GYAMFI VRS ZACK AND 6 OTHERS (A1/187/2021) [2024] GHACC 256 (28 February 2024)

IN THE DISTRICT COURT, HELD AT EJISU, ASHANTI REGION ON WEDNESDAY THE 28TH DAY OF FEBRUARY, 2024, BEFORE H/H ROSEMARY EDITH HAYFORD, CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE ` SUIT NO. A1/187/2021 ALEX ATTAH GYAMFI -- PLAINTIFF VRS MASTER ZACK & 6 ORS -- DEFENDANT Time: 09:10 AM Parties: Plaintiff – Present Defendants – Present ------------------------------------------------------------------------------------------------------------ JUDGMENT The plaintiff caused a writ to be issued on 28th July 2021 claiming against the Defendants the following reliefs: 1. A declaration that ALL THAT piece or parcel of land numbered 4A, Block ‘E’ Akyawkrom, opposite Anita Hotel is the legitimate property of Plaintiff 2. Recovery of Possession of the said piece or parcel of land 3. An order for EJECTMENT of Defendants from the said parcel of land 1 On 29/09/2021 the 1st – 5th Defendants filed their Statement of Defence. They did not deny that Plaintiff is the owner of plot number 4A, Block E but denied that the land they are occupying is for the plaintiff. They say it is a government land. Pursuant to an order of the court granted on 22/11/2021 the 6th Defendant was joined to the suit. He filed his Statement of Defence on 26/01/2022 also denying the claims of the Plaintiff. THE PLAINTIFF’S CASE It is the case of the Plaintiff that he is the bona fide owner of Plot 4A, Block E, Akyawkrom. He purchased same from the Chief and elders of Akyawkrom on 15/10/15. Plaintiff avers that since the purchase of the said land, he has been persistently disturbed to develop same because the defendants have trespassed on same. It is the case of the Plaintiff that all efforts to get the defendants to desist from their trespassory activities have proved futile. Plaintiff says that he has reported the matter on several occasions to the Police and the Ejisu Assembly to stop the Defendants from their trespassory activities and that unless compelled by this court the Defendants will not cease their trespassory activities. Hence the claim of the Plaintiff. THE 1ST – 5TH DEFENDANTS’ CASE The 1st – 5th defendants who are mechanics deny being on the Plaintiff's land. They say that the land they are occupying to ply their trade is government land under the Highway Authority and not Plot number A4 Block E, Akyawkrom. It is the case of the defendants that they were allocated the land they occupy under the High Tension by the Akwamu Chief in 2009. They say that the Plaintiff’s land is distinct from the land they ply their trade from. The defendants further say that the Plaintiff is not entitled to his reliefs as the action lacks merit. 2 6TH DEFENDANT’S CASE The 6th Defendant is the Akwamuhene (a sub-chief) of Akyawkrom. His case is not different from the other defendants except to add that, he avers he is part of the Planning Committee of the Stool land where the land in issue falls. He avers that he demarcated the defendants’ land to them and it is not the Plaintiff's land. He and the other Chiefs also demarcated one plot of land to the Plaintiff subsequently and his boundaries were shown to him accordingly. He says that the lands demarcated to the Plaintiff and the 1st – 5th defendants are entirely separate plots. He says the Plaintiff is not entitled to his claim. At the end of the trial, the court ordered the lawyers of the parties to address the court, but they all failed to do so. The main determinable issue is whether or not the 1st – 5th Defendants have trespassed on the Plaintiff’s land. The plaintiff testified himself and did not call any witnesses. He tendered the following Exhibits in support of his case: 1. Exhibit A, an allocation Note and a site plan attached to it. 2. Exhibit B series pictures showing some vehicles on the land 3. Exhibit C picture of gravels on the land 4. Exhibit D picture showing some blocks and gravel on the land The 1st Defendant testified for himself and on behalf of the 2nd – 5th Defendants. They tendered Exhibit 1, a letter from the Lands Commission, Kumasi in respect of the land disputed land. 3 6th Defendant testified by himself and did not call any witnesses. Neither did he tender any documents. BURDEN OF PROOF IN CIVIL SUITS GENERALLY The standard burden and persuasion of proof in civil matters including land are captured under sections 11 (1), (4) and 12(1) of the Evidence Act 1975 (NRCD 323). The relevant provisions provide: “11(1) For the purpose 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 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…. 12(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.” In Ackah v. Pergah Transport Limited and Others supra, Adinyira, JSC succinctly summed up the law, at page 736: “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323).” 