Iddrisu v Musah and Another (A1/31/2022) [2025] GHADC 211 (24 June 2025)

INTHE DISTRICT COURTA HELDATKOFORIDUA THIS TUESDAY THE24TH OF JUNE 2025 BEFORE HER WORSHIP NANA AMA DABBAH FYNN NKANSAH(MRS) SUITNOA1/31/2022 HAMDALATUIDDRISU OFH/NO.ASK/21, PIPELINE KOFORIDUA VRS 1. ALHASSANMUSAH 2. KWASISOLOMON(a.k.a Carpenter) ALLOFKOFORIDUA JUDGMENT This suit commenced with the issuance of a writ of summons and statement of claim on1/03/22 in which wasendorsed the following reliefs against the Defendantsfor: 1. An order of the court for the declaration of title and ownership to all that piece and parcel of land lying and being at Pipeline-Koforidua measuring an approximate area of 0.46acre or 0.19 Hectare and bounded on the North-East by Alhassan Musah, South-East by Mr. Joe, South-West by Hajia Adiza and South- Westby Nana Demiretu 2. An order of the Honorable court compelling the Defendants to re-situate their containerstructuresfromPlaintiff’sland. 3. An order compelling the Defendants to completely cover up the defecation hole and also restrainthe Defendants and their agentsfromthe land. 4. Costoflitigation. PLAINTIFF’S CASE The Plaintiff avers that she acquired the parcel of land in dispute, as described in her writ of summons, situated at Pipeline-Koforidua, in or about the year 2011. She identifies the 1st Defendant as her adjoining neighbour with whom she shares a commonboundary. The Plaintiff contends that approximately four yearssubsequent toher purchase, she discovered that a toilet facility had been constructed on a portion of her land. Upon inquiry, she was informed that the said structure had been erected by the 1st Defendant. Efforts made by the Plaintiff to directly engage the 1st Defendant proved futile, whereupon she resorted to informing his tenants to communicate to him her demand for theremovalofthe structure. Plaintiff further states that despite a settlement effort initiated at the traditional palace, the 1st Defendant failed or refused to remove the said structure. Upon a subsequent visit to the land, the Plaintiff discovered the presence of the 2nd Defendant, who was operating a carpentry business from a container shop located onthe disputed parcel. The 2nd Defendant is said to have informed the Plaintiff that he had taken possession of the space from the 1st Defendant as a tenant. The Plaintiff maintains that the 1st Defendant’s continued occupation and purported leasing of her land, despite repeated demands forpossession, formthecrux ofthis suit. DEFENDANTS’ CASE The 1st Defendant testified on his own behalf and on behalf of the 2nd Defendant. He asserts ownership of the parcel of land adjoining that of the Plaintiff, measuring approximately 100 feet by 60 feet, and bounded by the property of one Yaw Sarpong and aroad. According to the 1st Defendant, he acquired the said land from one Nana Aduanahene around the year 2002 and has been in continuous occupation thereof since that time. He further admits that he is the person who granted possession of the portion currently occupied by the 2nd Defendant, for the operation of a carpentryshop, assertingthat the said portion falls within theboundaries ofhisland. BURDENOF PROOF It is without question and quite trite law that the Plaintiff has a burden to prove his case tothestandard required in civil actions; that is, onabalance ofprobabilities. Section11ofthe EvidenceAct, 1975(NRCD 323)statesin part; Section11—BurdenofProducing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of aparty tointroduce sufficientevidence to avoid aruling againsthim on the issue. (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 existenceof the factwas moreprobable than its non-existence. Regarding the burden of proof, the dictum of the Supreme Court in the case of KLAH v. PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, is relevant here. In thatcase, it washeld that; “Where a party makes as averment at capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove itby merely going into the witness box and repeating that averment on oath or having itrepeated on oath by hiswitness. He proves itby producing other evidence of facts and circumstancesfrom whichthe courtcan satisfy itself thatwhat he avers is true.” (See also OKUDZETO ABLAKWA(NO.2) v.ATTORNEY-GENERAL &ANOR [2012] 2 SCGLR 845 @847 regarding what is expected of a person who goes to court and makesanallegation). (Seealso:ACKAHv.PERGAHTRANSPORTLIMITED &ORS(2010) SCGLR736) By the same measure, the Plaintiff is required to prove his claims against the Defendant onabalance ofprobabilities. In FRABINA LTD v. SHELL GHANA LTD. [2011] 33 GMJ 1SC, (@pages 27-28), the Courtper Brobbey JSCstated; “What must be noted is that, in evaluating evidence in judicial proceedings, a court hasseveralsourcestodraw material evidence from: 1. First are the pleadings. Where the pleadings are not in contention, it is safe for the trial judgeto drawfrom itand make his conclusions…. 2.The second is the oral evidence that has been led in court. The credibility of oral evidenceis normally tested through cross-examination …... 5. . The third is the documentary evidence. This normally takes the form of documents that are tendered during the course of trial and upon which questions are asked during examination in chief and cross-examination. It can also take the form of reports submitted by court appointed expert witnesses such as Surveyors, Accountants, Medical Doctors, etc who testify and tender in reports prepared by them to help the judge in determining the case one way or the other. 4. The fourth are judicial decisions and authorities touching and dealing with principles of law in the subject matter of the case on trial. This is normally done during the closing addressesby Counselof the parties tothe court. Upon a critical evaluation of the evidence led by both parties, the determination of thecase herein shall turnonwhether ornotthe Plaintiff is entitled to herreliefs. During the trial, the court subpoenaed the vendor of the 1st Defendant who testified asfollows… ‘…I enquired from Plaintiff of her vendor and she said Teacher Baafi sold the land to her. Teacher Baafi’s land is on the southern part of my land. Plaintiff said that Defendant had planted bitter leaf on some portion of her land ina bid to take her land. Ivisited the land and I sawthat Defendanthadencroached untoPlaintiff’sland.’ (emphasismine) During cross examination of the subpoenaed witness by the 1st Defendant, this is what ensued: ‘Q: Where mytoilet facilityis, that is wheremy land ends? A: The land belongs to me and I sold itto him and where he has erected the toilet facility is for someone else. Q:At the time you sold the land to me, TeacherBaafi was still alive. A: Yes.he was alive. Q:The place Isold tothe carpenteris for Water and Sewage Corporation and notpartof Plaintiff'sland. A: It is not true. Had it been for water and sewage, they would have asked you to vacate from there.’ From the tenor of the evidence of 1st Defendant’s vendor, it seems to corroborate the evidence of the Plaintiff. Especially when 1st defendant does not deny the fact that the subpoenaed witness is his vendor and showed him the boundaries before his purchase. In this court’s opinion, the 1st Defendant’s position is not only unsupported, but also untenable. The evidence of 1st Defendant’s vendor himself instead, breathes life into thePlaintiff’sclaim, anchoringher narrative incredibility and legalmerit. That notwithstanding, this court ordered a survey to be conducted on the land in dispute. A composite plan was prepared by one Surveyor Owusu Sekyere Abel, tenderedand admitted intoevidence without objectionas Exhibit CE1. Acareful examination of Exhibit CE1 reveals that the Plaintiff’s boundary, as marked on her site plan, corresponds almost exactly with the boundary established on the ground. In stark contrast, the 1st Defendant’s purported boundary, though physically adjacent to the Plaintiff’s land on the ground, is located at a significantly different position and is not reflective of his site plan. Crucially, it falls at a remote locationentirely detached fromthe areain dispute. Exhibit CE1 clearly identifies the area in dispute, hatched in red and measuring approximately 0.06 acre, as intersecting the Plaintiff’s land. During cross- examination, thesurveyormade atelling revelation: ‘Q: Will you be able to show us which portion of the land actually is the area in dispute on ground? A: Therewas acontainerat the areain disputeon the ground.’ This container, the very structure in which the 2nd Defendant operates his business, marks the physical presence that triggered this dispute. The import of the surveyor’s testimony is unambiguous: the land on which the container sits,the epicentre of this litigation, liessquarely within thebounds ofthe Plaintiff’sparcelofland. Given that the 1st Defendant’s superimposed boundary lies well outside this disputed zone, he cannot, by any stretch of legal imagination, assert a legitimate claim to the land upon which the container stands. Certainly, the law does not rewardopportunistic encroachmentsdressed upasinnocent boundarydisputes. In the case of SKONES SECURITY LIMITED v. ABUBAKARI MOHAMMED & ISSAHAKU SOSO (2022) JELR 110054 (CA) the Court of Appeal reasoned as follows: ‘What we are being called upon to decide is where a superimposition by a court appointed surveyor determines that the parties, let’s use one party, that one of the parties is disputing over land which boundaries he knows on the ground but this land as captured from his site plan by the surveyor puts his land somewhere else, is it the duty of the court to so declare or for the court to find a way of determining the matter by avoiding the superimposition results with the reason that he finds it unhelpful in the determination of the case before him? We do not hesitate inexpressing our viewthat if the surveyor has notfailed the credibility test in his evidence before the court and has sailed through cross examination creditably with his report, the court has a duty to accept his evidence and the report for assessment. What he has come out with is presumably scientifically based and expected to be the accurate location and dimension of the disputed plots. Refer to the case of ASSAFUAH v. ARHIN DAVIES (2013- 2014)2SCGLR1459. It is necessary to bear in mind that since the surveyor’s work and the resultant superimposition may favour the case of one of the contending parties, its rejection should be on well-reasoned fair and acceptable grounds. If a party’s land, for example, is declared in a superimposition to be where somebody else has already developed his storey building, it is for that party to consult and advise himself. It is not for a court to find a solution for such a situation by rejecting the survey report. In the circumstances of this case it is our view it was not proper for the trial judge to reject the survey evidence because it put the 1st Defendant’s intoan areanotindispute and encumbered byother personsnotpart of the suit. We have considered the other reason given by the trial judge for rejecting the evidence of the surveyor and we think he missed the evidence of the witness. Nowhere in the records was the surveyor asked to explain why the shift in the plots of the parties for him to have failed to explain. This view of the trial judge is erroneous. We find therefore that the reasons for rejectingthe surveyor’s evidenceand his reportwas nottenable and, inour view,erroneous. The composite plan evidencing the position of the plots of the parties is indicative of the location and other particulars of the plots in the site plan of the parties as scientifically established by the surveyor. The superimposition did not increase the land sizes really as indicated by the trial judge. All itdid was to show the newpositions as scientifically captured fromthe site plan of the parties.’ This court finds the evidence of the court-appointed surveyor to be precise and persuasive. Echoing the superior reasoning of the Court of Appeal in the authority above, this court aligns itself fully with the findings set out in Exhibit CE1 and the accompanying testimony. Accordingly,judgmentis hereby entered in favourofthe Plaintiff. Itishereby ordered asfollows: 1. Declaration of title to all that parcel of land described by Plaintiff in her Writ ofsummons. 2. The container structure, together with any associated installations placed by the Defendants, is to be removed within 30 days from the dateofthis judgment. 3. Perpetualinjunction is hereby granted restraining the Defendants, their agents or assigns, from entering or interfering with the Plaintiff’s land inany manner whatsoever. 4. Cost of GH₵ 8,000.00 is awarded in favour of the Plaintiff against the Defendants.