Fremah v Asare [2025] GHADC 91 (10 July 2025)

_**IN THE DISTRICT COURT OF GHANA HELD AT DIASO, CENTRAL REGION ON THURSDAY THE 10**_ _**TH**_ _**DAY OF JULY, 2025 BEFORE HER WORSHIP MELISSA SELORM DADSON, (ESQ) DISTRICT MAGISTRATE**_ **SUIT NUMBER: A11/10/24** **AKOSUA FREMAH PLAINTIFF** **VRS** **MATTHEW ASARE DEFENDANT** **TIME: 12:54 PM** **PARTIES: PRESENT** **LEGAL REPRESENTATION: UNREPRESENTED** _**JUDGMENT**_ Per a writ of summons filed on the 22nd of November 2023, the Plaintiff claims that the Defendant has blocked the access to her house with his washroom. On the 14th of December 2023, the Defendant pleaded not liable to the claim of the Plaintiff. **THE CASE OF THE PLAINTIFF** It is Plaintiff’s case that she has a building at Diaso Domponiase. The Defendant is her neighbour who has his house just about 25 meters away. She claims that the access road leading to her house has been blocked by the Defendant who has constructed a washroom on the access road. It is her case that the construction in the middle of the road has made it difficult for her to convey building materials to her house. She says she has complained to the Defendant on several occasions to remove the washroom but he has refused. **THE CASE OF THE DEFENDANT** The Defendant on the other hand says that he acquired his land from Obaapanin Yaa Donkor and Maame Adwoa in the year 2006. He says in the year 2007 he built 3 single rooms, a wooden kitchen and bathroom on the land. Over the years the Plaintiff says he demolished the wooden bathroom and recently constructed a new bathroom and lavatory. He says the bathroom and lavatory he has constructed is within the confines of the land he acquired. It is his case that the place he built his bathroom has not been demarcated as a road. **ISSUES TO BE DETERMINED** Whether or not the Defendant obtained a legal building permit to construct the washroom? Whether or not the washroom has been constructed on a public right of way? Whether or not the Plaintiff is entitled to her claims? **TESTIMONY OF THE PLAINTIFF** When the Plaintiff mounted the witness box on 18th April 2024, she testified that she is a trader and lives at Diaso. According to her the Defendant is her neighbour and there is a lane that serves as an access road to the houses of both parties and the other houses on that lane. She went further to state that the Defendant has erected his washroom on the access road that leads to her house. She says that the Town and Country planning demarcated STOP WORK on his walls but the defendant went ahead to construct the washroom. She says the presence of the washroom on the access road has made it impossible to convey building materials unto her land for construction. According to her the presence of the washroom will make it impossible for a car to access the area in question in case of an emergency. **THE TESTIMONY OF PLAINTIFF’S WITNESSES** **PW1** was Adwoa Afrah. She is a farmer and lives at Diaso. She testified that herself and Yaa Donkor are those who allocated the respective plots of land to the parties in this case. She says the Plaintiff is her daughter. According to her the plaintiff reported to her that the Defendant was putting up a washroom on the road that leads to her house. She said upon inspection she realized that the washroom was on an access road so he advised the Defendant to put a stop to the construction of the washroom. According to her she reported the matter to the Engineer of the District Assembly and the officers of the Town and Country Planning Department of the District. According to her they inspected the site and demarcated ‘STOP WORK’ on the washroom. She testified that the Defendant defied the order and has completed the washroom. **PW2** was Amos Mesu. He is a surveyor and knows both parties in the suit. The Plaintiff is his sister. He testified that some time ago, his late brother known as Kwodwo Mesu informed him that the defendant had trespassed unto his land to build a washroom. He avers that his deceased brother informed him that the defendant told him that since it was a wooden structure he would demolish it whenever the need arose. According to him his brother asked him to cultivate 2 coconut trees behind the wooden washroom and another coconut tree at the southern end of the washroom. He testified that the defendant has built a washroom close to the coconut trees. Apart from the oral evidence adduced by the Plaintiff, she did not tender any documentary evidence in proof of her case. **THE TESTIMONY OF DEFENDANT** The Defendant testified that he acquired his land from Obaapanin Yaa Donkor and Maame Adwoa Afrah in the year 2006. According to him he constructed 3 single rooms, a wooden kitchen and bathroom outside the house in the year 2007. He said he also planted some coconut trees close to the washroom. He says that in August 2023, he demolished the old bathroom and constructed a new bathroom and lavatory with building blocks. According to him, the washroom has been constructed on his land. He adds that where he has his washroom is not an access road as claimed by the Plaintiff. He prayed this court that the Plaintiff is not entitled to her claim He tendered in Evidence the following documents Site Plan of Matthew Asare - Exhibit 1 Picture of the Washroom - Exhibit 2 A letter to Town and Country Planning - Exhibit 3 A letter from Town and Country Planning - Exhibit 4 **THE TESTIMONY OF