Smith v Okromansa (A1/42/24) [2025] GHADC 138 (23 June 2025)

IN THE DISTRICT COURT “B” SITTING AT AMASAMAN ON THE 23rd DAY OF JUNE, 2025 BEFORE H/W ANNETTE SOPHIA ESSEL (MRS.) SITTING AS – MAGISTRATE SUIT NO: A1/42/24 PATIENCE SMITH aka MRS. PATIENCE NAANA DUOGBOR PLAINTIFF HOUSE NO. AD – 339 – 2340 DOBRO NEAR NSAWAM VRS: NII AMOAH OKROMANSA VII DEFENDANT (CHIEF OF ADJEN KOTOKU) CHIEF’S PALACE KOTOKU JUDGEMENT INTRODUCTION: The plaintiff hauled before this court the defendant who is the chief of Aden-Kotoku, a suburb in the Ga-West District of the Greater Accra Region of the Republic of Ghana with respect to his various acts of trespass on her land. The subject matter of this dispute is one plot of land which same is particularly described in the plaintiff’s indenture. The plaintiff seeks the reliefs as listed in her statement of claim from the court. 1 CASE OF THE PLAINTIFF: The plaintiff avers that in the year 2012 she acquired by lease the land in dispute from Nii Tackie Amoah VI; the father of the defendant. This transaction was evidenced in writing by the due execution of an indenture and site plan by Plaintiff together with her witnesses and her grantor. Plaintiff avers that she entered into possession of same and commenced development of same by putting up a building at lentil level and also depositing building materials on same. Plaintiff avers that she noticed the defendant’s initial acts of trespass on her land in July 2024 and consequently confronted the defendant on her land which same the defendant did not deny. Plaintiff avers that her warning to the defendant to desist from further developing her land has fallen on deaf ears. Neither has the warning of the Police at Adjen- Kotoku Police Station where she reported the defendant’s conduct been heeded. Plaintiff concluded that the defendant is developing the land in dispute at a fast pace by raising a wall and filling a foundation he had dug to her disadvantage hence the reliefs above- mentioned by the mounting of this suit. In support of her averment the plaintiff filed the following exhibits: i. Exhibit A: Unstamped Indenture with site plan between Nii Tackie Amoah VI and Plaintiff. ii. Exhibit B: Coloured image of the plaintiff’s building at lintel level. iii. Exhibit B1: Coloured image of one trip of stones deposited on the land in dispute. iv. Exhibit C Series: Coloured photographs of the foundation and wall constructed by the defendant. 2 The defendant in this suit simply spurned the invitation of the court. ISSUES TO BE TRIED IN THIS CASE: At the close of pleadings, the following issues were set down for determination in this suit: a. Whether or not Plaintiff indeed held valid title in respect of the land in dispute. b. Whether or not the plaintiff is entitled to the reliefs she seeks. BURDEN OF PROOF/PERSUASION: This being a civil suit, the standard of proof required of a party who makes assertions which are denied, is one on a balance of probabilities. This therefore requires a party making assertions to adduce such evidence in proof of the assertions, such that the court is convinced, that the existence of the facts he asserts are more probable than their non-existence. Section 10, 11(1) and (4), 14 and 17 of the Evidence Act, 1975 (NRCD 323) provides that: “10. Burden of Persuasion Defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of Producing Evidence Defined. 3 (1) For the purposes 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. (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. 14 Allocation of burden of persuasion 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. 17 Allocation of burden of producing evidence (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (2) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. This burden of producing evidence by both sides in the suit as well as the burden of persuasion is defined by Section 12 of the Evidence Act 1975 (NRCD 323) which stipulates as follows: Proof by a Preponderance of Probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the 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. 4 In explaining the principles relating to the duty to produce evidence, S.A Brobbey J.S.C states at page 31 of his book Essentials of the Ghana Law of Evidence thus; “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 the case of Dzaisu and Others v Ghana Breweries Limited [2007-2008]1 SCGLR 539 at page 545, the Supreme Court per Sophia Adinyira stated as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim. Regarding the burden of proof, the dictum of the Supreme Court in the case of Klah v Phoenix Insurance Co Limited [2012] SCGLR 1139, is relevant. In that case, the court held 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 it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.” DETERMINATION OF THE ISSUES BY THE COURT: In the course of the trial, in support of her testimony under oath, Plaintiff tendered Exhibit A which is an indenture issued to Plaintiff by his grantor being documentation covering his title to the land in dispute. After a careful study of the document, the court observed that the oath of 5 proof and certificate of proof on the document was duly completed, stamped and signed by the registrar of the