CUDJOE VRS. MAWULI AND ANOTHER (A1/3/2016) [2024] GHACC 374 (22 March 2024)

IN THE TDC DISTRICT COURT HELD AT TEMA ON FRIDAY THE 22ND DAY OF MARCH 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE SUIT NO. A1/3/2016 CAROL CUDJOE aka CAROL MAMMATTA SUING PER HER ---------- PLAINTIFF LAWFUL ATTORNEY GABRIEL SACKEY H/NO. 1, ASEDA LANE SAKI-BEDIAKO, TEMA VRS 1. MR. MAWULI COMMUNITY 22, TEMA ---------- DEFENDANTS 2. BOYE AFIENYA PARTIES: PLAINTIFF’S LAWFUL ATTORNEY PRESENT FIRST DEFENDANT PRESENT SECOND DEFENDANT ABSENT COUNSEL: NO LEGAL REPRESENTATION FOR PLAINTIFF NO LEGAL REPRESENTATION FOR FIRST DEFENDANT Carol Cudjoe v. Mr. Mawuli & Boye Page 1 of 27 EMMANUEL KYEI YANKSON, ESQ. HOLDING THE BRIEF OF ERIC ASUMAN-ADU, ESQ. FOR SECOND DEFENDANT PRESENT JUDGMENT The Plaintiff herein caused a Writ of Summons to be issued in this Court against the Defendants and subsequently amended the Statement of Claim with leave of the Court claiming the following reliefs: 1. A declaration of title and ownership to all that piece and parcel of land as described in the Statement of Claim. 2. Recovery of possession of all that land with an area of 0.32 acres situate and being at Afienya. 3. Damages for trespass to land. 4. Perpetual injunction to restrain the Defendant and his assigns from interfering with the said land and to demolish anything raised on it. 5. Compulsory damages for inconveniences cause to Plaintiff and cost. A Statement of Defence and Counterclaim was filed for the first Defendant by his lawyer who then represented him. The first Defendant stated that the Plaintiff is not entitled to any of her claims and further counterclaimed as follows: a) i. A declaration of title to all that piece of land in dispute described in paragraph 3 of the Plaintiff’s Statement of Claim. ii. An order for recovery of possession of the said land by first Defendant. Carol Cudjoe v. Mr. Mawuli & Boye Page 2 of 27 iii. Perpetual injunction restraining the Plaintiff, his agents, assigns, heirs and all persons deriving title through Plaintiff from interfering with said land. iv. A declaration that any legal title purportedly obtained from the Lands Commission by Plaintiff with regards to the disputed land is void as same is of no effect as same was procured by fraud or in error of the fact that Plaintiff's vendor had no title to land to pass same to Plaintiff. v. General damages. vi. Cost, including legal fees. And in the alternative: b. A declaration that first Defendant was an innocent purchaser for value without notice that second Defendant was not the owner of the land in dispute as second Defendant at all material times represented himself to the first Defendant as the owner of the land. c. An order directed at the second Defendant to: i) Pay to first Defendant the purchase price of the land ii) Pay compensation to first Defendant in the form of general damages taking into consideration the investment made by him in putting up the building on the land coupled with the inconvenience caused to first Defendant. d. Cost, including legal fees. The second Defendant also filed a Statement of Defence and Counterclaim and stated that the Plaintiff is not entitled to any of her claims and also counterclaimed as follows: Carol Cudjoe v. Mr. Mawuli & Boye Page 3 of 27 a. i. A declaration that the second Defendant was the beneficial owner of all that piece and parcel of land in dispute before he sold same to first Defendant in 2011. ii. A declaration that the purported sale of the land in dispute by Eric Botchway to Tema Millennium Housing Association to Plaintiff are all null and void ab initio as the late Eric Botchway had no legal or equitable right to pass on same. iii. A declaration that first Defendant is presently the lawful owner of all that piece and parcel of land in dispute having purchased and paid for same to second Defendant who before the sale to first Defendant was a beneficial owner. b. Cost THE CASE OF THE PLAINTIFF In her amended Statement of Claim pursuant to leave the Plaintiff avers that in the year 2012 she bought two plots of land from the Tema Millennium Housing Association with Eric Botchway as the head and lawful representative of Eric Botchway Family of Ablekuma-Afienya with the consent and concurrence of the principal members of the said family. She continued that her parcel of land with an area of 0.23 acres situate and being at Afienya and particularly described in the schedule as ALL THAT piece and parcel of land situate, lying and being at Afienya and 1) on North/West by plot No.89 measuring 101.36 feet more or less. 2) On the North/East by proposed road measuring 140.17 more or less 3) On South/East by proposed road measuring 101.36 feet more or less and lastly on the South/West by plot Nos. 90 & 92 measuring 140.79 feet more or less which piece or parcel of land is more particularly delineated on the site plan thereon. Carol Cudjoe v. Mr. Mawuli & Boye Page 4 of 27 The Plaintiff further avers that after the purchase of the land, title documents were duly executed for her by the lessees with final registration processes done also with the Lands Commission via Lands Valuation Board. According to the Plaintiff, she has since 2012 being in undisputed possession of the said land until recently in the year 2015 she had information that someone had trespassed onto the said land. That the said trespasser has since been doing construction works on the land, so a report was made to the chief and after investigations the first Defendant was located as the one doing the construction whiles second Defendant was also mentioned as the one who sold the land to him. She continued that the chief instructed both parties to produce their documents covering the purchase of the land which she did, but Defendants failed to do so and