Yahaya v Ojukwu and Another (A1/11/14) [2025] GHADC 248 (5 March 2025)

SITTINGINTHE DISTRICT COURT ATWENCHI INTHE BONOREGION ON WEDNESDAYTHE5TH DAY OF MARCH,2025,BEFORE HIS WORHSIP ISSAH ABDUL-WAHAB(DISTRICT MAGISTRATE) SUITNO. A1/11/14 BETWEEN MOHAMMEDYAHAYAOF KUMASI - - - PLAINTIFF VRS: 1. OJUKWU OF NKONSIA ) - - DEFENDANTS 2. MR. GYANOF WENCHI ) J U DGE ME NT This suit was filed by the plaintiff herein on the 3rd day of October,2013 seeking the following reliefs fromthecourt and against thedefendants herein jointly andseverally; (a) An order for a declaration of title to and recovery of possession of that piece and parcel of land situate, lying and being at Nkonsia on Wenchi Stool lands and measuring 250 feet along a High-tension line; and 250 feet South; then 150 feet East and then330feet West alongthe Wenchi-Techimanroad; (b) Anorderfor generaldamagesfor trespass; and 1 (c) An order for perpetual injunction to restrain the defendants their agents, assigns, workmen, labourers, descendants and all those who claim through them from entering thesaid land. The defendants pleaded not liable to the claims of the plaintiff after same was read and explained tothem. This court upon an examination of the pleadings filed by the parties and from the particularsoftheplaintiff’sclaim set the following legalissues downfor trial; (1) Whether or not the disputed land described by the plaintiff in his particulars ofclaim is the propertyoftheplaintiff; (2) Whetherornot theplaintiff has any valid to theland. (3) Whetherornot thedefendants herein trespassed ontothe said land; (4) Whetherornot theplaintiff is entitle toany generaldamages. (5) Whether or not an order will lie for the grant of a perpetualinjunction against thedefendants herein. The evidence ofthe plaintiff consisted ofhis testimony and that ofhisfour (4) witnesses. In his evidence in chief the plaintiff told the court he is Alhaji Mohammed Yayaha and that he lives in Kumasi and is a fuel dealer. That he knows the defendants. He also knows the disputed land which is situate at Nkonsia on the Wenchi-Techiman main 2 road. That it shares a common boundary with the Istiqamah Senior High School, a High TensionElectricity Pole ononeside and the Techiman-Wenchiroad. Plaintiff said somewhere in the year 2004 he acquired the disputed land from one Mohammed Iddrisu for the purpose of setting up a fuel station. That the said Mohammed Iddrisu transferred his interest in the land to him (plaintiff). That he accordingly obtained permits from the Environmental Protection Agency (EPA), the Ghana National Fire Service and the District Assembly. That because there is a High Electricity Tension Pole he also obtained apermit fromthe Volta River Authority (VRA). Then in 2010 his brother called Haleshe Alfa informed him (plaintiff) that someone had deposited two (2) trips of sand on the land. Plaintiff said he went and saw the said sand on the land. He then informed the late Nana Nketia Abrefa about the trespass and to seek hisintervention. That his (plaintiff) investigations revealed that the 2nd defendant (D2) herein deposited the sand on the land. That Nana Abrefa Nketia then invited him (plaintiff) and the 2nd defendant and advised them to bring their documents on the land. That he (plaintiff) submitted his documents to Nana Nketia but the defendant failed to submit any documents. That Nana then told him (plaintiff) to work on his (plaintiff) land. Plaintiff said he graded the land and that destroyed the sand that defendant deposited on the land. Plaintiff said the disputed land is not the property of Nana Mfum as the 3 defendants claims. He therefore prayed that the court orders the defendants to leave the land. The first witness for the plaintiff (P.W.1) was one Mohammed Iddrisu. He said he used to manage a fuel station but is now a farmer. That he lives at Akomadan. That he know the plaintiff but he does not knowthe 1st defendant and the 2nd defendant. P.W.1 said he does not also know Opanin Mfum. That he knows the disputed land. That he acquired the disputed land from Nana Bedietuo. That