Mensah v Anyare (BR/KD/DC/A1/25/2024) [2025] GHADC 228 (4 June 2025)

INTHE DISTRICTCOURTHELDATKWAME DANSOONWEDNESDAY,THE 4TH DAYOFJUNE, 2025.BEFOREHERWORSHIPCYNTHIAADEIANDYESQ. (DISTRICTMAGISTRATE) SUITNO.:BR/KD/DC/A1/25/2024 CHARITYADWOAMENSAHOFKWAME DANSO PLAINTIFF AND AZIBAHEDWARDANYARE OFKYEAME-KROM DEFENDANT J U DGME NT The plaintiff is a businesswoman residing at Kwame Danso, while the defendant is a Pensioner and afarmeralso residing in Kyeame-Krom. Plaintiff claim against the defendant forthefollowing reliefs: a) Declaration of title and recovery of possession of building plots numbered 11A and 12Alying andsituated at Kwame Danso andLemu mainroad. b) Generaldamagesfortrespass 1 c) Recovery of an amount of GH₵5000.00, being the expense incurred in erecting thewalland also the costoftwohundred blocks. d) Perpetualinjunction e) Anyfurther orders. The plaintiff's case, per her statement of claim, was that she purchased the land in dispute from one Fuseini Ibrahim in the year 2016. At the time of the purchase, her vendor had deposited one trip of sand on the land. She also brought two trips of gravel, two additional trips of sand and five thousand cement blocks. Plaintiff stated that she had no issues with the purchase of the land since that time. She always pays people to clear weedsonit when it becomes brushy. According to the plaintiff, somewhere in May 2024, she decided to erect a fence wall around the disputed land, together with an adjoining land she had purchased earlier from one Kwadwo Carpenter. Plaintiff said she was on the land with her workers when the defendant sent two people to her, that she should stop the work, the reason being that the land had been sold to him. The plaintiff said she returned to the land the following day, only to see the wall erected the previous day on the ground. That it was thedefendant who pulled the walldown. Plaintiff tendered a statutory declaration (Exhibit “C”). The content shows a transfer of land by Fuseini Ibrahim to one Alexander Akwasi Owusu. It was dated 17th May, 2019. 2 Attached to the statutory declaration is a site plan and a receipt both bearing Fuseini Ibrahim’sname. The plaintiff called threewitnesses. First, witness (PW1) was Fuseini Ibrahim. PW1 stated that the area where the disputed land was originally located belonged to the 31st December Women’s Movement. Subsequently, the Dwan Traditional Council started re-allocating the land. They demarcated the land into plots and sold them to individuals, including himself. According to PW1, the plots sold to him by the traditional authority were numbered 11A and 12A. According to PW1, it was a secondary forest, so he engaged timber operators to have it cleared and went ahead to deposit one trip of white sand on it. Due to financial constraints, PW1 stated that he sold his two plots to the plaintiff two years afterthe purchase. Plaintiff’s second witness was Ephraim Antwi, a resident of Kwame Danso. He testified that he purchased two plots of land from the Dwan Traditional Council. These plots were numbered 11 and 12. That plaintiff’s vendor around the same time also bought plots numbers 11A and 12A. PW2 said that he and PW1 together sold all their plots of land tothe plaintiff herein. Final plaintiff’s witness (PW3) was Nana Berimah Nteh II. He is the Gyasehene of Dwan Traditional area. He acted as president of the Dwan Traditional Council for some time 3 after the death of the Omanhene of Dwan Traditional Council, the late Nana Kofi Banker II. As the then president of Dwan Traditional Council, PW3 said he was responsible for signing land documents, including site plans of lands sold at Kalipo and other areas. Under cross examination, PW3 admitted writing a letter to the defendant in respect of a land belonging to him at Kalipo, which the defendant had yet to develop. He also admitted the defendant was made to pay another money. He also admitted that notallthe lands theysold havesite plans. The defendant denied the plaintiff's claim. He stated that the disputed plots of land were acquired by him from the Nananom of Kalipo on 25th September, 2013. He explained that an offer for the sale of the two plots was made to him by Nana Kwame Narbi, the then Odikro of Kalipo, Asafoatse Yaw Kukari and Hon. Prince Ohene Dankwah, the then Assemblyman for that electoral area. He said he agreed to buy after they had explained to him that they needed the money to pay for expenses as a result of a land litigation involving the community at the Atebubu District Court. The agreed price, according to the defendant, was One Thousand Four Hundred Ghana Cedis (GH₵1400.000). He was given a receipt and plot allocation note from the Dwan Traditional Council. Defendant stated that he retired from public service in the year 2015 and returned to his hometown in Garu-Bawku in the Upper East Region of Ghana inthe year2024. 