ARYEETEY VRS. AMOYAW (A1/15/07) [2024] GHACC 375 (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. A1/15/07 EMMANUEL ARYEETEY ---------- PLAINTIFF SEBREPOR, NEAR MICHEL CAMP TEMA VRS EDWARD CAESAR AMOYAW ---------- DEFENDANT SEBREPOR, NEAR MICHEL CAMP TEMA PARTIES: PLAINTIFF PRESENT DEFENDANT ABSENT COUNSEL: JONATHAN ADZOKPE HOLDING THE BRIEF OF KWAKU ADU MINTAH, ESQ. FOR PLAINTIFF PRESENT EDWARD METTLE-NUNOO, ESQ. WITH RITA TETTEH AND MABEL MENSAH FOR THE DEFENDANT PRESENT Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 1 of 17 JUDGMENT The Plaintiff herein caused a Writ of Summons to be issued in the registry of this Court on 14th May 2007 against the Defendant herein. The suit got struck out on some occasions which was relisted and also suffered series of adjournments including sine die adjournments. In the Amended Statement of Claim filed on 6th February 2009, the Plaintiff claims against the Defendant for the following reliefs: a. Declaration of title to the piece of land measuring 35 x 50 lying and situated at Sebrepor near Michel Camp. b. Recovery of possession of the said land aforementioned. On 14th May 2010, an amended Statement of Defence and Counterclaim was filed for the Defendant by his lawyer. The Defendant stated that the Plaintiff is not entitled to his claim or at all and further counterclaimed against the Plaintiff as follows: a. Declaration of title to all that piece of land measuring 46 x 112 feet lying and situated at Sebrepor near Michel Camp bounded on one side by Plaintiff’s land, one side by a street, another side by the property of Mr. Aburam and the last side by a street. b. An order directed at the Plaintiff to give legal title to all that land measuring 46 x 112 feet to Defendant. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 2 of 17 c. An order of perpetual injunction restraining Plaintiff, his servants, assigns, privies and any person claiming title through Plaintiff from interfering with his use and enjoyment of the land. I deem it necessary to mention that the Court upon listening to counsel for the Plaintiff and the Defendant unrepresented; and being guided by the case of Adomako Anane v. Nana Owusu Agyemang & Others [2014] 75 GMJ 1, decided to start the case de novo because the record of proceedings that was available for adoption was highly unreliable. THE CASE OF THE PLAINTIFF In his amended Statement of Claim the Plaintiff avers that sometime in 1978 whilst then working in Koforidua in the Eastern Region, he acquired a piece of plot measuring about 1 acre from the then Chief of Sebrepor for agricultural purposes. That he put his brother on the land to take care of his piggery, and that he constructed a wooden structure on the land to accommodate the caretaker and his family. The Plaintiff continued that he met Defendant at Koforidua while the Defendant was working with SSNIT. According to the Plaintiff, while at Koforidua he fell into enormous difficulty in which the Defendant’s wife called in her father to assist him out of trouble. That since then he became very close to the Defendant and his family. That the Defendant retired from his employment at Koforidua in 2003 and relocated to Tema. That the Defendant told him that he had relocated to Tema to enable him develop the land of his brother who was then in abroad. That the Defendant therefore requested him the Plaintiff to give him a small portion of his land to build a kiosk and a wooden structure to enable the wife to practice her trade to subsidize his expenditure and to enable him save money for his project. According to the Plaintiff he gave out to Defendant a portion of his land measuring 35 x 50. That he Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 3 of 17 supervised the putting up of the kiosk and the wooden structure for the Defendants’ wife at the request of the Defendant. That 2 months after the Defendant had taken occupation of the structures he put up for him, he started making demands for receipt of the land. The Plaintiff further averred that he refused and explained to the Defendant that any money received was for the construction of the structures and not the land. That the Defendant started laying claims to the land measuring 35 x 50 when he refused to permit Defendant to dig a latrine on the land. THE CASE OF THE DEFENDANT It is the case of the Defendant that he has at all times been a savior to the Plaintiff as the Plaintiff was compelled to sell a portion of his land measuring 46 feet by 112 feet to solve a financial problem he had with Sebrapor Methodist Church on or about June 2003. He averred that he paid a total of twenty-two million cedis (¢21,960,000.00) to the Plaintiff for the land in controversy. That at the time he moved from Obuasi to Sebrapor, he had already built a dwelling house on the parcel of land he acquired from the Plaintiff though uncompleted, and he had to keep some of his personal belongings in Plaintiff’s house. That the Plaintiff sold a portion of his land to him measuring 46 x 112 feet for valuable consideration. That the construction work on his house was done at his direction with workers from Ningo and Obuasi under the supervision of the Plaintiff. According to the Defendant, the building constructed consisted of a barbering shop, hairdressing salon and two living rooms for his family and himself. That he has been paying property rate for the parcel of land acquired from the Plaintiff and has since its acquisition been demanding proper documentation from Plaintiff without any success. At the end of the hearing, the lawyers for the parties did not file any written address. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 4 of 17 LEGAL ISSUES Based on the pleadings and the evidence led, the Court set down the following issues for determination. 1. Whether or not the Plaintiff sold the land in dispute to the Defendant. 