instead are speedily continuing with work on the land. That all efforts to make the trespassers stop work on the land proved futile as it has come to her attention that an undisclosed member of the family is behind the first Defendant who trespasses onto the land. She further states that the first Defendant is presently putting up a building on the portion of her land to her detriment and will not yield vacant possession/ownership to her unless compelled by the orders of this Honourable Court. The Plaintiff claims as per the reliefs endorsed on the Writ of Summons. THE CASE OF THE FIRST DEFENDANT It is the case of the first Defendant that he is rather the lawful owner of all that piece and parcel of land in question. That in February 2011, he purchased one and half plot of land from one Henry Botwe (popularly known as Boye) who is the second Defendant in this Carol Cudjoe v. Mr. Mawuli & Boye Page 5 of 27 suit. That the said one and half plot of land is what Plaintiff has described in paragraph 3 of her Statement of Claim as 0.32 acres with a further description in the said paragraph. That at the time he purchased the land it was a bare land without any physical indication that another person was in possession of the said piece of land. That he paid a purchase price of GH¢12,500.00 to the second Defendant for the said parcel of land. That after the purchase, he entered the land which was bare and unencumbered in 2011 and put one trip of sand and one trip of stone on the land. He avers further that in the year 2012 he entered the land one day and found to his surprise that someone had used the one trip of stone which he purchased and put on the land to construct a fence wall around the entire property. He avers further that he reported the incident to his vendo, the second Defendant who assured him that he had not sold his land to anybody except him and therefore told him to continue to deal with the land as he pleases as he had paid him for the said land. He avers that he started the foundation of his 2 rooms with a porch building on his land in 2012 and was confronted by one Sackey (Plaintiff’s attorney in this present suit) who claimed to be the owner of the land. He further claimed to have purchased the land from the chief of the area by name Nene Eyimu III. That he called his vendor, the second Defendant, in the presence of the Plaintiff’s attorney who asked to talk to Plaintiff’s attorney on the phone. That the second Defendant and Plaintiff’s attorney who were speaking on top of their voices argued on the telephone after which second Defendant told him to continue with his project. He avers further that he and Plaintiff’s attorney exchanged telephone numbers to communicate in order to get to the logical conclusion of the matter. That in September 2013, he travelled to Nigeria and in 2014 came back to Ghana and visited the land to find to his surprise that workers were on the property and saw that the wall whose foundation was built using his stones was seriously under construction and had been raised about 4 blocks up. He reported to his vendor, second Defendant who came to the site and called Plaintiff’s attorney on the telephone Carol Cudjoe v. Mr. Mawuli & Boye Page 6 of 27 and had another heated argument with Plaintiff’s attorney in his presence on the telephone and told Plaintiff’s attorney to order his workers to stop working. That they thereafter agreed to meet at the palace of the chief (Nene Tete Eyimu III) to clarify the matter as Plaintiff’s attorney was insistent that he purchased the land from Nene Tete Eyimu III. That on the agreed meeting day, he in the presence of second Defendant called Plaintiff’s attorney who told him that, he Plaintiff’s attorney had earlier gone to the chief’s palace which was the agreed venue but could no longer wait as it was about to rain. That he never heard from Plaintiff’s attorney again and neither he nor Plaintiff’s attorney continued with their various constructions on the land till he travelled again to Nigeria in the latter part of 2014. He continued that after staying in Nigeria for about 9 months, he came back to Ghana in 2015 and found that there had been further constructions on the land considering the state he left the land. That upon his return to Ghana in 2015, he went to Nene Eyimu III with his vendor (second Defendant) to verify the truth of Plaintiff’s attorney’s assertions that he purchased the land from the said Nene Tete Eyimu III. That the said chief in the presence of him and second Defendant told them that it is never correct that he sold the parcel of land he purchased from second Defendant to Plaintiff’s attorney. That he rather sold a parcel of land to one Mr. Oppong from whom Plaintiff’s attorney purchased a parcel of land, which is completely different from the land he purchased from second Defendant. That the said chief confirmed that second Defendant was indeed the owner of the land in dispute. That the chief in the presence of him and second Defendant ordered him to go and continue with his building construction and further ordered second Defendant to go and prepare a signpost and put same on the land with the inscription “KEEP OFF” by Nene Tete of Abrekuma, with telephone number 0244472172. According to the first Defendant he complied with the orders and actually erected the signpost as ordered by the chief which remains on the land till present date. That he only started the building construction again after the Carol Cudjoe v. Mr. Mawuli & Boye Page 7 of 27 signpost was erected pursuant to an order from the chief Nene Tete Eyimu III. That after the construction was started again by him, Plaintiff’s attorney came on the site to question him on why he started the construction again. He responded by insisting that the land was for him and