Prosper v Ayi@Nana Kojotia (A1/10/2024) [2025] GHADC 148 (4 April 2025)

IN THE DISTRICT COURT OF GHANA, NGLESHIE AMANFRO DISTRICT COURT HELD ON 4TH APRIL, 2025 BEFORE HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS) SUIT NO: SUIT NO: A1/10/2024 ASEIDU PROSPER PLAINTIFF VRS ISAAC AYI@NANA KOJOTIA DEFENDANT PLAINTIFF PRESENT DEFENDANT PRESENT LEGAL REPRESENTATION ROLAND SELASI KOFI TORWOE HOLDING BRIEF FOR NANA KOFI SAFO KANTANKA FOR THE PLAINTIFF JUDGMENT 1 | P age By a Writ of Summons and a Statement of Claim filed on 7th June, 2023, Plaintiff claims against Defendant the following reliefs: a) “Declaration of title to all that piece or parcel of land situate lying and being at Ngleshie Amanfro in Accra in the Greater Accra Region of the Republic of Ghana containing an approximate area of the boundaries whereof commencing at a pillar marked SGC B991/08/1, which pillar is 21807.33 feet on a bearing of 011°58' which bearing together with all other bearing hereinafter mentioned is referred to Meridian 1º west longitude to pillar marked SGC L305/15/1, thence runs on a bearing of 003°50 for a distance of 98.57 feet to pillar marked SGC L305/15/2, thence runs on a bearing of 090°38' for a distance of 70.05 feet to pillar SGC L305/15/3, thence runs on a bearing of 187°29' for a distance of 94.98 feet to pillar marked SGC L305/15/4, thence runs on a bearing of 266°58 for a distance of 64.34 feet to pillar marked as SGC 1305/15/1; thence finally runs from pillar marked SGC L305/15/4 to a pillar marked SGC B191/12/5 on a bearing or 192°01' for a distance of 21780.15 feet and thereby enclosing an approximate area of 0.15 Acre or 0.06 Hectare which piece or parcel of land is more particularly delineated on the plan attached to these presents and thereon shewn edged pink. b) Recovery of possession of the disputed land. c) An order for perpetual injunction restraining defendant herein, his agents, assigns, workmen, representatives etc from interfering with plaintiff’s right of title to the land. d) General damages for trespass. e) Any other order or orders deem fit by this Court.” It is the case of Plaintiff as averred in his witness statement that the disputed land was a lease granted to him by the Nii Armah Okine Head of the Kwashie Gborlor Family of Ngleshie Amanfro. Plaintiff stated that he took possession of the land and constructed a two bedroom up to footing level on the land and also deposited a trip each of sand and stones on the land. He stated that he had been in possession of the land without any interference until the defendant 2 | P age trespassed unto portion of his land and put up two stores and fenced it. That the defendant will not stop his possessory acts unless stopped by this court. The Defendant was duly served with all processes filed in the suit personally and later served by substituted service when he could no longer be traced to be served personally, but he still failed to appear in Court and as such, the Court proceeded with the matter. Where a party fails to attend Court to defend a claim that has been brought against him, he cannot later assert that he was not given a hearing or that the audi alteram partem rule has been breached. In The Republic v High Court (Fast Track Division); Ex parte State Housing Co Ltd. (No. 2) (Koranten-Amoako Interested Party) (2009) SCGLR 185, the Supreme Court held at page 190 that a party who disables himself from being heard cannot later turn around and accuse the adjudicator of breaching the rules of natural justice. See also the case of The Republic v. Court of Appeal, Accra; Ex parte East Dadekotopon Development Trust and Another [2015] DLSC 3207. Under Order 25 Rule 1(2)(a) of the District Court Rules, 2009 (C.I. 59), where an action is called for trial and the Defendant fails to attend, the Plaintiff would be allowed to prove his claim. The Defendants had the opportunity to come to Court to cross examine the Plaintiff’s witness and to adduce evidence but they elected not to be present to challenge the Plaintiff’s claim by their conduct of not appearing in Court. The Defendants can therefore not raise at any point that the door of justice was shut to him. It was held in the case of Mence Mensah v E. Asiama [2011] 38 GMJ 174 SC that: “It is a salubrious principle of our jurisdiction that a litigant should have the opportunity of being heard, of telling 3 | P age his side of the story, of being free to present evidence and argument to buttress his case; but it is also settled law and dictates of common sense require also that once these opportunities have been extended to the litigant but the litigant decides not to avail himself of them within the period of the trial, he would not, on judicial considerations, be permitted to come later and plead for the reactivating of the very opportunities he declined to embrace.” See also Poku v Poku [2007-2008] SCGLR 996. The Court on the strength of these authorities therefore proceeded to hear the Plaintiff prove his claim. Though the Defendant did not appear before the court to challenge the suit, the Plaintiff is not entitled to automatic grant of his claims just because the Defendants did not attend court. Plaintiff has to satisfy the burden of proof on him before the court will grant the reliefs he seeks. Plaintiff filed his witness statement on 25th July, 2024 in which he relied on to testified that he is the owner of the land in dispute which was granted to him by Nii Armah Okine, Head of the Kwashie Gborlor Family of Ngleshie Amanfro with the consent and concurrent of the Principal Elders of the family. That the land documents were prepared for him and he took possession and constructed two uncompleted buildings on it. He testified further that, he also deposited sand and stones on the land and the defendant trespassed unto his land and constructed two rooms and a fenced wall round it, Plaintiff added that the defendant has no right to the land and all efforts to stop the defendant further encroachment on the plaintiff’s has failed unless the court orders him. He tender a lease agreement between Nii Armah Okine and Aseidu Prosper as exhibit “A” in evidence. 