2. Whether or not possession of the land in dispute by the Defendant confers ownership on him. 3. Whether or not the Defendant is the owner of all that piece of land measuring 46 x 112 feet lying and situated at Sebrepor near Michel Camp bounded on one side by Plaintiff’s land, one side by a street, another side by the property of Mr. Aburam and the last side by a street. 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 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]”. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 5 of 17 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: “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 In Re: Ashalley Botwe lands; Adjetey Agbosu and Others v. Kotey and Others (2003-04) SCGLR 420, Brobbey JSC interpreted section 11(1) of the Evidence Decree 1975 (N.R.C.D 323) at pages 464 to 465 and held that: “A litigant who is a Defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to Court has to prove what he claims he is entitled to from the Defendant. At the same time, if the Court has to make a determination of a fact or of an issue, and the determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 6 of 17 the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the Court such facts or evidence that will induce the determination to be made in his favour….”. Also, 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 Defendant has a counterclaim for declaration of title among other reliefs, the burden of proof lies equally on him to prove his 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 Plaintiff sold the land in dispute to the Defendant. The Plaintiff claims he gave his land measuring 35x50 to the Defendant to put a temporarily structure on it and Defendant has since refused to vacate same. The Plaintiff led evidence that the land in dispute belongs to him. He tendered in evidence proof of ownership as per exhibit ‘A’ being a copy of the site plan showing the dimensions of his land. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 7 of 17 The Defendant also avers that the Plaintiff sold his land measuring 46 feet by 112 feet to him to solve a financial problem Plaintiff had with Sebrapor Methodist Church on or about June 2003. That he paid a total of twenty-two million cedis (¢21,960,000.00) to the Plaintiff for the land in dispute. The Plaintiff vehemently denied this averment by the Defendant throughout the trial and maintained his position that he never sold the land in dispute to the Defendant. From the evidence on record, it is not in dispute that the said land belongs to the Plaintiff as the Defendant acknowledged that the Plaintiff is the owner of the said land but claims he sold it to him. Therefore the burden of proof shifted to the Defendant to prove his assertion that the land in dispute was sold to him by the Plaintiff after same was vehemently denied by the Plaintiff. The Defendant therefore had a legal burden of proof to adduce sufficient evidence to establish his claim. In his evidence the Defendant told the Court that he paid a total amount of ¢21,960,000.00 to the Plaintiff for the land in dispute. He tendered a copy of an extract of expenses of account in evidence as exhibit ‘1’. He continued that the Plaintiff told him that he had a plot of land in Sebrepor that he would give to him in place of the money he borrowed since Plaintiff would not be able to pay back the money. According to the Defendant, he informed his then wife and family and they agreed to the Plaintiffs’ intention. That the Plaintiff measured the plot of land that he had promised to give him; and that his family members which included his then wife, were his witnesses. That the land measures 47 feet by 112 feet. That he is paying property rates on the land, to which assertion he tendered exhibit 2 series being copy of the said property rate. That he demanded for documents but the Plaintiff refused to give him any document. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 8 of 17 From the facts of the case and evidence on record, there was no issuance of any receipt of payment of the purported sale of land. During cross examination of Plaintiff by Defendant’s counsel this is what transpired; “Q: I’m putting it to you that the Defendant lent you money and because you did not pay the said money you decided to gift the land in dispute to the Defendant. A: I never collected any money from Defendant in respect of any land for me. Q: I’m putting it to you that the land in dispute that you claim you never sold to the Defendant is not true. A: I never sold any land to him.” The Defendant failed to prove that the monies were for the sale of the land in dispute because there was no receipt issued for the payment of the land. Exhibit ‘1’ titled ‘Account of Expenses’ is what the Defendant claims to be monies he gave to the Plaintiff over a period. The only signature on the receipt is the signature of the Defendant and does not indicate that the monies collected were for the purchase of a land from the Plaintiff. Under cross examination the Defendant agreed with the Plaintiff’s lawyer that exhibit ‘1’ was prepared by him, and further admitted that exhibit ‘1’ is not signed by the Plaintiff as only him sat down and prepared exhibit ‘1’. In view of that, the Court is unable to attach any probative value/weight to exhibit ‘1’ because it is a self-serving document and same cannot be used against the Plaintiff when he neither had a hand in its preparation nor executed same. On exhibit ‘2A’, the Defendant under cross examination admitted that it does not bear his name neither does it state the address of the property in respect of which the rate is levied. The Defendant further testified under cross examination that the said exhibit Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 9 of 17 never came from him; that it is never his and he has not gone for that property