directed Plaintiff’s attorney to call the telephone number of Nene Tete which was on the signpost erected on the land in dispute. That he never saw or heard from Plaintiff’s attorney regarding the land till he was served with this current Writ of Summons and Statement of Claim from the Court. That his vendor the second Defendant assured him that he was taking steps to process the appropriate legal documents in his name to perfect his ownership of the land. He further contends that whatever documents were procured by Plaintiff in relation to the land was procured either in error of the fact that second Defendant was the true original owner of the land in dispute before the sale to him or that Plaintiff fraudulently procured same. He contends further that the mere registration of the land in Plaintiff’s name does not in any way confer title on Plaintiff as Plaintiff at all times material from 2012 knew that the land did not belong to Plaintiff to warrant her to register same. He contends that Plaintiff took advantage of the unregistered state of the land to fraudulently register same when Plaintiff knew that he, the true owner was already in physical possession of the land and Plaintiff should therefore have been put on notice of same even before Plaintiff’s allegedly purchased the land in 2012. He further contends that Plaintiff's legal title to the land is void and of no effect insofar as he became the equitable owner of the land in 2011 when he paid for same and went into possession in 2011 before the alleged purchase by Plaintiff in 2012. He concluded that he is the lawful owner of that piece of land having purchased same from second Defendant who before him was the lawful owner of the land. That Plaintiff is not entitled to any of the reliefs she seeks per the endorsement on the writ. THE CASE OF THE SECOND DEFENDANT Carol Cudjoe v. Mr. Mawuli & Boye Page 8 of 27 The case of the second Defendant is that he was the beneficial owner of the land in dispute having inherited same from his late father and sold same to first Defendant in 2011. That the land in dispute has been walled by Plaintiff whilst first Defendant constructed an uncompleted building on same. That the size of the land second Defendant sold to first Defendant which has been walled by Plaintiff and being described by Plaintiff as 0.32 acres is rather 0.16 acres (one and half plot) and not 0.32 acres as claimed by Plaintiff. That he became the beneficial owner of the land in dispute after the death of his father in 2002 who until his death was the lawful owner of the land and was in physical possession by farming on the land before his demise in 2002. That until he sold the land in dispute to first Defendant in 2011, he was in physical possession of the land and farming on same till he stopped farming briefly when he decided to sell the land and eventually sold the land to the first Defendant in 2011. That the land in dispute is part of a bigger parcel of land inherited by 13 children of his father including himself. That the big parcel of land inherited by him and his 12 other siblings is close to ECG high tension structures in Afienya. That the farming activities engaged in by his siblings and himself included okro, tomatoes, pepper and melon among others. That presently however portions of the bigger parcel of land inherited by the 13 children have been sold and the farming activities are no longer vigorously ongoing on the land like it used to be between the years 2002 and 2010. That in 2011 when first Defendant bought the land from him, he immediately took physical possession of the land by putting a trip each of sand and stone on the land. He further avers that in 2012 after first Defendant had started the construction of the building, he called him complaining that another person (who is Plaintiff’s attorney in this case) had come to use the stone he put on his land to begin the foundation of a fence wall around the land. That he spoke with Plaintiff’s attorney over the telephone and warned Plaintiff’s attorney to leave the first Defendant’s land as same was properly sold to first Defendant by him who before the sale was the lawful beneficial Carol Cudjoe v. Mr. Mawuli & Boye Page 9 of 27 owner of the land in dispute. That following this he assured second Defendant to carry on with his work without worry as the land was lawfully his before he sold same to first Defendant. That between 2013 and 2015, the first Defendant had been travelling in and out of the country to his knowledge. That sometime in 2015, when first Defendant returned to the country, he and first Defendant went to the chief’s palace following a meeting scheduled with Plaintiff’s attorney to go and resolve the dispute, but Plaintiff’s attorney failed to turn up for the said meeting. That at the said meeting which Plaintiff's attorney refused to turn up, the chief Nene Tete Eyimu III told him and the first Defendant that he had rather sold a parcel of land to one Mr. Oppong from whom Plaintiff purchased the land and that the said land is completely different from the land in dispute. That the chief instructed first Defendant at the said meeting to go and prepare a signpost with inscription “KEEP OFF” and put his name and the telephone number on the signpost and put same on the land in dispute to ward off Plaintiff’s attorney. That the first Defendant complied and put up the signpost on the disputed land. According to the second Defendant both himself and his late father never registered the land with the lands commission even though they were at all times material in physical possession of the land before the sale to first Defendant and hence the Plaintiff simply took advantage of the unregistered state of the land to register same. He avers further that the vendor of Plaintiff’s