Amasaman High Court. The oath of proof on the indenture was signed. The due ground rent to be paid is stated. Again, the plaintiff in his statement of claim states that she executed a leasehold agreement over the land dated 8th February, 2012 and same is described in Exhibit A. Clearly this is a lease as stated by the Plaintiff in his Statement of claim. Although the dimensions of the land in dispute as described in the indenture speak to one and the same land, it is also striking to note that the site plan was certified and approved the same day. The indenture was signed that same day, as of the year 2012, that location was all described as Ga District at the Lands Commission Accra Regional Office and not Ga-West. It was apparent that a few tampering acts had taken place on the site plan solely for this litigation. In respect of this indenture, after analyzing same, I find that this said document was also not stamped nor registered. Section 15(1) of the Stamp Act, 1965 (Act 311) stipulates that a conveyance must be duly stamped with an impressed stamp at any time within two months after its execution upon payment of the stamp duty. The effect of failure to stamp an instrument or document which requires stamping is not generally to invalidate such an instrument but it renders it inadmissible in evidence in civil cases. The indenture was also not registered in compliance with Section 12 and 17 of the Stamp Act, 1965 (Act 311). Again, it is trite that unless and until an instrument affecting any land or interest in land is registered, it cannot pass any title in the land to the transferee unless after the execution of the instrument the transferee takes possession of the land in which case his possession will be good title against the whole world except someone with a better title/right to possession. In the circumstances where the indenture tendered by Plaintiff is not duly stamped nor registered, the court cannot proceed to admit this piece of evidence of title. In the case of West African Enterprise Limited V Western Hardwood Enterprise Limited & Or. Civil Appeal No 86/93 dated 6 18th April, 1996 (unreported) the Supreme Court affirmed the Appeal Court decision. By the facts of that case, the appellant was in effective possession and occupation of the land pursuant to a lease. The instrument evidencing the lease was not registered and therefore inadmissible evidence Acquah JSC. held as follows: “Now when in a trial any exhibit is found to be ineffective and invalid and as in the instant case, inadmissible exhibit, there is no other admissible evidence and materials on record to sustain the party’s claim, If there are other admissible evidence and materials on record to support the party’s claim, then the court is duty bound to consider those other matters. The inadmissibility or invalidity of an exhibit does not mean the automatic failure of that party’s claim unless from the pleadings and evidence the claim cannot be sustained on any other ground. So, in this instant suit, aside the production of valid documentation to serve as proof of title to the land in dispute, the court expected that Plaintiff would adduce further evidence to support her case such as a search document to show that she conducted a due and diligent search prior to the purchase. Plaintiff could have tendered any document to evidence that she did some enquiries as to whether her vendor had the requisite capacity to deal in the land, or any information or background check which her vendor may have failed to disclose. The court expected Plaintiff to show if she had checked whether the land falls within a compulsory registration district, etc. These searches are done in the Deeds Registry of the Lands Commission but there is nothing before the court in respect of the above-mentioned searches. If plaintiff had bothered to check, she may have known if any prior registration had taken place but no such evidence was tendered in court. Without this evidence being conducted by Plaintiff, it is doubtful to the court if Plaintiff did any due diligence prior to her lease of the said land in dispute. If the Plaintiff had taken steps to conduct the appropriate searches, she would also have known that perhaps there were previous dealings on the land. It is therefore doubtful to the 7 court if Plaintiff can seek protection under the law if an adverse title to his land is raised in future. The court also expected that at least Plaintiff would call in any witness to corroborate her testimony and if not at all, Plaintiff would call her grantor who are the persons from whom she purchased the land to confirm their title but sadly this person by the name of Nii Tackie Amoah VII was not in court. This being said, I hold the view that even on the merits, Plaintiff failed to show that her grantor even held a valid title at the time of the purported lease to be able to transfer valid title to Plaintiff. In the respectful view of the court, the evidence adduced in this case by Plaintiff in support of her title to the property does not meet the required evidential standard and as such the case of Plaintiff having title to the property will fail. I therefore conclude under this head that the Plaintiff has not convinced the court