4 Furthermore, Defendant stated that somewhere May 2024, He visited the land and saw that the whole place was weedy, so on 9th May, 2024, he engaged one Akwasi Boadum and four other young men to clear the weeds on the land. Two days after clearing the weeds, the defendant said he was at Kyeame-Krom when he received a phone call that some people were busily working on his land. He said he rushed to Kalipo to complain tothe Odikro,NanaAtakoraBenyin I. The Odikro sent men to go and stop them and invited the plaintiff and himself to his palace to look into the matter.Atotal of three invitations were extended to the plaintiff, but she failed tohonour them. Finally,according to the defendant, on15th May, 2024, PW1 and one Mr.Akwasi @4HRS, as well as the defendant, appeared before the Odikro. The plaintiff was absent. They were asked to produce their documents covering the land. The defendant presented his, but the others failed to do so. Mr. Akwasi said that, as for him, he was just a caretaker. Fuseini also claimed he was the original owner but had transferred his title to Alex, a brotherofthe caretaker. Defendant tendered a plot allocation document dated 29th September, 2013 (Exhibit “A”), A receipt dated 25th September, 2013 from the Dwan Traditional council (Exhibit “C”) and another receipt from the traditional council (Exhibit “D”) issued as a plot allocation fee.It isalso dated 20thSeptember,2020. 5 The defendant called fourwitnesses. First defendant's witness was Yaw Kukari, the Asafoatse of the Kalipo community, a suburb of Kwame Danso. He stays at Kalipo. DW1 said that in the year 2013, he and the then Assembly Member of the area, met the defendant and offered to sell a portion of the community land to him. The meeting was at the defendant's office at the Sene West District Assembly. DW1 said they were sent by the then Odikro, Nana Kwame Narbi. The defendant agreed to buy the two plots of land offered to him. The agreed selling price was One Thousand Four hundred cedis (GH₵1400.00). According to him, the defendant later paid the money, and he was issued a receipt and allocation paper by the Dwan Traditional Council. DW1 said the defendant went into possession by clearing all the teak trees on the land. DW1 insisted that, being the original owners, no one can sell land inthe area withouttheir consent. Defendant’s nextwitness (DW2) was NanaAtakora Benyin I, the Odikro ofKalipo. He is also a worker at Kwame Danso Senior High Technical School. He stated that the defendant came to complain about the activities of the plaintiff on the disputed land. The plaintiff refused to honour all invitations extended to her to resolve the problem. However, on 15th May, 2024, the matter was called again, and the defendant, one Mr. Fuseini Ibrahim @ Sonkonia and Mr. Akwasi @ 48HRS were in attendance. Fuseini informed the elders that he had sold the land to Mr. Alexander. The sitting was 6 adjourned for themtoproduce their supporting documents. The defendant appeared on that day, but the plaintiff’s side failed. The elders also received information that the plaintiff had sent workers to the land, so they sent people to go and stop them from working. The third defence witness (DW3) was Hon. Prince Ohene Dankwah, a formerAssembly member ofthe Kalipo community,Kwame Danso. DW3 said some years ago, the then Odikro of Kalipo, the late Nana Kwame Narbi, in the company of DW1, approached him and offered to sell the disputed land to him. DW3 says the land is located close to where he has a private school. He could not buy it due to lack of funds. Together with one of the elders, they approached the defendant herein and they made the same offer of selling the land to him. According to DW3, the defendant agreed to buy it. This was in the year 2013. The agreed price after negotiations was One Thousand Four Hundred Cedis (GH₵1400.00), which the defendant paid in full. DW3 said two documents were issued to the defendant by the DwanTraditional Council. They wereanallocation paperand anofficial receipt. The final defence witness was Akwasi Boadum, a native of the Kalipo community, Kwame Danso. DW4 said his house is located opposite the disputed land. That the defendant engaged him and his boys to clear weeds on the disputed property. That they weeded the defendant’s plot on 9th May, 2024. The following day, he saw that someone 7 had gone to dump heaps of sand. He also saw some young men moulding blocks. DW4 said he then called the defendant on phone from his base at Kyeame-Krom, and reported what was going on. According to DW4, when they weeded the land they did notsee heaps ofsand, cement blocksorgravelonit. Fromtheevidence adduced, the mainissues tobe determined are: i. Whetherornot theplaintiff has title inthe disputed two plotsofland? ii. whetheror notdefendant is liable for trespass iii. Whetherornot the defendant is liable topay damages forthe destruction caused tothe plaintiff’scement blocks and thefence wall. On the resolution of the first issue, the plaintiff caused a writ of summons to issue concerning two plots of land she described as plots numbers 11Aand 12A. She said the land belongs to her, meaning her bona fide property. She traced her root of title from one Fuseini Alhassan, whom she would later call as her first witness. The said Fuseini Alhssan also claimed she purchased the land fromtheDwanTraditionalcouncil. In summary of the claim accompanying the writ of summons, as well as her witness statement, which she relied on as her evidence in chief, the plaintiff claims she bought the land from PW1 in the year 2016. The exhibits “A” and “B” tendered by her, which are an allocation note and receipt from Dwan Traditional council to her vendor, indicated that the land was sold to Fuseini in the year 2016. A statutory