AMEGASHIE VRS. GYAN AND ANOTHER (A1/03/15) [2024] GHACC 376 (12 February 2024)

IN THE TDC DISTRICT COURT HELD AT TEMA ON MONDAY THE 12TH DAY OF FEBRUARY 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE SUIT NO. A1/03/15 JOHN KWABLAH AMEGASHIE --------------- PLAINTIFF SUING PER HIS LAWFUL ATTORNEY DAVID D. AVINU (DECEASED) SUBSTITUTED BY KENNETH YAW AMEGASHIE I/H 75 SITE 12, COMMUNITY 1 TEMA VRS 1. MR. ADU GYAN --------------- DEFENDANTS 2. MRS. ADU GYAN COMMUNITY 19 LASHIBI PARTIES: PLAINTIFF’S SUBSTITUTED LAWFUL ATTORNEY ABSENT FIRST DEFENDANT PRESENT SECOND DEFENDANT ABSENT COUNSEL: BENJAMIN SEVOR, ESQ. FOR THE PLAINTIFF ABSENT EDWARD METTLE-NUNOO, ESQ. WITH RITA TETTEH AND MABEL MENSAH FOR THE DEFENDANTS PRESENT JUDGMENT John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 1 of 17 The Plaintiff herein through his lawful attorney, caused a Writ of Summons to be issued in this Court claiming the following reliefs against the Defendants jointly and severally: 1. Declaration that Plaintiff is the legal owner of part area of plot described as H/NO. TDC C/042 Community 19 Lashibi Annex. 2. Recovery of possession. 3. An order of Court to eject the Defendants/trespassers together with tenants/occupants from the Plaintiff’s part area of plot described as H/NO. TDC C/042 Community 19 Lashibi Annex. 4. Perpetual injunction restraining the Defendants/trespassers, their agents, privies or otherwise from entering the Plaintiff’s part area of plot No. H/NO. TDC C/042 Community 19 Lashibi Annex or interfering in any wise with Plaintiff’s enjoyment of same. 5. Cost. The Plaintiff obtained a default judgment however same was set aside by the Court upon an application by the Defendants through their Counsel. With leave of Court, the Defendants subsequently filed their Statement of Defence and the first Defendant counterclaimed as follows; 1. Declaration of title to all that parcel of land known as T.D.C PLOT NO.LS/RE/DEV/C 19/511/12 & 13 situate and lying at Lashibi, community 19, Tema. 2. General damages against the Plaintiff for trespass. John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 2 of 17 3. An order for perpetual injunction restraining the Plaintiff, his agents, assigns, servants and privies from entering, carrying out any construction or interfering with first Defendant’s use of the land. 4. Legal and Solicitor’s cost. The Plaintiff filed a Reply and Defence to the Statement of Defence and Counterclaim. THE CASE OF THE PLAINTIFF The Plaintiff through his lawful attorney avers in his Statement of Claim that he is the legal owner of Plot No. T. D.C. C/042 Community 19, Lashibi-Annex. That he acquired the said parcel of land described as H/No. T.D.C C/plot No. 042 Community 19, Lashibi- Annex by purchase with building thereon bounded and measuring as follows: - a. On the North East by the lessor’s land 161 feet more or less b. On the South West by proposed lane measuring 166 feet more or less c. On the South West by proposed road measuring 164 feet more or less d. On the North West by proposed road measuring 190 feet more or less He says further that he purchased the land on 26th February 2001 from Nii Akussi Assinu II, the old Lashibi Mantse/Chief with the consent and concurrence of the elders of the said stool. That he was given an indenture with a site plan. He continued that he shared a boundary with the late Mr. Godwin Armah Ayayee-Anim and the Defendants. He further avers that, somewhere in June 2014, he noticed somebody had placed two containers on a portion of his land. That he warned the trespasser who happened to be John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 3 of 17 the Defendants and caused his lawful attorney to serve a notice on them to vacate his property. He further stated that after the notice was served, the Defendant threatened to cause taskforce men from Tema Development Corporation to demolish his building on the said plot. That he therefore instituted the instant action against the Defendants seeking for the reliefs as mentioned above. THE CASE OF THE DEFENDANTS In their Statement of Defence and Counterclaim, the Defendants denied the claims of the Plaintiff. The Defendants particularly, the first Defendant stated that he also acquired the land, part of which is in contention as Plot No. LS/RE/DEV/C19/511/12 & 13. Community 19, Lashibi, Tema from one Agnes Ayayee and Theresa Ayorkor Manyo, Administrators of Estate of the late Godwin Armah Ayayee-Anim around 2012 for GH¢45,000.00 and he was also given the necessary documentation like receipts, statutory declaration of interest, site plan etc. That he shares boundary on the left with Auntie Tina, on the right with Ayayee Family, at the