Adjah v Boi and Another (A1/05/22) [2025] GHADC 139 (27 March 2025)

IN THE MAGISTRATE COURT HELD AT AMASAMAN ON THE 27TH DAY OF MARCH, 2025 BEFORE H/W ANNETTE SOPHIA ESSEL (MRS.) – MAGISTRATE SUIT NO: A1/05/22 ALHAJI IBRAHIM ADJAH PLAINTIFF ACTING CHIEF OF AYIKAI DOBLO (SUING PER NUHU AMARTEY AMARKAI UNNUMBERED HOUSE, OBEYEYIE, NEAR AMASAMAN) VRS: 1. NII BOI DEFENDANTS OBEYEYIE, NEAR AMASAMAN 2. DAVID TISEI ANSONG OBEYEYIE, NEAR AMASAMAN JUDGMENT INTRODUCTION: The brief fact of this case is the plaintiff filed a Writ of Summons and Statement of Claim on 11th November, 2021 alleging that the defendants had trespassed on his family’s land. He claimed that the 2nd Defendant unlawfully sold the disputed land to 1st Defendant and that the land in dispute belonged to the Royal Family of Ayikai Doblo of which he is a member. Plaintiff further claimed that they sold a Page 1 of 10 portion of their land at Obeyeyie to one Alhaji who had travelled abroad. The plaintiff prayed for the following reliefs; a. Declaration of title to the land described in paragraph six (6) of the Statement of Claim. b. Recovery of Possession. c. Perpetual Injunction restraining Defendants by themselves, agents, privies, workmen and all who claim through them from interfering with Plaintiff’s enjoyment of the land. d. Cost. e. Any further orders(s) as the Honourable Court may deem fit. CASE OF THE PLAINTIFF: The Summary of the case of the plaintiff is that the land in dispute is originally owned by the three Royal Families of Ayikai Doblo and that their ownership of all Ayikai Doblo lands was confirmed by a judgement of the High Court in the matter of Adjei Kojo Ayikai vs. Nii Ayikai Doblo (Suit No. BL 396/2007) dated 13th November, 2008. A copy of the judgement was tendered as Exhibit ‘B’. The plaintiff’s Attorney testifies that the Royal Families sold a portion of their land to one Alhaji, who established possession of the land. Photographs of the foundation footings on the land were tendered as Exhibit ‘C’ Series. The plaintiff’s attorney goes on to say that the said Alhaji travelled and 2nd Defendant took advantage of his absence and sold the land to 1st Defendant. The plaintiff says his family are under obligation to defend the land they sold to the said Alhaji since the legal title is still in their family. (PW1), John Oko Quaye, and (PW2), Solomon Abbey basically corroborated the testimony of the plaintiff’s attorney that the disputed land forms part of Ayikai Doblo lands. CASE OF THE DEFENDANT: Page 2 of 10 The 1st Defendant filed a Statement of Defence on 8th December, 2021 refuting Plaintiff’s claims. 1st Defendant stated in his Statement of Defence that he has no transaction with the 2nd Defendant as claimed by the plaintiff. He further stated that he acquired the land from Edward Kissei Ashong, the lawful representative of Kofi Tsuru family of Nsakina and Obeyeyie Village, Amasaman. He executed an indenture with his grantors and then proceeded to take possession of the land and to register same. The registration of the land stalled due to a caveat emanating from the Nii Tetteh Koblah Family. The 1st Defendant met the family and they brokered an amicable settlement and subsequently the family wrote a letter to the Lands Commission to lift the caveat for the 1st Defendant. This allowed 1st Defendant to start with the registration of his interest in the land. The 1st Defendant thereafter noticed trespassers on his land which he reported at the Amasaman police station. 1st Defendant counterclaims as follows; a. A declaration that the 1st defendant is the owner of all that piece and parcel of land particularly described as the land situate and lying at Obeyeyie-Amasaman. b. Perpetual Injunction restraining the plaintiff herein, his agents, assigns, privies, servants, women and all persons claiming through by or under the plaintiff from entering , developing, disposing off, operating on or otherwise intermeddling with the 1st defendant’s right over the land. c. Damages for trespass. d. Cost of the suit. The 2nd defendant also filed a Statement of Defence and refuted Plaintiff’s claims he corroborated the 1st defendant’s assertion by stating that the land in dispute was previously owned by his family and was lawfully sold to the 1st defendant. Page 3 of 10 The 2nd defendant further stated that the Ayikai Doblo lands share a common boundary with the Obeyeyie lands owned by the Nsakina Family and due to the lawful acts of encroachment by the Ayikai Doblo family, the Nsakina family caused a caveat to be drawn over the Obeyeyie lands to the effect that any land transaction pertaining to the Obeyeyie lands required authorization from the Nsakina Family as was done in the 1st Defendant’s case. ISSUES FOR DETERMINATION: At the close of Hearing, the Court is of the opinion that in resolving this matter the only issue that will bring this matter to rest is who is the ascertainment of the owner of the land in dispute. PROCEDURE OF TRIAL: The parties were both legally represented. At the close of pleadings, the court set down the matter for trial as attempts at settlement proved futile. The court proceeded to hear the matter. Plaintiff testified by his attorney and defendants testified too. Parties relied on their witness statements, exhibits filed and the evidence of witnesses called. To assist the court in the determination of this matter, an expert opinion was also provided by the Lands