4 | P age Plaintiff’s sole witness, Jonathan Nii Bosompem also filed his witness statement o 25th July, 2024. He testified that, he is plaintiff’s grantor and that land described by the plaintiff in his statement of claim was leased by him to the plaintiff and he then led the plaintiff to Nii Armah Okine the present head of the Kwashie Gborlor family for the documents to be prepared for him to regularised his purchase. PW1 tendered in exhibit ‘B’ dated 14th May, 1975 Between Nii KKwashie Gborlor111 and Kwame Bosompem. The main issue that this court is called upon to determine is; Whether or not the Plaintiff is entitled to his reliefs It is trite law that in a civil case, where a party sues for a declaration of title to land, damages for trespass and an order for perpetual injunction, the onus is on him to prove on a balance of probabilities ownership of the land in dispute. (See. ADWUBENG V. DOMFEH (1996-1997) SCGLR 660; JASS CO LTD & ANOR V. APPAU & ANOR (2009) SCGLR 265 AT 271) In BRUCE v. ATTORNEY-GENERAL [1967] GLR 170 it was held as follows: “In civil cases, preponderance of probability might constitute sufficient ground for a judgment. In the instant case, the balance of probability appeared to favour the plaintiff and he should have been entitled to the declaration sought.” The testimony of Plaintiff is that he has been in physical possession of the land since he acquired it and the Defendant when and encroached on it and constructed two rooms on it and fenced it. Possession was described as follows in the case of TWIFO OIL PLANTATION PROJECT LIMITED v. AYISI AND OTHERS [1982-83] GLR 881: “Possession in law meant two things: (a) effective physical control or occupation evidenced by some outward act sometimes called de facto possession or detention and was always a question of fact, and (b) legal possession, i.e. possession recognised and protected by law and which was characterised by animus 5 | P age possidendi together with that amount of occupation or control of the entire subject-matter of which it was practically capable and which was ordinarily sufficient for practical purposes to exclude strangers from interference.” There is the uncontroverted evidence of Plaintiff that he has been in physical possession of the land without any interference until the Defendant constructed two stores and a wall on a portion of plaintiff land adjoining his and, in the process, encroaching on plaintiff’s land. In YORKWA V DUAH [1992–93] 1 GBR 279; CA it was held that: “This being a land case the respondent must succeed on the strength of her own case; secondly, for nearly ten years previously, the father of the appellant was in possession of the house. A person in possession and occupation of land was entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title.” There is before this court evidence of Plaintiff’s acquisition of the said land, Exhibit A and there is also before the court evidence by Plaintiff’s grantors (PW1), who also exhibited their grantor’s Indenture, Exhibit B. Aside these, there is evidence on record that the defendant was invited a number of occasions by the Ngleshie Amanfro Customary Land Secretariate which sought permission from the Court to arbitrate on the matter, more so Plaintiff is actual possession of the land in dispute. In OSEI (SUBSTITUTED BY) GILLARD V. KORANG [2013 –2014] 1 SCGLR 221 at 234, it was held as follows: “Now in law, possession is nine-tenths of the law and 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 of ownership and it being good against the whole world except the true owner he cannot be ousted of it.” f) From the evidence before me, I am unable to find any evidence of a better title as against the Plaintiff’s. I find that on a balance of probabilities, Plaintiff has succeeded in proving that he has been in long undisturbed possession and occupation of land in dispute with two different 6 | P age uncompleted buildings on which also has sand and stones on it, he is thus entitled to the protection of the law against the Defendant and all who cannot affirmatively prove a better title. I therefore enter Judgment in favour of Plaintiff against Defendant as follows: a)“Declaration of title to all that piece or parcel of land situate lying and being at Ngleshie Amanfro in Accra in the Greater Accra Region of the Republic of Ghana containing an approximate area of the boundaries whereof commencing at a pillar marked SGC B991/08/1, which pillar is 21807.33 feet on a bearing of 011°58' which bearing together with all other bearing hereinafter mentioned is referred to Meridian 1º west longitude to pillar marked SGC L305/15/1, thence runs on a bearing of 003°50 for a distance of 98.57 feet to pillar marked SGC L305/15/2, thence runs on a bearing of 090°38' for a distance of 70.05 feet to pillar SGC L305/15/3, thence runs on a bearing of 187°29' for a distance of 94.98 feet to pillar marked SGC L305/15/4, thence runs on a bearing of 266°58 for a distance of 64.34 feet to pillar marked as SGC 1305/15/1; thence finally runs from pillar marked SGC L305/15/4 to a pillar marked SGC B191/12/5 on a bearing or 192°01' for a distance of 21780.15 feet and thereby enclosing an approximate area of 0.15 Acre or 0.06 Hectare which piece or parcel of land is more particularly delineated on the plan attached to these presents and thereon shewn edged pink. a) Plaintiff is to recover possession of the disputed land. b) The Defendant, his agents, assigns, workmen and representatives are perpetually restrained from interfering with plaintiff’s rights of possession to the land herein. c) I award General damages for trespass of five Thousand Ghana Cedis (GHȼ5,000.00) in favour of Plaintiff against Defendant. I award costs of two Thousand Ghana Cedis (GHȼ2,000.00) in favour of Plaintiff against Defendant. 7 | P age H/W EMELIA K. ABRUQUAH (MRS) (MAGISTRATE) 8 | P age