front is a motor road and the back is a church, New Anointing Ministry. The first Defendant also averred that he followed up to the Tema Development Cooperation for regularization and has been paying ground rent pending completion of the documentation. He also stated that the land being claimed by the Plaintiff is different from his land. He contends that the land being claimed by Plaintiff is different and is not supported by the grant of the original owners. He counterclaimed as stated above. At the end of the hearing, a written address was filed on behalf of the Defendants by their lawyer on 2nd May 2023; and the Court has duly taken notice of same. LEGAL ISSUES John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 4 of 17 Based on the pleadings and the evidence led, the Court set down the following issues for determination. 1. Whether or not on 26th February 2001 the Plaintiff acquired the land in dispute at Community 19, Lashibi-Annex from Nii Akussi Assinu II, the old Lashibi Mantse/Chief with the consent and concurrence of the elders of the said stool. 2. Whether or not the Plaintiff was in possession and occupation of the land in dispute before the Defendant moved unto his land. 3. Whether or not the parties are litigating over the same land or different lands. 4. Whether or not the first Defendant acquired his land around 2012. 5. Which of the parties trespassed unto the other’s plots of land. 6. Whether or not the Plaintiff’s land was to be regularized by TDC as the overlord of the said area. BURDEN AND STANDARD OF PROOF 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 Ebusuapanyin Yaa Kwesi v. Arhin Davis & Anor. [2007-2008] SCGLR 580, it was held as follows: John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 5 of 17 “Thus what the foregoing proposition seeks to convey is that since the Plaintiff in this appeal sued for not only a declaration of title but also damages for trespass and an order for perpetual injunction, he assumed that onerous burden of proof by the preponderance of the probabilities as required under sections 11 and 12 of the Evidence Decree, 1975 (N.R.C.D. 323), or else risk the prospect of losing his case.” 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 balance of probabilities in his favour. This principle is found in Section 14 of the Evidence Act, supra, which provides as follows: John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 6 of 17 “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 first address issue 3 which is “whether or not the parties are litigating over the same land or different lands.” A composite plan, Exhibit ‘CE2’ was prepared to assist the Court in determining the issues raised in the suit. (See: Madam Comfort Ofori v. Kwame Appenteng, Civil Appeal No. J4/ 17/ 2017 Dated 6th December 2017, Supreme Court, unreported). From Exhibit ‘CE2’, the land surveyed as shown on the site plan for Plaintiff is edged green while that of Defendant as shown on his two site plans are edged yellow and cyan. It is apparent that there is an overlap of the two lands and the area in dispute which is John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 7 of 17 0.08 acre as shown on the ground is the portion shaded or hatched black which falls within the overlap of the two lands. I therefore find that though the lands of the parties are different, there is a common area in dispute being the overlap between the two lands. I shall next address issues 1 and 4 together. Issue 1 is “whether or not on 26th February 2001 the Plaintiff acquired the land in dispute at Community 19, Lashibi-Annex from Nii Akussi Assinu II, the old Lashibi Mantse/Chief with the consent and concurrence of the elders of the said stool” and Issue 4 is “whether or not the first Defendant acquired his land around 2012”. The Plaintiff’s lawful attorney testified that when the Plaintiff was in active service, he acquired a plot of land described as plot no. TDC 042 at Lashibi-Annex from Nii Akussi Assinu II, the old Mantse of Accra/Lashibi on 6th February 2001 with the consent and the concurrence of elders of the stool. In support of this claim, he tendered exhibit ‘B’ which is an indenture between Nii Akussi Assinu and the Plaintiff herein dated 6th February 2001. PW1 also testified that when he was installed as the chief of Lashibi from the records handed over to him, he saw the Plaintiff's name on the record. That, at that time, it was only a site plan that was prepared so he had to prepare a document for the Plaintiff, and he did same. I consider from the evidence on record that it is not in dispute that the Plaintiff did indeed acquire the land in dispute on 26th February 2001 at Community 