Commission, Accra Regional Office. The court consequently closed Hearing and adjourned for judgment. BURDEN OF PROOF: The rules of evidence regarding the burden of proof in civil cases are set out by the Evidence Act, 1975 (NRCD 323) to establish who bears the burden of proof of the issues in this case. In the case of Majolagbe v Larbi [1959] GLR 190, Ollennu J (as he then was) noted that: Page 4 of 10 “Proof in law is the establishment of a fact by proper legal means, in other words, the establishment of an averment by admissible evidence.” The law is that a person who institutes an action against another bears the burden of proving his case. The burden of proof as known in the law of evidence is stated in terms of the burden of persuasion and the evidential burden. This was reiterated by Dr. Date Bah JSC in the case of Sumaila Bielbiel v. Adamu Dramani & AG (NO.3), [2012] 1 SCGLR 370 in the following words; “.... There are two kinds of burden of proof recognized by the common law and which are preserved in Ghanaian law by the Evidence Act. In common law, some cases and text writers have made the distinction between the “legal burden of proof” and “evidential burden of proof”. This distinction is mirrored in the Evidence Act as the ‘burden of persuasion” and “burden of producing evidence....” The burden of producing evidence, also known as the evidential burden is defined in Section 11(1) of the Evidence Act, 1975 (NRCD 323) as follows: 1. For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. In addition, Section 17(1) of the Evidence Act, NRCD 323 provides that: “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, except otherwise provided by law.” The persuasive burden/burden of persuasion on the other hand, is defined in Section 10(1) of the Evidence Act, 1975 (NRCD 323) as: “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.” The burden of persuasion is the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. Thus, a party who fails to discharge a persuasion burden placed on him to the requisite standard of proof will lose on the issue in question. In the case Page 5 of 10 of Adwubeng v Domefeh [1997-98] 1 GLR 282 it was held that the standard of proof amounting to discharge of the burden of persuasion in civil cases is on the preponderance of probabilities. This is the essence of Section 10(2) of the Evidence Act,1975 (NRCD 323), which is to the effect that; “the burden of persuasion may require a party to establish the existence or non-existence of a fact by preponderance of the probabilities. As a general rule a party who asserts a claim or defence bears the burden of persuasion on its existence or non-existence as stated in Section 14 of the Evidence Act, 1975 (NRCD 323). This section supra also re-states the general rule that the degree of proof normally required to satisfy the burden of persuasion in civil actions is proof by a preponderance of the probabilities. Section 11(4) of the Evidence Act, 1975 (NRCD 323) then provides that the burden of producing evidence, also known as the “the evidentiary burden”, demands of a party the production of adequate evidence that would convince a reasonable mind that “the existence of the fact was more probable than its non-existence.” Section 12 of the Evidence Act, 1975 (NRCD 323) then goes on to provide as follows; (1). “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. Thus, in the case of Gihoc Refrigerator & Household v. Jean Hanna Assi [2005-2006] SCGLR 458, the Supreme Court held at page 485 as follows: “Since the enactment of NRCD 323, therefore, except otherwise specified by statue, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue......” In both civil and criminal proceedings, the general rule is that the party bearing the persuasive burden will also bear evidential burden. Thus, where a party has an evidential burden, it may be satisfied either Page 6 of 10 by adducing himself or by eliciting evidence from the witnesses of his adversary. In his book, Essential of the Ghana Law of Evidence, the learned jurist S.A Brobbey says of the burden of proof that: “It is the burden on a party to establish from evidence led the requisite degree of belief in the mind of the trier of fact. In other words, a party will not succeed on his claim unless he has led evidence to establish the claim or its basis.” THE COURT’S EVALUATION OF THE EVIDENCE: The plaintiff in his firm belief of ownership of the land in dispute relies on Exhibit ‘B’ judgment of my brother His Lordship I.O Tanko Amadu J. (as he then was) dated 15th November, 2008 in the Suit No. BL396/2007. In the said judgment that the plaintiff relies on heavily, judgment was delivered in favour of the defendant in the said suit: to wit the Ayikai Doblo Family. The challenge with this said judgement is that the plaintiff does not show how it relates to this disputed property so that the court is unable to determine whether the disputed property falls within or outside of the land in dispute. This court notes that in the said judgement, the land in dispute was in excess of Five Thousand and Sixty-Five (5,065) acres. The plaintiff could have helped his case by showing how the disputed land falls within the said 5000 acres of land. Failure to do so, the court is unable to help and thus unable to rule in favour of Plaintiff on the strength of the judgement. In effect the judgement only shows that the plaintiff’s family owns land in excess of five