYAMFI FOR PLAINTIFF ABSENT F.K. QUARTEY FOR DEFENDANTS ABSENT JUDGMENT Plaintiff, per the writ of summons and statement of claim filed on 29th November 2019, claims against defendants the following; a. A declaration of title to all that piece of land described in paragraph 5 of the statement of claim b. An order of this Honourable Court compelling the defendants to deliver to plaintiff the appropriate documentation covering her property c. Recovery of possession d. An order of perpetual injunction restraining the defendants, their agents and privies not to disturb the quiet enjoyment of the plaintiff of her lawfully acquired property e. Cost including solicitors fees f. Any other relief as the court may deem fit Defendants, per their statement of defence filed on 20th December 2019, deny the assertions of plaintiff but have not filed any counterclaim. PLAINTIFFS’ CASE Plaintiff avers that she started life as a baker and through the said trade she made savings to buy two and half plots of land from the 1st defendant at Ashongman Estate, Accra in the year 2003. 1 Plaintiff avers again that 1st defendant sold two separate lands to her but later realized that other people had interest in the said plots and so the 1st defendant gave her another one which is the subject matter of this action. Plaintiff says that she is illiterate and for that matter she left the transaction in the care of the 1st defendant and her then husband. Plaintiff says that after the acquisition, she exercised various acts of possession over the lands including putting sand, stones and pillars at the four corners of the land with caretakers thereon. Plaintiff avers that subsequently, she put up two rooms on the land leaving space for future development. In the course of time, 2nd defendant became pregnant with some complications and had to be taken to Osino for plant medicine treatment in the Central Region by plaintiff. According to plaintiff, whilst she was away, 3rd defendant, the husband of 2nd defendant started development on parts of the land without her consent and told her caretaker not to inform her. Plaintiff says that upon her return and upon a visit she discovered developments on the land and when she asked 3rd defendant, he replied that he wanted to surprise her but she did not agree to it and asked him to stop. Subsequently she travelled abroad and upon her return, saw that 2nd and 3rd defendants continued the development and had also rented her personal room to their friend and kept her personal belongings at the kitchen. It is the case of plaintiff that subsequent to this, the marriage between herself and her husband was dissolved and when the husband was leaving the matrimonial home, she gave the land documents to her, only to find that title to the land had been recorded in the name of her son Baffour Kofi Oduro Jnr and 2nd defendant and not the plaintiff as proposed by her during the purchase. It is further the case of plaintiff that when she became aware of this problem in 2009, she brought the matter to the attention of 1st defendant and requested that the papers covering the land be corrected to reflect her will. Plaintiff avers that to assist the 1st defendant to correct the mistakes on the documentation, she advanced to him upon request GH¢2000.00 and another GH¢2000.00 to Victor, one of his surveyors. Plaintiff also avers that after all these efforts had failed, she caused her solicitors to issue separate demand notices to the 1st and 2nd defendants to compel them to deliver to her the documentation covering the property but has since received no responses. Plaintiff contends that in spite of all the efforts made in the last nine (9) years, the 1st defendant has failed to provide her with the necessary papers covering her property. 2 DEFENDANTS’ CASE Defendants on the other hand, deny the allegations and state that 1st defendant was the vendor of part and donor of part of the subject land which plaintiff and her ex-husband, Mr. Baffour Kofi Oduro jointly bought for the 2nd defendant and her sibling Baffour Kofi Oduro Jnr. After the grant, encroachers were coming on the land for which 1st defendant of his goodwill replaced the one plot of land, which replacement land is the subject matter. However, out of his goodwill, 1st defendant to show good faith added another plot of land free from any consideration, thus making two plots of land. 1st defendant will say that the money for the one plot was paid to him by Mr. Baffour Kofi Oduro in the presence of plaintiff and they together demanded the document of title to be in the names of 2nd defendant and Baffour Kofi Oduro Jnr, her younger brother. After the acquisition, plaintiff and her husband put a caretaker on the land called Maame Osofo Asabea whom she told that her children, 2nd defendant and brother were too young so she should be on the land for them. Defendants will say that it was plaintiff who advised and pressurized 3rd defendant to build saying that rental was not the best for them and that since the land was for his wife, it was for both of them. Defendants will say that Maame Osofo Asabea shall attest to this and also Pastor Ato, who therefore encouraged 3rd defendant to build. After completion, plaintiff who was then living in a rented apartment with both 2nd and 3rd defendants joined them in moving into the subject matter constructed by 3rd defendant. According to 1st defendant, not being a member of family of plaintiff and 2nd and 3rd defendants, he declined to be involved in a transaction he had lawfully concluded years back. Defendants say that plaintiff is not entitled to any relief whatsoever and that having advanced the 2nd defendant and Baffour Kofi Oduro, her children, and having stood by for the defendants to develop, she is estopped by laches and acquiescence. Plaintiff in her reply filed on 29th January, 2021, denies all the averments in defendants’ statement of defence. She thus challenges 1st defendant on the statement that part of the land was a gift. She also challenges the assertion that the land was acquired by her and her ex-husband. According to plaintiff, she asked 2nd and 3rd defendants to come and stay in her two rooms she had built and to take care of her property when their accommodation was destroyed by a rainstorm. Further, before 2nd and 3rd defendants came to the land, she already had a caretaker on the land to protect her title. 