19, Lashibi-Annex from Nii Akussi Assinu II, the old Lashibi Mantse with the consent and concurrence of the elders of the said stool. I therefore answer issue 1 in the affirmative. John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 8 of 17 The first Defendant also testified that he acquired the land in dispute in 2012 from Mrs. Agnes Ayayi. He tendered receipt of payment in evidence as exhibit ‘1’ which is dated 2nd February 2012. That he was told the original owner of the land purchased it from TDC, therefore TDC did all the necessary documentations on the land for him. He also tendered the site plan of his land together with other documents from TDC including transfer of ownership of the said land into his name. I find that on a balance of probabilities it has been shown that Defendant also acquired his land in February 2012 when he paid for the consideration of the said plots of land. I therefore answer issue 4 in the affirmative. Now, I must state that both parties have shown by a balance of probabilities proof of ownership of their respective lands they claim. The main issue is which of the parties trespassed onto the other’s property being the overlap between the two different lands as shown on exhibit ‘CE2’. In this case, the size of the area in dispute was given by CW1 as being 0.08 acre. The crux of the case therefore is within this area. In the case of Nkaeguo v. Kunadu [1974] 2 GRL 150 it was held as follows: “The real issue was not the ownership of the whole land but of the area of land in the immediate vicinity of the common boundary separating the parties' lands…” I shall next consider issues 2, 5 and 6 together. Issue 2 “whether or not the Plaintiff was in possession and occupation of the land in dispute before the Defendant moved unto his land”, Issue 5 is “which of the parties trespassed unto the other’s plots of land” and Issue 6 is “whether or not the Plaintiff’s land was to be regularized by TDC as the overlord of the said area.” John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 9 of 17 The Plaintiff’s attorney testified that somewhere in March 2015, Plaintiff left his known place of abode to his hometown Agbozume in the Volta Region on visit and on Plaintiff’s return, Plaintiff observed that somebody has encroached on his property/land. That the Plaintiff conducted an investigation to find out who trespassed on his property, and it was revealed to Plaintiff that the trespassers were the first and second Defendants. That they were confronted by the Plaintiff, and they admitted liability. That the Plaintiff subsequently served them a notice to vacate the property with effect 01/06/2015 to expire on 31/08/2015. He tendered a copy of the said notice served on the Defendants to vacate the said property described as exhibit ‘C’. He also tendered a copy of a messenger receipt book provided by the Plaintiff in order to prevent the Defendants from denying the service of the quit notice, which was duly signed by one Linda Edugyan as exhibit ‘D’. He also tendered picture of a metal container and a wooden kiosk mounted by Defendants on Plaintiff’s property marked as exhibit ‘E’. During cross examination of first Defendant by the Plaintiff’s attorney, the first Defendant stated that he and the Plaintiff share boundary but denied trespassing onto part of the Plaintiff’s land. He stated that the small container in exhibit ‘E’ belongs to him but denied further that it is in the Plaintiff’s house. From the evidence on record the Plaintiff acquired his property part of which is in contention with the Defendant, in 2001 and was in possession of same before first Defendant acquired his plots of land in 2012 and placed his container on part of the land which is in dispute between the parties. The first Defendant also testified in his evidence in chief that when he started putting up the construction yard, he did not receive any challenge but after TDC came to demarcate John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 10 of 17 his 2 plots of land to him, he realized that a portion of the Plaintiff’s plot had entered his and Plaintiff had put a small one room structure on the said portion so he notified Plaintiff on the encroachment by writing a letter to Plaintiff and gave it to Plaintiff personally asking Plaintiff to vacate from that portion. That he even suggested to the Plaintiff that since he is a building contractor, he is willing to put up that small structure on any part of Plaintiff’s land to which Plaintiff agreed. The first Defendant also testified that he shares a boundary with the Plaintiff and he did not encroach on Plaintiff's land TDC/C/042. That when TDC came to do the demarcation, he realized that the Plaintiff had rather encroached on his plots. From this piece of evidence by the first Defendant, it can be gathered that when TDC demarcated the first Defendant’s land to him it became evident that the Plaintiff who was already in possession of his land, had a portion of his land entered into the first Defendant’s land and the said portion of land is the disputed land. 