vendor (Eric Botchway) was his uncle and has been dead since 2012. That assuming without admitting that his late uncle, Eric Botchway indeed sold the land to the Plaintiff’s vendor before his death, then it is his contention that his late uncle did so without any legal or equitable right whatsoever as the land was not his property. He further contends that both Plaintiff’s vendor (Tema Millennium Housing Association) and the vendor of Plaintiff’s vendor (the late Eric Botchway) had no valid legal or equitable right to pass on same to Plaintiff. He concluded that the Plaintiff is not entitled to any of the reliefs she seeks in this suit. Carol Cudjoe v. Mr. Mawuli & Boye Page 10 of 27 At the end of the hearing, a written address was filed on behalf of the second Defendant by his lawyer on 7th June 2023; and the Court has duly taken notice of the same. LEGAL ISSUES Based on the pleadings and the evidence led, the Court set down the following issues for determination. 1. Whether or not the land in dispute was rightly acquired by the Tema Millennium Housing Association and subsequently sold to the Plaintiff. 2. Whether or not the second Defendant was the beneficial owner of the land in dispute before he sold same to the first Defendant in 2011. 3. Whether or not the first Defendant was in possession of the land in dispute before the Plaintiff went unto the land to develop same. 4. Whether or not the Plaintiff is entitled to the reliefs endorsed on the Writ of Summons. 5. Whether or not the Defendants are entitled to their respective reliefs contained in their respective counterclaims. BURDEN AND STANDARD OF PROOF Carol Cudjoe v. Mr. Mawuli & Boye Page 11 of 27 It is trite that in a civil matter where a party sues for declaration of title to land, that party assumes the burden to prove on a preponderance of probabilities ownership of the land in dispute. See: Adwubeng v. Domfeh [1996-97] SCGLR 660 In Re Koranteng (Decd); Addo v. Koranteng & Others [2005-2006] SCGLR 1039. In the case of Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah & 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S.C. (Unreported), Appau JSC held: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - See sections 11 (4) and 12 of the Evidence Act, 1975 [NRCD 323]”. Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: “In other circumstances, 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”. Section 12(1) of the Evidence Act, 1975 (NRCD 323), provides that: “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” In the case of Fosua & Adu-Poku v. Adu-Poku Mensah-Ansah [2009] SCGLR 310, the Supreme Court held that where the Plaintiff is able to produce sufficient evidence to prove his case then the onus shifts to the Defendant to lead evidence that would tilt the Carol Cudjoe v. Mr. Mawuli & Boye Page 12 of 27 balance of probabilities in his favour. This principle is found in Section 14 of the Evidence Act, supra, which provides as follows: “Except as otherwise provided by law, unless 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 that party is asserting.” In the case of Malm v. Lutterodt (1963) 1 GLR 1, SC it was held as follows: “The Defendant in an action for declaration of title assumes a legal burden of proof only when he counterclaims for declaration of title in his favour.” As the Defendants have a counterclaim for declaration of title among other reliefs, the burden of proof lies equally on them to prove their case. Therefore, each party is to prove their case on a balance of probabilities as stipulated by sections 11 and 12 of the Evidence Act, 1975 (NRCD 323). ANALYSIS I shall now analyse and evaluate the evidence adduced by the parties in support of their respective cases within the context of their corresponding burdens and the prescribed standard of proof as provided under the Evidence Act, 1975 (NRCD 323) to resolve the above issues. 1. Whether or not the land in dispute was rightly acquired by the Tema Millennium Housing Association and subsequently sold to the Plaintiff. Carol Cudjoe v. Mr. Mawuli & Boye Page 13 of 27 The Plaintiff’s attorney testified that the Plaintiff acquired the land in dispute at Afienya from Tema Millennium Housing Association. That he has been in possession since 2012. In support of this claim, he tendered exhibit ‘A’ which is an indenture between Tema Millennium Housing Association and Carol Cudjoe (Plaintiff herein) dated 27th January 2012; exhibit ‘B’ – Land Title Registry (Schedule of instruments lodged) dated 30th May 2012; exhibit ‘C’ – Lands Commission – Lands Valuation Division Bill for services receipt bearing the Plaintiff’s name dated 15th May 2012; exhibit ‘D’ series - pictures of land dated 13th December 2016; exhibit E - Indenture between Eric Botchway, head and lawful representative of the Eric Botchway family and the Tema Millennium Housing Association (lease) dated 25th February 2011. From the above evidence on record the Plaintiff’s vendor, Tema Millennium Housing Association rightly acquired the land in dispute claimed by the Plaintiff from the Eric Botchway Family represented by Eric Botchway on 25th February 2011 with a lease executed by the said Eric Botchway having Nene Tetteh Eyum III as a signed witness. Subsequently the said land was sold to the Plaintiff by Tema Millennium Housing Association on 27th January 2012. It is therefore not in doubt from the evidence on record that Plaintiff’s vendor did indeed acquire the land in dispute on 25th February 2011. Consequently I find from the evidence on record that the subject matter land was properly acquired by the Tema Millennium Housing Association and subsequently sold to the Plaintiff. I therefore answer issue one in the affirmative. 