declaration on 8 the transfer of the land from Fuseini was dated 2019. In that document, Fuseini Ibrahim transferred his plots numbers 11Aand 12Ato one AlexanderAkwasi Owusu. Plaintiff’s name did not appear in any of the exhibits tendered by her in support of her claim. There is no evidence on record connecting Alexander to the plaintiff herein. As indicated earlier, the plaintiff sued in her capacity as owner of the disputed two plots of land and not in a representative capacity. Further to this, the statutory declaration filed cannot apply to the plaintiff herein, as the one PW1 transferred the land to. The plaintiff claims the land was sold to her. Fuseini also said he sold the two plots to the plaintiff herein. This assertion was also supported by PW2. PW1 also did not explain why he did thedocument in the name ofAlexander and notthe plaintiff herein. The defendant, on the other hand, said he bought the land in the year 2013 through the thenOdikro of Kalipo, Nana Narbi and documentation in terms ofa plot allocation note and receipt were issued in his name by the Dwan Traditional Council. Both parties claim the Traditional Council as their grantors. Their documents were signed by the Registrar of the Council. Again, as recently as the year 2022, the council wrote through PW3 to the defendant warning him to commence development on the disputed land, and he was made to pay some additional money in respect of the disputed land and issued withafreshallocation note. 9 None of the parties herein challenged the authenticity of the documents from the traditional council that they tendered in evidence. It therefore means that the same plots of land have been allocated twice by the same council. Defendant’s allocation was in 2013, and that of the plaintiff’s vendor was in 2016, which sale was facilitated by the successor tothe defendant’s grantor. Itis trite that land sold by the previous occupant or Odikrocannot be resold by asubsequent chief orOdikro. The effect ofasubsequent sale of land validly sold to a previous purchaser is invalid. This is also because one cannot sell what he does not have, which is expressed in the Latin maxim, nemo dat quod non habet. In the case of Chou Sen Lin v Tornado Enterprises Ltd [2007-2008] 1 SCGLR 135 and 139,the court held “the evidence showed that the plaintiff was granted three plots, one of which was the plot claimed by the defendants. When the defendants started to construct the fence wall around the portion which they claimed to have acquired from Tema Development Corporation (TDC), the plaintiff was already in occupation of the plots and had constructed factories on the adjoining plots. All these were confirmed by the second defendant's witness, an official from the TDC whom the defendant called as their own witness. Since the plaintiff's acquisition through Tandoh was dated from 1974, at the time the defendants claimed to have acquired the third plot in 1976, the TDC no longer had any plot available and which could be allocated to them. This was a definite caseof "demodat quod nonhabet”. 10 Again, in applying the rules of equity, none of the parties has obtained legal title by means of title or deed registration of their interests. Their ownership is therefore based in equity. Consequently, since the equities are equal, the first in time prevails. The defendant’s prior grant in 2013, therefore, prevails over the plaintiff grantor’s subsequent grant in2016. Based on the above findings, therefore, the plaintiff has failed to prove her title to plots numbers11Aand 12A. On the issue of trespass, trespass to land is defined as the unjustified interference with the possession of land. In order to succeed, a plaintiff must therefore prove direct invasion by the defendant’s action, the plaintiff must be in possession of the land and theremust be nolawful excuse onthe partofthedefendant. In the instant case, the plaintiff tried to establish the element of possession. It was her case that her grantor deposited trips of sand and gravel on the land. This evidence was contested by the defendant. DW4, who said the defendant contracted him and some four others toweed the plots, said theydid not see such things onthe land. It wasrather after the weeding that the plaintiff went to deposit cement blocks, sand and gravels on the land. Plaintiff, therefore, was not in possession of the land. Since she has failed to prove title and also possession of the disputed land, she lacks the locus standi to institute an action in trespass on such property. The defendant whose grant of the land 11 is earlier in time as against the plaintiff is justified in taking action by entering the land to stop the plaintiff's workers. In conclusion, even though there was direct invasion, the defendant is justified todo so,as such the claim fordamagesin trespass fails. Inrespect ofthe cost ofthe blocksshe claimed weredamaged, no evidence wasled to provesame.Again, as anowner ofaproperty,one isexpected toprotect such property. Defendant cannot, therefore, be held liable fordamagesto the plaintiff’s blocksinorder tostopthetrespassthe plaintiff wascommitting onhis land. Inconclusion, the plaintifffails toproveallher reliefs; assuch, hercase is dismissed. CostofGH₵3000.00against theplaintiff. …………………………………… H/W CYNTHIAADEIANDYESQ. (DISTRICTMAGISTRATE) 12