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). Therefore which of the parties is the true owner of the land in dispute? In addressing issues ‘5’ and ‘6’ this question will be resolved. 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 John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 11 of 17 XV (2011) SCGLR 466. Both parties adduced evidence to prove their root of title, their mode of acquisition various acts of possession exercised over the disputed land. According to the first Defendant, TDC are the landlords and owners of the land. The Plaintiff’s attorney admitted under cross examination that TDC is the overlord of the land in question, he also admitted that the land was a stool land prior to the acquisition of same by TDC. He further admitted that after the acquisition, the said lands ceased to be the property of the stool or the chiefs. Under cross examination, the Plaintiff’s attorney also agreed with counsel for Defendant that if lands are given to the chiefs for allocation same has to be regularized by TDC before the grantee can lay claim to it. These admissions made by the Plaintiff’s attorney under cross examination support the case of the Defendant that TDC are the landlords and owners of the land. From the Plaintiff’s attorney’s testimony under cross examination, he admits the TDC is the overlord of the land referred to as the acquisition area but disagrees that the area in controversy between the parties falls within the said acquisition area. However he further admits that the said lands ceased to be the property of the stool or the chiefs after the acquisition by TDC because the stool regularized the Plaintiff to the TDC. And that the plot number he has mentioned to this Court is recognized by TDC. He also agreed with counsel for Defendants that for some arrangements put in place by TDC with the chiefs, if lands are given to the chiefs for allocation, same has to be regularized by the TDC before the grantee can lay claim to the said piece of land. On the issue of whether the Plaintiff’s land was to be regularized by TDC as the overlord of the said area, whilst the Plaintiff’s attorney testified under cross examination that the stool regularized the Plaintiff to the TDC, his witness PW1 under cross examination said it is not true that the land in dispute falls under TDC so TDC is the overlord of that. He John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 12 of 17 further stated that the said farm land belongs to Lashibi and TDC does not have authority over it. That they do not have any regularization of lands to do with TDC as all their land documents go to the lands commission. Clearly there is a contradiction between the evidence of the Plaintiff’s attorney and that of PW1 on the same issue. Moreover the admission of the Plaintiff’s attorney rather supports the case of the first Defendant that TDC is the one to regularise their lands. In Asante v. Bogyabi [1960] GLR 232 @ 240 per Siriboe JSC: “Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other … then it seems to me right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view …”. Considering the acknowledgment of the Plaintiff’s attorney under cross examination that TDC is the institution to regularize his land which has not been done and further considering that same TDC demarcated the first Defendant’s land for him and also gave him the necessary documents on the land including transfer of ownership of the acquired land by the first Defendant into his name, I do hereby find that the first Defendant was given the land in dispute by the right authority and is therefore the true owner of same. Consequently I further find that the Plaintiff trespassed unto to the first Defendant’s plot of land. In the case of Sagoe v. Social Security and National Insurance Trust [2012] 2 SCGLR 1093, the Supreme Court held as follows: John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 13 of 17 “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 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...” Ordinarily possession by the Plaintiff on the disputed land before the Defendants went onto the said land would warrant declaration of title of the disputed land in the Plaintiff’s favour. However the admission of the Plaintiff’s attorney that after the acquisition by TDC the said lands ceased to the property of the stool or the chiefs because the stool regularized the Plaintiff to the TDC, implies that the Plaintiff’s attorney acknowledged the fact that TDC had to regularize the Plaintiff’s plot of land, and his further answer under cross examination that the plot number he mentioned to this Court was recognized by TDC, and in the absence of any evidence by the Plaintiff that TDC actually regularized and recognized the Plaintiff’s land after the denial of same by the Defendant, I find that the Plaintiff failed to prove that his land was regularized and recognized by TDC after alleging that fact. Accordingly the first Defendant hereby succeeds on his counterclaim. 