the said Nana Bedietuo at the time directed his son called Agyapong to carve the land out for him (P.W.1). That he intended touse theland forafuel station. P.W.1 said he could not do it and later handed over the land to the plaintiff herein. That Nana Bedietuo was the chief of Wenchi. P.W.1 said he executed a document for the transfer of the land to the plaintiff. P.W.1 tendered the document which was admitted in evidence and marked as Exhibit ‘A’. P.W.1 said the disputed land is now the propertyofthe plaintiff herein. The second witness for the plaintiff (P.W.2) was Nana Owusu Ansah Agyapong. He said he is a farmer and lives at Wenchi. That he is a Anadahene of Wenchi. That he does not know the plaintiff but he knows Mohammed Iddrisu (P.W.1) and the 2nd defendant. That he got to know P.W.1 when he came to his (P.W.2) father Nana Mori Bedietuo IV, 4 now deceased. That P.W.1 acquired the disputed land fromhis (P.W.2) said father Nana Bedietuofor thepurpose ofsetting upafuel station. That P.W.1 said he needed the land at Nkonsia. So after the chief, Nana Bedietuo informed the chief and elders of Nkonsia, he instructed him (P.W.2) and the Town Planning Officer and another person to carve or demarcate the land for P.W.1. That the disputed land shares boundary with the Istiqama Senior Secondary School, a High- Tension Pole and the Wenchi-Techiman road. That after the demarcation a site plan was prepared to that effect. The site plan was admitted in evidence and marked as Exhibit ‘B’. The third witness for the plaintiff was one Halashe Alpha. He said he lives in Wenchi and is a trader in maize. That he (P.W.3) knows the plaintiff. P.W.3 said he does not know the defendants. That he knows the land in dispute. That it is situate at Nkonsia and shares boundary with the Istiqama Senior Secondary School, a VRA High Tension Pole. That one Mohammed Iddrisu (P.W.1) sold the said land to the plaintiff (Mohammed Yahaya). That after the plaintiff bought the land, he (P.W.3) went with the plaintiff to plant teak on two sides of the land. They then graveled the land after that whenasked whenthe plaintiff boughtthe land. P.W.3said it is about 14to 15years now and that he was present when they went to the court to process the documents for the purchase. 5 The fourth and final witness for the plaintiff (P.W.4) told the court he is Nana Ahwene Gyabi Siaw and that he lives in Wenchi and is a farmer. P.W.4 said he knows the plaintiff and the 2nd defendant (Mr. Gyan). That he got to know the plaintiff some 9 years ago when the plaintiff summoned the 2nd defendant at the Traditional Council. That the plaintiff’s complaint was that 2nd defendant wanted to take his land from him (plaintiff). That the Wenchihene at the time was Nana Abrefa Nketia. That the council heard the matter and the parties were asked to submit their documents on the land in dispute. P.W.4 said plaintiff presented all his documents on the land but 2nd defendant could not submit any document asrequested. That following that Nana Nketia accepted the documents presented by the plaintiff as ownerofthe disputed land. Nana thenasked the plaintiff togoandtake his land. It is instructive to state at this point that after the plaintiff closed his case, and from the 8th day of September,2022 till the 3rd of February,2005 when the matter was adjourned for Judgment, the defendants herein abandoned the hearing and no longer attended court without any notice. Even when the plaintiff’s were ordered to serve hearing notices on the defendants, that was done without the defendants still not showing up in court. This court was therefore left with only the evidence led by the plaintiff to give its Judgment. That notwithstanding, the burden was still on the plaintiff to prove his claims evenwithoutany defence fromthedefendants herein. 