2. Whether or not the second Defendant was the beneficial owner of the land in dispute before he sold same to the first Defendant in 2011. The second Defendant testified that the land belongs to his father and he was working with his father on the land before he passed. That he became the beneficial owner after Carol Cudjoe v. Mr. Mawuli & Boye Page 14 of 27 the death of his father as the land in dispute was given to him and his siblings by his father. That they used to farm okro, watermelon and chili pepper on the land. That after his father died, they have been farming on the land until their uncle who was to cater for them called Nene Tetteh Ayum advised them to sell part of the land to do some development. He also testified that after his father died, his uncle sold ten acres of the land to one Mr. Oppong but later realised that, that formed part of where he used to farm so he reported to his uncle Nene Tetteh Ayum III. That Eric Botchway sold the land to Tema Millennium Teachers Association and the agent was Mr. Oppong. That the land is 10 acres, beside that 10 acres he has his land but his land was added to theirs and it was sold. The second Defendant claims that his father Kojo Botchway was a member of the Eric Botchway family and was allocated some portions of the family land. That his father owned the parcel of land prior to his acquisition of same. The second Defendant did not adduce sufficient evidence to establish the assertions he made in his pleadings. He only repeated his averments when he was afforded the opportunity to lead evidence in support of his averments. He did not tender any documentary evidence neither did he adduce any cogent oral evidence to substantiate the assertion that the land claimed by the Plaintiff belonged to his father. He did not call any of his family members to corroborate his assertion that the land in dispute belonged to his father who was a member of the Botchway family where he helped his father to farm on same and upon his father’s death same was given to him and his siblings. He did not even call any of his said siblings to corroborate his assertions which he repeated in his evidence. There is no evidence on record that the land in dispute was the second Defendant’s father’s personal property which the second Defendant became beneficial owner upon his father’s death. Carol Cudjoe v. Mr. Mawuli & Boye Page 15 of 27 For the second Defendant to have established the fact that he was the beneficial owner of the land in question before he sold same to the first Defendant, he must have called at least one of the family members or the said Nene Tetteh Ayum III who he mentioned as a material witness to corroborate that assertion since the same Nene Tetteh Ayum signed on the lease between the Plaintiff’s vendor and Eric Botchway as a witness for the said Eric Botchway representing the said family. The second Defendant did not call any of his family members who he claims are witnesses that the land in dispute belonged to him as the beneficial owner, to testify in support of his averment. His failure to do so means he failed to establish that as a fact. I am not unmindful of the law that corroboration is generally not a legal requirement to prove a fact and that the evidence of a single witness can be relied upon in proof of a case. Reference is made to the case of Ghana Ports and Harbours Authority & Anor.v. Nova Complex Ltd (2007-08) SCGLR 806. Nonetheless it must be noted that, where the evidence of a person would help resolve the matter one way or the other, it is important that the said person appears in Court to testify. In the case of J. K. Kpogo v. Fiadzorgbe [2015] 89 G.M.J. 52 S.C., it was held that the failure of a party to call his material witness could have disastrous effect on his case. It is trite law that when a party alleges in the affirmative and his allegation is denied by his opponent, the burden of proof falls on him to lead sufficient evidence to establish that allegation. Given that the second Defendant failed to lead cogent evidence to prove his assertion that the land in dispute belonged to him as the beneficial owner before he sold same to the first Defendant, and in the face of vehement denial by the Plaintiff, I do hereby dismiss the said assertion by the second Defendant for lack of satisfactory evidence. Carol Cudjoe v. Mr. Mawuli & Boye Page 16 of 27 In the absence of sufficient evidence to establish that second Defendant was the beneficial owner of the land in dispute before he sold same to the first Defendant, I hereby find that, on a balance of probabilities it has not been sufficiently shown that the land in question belonged to the second Defendant before he sold same to the first Defendant. I therefore answer issue two in the negative. 3. Whether or not the first Defendant was in possession of the land in dispute before the Plaintiff went unto the land to develop same. The first Defendant averred that in February 2011, he purchased one and half plot of land from one Henry Botwe (popularly known as Boye) who is the second Defendant herein. That the said one and half plot of land is what Plaintiff has described in paragraph 3 of her Statement of Claim as 0.32 acres with a further description in the said paragraph. That at the time he purchased the land it was a bare land without any physical indication that another person was in possession of the said piece of land. According to the first Defendant in his testimony before this Court, he bought one and half plots from the second Defendant called Henry Botchway. That the first day he entered the land, it was an old farmland, and the second Defendant advised him after he made part payment to put one trip of sand and one trip of stone to protect the land. A year later, he entered the land and realized that his trip of stone had been used to construct a fence wall foundation on