3 ISSUES FOR DETERMINATION The issues for determination as adopted by the Court differently constituted on 21st February, 2022, were as follows: i. Whether or not the land in question is the property of the plaintiff? ii. Whether or not the 1st defendant prepared documents covering the land according to the instructions of plaintiff? iii. Whether or not upon becoming aware that documents covering the property did not reflect her instructions, the plaintiff requested and paid the 1st defendant to correct the error? iv. Whether or not the plaintiff requested the 2nd and 3rd defendants to take care of the disputed land for her? v. Whether or not the 2nd and 3rd defendants have trespassed on the plaintiff’s property and have unlawfully occupied same? vi. Whether or not the plaintiff’s action is estopped by laches and acquiescence? vii. Whether or not the plaintiff is entitled to her claims? BURDEN OF PROOF Sections 10 (1) of the Evidence Act, 1975, (Act 323) provides the burden of persuasion as “…the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” Section 11 (1) further defines the burden of producing evidence as “…the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Further, per Section 14 of Act 323, “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”. Thus, the basic principle in the law of evidence is that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim. This has been the guiding principle in deciding civil cases, a recent case to this effect being ARYEE V SHELL GHANA LTD & FRAGA OIL LTD (2017-2020) SCGLR 721. In this regard, per the claim of plaintiff, she has a burden to discharge to adduce sufficient evidence on the issues raised to avoid a ruling against her. The standard of the burden is one of preponderance of probabilities, as provided in 4 sections 11(4) and 12 (1) of Act 323. (See BISI & OTHERS V TABIRI ALIAS ASARE [1987-1988] 1 GLR 360 at page 361. EVIDENCE ADDUCED EVIDENCE OF PLAINTIFF Plaintiff testified based on her witness statement filed on 11th May 2020. Her testimony was a rehash of her claim. She tendered the following documents in evidence; i. Notice of Demand to 1st defendant to deliver land papers as Exhibit ‘A’ ii. Notice of Demand to 2nd defendant to deliver land papers as Exhibit ‘B’ EVIDENCE OF DEFENDANTS All three defendants, in addition to two other witnesses, filed witness statements, dated 22nd May 2020. However, the 1st defendant failed to come to Court to testify in the matter. In effect, it is only the 2nd and 3rd defendants’ evidence that has been adopted by the Court in addition to that of the witnesses. No documents were tendered in evidence. ASSESSMENT OF THE EVIDENCE AND THE LAW Plaintiff’s case is that the land in dispute is her self-acquired property and not that of the 2nd defendant and brother as claimed by defendants. Plaintiff’s first relief on the writ is a declaration of title to all that piece of land described in paragraph 6 of the statement of claim. Meanwhile, paragraph 6 of the statement of claim provides as follows; “The Plaintiff avers that she is illiterate and for that matter she left the transaction in the care of the 1st defendant and her then husband.” Paragraph 5, however, provides that “The Plaintiff avers again that the 2nd defendant sold 2 separate lands to her but later realized that other people had interest in the said plots and so the 2nd defendant gave her another one which is the subject matter of this action.” It is worthy to note that the subject matter of the dispute is not described anywhere in plaintiff’s statement of claim. In fact, the land is not described anywhere in the entire proceedings. The position of the law as stated in ANANE AND OTHERS V DONKOR AND ANOTHER (CONSOLIDATED) [1965] GLR 188 is that; 5 “Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgment for declaration of title to land should operate as res judicata to prevent the parties relitigating the same issues in respect of the identical subject-matter, but it cannot so operate unless the subject-matter thereof is clearly identified. For these reasons a claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identity of the land to which he claims title with the land the subject-matter of the suit.” The above position was reiterated in the case of AGYEI OSAE & OTHERS V ADJEIFIO & OTHERS [2007-2008] SCGLR 499 where it is stated that for a person to succeed in his action for declaration of title, recovery of possession and an injunction, he must establish by positive evidence the identity of his land which is the subject matter of the action, else his action shall fail for lack of certainty. Plaintiff’s reliefs in this case include a declaration of title to land, recovery of possession and an order for perpetual injunction. Ordinarily, such reliefs should only be considered when the property is properly described, in view of the reasons cited above. However, in this particular case, the parties are ad idem about the property in dispute, which has been identified by them and developments made thereon. I therefore consider it worthwhile to address the issues adopted by the Court. The issues as adopted by the Court will be largely discussed in groups and not in the chronological order as adopted. i. The first set of issues to be discussed is as follows; Whether or not the 1st defendant prepared documents covering the land according to the instructions of plaintiff? Whether or not upon becoming aware that documents covering the property did not reflect her instructions, the plaintiff requested and paid the 1st defendant to correct the error? 