4 In land matters, the person asserting title must prove his root of title strictly, among others. In the case of Mondial Veneer (Gh) Ltd v Amuah Gyebu XV (2011) SCGLR 466 at page 468 (holding 4), the Supreme Court held that: "In land litigation, even where living witnesses involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on who bore the burden of persuasion... to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It is only where the party had succeeded in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim" In the case of Citizen Kofi Entertainment Concept Ltd v Guinness Ghana Breweries Ltd [2012] 46 GMJ 167, the Court of Appeal held as follows: “The general principle of law is that it is the duty of a Plaintiff to prove his case, i.e., he must prove what he alleges. In other words, it is the Party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim, if not he loses on that particular issue.” EVALUATION, ANALYSIS OF THE EVIDENCE AND DECISION OF THE COURT Before I start with the evaluation of the evidence and analysis, it must be noted that the ownership of plot number 4A, Block ‘E” Akyawkrom is not disputed by the Defendants. The defendants aver that the land they occupy is under a high tension and that is not part of the Plaintiff’s land. A claim the Plaintiff denies and avers that the defendants have trespassed onto his land. It is trite that the person who asserts a positive averment to an issue has the burden to prove what he alleges, the burden was 5 therefore on the Plaintiff to prove his case that the defendants have trespassed on his land. To help the court ascertain who owns the disputed land and whether or not the defendants have indeed trespassed onto the Plaintiff’s land, the court based on a prayer by the Counsel for the defendants on the 11th April 2022 made an order appointing a surveyor to survey the disputed land, draw a composite plan and determine whether the defendants have trespassed onto the Plaintiff’s land. CW1 tendered his report as Exhibit CE1 together with the composite plans as Exhibit CE1a, CE1b, CE1c, CE1d and CE1e. According to CW1 the original site plan presented by the plaintiff measured 70’ x 80’ which is 0.13 acres. The site shown physically on the ground by the Plaintiff also measured 75’ x 98.64’ x 79.35’ x 129.29’ which is about 0.20 acres. He described the original plan to be in the shape of a rectangle however as shown on the ground the shape is like a trapezium. This means that the site the plaintiff physically showed on the ground is far larger than the site plan given to the plaintiff by his grantors. What is significant is that CW1 said the original site plan does not fall under the high tension. It must be noted that the defendants did not present any site plan, they only showed the land they occupy on the ground. CW1 further indicated that the Plaintiff could not show his boundary pillars. Below is what transpired under cross-examination on the 14/2/2023 at page 34 of the record of proceedings (ROP) “Q. Kindly read the 6th bullet of your analysis A. Witness reads Q. So, by this you mean physically the Plaintiff could not show you his boundary pillars A. Exactly that Q. Can you tell the court the importance of boundary pillars? 6 A. Survey pillars are permanent marks showing on the ground the physical boundaries for a land and its importance gives the exact position of a person’s property. Q. You have already told this court that the Plaintiff’s land as physically shown on the ground was bigger than the original site plan is that correct A. It is correct. On the 13th of February, 2023 at page 29 of the ROP the following took place Q. From the analysis of your report, you stated that the original site plan of the Plaintiff is completely different from the land indicated on the ground, is that correct. A. That is correct Q. You have also stated that compared to the original site plan given to the Plaintiff by the grantor, the size of Plaintiff’s land is in the shape of a trapezium contrary to the original site plan which is in the form of a rectangle am I correct Q. Did you give your advice based on the size of the land Plaintiff showed you physically on the ground or based on the site plan his grantors gave him? A. What I did was, I used the site plan given by the grantors as the land which the plaintiff had purchased and actually positioned that site plan into the site where the plaintiff physically went and showed on the ground and when I did that analysis, I got to know that in effect if you take the Plaintiff’s alleged land that is 80’ by 70’ and fit it to the area that he has shown which is a trapezium then the Plaintiff’s land which has been encroached upon dimensionally 70’ by 7’ In the report submitted by CW1 he further stated that the plot of the Plaintiff does not fall under the High-Tension Electricity Lines and further that some portions of the site 7 shown by the Defendants fell under the electricity high tension lines. CW1 determined that when the Plaintiff’s original site plan is fitted into the