DEFENDANT’S WITNESS** **DW1** was Kojo Manu. He said he accompanied the defendant to acquire his plot of land from Maame Yaa Donkor and Adwoa Afrah. According to him the defendant has enjoyed peaceful possession of the land until the recent claim of the Plaintiff that the bathroom is on an access road. **THE BURDEN OF PROOF** In Civil cases such as this present case, it is the party who on his writ raises issues essential to the success of his case who assumes the onus of proof. See the case of **ZAMBRAMA V. SEGBEDZI (1991)** **2 GLR 221** where Kpegah JSC (as he then was) held as follows: “… _a person, who makes an averment or assertion; which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or the facts he asserts can properly and safely be inferred…”_ The standard of proof in civil cases except in cases of imputation of crime is by preponderance of probabilities. This burden is captured under sections **11(4)** , **12(1)** and **12(2)** of the **Evidence Act** **1975 (NRCD 323)**. These sections provide as follows; _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 probabilities.”_ _12(2) “Preponderance of probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.”_ In the book **‘Essentials of the Ghana Law of Evidence’** the learned author Justice S A. Brobbey at page 31 describes the burden of proof as: “ _this literally means “The proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof.”_ _Where the Plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial.”_ In this case, it is the Plaintiff who claims that the access road to her property has been blocked by the washroom built by the defendant. The defendant didn’t counterclaim. Therefore, the evidential burden as well as the burden of persuasion on the issues for consideration rests on the Plaintiff. **EVALUATION OF THE EVIDENCE AND DETERMINATION OF THE ISSUES** Before I tackle the issues before this court I will consider section 281 of the Land Act 2020 (Act 1036) which provides that: “ _easement means the right under the rules of common law attached to land and which allows the proprietor of the land to which the right is attached to use another land in the particular manner or to restrict the use of the land to a particular extent but does not include any right capable of existing as a profit or restrictive convenant”_ In simple terms, people who conform to existing layout plan of a particular locality in the construction of their landed properties should by law or in equity, have access to their property without any hindrance put in their way or being considered as trespassers. _On the issue of whether or not the Defendant obtained a legal building permit to put up his washroom?_ From the evidence before this court, the plaintiff says that there is a lane that serves as an access road to her house, the Defendants house and the other houses. She says the Defendant has erected a washroom on the access road and during the construction the Town and Country Planning officers came to demarcate ‘STOP WORK’ on the walls. The Defendant in his evidence before this court testified that the Town and Country Planning did not demarcate STOP WORK on the washroom but it was rather the words PRODUCE PERMIT BY UWDA 0548415294. It is provided under section 91 (1) & (2) of the Local Government Act, 2016 (Act 936) as follows _**91 (1)A person shall not carry out a physical development in a district except with the prior written approval in the form of a written permit issued by the District Assembly.**_ _**91(2) A District Planning Authority may approve an application referred to in subsection (1), before the adoption of an approved District Development Plan for the District.**_ From the evidence before this court the Defendant did not obtain the necessary permit from the local authority before he proceeded to construct the said washroom. I am of the firm believe that the framers of our legislation envisaged that without empowering the Assemblies to regulate orderly development of structures there will be chaos and inconvenience in our various communities such as unplanned siting of building structures, use of unapproved drawings, building on water ways and public right of way etc. That is why Act 936 mandates developers to obtain building permits before putting up permanent structures. **On the issue of whether or not the washroom built by the Defendant is on an access road?** From the evidence before this court, the plaintiff says that there is a lane that serves as an access road to her house, the house of the Defendant and the other houses. She says the Defendant has erected a washroom on the access road. I would refer to the case of **MAJOLAGBE V. LARBI [1959] GLR 190 at 191** in which it was held that where a party made an averment capable of proof in some positive way and his averment was denied, it was not enough for him to go into the witness box and repeat the averment but he had to offer other evidence of facts and circumstances which would satisfy the court that the averment was true. Plaintiff says that the washroom constructed by the Defendant is on her late brother’s land and that the Defendant has trespassed unto the said brother Kwodwo Mesu’s land to build the washroom. She also testified that it was her brother Kwodwo Mesu who demarcated the access road on his land. Contrary to the above, under cross examination of PW2 (Amos Mesu) by the Defendant the following transpired; 1. _Do you remember that where my washroom is built and my coconut trees are planted does not share a boundary with Kwadwo Mesu?