6 The law is that in a civil trial, the party who in his/her pleadings or Writ of Summons raise issues that are essential to the success of their claim assumes the onus of proof. This position of the law is founded on the legal principle that states that “ he who avers must prove”.SeeFaibi VSState Hotels Corp{1968}GLR, 176. The Standard burden on the plaintiff or the party making the averment is proof on the preponderance of the probabilities as provided for under Section 12 (1) of the Evidence Act, 1975 (NRDC 323) that ; “Except as otherwise provided by law, the burden of persuasionrequires aproofby the preponderance ofthe probabilities”. Then Section 11 (4) of Evidence Act 323 states that “ In other circumstances the burden of producing evidence requires a party to produce sufficient evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non- existence”. Having therefore considered all the evidence led by the plaintiff, it is also important to statethat thefollowing findings offact havebeen made; (1) That the disputed land was acquired by the plaintiff herein from P.W.1 as far back asthe year2004for some consideration. (2) That P.W.1, (Mohamed Iddrisu) also acquired the said land from Nana Bedietuo,the Wenchimanhene atthe time oftheacquisition by P.W.1. 7 (3) That this subsequent transfer of the disputed land to the plaintiff herein by P.W.1was done and the necessary documentationdonefor the plaintiff. (4) That the plaintiff took immediate possession of the land and has remanded in possessiontill said act oftrespassby 2nddefendant. Inassessing the balance ofprobabilities as per the provisions of Sections 11 (4) and 12 (1) of NRCD 323 as stated above, it must be noted that the overall evidence adduced by each part must be considered and the party in whose favour the balance tilts is the one whose case ought to be adjudged as more probable and deserving of the favourable verdict, of the court. It is therefore trite leaving that a party has to win on the merits of their case, and upon successfully discharging the persuasive burden as provided for UnderSection 12(2)ofNRCD323. Section 12 (2) defines the persuasive burden as “ the degree of Certainty of belief in the mind of the court by which the court is convinced that the existence of the fact was moreprobable thanits non-existence”. From the evidence of the plaintiff, it must be observed that the plaintiff satisfactionlly traced his root of title to the disputed land to the Wenchi Stool as the initial grant was made by the Stool to P.W.1. (Mohammed Iddrisu) who also subsequently transferred his interest to the plaintiff herein. This has been corroborated by the witnesses of the plaintiff which included Mohammed Iddrisu (P.W.1) asthe plaintiff’sgrantor. 8 On the basis of the evidence led by the plaintiff herein therefore and the law as stated above and together with the failure by the defendants to profer their defence, it is my valued conclusion that the plaintiff has proved his claims and Judgment is hereby enteredforthe plaintiff. The reasonsfor theaboveconclusion include; (1) That the plaintiff acquired the disputed land from P.W.1 in the year 2004 and hassince been in possessionofsame. (2) That P.W.1 who is the plaintiff’s grantor traced his title to the Wenchi Stool asthe allodial title holder ofthe land. (3) That the evidence led by the plaintiff has been corroborated by the testimonies ofhisfour (4) witnesses he called. (4) That the plaintiff from the year 2004 has been in an unchallenged possession ofthe land; and, (5) That the plaintiff proved his claims on the preponderance of probabilities and asrequired by law. The following ordersordeclaration arehereby made; (1) That the said disputed land described by the plaintiff in his particulars of claim is the propertyoftheplaintiff and heis thereforethe owner ofsame. 9 (2) That an amount of GH₵10,000.00 is hereby awarded for the plaintiff and against thedefendants as generaldamagesforthe trespass. (3) That the defendants, their agents, assigns, workmen heir, descendants and anyone claiming through them are hereby injuncted forthwith from entering thesaid land which isthe propertyofthe plaintiffherein. (4) CostofGH₵10,000.00isawarded for theplaintiff and against the defendants. COUNSEL MR.MOSESKOFI OBAH, ESQ FORTHE PLAINTIFF ……………………….. ISSAHABDUL-WAHAB (MAGISTRATE) 10