AMPOFO AND ANOTHER VRS AMPONSAH (A1/19/2022) [2024] GHACC 257 (27 March 2024)

IN THE DISTRICT COURT HELD AT AGOGO ON THE 27/3/2024 BEFORE HER WORSHIP CYNTHIA NUEKIE BLAGOGEE (MRS) DISTRICT MAGISTRATE SUIT NO: A1/19/2022 1. KOFI AGYEI AMPOFO PLAINTIFF 2. MADAM STELLA OFOSUAA VRS MARTHA AMPONSAH DEFENDANT PARTIES UNREPRESENTED JUDGEMENT In the plaintiffs amended writ of summons they seek the following releifs: 1. Declaration of title to a fraction of building plot number 43 block Q situate at Akojaso on Agogo stool lands which share common boundary with plot numbers 40, 42, 44 and a road. 2. Recovery of possession. 3. Perpetual injunction and 4. Recovery of an amount of GH350.00 for the destruction caused by defendant to the 1st plaintiff’s foundation. FIRST PLAINTIFF’S CASE: The first plaintiff described himself as an aluminum fabricator and lives in Agogo. He said the second plaintiff is his grantor and a native of Agogo. According to the 1st plaintiff, his grantor was given the subject land and she sold same to him upon the demised of her son who she had gifted same to in the year 2013. He averred that the plot measures 120 by 100 feet and that the plot was number 43 block K. 1 However, he was quick to add that after re-zoning it has become plot 43 block ‘Q’. He also noted that the disputed plot lies opposite the defendant’s property number 42 block ‘Q’. Further, it is the 1st plaintiff’s case that the pillars erected on his land are still in place as evidence to his claim. The 1st plaintiff argued that he has built his six bedroom house within the limit and confine of his plot. And that he has his man hole and bore hole at a portion of his land which the defendant is claiming as hers. 1st plaintiff tendered in evidence document such as a site plan, transfer of building plot and some receipts as exhibit A, B and C series. THE DEFENDANT’S CASE It is the defendant’s case that she lives in Agogo and a trader. She intimated to the court that in the year 1995, her sister by name Juliana Boateng Agyei acquired plot number 42 block ‘K’ from the late Akwamuhene also know as Nana Boamah of Agogo, she added that her sister entrusted the said land to her care. She tendered the documents covering the land as evidence. Comprising of the grant of plot for building; a site paln and receipts and marked as exhibits 1,2 and 3 respectively. According to the defendant, she visited the land in 2021 and observed that the plaintiff had built almost on the boundary of her sister’s land, thus, disregarding the required ten (10) feet between the parties. Again, she noted that the 1st plaintiff had built his house facing the direction of her plot. But more disturbing is that the 1st plaintiff had dug his man hole and bore hole on her plot of land she said. The defendant’s witness confirmed her story. ISSUE: Whether or not the 1st plaintiff, has trespassed onto the defendant’s plot of land. 2 THE LAW AND ANALYSIS: This is a civil matter and by law as set out in section 11(1), 11 (4) and 12 of the EVIDENCE ACT, 1975 (NRCD 323) the onus rests on the plaintiff’s to prove their case in order for the court to rule in their favour. S. 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. 11 (4) “ In other circumstance the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” S. 12 “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 12(2) “Preponderance of the probabilities” means the degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” Regarding the above provisions, the Supreme Court held in the case of KLAH V PHOENIX INSURANCE CO LTD [2012] SC GLR 1139 quoting MAJOLAGBE V LARBI [1959] GLR 192, “ Where a party makes an averment capable of proof in some positive way eg by producing documents, description of things, reference to toehr facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true.” 3 (See also ACKAH V PERGAH TRANSPORT LTD AND OTHERS [2010] SC GLR 736). In this case, the 1st plaintiff is seeking a declaration of plot of land. He intimated the area was re-zoned. The defendant averred that the 1st plaintiff has trespassed onto her land and had even constructed his bore and man hole on a portion of her land. Now, both of them relied on their documents granting them the plots. Thus, the court invited the Town and Country Officer at the Municipal Assembly to assist the court with their master plan to ascertain the accurate demarcations of the two plots. Now, I in the company of the Town and Country Officers visited the locus. And having taken measurements of both land it turned out that the 1st plaintiff had built facing the direction of the defendant’s plot of land. A situation which is not permitted. In the sense that, each of the parties had a road infront of his or her plot of land. And each was to access his/her property via the road lying infront of his/her land. And this had been the contention of the defendant throughout the trial. Thus, per the master plan produced by the Town and Country Officers, the 1st plaintiff is found to have wrongly positioned his building. He was thus, ordered to reposition his building for peace to prevail. It is in the light of the above findings that I dismiss the 1st plaintiff’s case. Each party is to bear their own cost considering the fact that they are neighbors. H/W CYNTHIA NUEKIE BLAGOGEE 27/3/2024 MAGISTRATE 4 5