_ 1. _That is correct. My brother Kwadwo Mesu and one Maggi divided the land into 2 so Maggi built her house and Kwodwo Mesu took the other portion. So Kwadwo Mesus Land does not share boundary with where the defendant’s washroom is built._ 2. _Will you agree with me that Kwodwo Mesu has no land on the land which is the subject matter of this court?_ 1. _That is true. He has no land. He had land there but he sold it to someone. His building Plan did not fit on that portion of land._ From the above I make a finding that the Defendant’s land does not share boundary with the land of Kwodwo Mesu as Plaintiff claims. I also make a finding that the Defendant has not trespassed unto Kwodwo Mesu’s land to build his washroom. I will refer to the case of **IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV ( SUBSTITUTED BY TAFO AMON II) V AKOTIA OWORSIKA III ( SUBSTITUTED BY ) LARYEA AYIKU III [2005-2006] SCGLR 637** “ _where the adversary of a party has admitted a fact advantageous to the cause of that party, what better evidence does the party need to establish that fact, than by relying on the admission of his opponent. This is estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted.”_ The Plaintiff also testified that her site plan indicates that the area where the Defendant has constructed the washroom is a street. The very site plan the Plaintiff hammered and strongly relied on as proof that the area occupied by the defendant’s washroom has been demarcated as a road was not even produced in this court in proof of her case. _**The Expert Opinion**_ On the 18th of July 2024 the court gave an order backed by section 14 of the Evidence Act 1975 NRCD 323 for an expert to be appointed to inquire into and report on whether or not the washroom built by the Defendant is on a public right of way (road). The exercise was conducted by Enoch Teye, the District Town and Country Planning Officer. From the site plans submitted to the surveyor as well as the areas shown by the parties, his report indicated amongst others the following: 1. That there is no access as the Plaintiff claims against the Defendant 2. That there is no layout of that area 3. That there was an erected washroom within the property of the Defendant which is the cause of the litigation 4. Both parties do not have building permits. I have no reason to doubt the report tendered by the officer on the 9th April 2025. The law is that a court is not bound by the evidence or opinion given by an expert. However it is equally the law that, a court should give good reasons why an expert evidence or opinion is to be rejected. SEE: **TETTEH & ANOR V HAYFORD (2012) 1 SCGLR 417.** **SASU V WHITE CROSS INSURANCE CO. LTD (1960) GLR 4 CA** The layout of land in Ghana is governed primarily by the Land Use and Spatial Planning Act, 2016 (Act 925) which regulates how land is planned and used. It establishes structures like the District Spatial Planning Committee which is responsible for approving layouts for residential, commercial and agricultural or mixed use purposes. The Local Government Act 2016 (Act 936) also gives the authority to the District Assemblies to approve layouts through their planning departments. In resolving this issue, I hold that the washroom of the Defendant has not been constructed on a public right of way. **On the issue of Whether or not the Plaintiff is entitled to her claim?** From the overall evidence before this court, I come to the conclusion that there is no approved layout of the area in question to show that the area where the Defendant’s washroom is located has been earmarked as a public right of way ( road). The court is of the view that even without the approved layout of an area, the doctrine of easements as earlier discussed may aid the court in making a determination especially in a case where the Plaintiff claims legal access to a property. To succeed in such a claim it must be shown that a person has openly and continuously used a path or road over another person’s land for a long period. The Plaintiff’s evidence on record does not amply support the fact that the area has been openly and continuously used as a road. She could have even called the adjoining land owners to testify to that fact but she failed to. The plaintiff failed to tender the site plan she relies on indicating that the area where the washroom has been built is a road. I also find that both parties have not obtained their legal permits to put up structures on their various lands. Based on the reasons given above, the Plaintiff is not entitled to her claim. **CONCLUSION** Before I close the curtain, I must say this. All Metropolitan, Municipal and District Assemblies as public authorities are entrusted with the planning and physical development within their areas of jurisdiction. Where they fail to, is the main cause of the situation that has arisen. This is because officers are not diligent enough to stop the activities of people as soon as they commence unauthorized developments as mandated by the law. In this case both parties do not even have building permits as mandated by law to put up their structures. **FINAL ORDER** The Plaintiff’s case is dismissed. There will be no order as to cost. **SGD** **H/W MELISSA SELORM DADSON** **MAGISTRATE, DIASO DISTRICT COURT**