the piece of land. So, he went to the second Defendant to tell him what he saw on the land and asked him why. That second Defendant said he was not aware of what he was saying so they should all go to the site together. They went to the site and second Defendant saw what he had told him so second Carol Cudjoe v. Mr. Mawuli & Boye Page 17 of 27 Defendant said he will do enquiry about who worked on the piece of land. That he went there 3 months later and saw that a block had been made and the work still continued. The Plaintiff’s attorney also testified that the Plaintiff bought the land in dispute from Tema Millennium Housing Association and tendered documents covering the land in dispute as earlier stated in this judgment. Exhibit ‘A’ which is dated 27th January 2012 is when the Plaintiff acquired the land in dispute from Tema Millennium Housing Association and exhibit ‘E’ dated 25th February 2011 is when Tema Millennium Housing Association acquired the said land from Eric Botchway representing the Eric Botchway Family of Ablekuma – Afienya. Therefore from the evidence on record the land in dispute was sold to the Plaintiff’s vendor Tema Millennium Housing Association in February 2011 with a lease dated 25th February 2011. The first Defendant did not specify which date in February 2011 he also acquired the land in dispute from the second Defendant neither did he tender any document evidencing the said sale between him and the second Defendant. During cross examination of Plaintiff’s attorney by counsel for first Defendant, he admitted that he saw sand the first time he entered the land. That it was less than one trip. That when he entered the land for the first time he saw sand and gravel but he did not know who it belonged to. He however disagreed that the sand and gravel belonged to the first Defendant. From the evidence on record, the Plaintiff admitted under cross examination that he saw sand and gravels on the land in dispute when he first entered the land but disagreed that same belonged to the first Defendant. There is no sufficient evidence before the Court that the said sand and gravels belonged to the first Defendant. Assuming that the sand and gravels belonged to the first Defendant, there is a finding above by this Court in this judgment that there is no adequate evidence on record to substantiate the averment that Carol Cudjoe v. Mr. Mawuli & Boye Page 18 of 27 the second Defendant was the beneficial owner of the land in dispute, therefore any sale of the land in dispute by the second Defendant to the first Defendant cannot be said to be a valid sale as the second Defendant’s capacity as the beneficial owner to have sold the land to the first Defendant could not be established before this Court. This is because the fact that a person is a family member does not automatically mean that he owns specific land for the family when there is no cogent evidence to substantiate that claim and also when the head and lawful representative of the said family had sold that land to another person. Additionally there is no cogent evidence on record that the said land was the property of the second Defendant’s father for him to have inherited same from his late father. Even though the Plaintiff admitted there were sand and gravels on the land in dispute, he further disagreed that same belonged to the first Defendant. There is no sufficient evidence on record that the said sand and gravel belonged to the first Defendant, therefore that alone cannot be substantial evidence to sustain the claim of possession by the first Defendant. Moreover if someone is in possession and the lawfully acquired owner comes, it can affect the one in possession. In the case of Osei (subsituted by Gilard) v. Korang [2013-2014] 1 SCGLR 221 the Supreme Court held that: “It is the law that possession is prima facie evidence of the right to ownership and it being good against the whole world, except the true owner, he cannot be ousted from it” (Emphasis provided). Carol Cudjoe v. Mr. Mawuli & Boye Page 19 of 27 From the evidence on record and the above analysis, there is not satisfactory evidence on record to support the finding that the first Defendant was in possession of the land in dispute before the Plaintiff went on to same. On the issue of the description of the property in dispute as raised by Counsel for the second Defendant in his written address, one of the cardinal principles of land litigation is that a Plaintiff who comes to Court over a piece or parcel of land seeking declaration of title or an injunction should adequately describe the property over which he is suing. Same principle applies to a Defendant/Counterclaimant seeking a declaration of title or an injunction. It is the duty of such parties to identify clearly to the Court the area of land to which their respective claims relate. In Anane v. Donkor (1965) GLR 188, the Supreme Court held as follows: “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 claimed with the land the subject-matter of his suit.” The Supreme Court in the case of Nortey v. African Institute of Journalism and Communication [2013-2014] 1 SCGLR 703 has further held that such a description does not have to be mathematically accurate. A similar pronouncement was made by the Supreme Court in Okine and Another v. Amoah VI [2013-2014] 2 SCGLR 1358 and in addition, the Supreme Court further stated that the principle enunciated in Anane v. Donkor [supra] should not be applied slavishly. Carol Cudjoe v. Mr. Mawuli & Boye Page 20 of 27 4. Whether or not the Plaintiff is entitled to the reliefs endorsed on the Writ of Summons. In an action for declaration of title to land, the person claiming ownership ought to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation as established in Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466. The Plaintiff adduced evidence to prove the root of title between the lessor (Eric Botchway) and the lessee (Tema Millennium Housing Association) marked as exhibit ‘E’. Plaintiff again proved her mode of acquisition which is the sub- lease between Plaintiff herself as sub-lessee and Tema Millennium Housing Association as sub-lessor marked as exhibit ‘A’. The evidence on record also indicates that the Plaintiff exercised acts of possession over the subject matter land. The Plaintiff’s attorney therefore discharged the obligation on the Plaintiff to prove her case on preponderance of probabilities. From the above findings of the Court, I consider from the entirety of the evidence before this Court that on a preponderance of probabilities, the Plaintiff’s attorney has been able to adduce substantial credible evidence for a declaratory judgment with its ancillary reliefs in the Plaintiff’s favour save the relief of damages for trespass to land. In the case of Mensah v. Peniana (1972) 1 GLR 337, the Court of Appeal speaking through Azu Crabbe J.S.C. held as follows: “Where the Plaintiff seeks damages for trespass and is met with a claim to the ownership of the trespassed area by the Defendant, and the Defendant fails to establish his own title to the area, then the Plaintiff is entitled to succeed in his claim, provided he satisfactorily proves possession. [Emphasis added] Carol Cudjoe v. Mr. Mawuli & Boye Page 21 of 27 The Plaintiff’s reliefs included damages for trespass to land among others, however the Plaintiff will not be entitled to damages for trespass because there is not sufficient evidence on record to establish that at the time the first Defendant trespassed onto the land when he purchased same from the second Defendant who could not establish his capacity to sell the said land, the Plaintiff was in possession. It has also not been established before this court that the Plaintiff’s vendor who acquired the said land on 25th February 2011 was in possession when the first Defendant trespassed onto the disputed land since the second Defendant who sold the said property to the first Defendant could not establish his capacity to sell same to him in 2011. The eminent jurist S. A. Brobbey in his book Practice and Procedure in the Trial Courts and Tribunals of Ghana, second edition page 161, paragraph 342 stated: “Where there is in existence a written document and oral evidence on the same transaction, the rule is that the Court should consider both the oral and documentary evidence, but to lean favourably towards the documentary evidence, especially where the documentary evidence is authentic while the oral evidence is conflicting.” See the cases of Hayfron v Egyir [1984-86] 1 GLR 682 and Agyei Osae v Adjeifio [2007 – 2008] SCGLR 499 at 502/503 There is no evidence on record to establish that the lease and sub-lease tendered by the Plaintiff’s attorney are not genuine. From the above analysis and considering the entire evidence before this Court, I find that the Plaintiff is partly entitled to the reliefs endorsed on the Writ of Summons. This is because the Plaintiff’s attorney on the balance of probabilities has been able to partly prove the claims of the Plaintiff against the Defendants. The Plaintiff will be entitled to the recovery of possession since the second Defendant could not prove that the land in Carol Cudjoe v. Mr. Mawuli & Boye Page 22 of 27 dispute belonged to his late father where he became the beneficial owner after his father’s death; however the Plaintiff’s attorney has been able to prove on the balance of probabilities that the Plaintiff’s vendor acquired the said land from the same family of the second Defendant. Accordingly, I hereby find that the Plaintiff is entitled to a declaratory judgment, recovery of possession and an order of perpetual injunction against the Defendants with respect to the land in dispute. 5. Whether or not the Defendants are entitled to their respective reliefs contained in their respective counterclaims. This being a land case, with Defendants’ counterclaim being substantially for declaration of title, the Defendants must succeed on the strength of their own case. Therefore, there was an obligation on the Defendants to adduce credible evidence to establish their respective cases. See: Yorkwa v. Duah [1992–93] 1 GBR 279 CA, Mamudu Wangara v. Gyato Wangara [1982-83] GLR 639. The first Defendant pleaded fraud against the Plaintiff but he did not particularize the said fraud and to further lead evidence to substantiate same. He only mentioned fraud and never went beyond the assertion of fraud. Under section 13 (1) of NRCD 323, the burden of persuasion as to the commission of a crime by a party which is directly in issue requires proof beyond reasonable doubt. In Fenuku & Another v. John Teye and Another [2001-02] SCGLR 985, it was held that the law regarding proof of forgery or any allegation of a criminal act in a civil trial was Carol Cudjoe v. Mr. Mawuli & Boye Page 23 of 27 governed by section 13(1) of the Evidence Decree, 1975 (NRCD 323) which provided that the burden of persuasion required proof beyond reasonable doubt. The first Defendant did assert that the Plaintiff fraudulently registered the land but he did not plead the particulars of fraud neither did he lead any evidence at all on the said allegation of fraud. The said allegation is consequently dismissed. The Court of Appeal held in the case of Fordjour v. Kaakyire [2015] 85 GMJ 61 through His Lordship Ayebi J.A. as follows: “It has to be noted that the Court determines the merits of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings”. The second Defendant in his Statement of Defence stated that neither his father nor himself ever registered the disputed land at Lands