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. John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 14 of 17 From the above findings, it follows that the first Defendant is to be entitled to general damages against the Plaintiff for trespass and an order for perpetual injunction against the Plaintiff. From the evidence on record and the preceding findings, the Plaintiff trespassed unto the disputed land from when the first Defendant per exhibit ‘5’ dated 23rd April 2012, drew the Plaintiff’s attention to the fact that the Plaintiff has encroached on his land demarcated to him by the TDC and he did not take step to have his land regularized by the TDC but claimed it was regularized by TDC without an iota of evidence on same. Therefore the first Defendant can maintain an action in trespass against the Plaintiff who is a trespasser on his land being the land in dispute. The principles governing the award of damages for trespass as stated by the Court of Appeal in the case of Laryea v. Oforiwah (1984-86) 2 GLR 411, is that: "In awarding damages for trespass to land regard should be to the acreage of land on which the trespass was committed the period of wrongful occupation and the damage caused". Thus, in the instant case, taking into consideration the acreage of the land in dispute and the extent of the disputed land that falls in the first Defendant’s land as particularly delineated on his site plan as shown on exhibit ‘CE2’, the extent of injury to the land and the duration of the wrongful possession of the Plaintiff on the first Defendant’s land, I will award an amount of GH¢3,000.00 as damages for trespass. On exhibit ‘10’, TDC has completed the transfer process and amended their records to reflect the first Defendant as the new lessee of plot no. T.D.C PLOT NO.LS/RE/DEV/C 19/511/12 & 13 situated, lying and being at Lashibi – Tema measuring 0.50 acre. Therefore the first Defendant shall be entitled to the disputed land to the extent as outlined on the John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 15 of 17 first Defendant’s site plan (0.50 acre) marked yellow on exhibit ‘CE2’, the composite plan including the disputed area marked with black lines within the land edged yellow. CONCLUSION I consider from the entirety of the evidence on record that on a preponderance of probabilities, the Plaintiff’s attorney has failed to adduce substantial credible evidence in support of the Plaintiff’s case for a declaratory judgment with its ancillary reliefs in favour of the Plaintiff. I therefore find that Plaintiff’s claim fails, and I so hold. On the other hand, I find on a preponderance of probabilities that the first Defendant has been able to discharge the legal burden placed on him. In the circumstances, I hereby enter judgment for the first Defendant as against the Plaintiff as follows: 1. I hereby grant a declaration of title in favour of the first Defendant to all that parcel of land known as T.D.C PLOT NO. LS/RE/DEV/C19/511/12 & 13 situate and lying at Lashibi, Community 19, Tema as particularly delineated on first Defendant’s site plan (0.50 acre) marked yellow on exhibit ‘CE2’ being the composite plan including the disputed area marked with black lines within the land edged yellow. 2. I award an amount of GH¢3,000.00 as damages for trespass in favour of the first Defendant against the Plaintiff. 3. I hereby grant an order of perpetual injunction restraining the Plaintiff, his agents, assigns, servants and privies from entering, carrying out any construction or interfering with first Defendant’s use of the land. 4. Having considered the length and complexity of the proceedings as well as the conduct of the parties and their lawyers during the proceedings, I award costs of GH¢3,000.00 in favour of the first Defendant against the Plaintiff. John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 16 of 17 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) John K. Amegashie v. Mr. Adu Gyan & Mrs. Adu Gyan Page 17 of 17