6 According to the plaintiff, she gave instructions to the 1st defendant to prepare the documents in her name but he failed to do so and upon becoming aware that documents covering the property did not reflect her instructions, she requested and paid the 1st defendant to correct the error. I have also noted plaintiff’s statement that subsequent to developments on the land by 2nd and 3rd defendants, the marriage between herself and her husband was dissolved and when the husband was leaving the matrimonial home, he gave the land documents to her, only to find that title to the land had been recorded in the name of her son Baffour Kofi Oduro Jnr and 2nd defendant and not the plaintiff as proposed by her during the purchase. It is interesting to note that plaintiff never presented the said document to the Court. I have noted that plaintiff in her evidence stated that many of her papers covering the land and other documents got lost when 2nd and 3rd defendants rented her room to a friend. However, I have also noted that specific reference was not made to the loss of this particular document. Thus, it may have been instructive if plaintiff had provided the land documents which were not lost. The only documents presented by plaintiff are demand notices dated 4th September, 2019 and 30th September, 2019, addressed to 1st and 2nd defendants respectively to deliver land papers. Unfortunately, these documents have not been helpful to the Court. Interestingly, the witnesses who testified for the defendants corroborated the evidence of defendants that at the time of the giving of instructions, 1st defendant was to prepare the land document in the name of 2nd defendant and brother. On the totality of the evidence then, I find that plaintiff has not been able to prove that the document was wrongly prepared in the name of 2nd defendant and brother. Also, plaintiff has not been able to prove to the Court that when she became aware of the supposed error, she requested and paid the 1st defendant to correct the error. ii. The second set of issues is; Whether or not the plaintiff requested the 2nd and 3rd defendants to take care of the disputed land for her? Whether or not the 2nd and 3rd defendants have trespassed on the plaintiff’s property and have unlawfully occupied same? Plaintiff’s evidence is that upon her return to the land and realizing that the 3rd defendant was developing the property without her consent, she asked him to stop. However, defendants testified that it was the plaintiff herself who asked 7 the 2nd and 3rd defendants to develop the land. This testimony served as a challenge to plaintiff’s assertion that they developed the land without her consent. Plaintiff needed to prove that her version was more probable, which she failed to do. It may be helpful to reproduce the cross-examination of plaintiff in this regard as follows; “Q:It was at your own instance that D3 developed the structures on the land. A: I built the two rooms on the land and still had blocks and sand on the land. They became displaced because their roof got carried away in a storm. I advised my daughter (D2) to let us move into the two rooms so I pay the occupant to move out. Their furniture was long and D3 asked to use my blocks to construct a hall and I agreed. After that construction, that building was taller than the initial two so he asked to raise those two as well and I agreed. Q: After D3 had used his own resources to finish the building on this land, you, D2 and D3 moved into the structure? A: I had rooms and gave them one of the rooms and also occupied the other.” Whatever may be the case and the extent of the agreement, plaintiff consented to developments that were undertaken on the land. I therefore find that plaintiff did not put 2nd and 3rd defendants on the land to take care of same for her but rather encouraged them to develop same. I also find that the 2nd and 3rd defendants have not unlawfully occupied the land in dispute because it is the plaintiff herself who asked them to develop it. This being the case, they could not have trespassed on the land since trespass amounts to entry to a person’s land or property without permission. Thus, I find that 2nd and 3rd defendants have not trespassed on the land in dispute. iii. Whether or not the plaintiff’s action is estopped by laches and acquiescence? The elements necessary to establish acquiescence as stated in KORLEY V BRUCE [1962] 1 GLR 7 and applied in recent cases are that; (1) The person who enters upon the other person's land did so upon the honest, though erroneous belief that he had right to it; 8 (2) He must have expended some considerable sum of money on or in respect of the land upon the faith of his mistaken belief; (3) The owner of the land must know all the time that he had right in the land which is inconsistent with the erroneous right claimed by the other; (4) The owner must know of the mistaken belief of the other person of his right; (5) The owner must by his silence or otherwise have fraudulently encouraged the other party to spend his money to develop the land, and had not called his attention to his error. If any one of these five essentials is proved not to exist, then, there is no acquiescence. I do not find the above five elements established in this case, based on the earlier issues discussed. Accordingly, I do not find the need to discuss same. iv. Whether or not the land in question is the property of the plaintiff? Whether or not the plaintiff is entitled to her claims? The burden of proof in this case has always rested on plaintiff and it is worthy to note that “For, however credible a witness may be, his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute proof.’ (See T.K. SERBEH & CO LTD V MENSAH (2005-2006) SCGLR 341 at 360-361). Plaintiff has not been able to prove to this Court that the land in dispute belongs to her since her evidence was just a repetition of her averments. In effect, plaintiff is not entitled to her claims. As stated in JASS COMPANY LIMITED V APPAU AND ANOTHER [2009] SCGLR 265, if in a situation, the defendant has not counterclaimed, and the plaintiff has not been able to make out a sufficient case against the defendant, then his claims will be dismissed. Accordingly, plaintiff’s claim is dismissed. I make no order as to costs. Her Honour Mawusi Bedjrah Circuit Judge 9