to its satisfaction that she has full and proper title to the land. The second issue for determination was whether or not Plaintiff was entitled to the reliefs she was seeking. As can be gleaned from the facts of this case Plaintiff moved into occupation on the land upon receipt of her indenture and commenced development of the land. Plaintiff failed to duly register and stamp her indenture covering this land. The indenture held by Plaintiff is therefore not in compliance or inadequate to constitute true and valid title. However, Plaintiff was in possession of the land and had taken steps to commence development on the land. This set of facts is similar to the case of Boateng v Dwinfour [1979] GLR 360 and also in Kabba v Young [1944] 10 WACA 135 the principle was expounded that if a purchaser of land whose conveyance is not registered takes possession of the land then any subsequent purchaser cannot pretend to be a bona-fide purchaser without notice. The earlier purchaser in possession can rely on his possession which could not have escaped the notice of the subsequent purchaser if the 8 latter made the requisite enquiries which a prudent purchaser would have made into the title of his vendor. In my view, once Defendant had notice of the litigation regarding this property in dispute, to ignore the court processes and not enter appearance to defend his title to the land was his own undoing. The court would have expected that Defendant knowing fully well that his title to the property was being challenged would have heeded to the summons of the court. The authorities are numerous that a person who deliberately spurns the opportunity to be heard cannot rely on the “audi alteram partem” rule and accuse an adjudicator of breaching the rules. In the case of Republic v Court of Appeal & Thomford; Exparte Ghana Chartered Institute of Bankers [2011] 2 SCGLR 941; the Supreme Court referred to its recent decisions that non-compliance with the “audi alteram partem” rule would result in nullity. Also, in the case of Ankomah v City Investment Ltd (2007-2008) SGCLR 1064 it was held that: “A Court is entitled to give judgment in default as in the instant case if a party fails to appear after notice of the proceedings has been given to him. For then it would be justifiable to assume that he does not wish to be heard”. In the circumstances, this Court, noting the deliberate failure of the defendant to participate in the proceedings despite notice to him, and the court, proceeding to consider the case on its merits and making the appropriate pronouncements, Defendant cannot ever say that the judgement pronounced in this suit was obtained fraudulently. Thus, it must be noted that a party who is aware of the hearing of a case, but chose to stay away out of his own decision could not complain that he was not given a hearing. He could only appeal on the merits of the judgment. DISPOSITION: 9 1. The court therefore holds that the Plaintiff’s first reliefs of a declaration of title to all that piece or parcel of land as described in her Exhibit A fails in its entirety. The standard of proof in civil cases including land is proof on the preponderance of probabilities. Section 11(4) and 12(1) of the Evidence Act (N.R.C.D 323) and the decisions of the Supreme Court in Adwubeng v Domfeh [1996 – 1997] SCGLR 660, Sarkodie v F.K.A CO Ltd [2009] SCGLR 65; Asante-Appiah v Amponsah [2009] SCGLR 90; Yaa Kwasi v Arhin Davies [2007-2008] SCGLR are all emphatic on that. 2. It is trite learning that possession cannot ripen into possession no matter how long it has been held as was held by Ollenu J (as he then was) in the case of Lartey v Hausa [1961] GLR 773, “neither under customary law, nor under the principles of natural justice, equity and good conscience can he, a tenant or licensee, become owner of land by reason of the duration of his tenancy or his licensee.” The law is that possession is nine points of the law. There being no other issues raised by the pleadings and the evidence, the court will proceed to only grant Plaintiff a relief of possession and occupation of the land until a higher title is raised as to the holder of title to the land in dispute. I find fortitude in the erudite judgement of Ansah JSC. in the case of Elizabeth Osei v Madam Alice Efua Korang [2013] GMJ 26 SC where he held that: “A plaintiff in possession has a good title against the whole world except one with a better title It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it.” To this end the court hereby injuncts forthwith the Defendant, his agents, workmen and assigns from dealing in the land in dispute unless same is vested in him. 10 3. The Plaintiff prayed for damages for trespass and led no evidence on same. The law on specific damages is that they must be particularized and specifically proven, in order to succeed. Failure to adduce sufficient evidence in support of this, the prayer must fail. The court will therefore award General Damages of Five Thousand Cedis (GHC 5,000.00) only in favour of the Plaintiff. 4. As incidentals for the filing of this suit Cost of Ten Thousand Cedis (GHC 10,000.00) only is awarded against Defendant in favour of Plaintiff. HW ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE 11