area shown physically by the plaintiff as his size of plot; the plaintiff’s land encroached upon by the defendants is 7’ x 70’ or 0.01 of an area. CW1 therefore concluded that the defendants have trespassed into the Plaintiff’s land by 0.07 acre. The above analysis and conclusion of CW1 sound a bit problematic. This is because CW1 is not comparing the lands as shown by both parties but rather based his conclusion on the Plaintiff’s own site plan provided by his grantors and the site on the ground shown by Plaintiff himself, how then does he conclude that the defendants have trespassed on Plaintiff’s land since they did not have any site plan to aid him in his analysis apart from what was showed on the ground? Besides the above, he clearly stated that both parties could not also show any boundary pillars and so he based his analysis on what the parties themselves showed him on the ground. If that is the case shouldn’t the analysis have been what both parties showed on the ground rather than basing his conclusion on only the Plaintiff’s site plan and what he showed on the ground? It is trite that the court is not bound by the report of the expert witness: See the case of Tetteh vrs Hayford [2012] 1 SCGLR 417. It is for the above reasons that I fail to accept the conclusion of CW1. The plaintiff claims the land he showed on the ground was bigger than the original site plan given by the grantors because he paid extra to the chief of Akyawkrom for that. This was vehemently challenged under crossed yet the Plaintiff did not produce any evidence to substantiate this averment. Below are the exchanges under cross- examination at page 56 of the record of proceedings. “Q. I put it to you that according to the Survey Report, the land you showed on the ground was much bigger than the land as given to you on your original site plan? 8 A. That is so, I have an explanation, the chief was aware because of that when I was going to pay, I paid extra. Q. So going by your answer, I put it to you that the chief or the surveyor did not give you any document being allocation or site plan to support your case that the land they gave you was bigger than the original site plan? A. That is so, there was no document given but I have an explanation as I said the Town and Country Planning indicated that.” From the above the Plaintiff could not provide any evidence to support the claim that he paid extra for the land shown on the ground. No receipt of payment or a new site plan or indenture was tendered to support his claim that the chief extended the dimensions of his land to include the disputed land. The 6th defendant who is the Akwamuhene, is part of the Planning Committee of the Stool Land where the disputed land falls. From Exhibit ‘A’, the allocation note given to the Plaintiff, was signed by Nana Osei Tutu Ampem II, the Akyawkrom & Asonuahene. The person who witnessed was Op. Osei Fofie, the Akwamuhene of Akyawkrom, the 6th defendant herein. He stated emphatically that he was the one who allocated Plaintiff’s land to him and no extra money was paid for any extra land as he alleges. He was also the same person who allocated the land to the 1st–5th defendants. He was emphatic that he personally showed the parties their boundaries. The 1st – 5th defendants were the first to be allocated the area under the high tension some 13 years ago and subsequently the Plaintiff in 2015. He stated unequivocally that the plaintiff's land was distinct from the area under the high tension allocated to the Defendants. It is not in doubt that the parties have a common grantor. I therefore find from the evidence, that no payment was made for any extra land as claimed by the Plaintiff. 9 The plaintiff further averred that there was a report from Town and Country Planning that indicated that apart from his land there was no other land. When he was challenged once again, he failed to provide any evidence to support his claim. The following ensued at page 59 of the ROP Q. I put it to you that nothing came out of the police report because the 6th defendant who is your grantor informed the police you had over stepped your boundaries. A. That is not correct, I have an explanation, the Town and Country Planning came onto the land with their layout or master plan and checked and showed me my land and indicated that apart from my land there is no vacant land again at that place. The layout I have attached will even show. Q. I am putting it to you that your answer is not correct because the Town and Country Planning or the Lands Commission has never given you any such report on the land? A. Yes, I have not requested for the report. If I ask, they will give it to me because at the time that I bought the land it was not on the scheme. Xxx Q. I put it to you that you did not conduct any search from the lands commission whatsoever and your claim that the defendants have encroached your land was an afterthought A. That is not correct, I