rate. That there is something fishy about that. It is interesting to note that the Defendant denied under cross examination exhibit ‘2A’ which he tendered in evidence personally when he relied on his witness statement that had this exhibit attached to, as his evidence in chief. The Defendant admitted that exhibit ‘2A’ smells fishy because he has not gone for that and it is not his. Accordingly the Court attaches no probative value to the said exhibit ‘2A’, as the party who tendered it has denied same. From the above, there is no evidence on record indicating that the land in dispute was sold to the Defendant by the Plaintiff. Indeed exhibit ‘1’ is only a self-serving document which cannot be accepted by the Court as proof of consideration of purchase of the land in dispute by the Defendant from the Plaintiff. Exhibit ‘1’ does not qualify as a sale of land agreement neither does it even qualify as a receipt of payment of purchase of the land in dispute. Brobbey JSC held in the case of Asante Appiah v. Amponsah alias Mansah [2009] SCGLR 90 held that: “A plea that the appellant’s case was based on oral sale could not avail his case on account of the Conveyancing Act, 1975 (NRCD 175), s 2 which provides “A contract for the transfer of an interest in land is not enforceable unless (a) It is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorized to sign on behalf of that person, or (b) It is relieved against the need for writing by section 3.” … Whatever interest the appellant claimed to have acquired from the sale of that property was not enforceable if the appellant merely relied on grant which was not evidenced in writing”. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 10 of 17 Statutorily, the transfer of an interest in land exceeding three years is unenforceable, unless it is in writing and signed by the transferor or his duly authorized agent. In the case of Kofi Sarpong (Dec’d) (Substituted by) Nana Kwasi Koduah v. Franklin Adubobi Jantuah [2016] DLSC 2877, Benin JSC held: “The law should be applied strictly here as the Plaintiff’s only route of ownership is the purported sub-lease from Madam Afua Addai which is non-existent. And the law as stated earlier, does not recognize verbal agreements beyond three years... Thus, the law as stated in sections 1, 2 and 3 (1) (f) of the Conveyancing Decree, 1973, NRCD 175 required any such lease to be evidenced in writing else it is ineffective to convey any title. Therefore the Plaintiff who has no such agreement ... could not claim to be the owner in possession ...” From the evidence on record, the Defendant could not prove his assertion that the land in dispute was sold to him by the Plaintiff. This is because if it was a sale agreement then sections 1-3 of the Conveyancing Act requiring transfer of an interest in land to be in writing were not satisfied. Exhibit ‘1’ is nothing more than a document unilaterally prepared by the Defendant therefore the Defendant cannot rely on it against the Plaintiff to discharge the burden on him that the Plaintiff sold the land in dispute to him and that the monies stated on exhibit ‘1’ is the consideration for the sale of the land in dispute, in the face of vehement denial by the Plaintiff. The Defendant stated in his evidence that the Plaintiff measured the plot of land that he had promised to give him; and that his family members which included his then wife were his witnesses. The Defendant under cross examination also testified that his wife he came with initially to the Plaintiff’s premises, and his two children he moved into the Plaintiff’s premises with, are in Koforidua and Maamobi respectively but the Defendant did not call any of these family members including his then wife who he claimed were his witnesses when the Plaintiff measured the plot of land and gave it to him. The Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 11 of 17 Defendant must have called at least one of these family members he mentioned as a material witness to corroborate that assertion. I am not unaware 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. However 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 he 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. From the evidence on record the Defendant did not adduce cogent evidence to substantiate his claim. He only repeated the averments in his pleadings when he was offered the opportunity to lead evidence to prove his assertions. Appau JSC held in the case of Emmanuel Osei Amoako v. Standford Edward Osei (substituted by Bridget Osei Lartey); Civil App. No. J4/3/2016 dated 1st June 2016, S.C. (Unreported) as follows: “Respondent, did not go beyond his rhetorical statements … Judgments must be based on established facts not mere rhetoric or narrations without any supporting evidence that can sustain the claim”. The Defendant did not lead cogent evidence to discharge the onus of proof on him to establish that the land in dispute was sold to him. Given that the Defendant failed to lead Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 12 of 17 sufficient evidence to prove his assertion that the Plaintiff sold the land in dispute to him, in the face of vehement denial by the Plaintiff, I do hereby dismiss the said assertion by the Defendant for lack of satisfactory evidence. Accordingly I find from the evidence on record that the Plaintiff did not sell the land in dispute to the Defendant. 