thousand (5000 acres) short of 80 acres nothing more. This judgement therefore doesn’t help the court to make a determination of the subject matter of the dispute herein. In Exhibit ‘D’ Plaintiff tendered a Site Plan which is supposed to be the land in dispute measuring 0.29 acres in the name of Ayikai Doblo Family and nothing more. This court just observed in the judgement of Amadu Tanko J. (as he then was) that the judgement that was given in the case measures about 5000 acres. How the same 5000 acres was reduced into 0.29 acre can only be the fifteenth miracle of Jesus Page 7 of 10 Christ. It is the case of the plaintiff that they sold the land to one Alhaji who constructed footings on the land and deposited building materials such as sand and blocks as shown in Exhibit ‘C’. However, no single document is tendered to evidence the alleged sale, no receipt is tendered, no site plan is tendered in the name of Alhaji. In fact, no conveyancing document of any kind is on the record. Also, Alhaji’s full name is not even known. How is that even possible that nothing was issued to evidence the transaction between the plaintiff and Alhaji? In fact, this court is of the opinion that Alhaji is but a ghost manufactured by the plaintiff to deceive the court. Now the court observes further that if indeed the alleged transaction exists and without evidence of same before this honourable court the existence of that transaction in law deprives the plaintiff of capacity to sue because they are not the owners so they can’t even have Exhibit ‘D’ in their name because by their own saying having sold the land, the can’t retain ownership in their name so the proper thing to do should have been to sue for their client. The nagging question begging for an answer from the court is how can a non-owner bring an action without the consent and authority of the legitimate owner (Alhaji). Curiously and to further show that Alhaji doesn’t exist, not only did Plaintiff fail to tender any evidence but they also failed to show even the date or time of the alleged purchase, they failed to call any witness to the alleged transaction, they failed to call Alhaji or anybody associated with him to lead evidence. They failed to call the workers working on the footings. In fact, they failed to do anything that would have helped to prove their case. It suffices to say that the plaintiff did a poor job to prove his case. Since a Plaintiff must win on the strength of his own case and not the weakness of his opponent. Notwithstanding the composite report of Lands Commission which doesn’t operate in any way to show ownership but to show boundaries of the parties as exists on the site plans, the court is unable to rely on that to prove the ownership but notes that the defendants had encroached upon the land Plaintiff alleged to be theirs. Even though Plaintiff has not been able to show that the land belongs to them. From the forgoing, this court finds that the plaintiff is not the owner of the land in dispute and can therefore not grant any of the reliefs sought by the plaintiff as he was unable to establish his claim. The court observes that the 2nd Defendant does not have a claim but filed a Statement of Defence and led evidence through 1st Defendant. Now the 1st Defendant tendered in an indenture dated 13th May, Page 8 of 10 2004 but which was stamped in the year 2020 that is sixteen (16) years thereafter. In the said indenture, he narrates the root of his title which goes back all the way to 1973. He also includes the two (2) receipts of his purchase dated 7th October, 2004 and appropriately witnessed by the principal members of the Kofi Tsuru Family. He also filed a letter from the Mankralo: Nii Tetteh Koblah III of Nsakina which confirms the transaction from the said family to the 1st Defendant which further confirms that indeed it was only by a caveat that stopped the full realization of the land in the 1st Defendant. 1st Defendant further tendered a search report dated 28th September, 2018 which confirms that at that day the land had not been affected by any transaction. In his Exhibit ‘5’, 1st Defendant tendered a newspaper publication of the Spectator dated 11th December, 2021 which publishes his name in the Obeyeyie locality and gives full description of the transaction confirming his leasehold of the disputed land in accordance with the then Land Title Registration Regulation Law, 1986 (PNDCL152) as part of the land title registration processes. The evidence of the first defendant is so overwhelming to be ignored and this court therefore finds favour with the first defendant and so the court finds favour with the evidence of 1st defendant and grants judgment in his favour. The court therefore orders as follows: - 1. 1) As between Plaintiff and Defendants I declare title of the subject matter of this suit for the defendants as per their demarcations in their site plan. 2. Declaration of title in favour of 1st Defendant as per paragraph 7 of his Statement of Defence to wit Relief ‘A’ and ‘B’ of his counterclaim of 1st Defendant. 3. Perpetual Injunction. 4. Damages of trespass is awarded in the sum of Ten Thousand Cedis (GH¢10,000.00) only against Plaintiff in favour of the defendants. Page 9 of 10 5. Cost of Twenty Thousand Cedis (GH¢20,000.00) only against the plaintiff in favour of the defendants in the opinion of the court is condign. H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 10 of 10