did a search on the land before Q. Do you have any search from the Lands Commission or the District Assembly before this court? A. I do not have it 10 Clearly from the above, the Plaintiff has no evidence from the Town and Country Planning to support his claim. Furthermore, even though the Plaintiff indicated that he conducted a search at the Lands Commission on the disputed land before purchasing same, it is to be noted that when challenged the said search was never produced. However, the defendants tendered Exhibit ‘1’, a letter from the Lands Commission in respect of the land they occupy. From the search conducted dated the 18th of October 2021, it was stated that “the land falls on Stool Land Part II and does not affect any recorded transaction”. It must be noted from the evidence that the 1st – 5th defendants did not present any document or site plan throughout the trial, therefore it is puzzling how they managed to conduct Exhibit “1”. Indeed, from the date on Exhibit “1” it was procured during the trial. Besides the above, Exhibit 1 is addressed to “Fitters Association, Ejisu”. Nowhere throughout this trial did it come to bear that the 1st – 5th Defendants are members of this so-called association. Again, the suit was not even instituted against this said association. In the circumstance, I fail to attach any probative value to Exhibit 1. From the evidence, it seems that the Plaintiff fell on other bodies to ascertain the ownership of the disputed land. In the Plaintiff’s own words, he was advised by the Assembly to fence his land but he considered the cost involved and refused or failed to do so yet he turns round and says that his land has been encroached upon. Even though he claimed the Assembly took some steps by posting on the said land and the containers thereon “stop work” when the Plaintiff was challenged on this averment, he failed to provide any further evidence to that effect. The 1st – 5th Defendants speaking through the 1st defendant maintained they had no documents and under cross further stated that they do not have any document covering 11 the disputed land because it is under the high tension and it is government land. Below is what happened during the cross examination of the 1st defendant Q. Hence I put it to you that you do not have documentation covering the land you are on that you claim to be yours? A. Where we are they do not give any document to cover it. It is under the high tension and it was Nana Akwamuhene who gave us the land since 2009 for us to work there, and that the land is not for sale and that we should organize ourselves to buy a drink with a sheep or ram to pay homage to the Akyawkromhene. And we did so accordingly and the mechanics were divided into two one in front and the other at the back of Anita Hotel. The Plaintiff never challenged the averments above. Subsequently, it was corroborated by the 6th Defendant. Under cross-examination on the 4th of December, 2023 by Counsel for the Plaintiff at pages 74 & 75 of the proceedings the following transpired: ‘Q. It was you who also allocated the plot to Plaintiff, not so? A. That is correct Q. It was you who also allocated the plot to the Defendants not so? A. That is so however, I have a little explanation, the land in dispute was granted to me and my family by the chief so when someone is in need of a portion for purchase, I inform the chief. When the Plaintiff indicated to me that he needs a portion of same, I sent him to the chief. Sometime in 2009, when the two fitting shops needed portion of the land, I went to the chief with their executives, a sheep and a bottle of schnapps and an amount of GHc2,000.00. Whatever transaction that goes on the said land is made clear to the chief. Q. Did you give any documents to the Defendants to indicate that the land belongs to them? 12 A. No, I have an explanation. The site where the Defendants are occupying is under the high tension, so there is no document for same. However, the Plaintiff’s plot of land as I allocated to him does not fall under the high tension From the evidence above, it shows that no document was given to the defendants because the place they occupy does not require same. It is under the high tension and the defendants were permitted by the 6th defendant to occupy same with the knowledge of the chief, I so find. That being the case it seems it is only the government through the authorized institution that can evict the defendants. Having analyzed the totality of the evidence and on the balance of probability, it is my humble view that the Plaintiff did not lead sufficient evidence to establish his case, thus the action must fail. I accordingly dismiss the instant suit. Costs of GH₵9,000.00 is awarded against the Plaintiff in favour of the defendants. SGD H/H ROSEMARY EDITH HAYFORD CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE COUNSEL: AFRICANUS OWUSU-ANSAH FOR THE PLAINTIFF EMMANUEL AMOAH FOR THE DEFENDANTS 13