Commission. However, he claimed his father exercised possession over the land by farming on it. That when he became the beneficial owner after the demise of his father, he also exercised possession through farming. No evidence whatsoever was provided to establish his claim. Under cross- examination first Defendant indicated that the chief Nene Tetteh Ayum III who was one of the principal elders refused to sign a document given to him by the second Defendant. He could therefore not prove his title to the land. On the basis of nemo dat principle, the second Defendant could not transfer title to first Defendant in a land he has no title to. In the case of Sagoe v. Social Security and National Insurance Trust [2012] 2 SCGLR 1093, the Supreme Court held as follows: “On the evidence, it would appear that the Plaintiffs had entered the land of the Defendant wrongfully and it being so, the Plaintiffs had no right to sue in trespass against the real owner, the Defendant, whose entry onto the land was thus justified. In the absence of proof of their title to the areas in respect of which they had sued, the possession which the Carol Cudjoe v. Mr. Mawuli & Boye Page 24 of 27 Plaintiffs relied on in law, must give way to proof of a better title to the land, a defence which, on all the evidence, the Defendant has established at the trial. Proof of a better title by the Defendant had rendered the Plaintiffs’ encroachers and deprived them of any protection that would ordinarily attach to those who were in lawful possession...” Applying the above authority to the instant case, proof of a better title to the land in dispute established by the Plaintiff at the trial has rendered the first Defendant encroacher and deprived him of any protection that would usually attach to whatever possession he claims to have exercised on the disputed land. From the evidence on record and analysis above, I am unable to find that Defendants as Plaintiffs to their respective counterclaims have led sufficient evidence for a declaration of title in the first Defendant’s favour and the grant of the other reliefs in their counterclaim. Therefore, the respective counterclaims of both Defendants hereby fail; save that the first Defendant is entitled to part of his alternative reliefs against the second Defendant. This is because the second Defendant did not file any defence to the part of the counterclaim of the first Defendant which was against him. Therefore the first Defendant and second Defendant did not join any issue on the said counterclaim of the first Defendant against the second Defendant. It is trite that in such instance the first Defendant need not adduce any evidence in proof of same since the second Defendant did not file any defence on that neither did he deny those claims. In Fori v. Ayirebi [1966] GLR 627, the Supreme Court held that: “When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment.” In the alternative reliefs of the first Defendant against the second Defendant, being a declaratory relief, there is no sufficient evidence on record to establish that the first Carol Cudjoe v. Mr. Mawuli & Boye Page 25 of 27 Defendant was an innocent purchaser for value without notice that the second Defendant was not the owner of the land in dispute therefore the Court is unable to grant such declaratory relief. However the second Defendant testified that he sold the land in dispute to the first Defendant at a price of GH¢12,500.00. From the evidence on record and in view of the findings above, which includes the finding that the second Defendant was not the beneficial owner of the land in dispute at the time he sold same to the first Defendant, the second Defendant shall pay to the first Defendant the purchase price of the said land which from the evidence is GH¢12,500.00. Flowing from that, the first Defendant shall be entitled to general damages against the second Defendant. CONCLUSION On the basis of the entire evidence before this Court and the findings above and in the absence of sufficient evidence by the Defendants to be entitled to their said reliefs, I hereby dismiss the reliefs contained in the counterclaim of the Defendants save part of the first Defendant’s alternative reliefs as explained above; and I find on the preponderance of probability that the Plaintiff’s attorney was able to partly discharge the legal burden placed on the Plaintiff. In the circumstances, I hereby enter judgment for the Plaintiff as against the Defendants as follows: 1. I hereby grant a declaration of title and ownership in favour of the Plaintiff to all that piece and parcel of land as described in the Statement of Claim. 2. Recovery of possession of all that land with an area of 0.32 acres situate and being at Afienya from the Defendants. Carol Cudjoe v. Mr. Mawuli & Boye Page 26 of 27 3. I hereby grant an order of perpetual injunction restraining the Defendants and their assigns from interfering with the said land. 4. Having considered the duration of the trial and the complexities of the issues involved as well as the conduct of the parties and their lawyers during the proceedings, I award costs of GH¢6,000.00 in favour of the Plaintiff against the Defendants. I further enter judgment for the first Defendant as against the second Defendant as follows: a. The second Defendant is ordered to pay the amount of GH¢12,500.00 to the first Defendant being the purchase price of the said land he sold to the first Defendant without capacity to do so. b. I award an amount of GH¢10,000.00 in favour of the first Defendant as against the second Defendant as general damages. c. A cost of GH¢3,000.00 is awarded in favour of first Defendant against the second Defendant. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Carol Cudjoe v. Mr. Mawuli & Boye Page 27 of 27