2. Whether or not possession of the land in dispute by the Defendant confers ownership on him. Possession refers to physical control and occupation of a property. Ownership, on the other hand, is the legal right to control, use and dispose of a property. Possession does not always guarantee ownership, as ownership involves legal title recognized by relevant authorities. Ownership can be transferred through deeds, while possession can be established through physical occupation and control. From the facts of the instant case the Defendant moved onto Plaintiff’s land with his permission, as the Plaintiff stated in his evidence that he offered to house Defendant and his family in his house who then requested that he permits him to erect a temporary structure on his land to serve as a salon for Defendant’s wife which he agreed. He stated that he then carved a portion of his land measuring 50feet by 35feet for the planned temporary salon for the Defendant’s wife. In the instant case Defendant who is in possession has not been able to prove per the evidence adduced before this court, that he has a better title than that of the Plaintiff to be deemed owner of the land. If someone is in possession, the lawfully acquired owner can move the one in possession. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 13 of 17 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). From the evidence on record the true owner of the land in dispute is the Plaintiff, therefore the possession of the Defendant cannot be good against the Plaintiff who is the true owner of the said land. This is because the findings of this court indicate that the Plaintiff did not sell the land in dispute to the Plaintiff. Therefore the Defendant was on the land as a licensee as the Plaintiff permitted the Defendant to be on his land because of their relationship. Consequently I hereby find that possession of the Defendant on the land in dispute does not confer ownership on him. 3. Whether or not the Defendant is the owner of all that piece of land measuring 46 x 112 feet lying and situated at Sebrepor near Michel Camp bounded on one side by Plaintiff’s land, one side by a street, another side by the property of Mr. Aburam and the last side by a street. The Defendant alleged that the Plaintiff was compelled to sell a portion of his land measuring 46feet by 112feet to solve a financial problem he had with the Sebrapor Methodist church on or about June 2003. The Plaintiff vehemently denied this assertion and throughout the trial maintained his position that he never sold his land to the Defendant. As earlier analyzed above in this judgment, the Defendant who had a legal burden to prove his allegation could not lead adequate evidence to establish his Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 14 of 17 allegation. The exhibits tendered by the Defendant are not substantial evidence enough to merit a declaratory relief in his favour as he has counterclaimed. This being a land case, with Defendant’s counterclaim being substantially for declaration of title, the Defendant must succeed on the strength of his own case. Therefore, there was an obligation on the Defendant to adduce credible evidence to establish his case. See: Yorkwa v. Duah [1992–93] 1 GBR 279 CA, Mamudu Wangara v. Gyato Wangara [1982-83] GLR 639. 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 the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466. The Defendant has not adduced sufficient evidence to prove the root of the title he is counterclaiming. This is because he claims he purchased the said land from the Plaintiff but could not establish that assertion. The Defendant therefore could not discharge the obligation on him to prove his 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 Defendant has not been able to adduce substantial credible evidence for a declaratory judgment with its ancillary reliefs in his favour. In the case of Fordjour v. Kaakyire [2015] 85 GMJ 61, the Court of Appeal through His Lordship Ayebi J.A. held 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”. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 15 of 17 There is not cogent evidence before this Court to warrant the finding that the Defendant is the owner of all that piece of land measuring 46 x 112 feet lying and situated at Sebrepor near Michel Camp bounded on one side by Plaintiff’s land, one side by a street, another side by the property of Mr. Aburam and the last side by a street. The Defendant is therefore not entitled to a declaratory judgment with its ancillary reliefs as endorsed in his counterclaim. From the evidence on record and analysis above, I am unable to find that the Defendant as a Plaintiff to his counterclaim has led sufficient evidence for a declaration of title in his favour and the grant of the other reliefs in his counterclaim. Therefore, the counterclaim of the Defendant hereby fails. CONCLUSION On the basis of the entire evidence before this Court and the findings above and in the absence of sufficient evidence by the Defendant to be entitled to his reliefs, I hereby dismiss the reliefs contained in the counterclaim of the Defendants; and I find on the preponderance of probabilities that the Plaintiff was able to discharge the legal burden placed on him. In the circumstances, I hereby enter judgment for the Plaintiff as against the Defendant as follows: 1. I hereby grant declaration of title to the piece of land measuring 35 x 50 lying and situated at Sebrepor near Michel Camp in favour of the Plaintiff. 2. Recovery of possession of the said land aforementioned in favour of the Plaintiff. Counsel for Plaintiff: We will ask for cost of GH¢2,000.00. Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 16 of 17 Counsel for Defendant: Based on the nature of the matter and the way it has been dangling back and forth, the Court should make no order as to cost. Court: Having listened to both Counsel for the parties and considered the length of the proceedings as well as the conduct of the parties and their lawyers during the proceedings, and to provide some remuneration as well as the travel expenses to court and filing fees, I will award a costs of GH¢1,500.00 in favour of the Plaintiff against the Defendant. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Emmanuel Aryeetey v. Edward Caesar Amoyaw Page 17 of 17