Abrafi v Grace (BNE/TC/DC/A2/04/25) [2025] GHADC 267 (12 February 2025)

IN THE DISTRICT COURT HELD AT TECHIMAN ON MONDAY THE 12TH DAY OF FEBRUARY, 2025 BEFORE HER WORSHIP SANDRA XORLALI LAVISON DISTRICT MAGISTRATE. BNE/TC/DC/A2/04/25 VERONICA ADOWA ABRAFI - PLAINTIFF VS. BOAHEMA GRACE - DEFENDANT JUDGMENT The Plaintiff on the 27th December 2024 filed her Writ of Summons and Particulars of claim and endorsed with the following reliefs: a. An ejection Order of the Honourable Court to compel the Defendant to give vacant possession of the portion of Plot No. 139A, block A, Sector 5 situate on a place commonly known and called Pomaakrom a suburb of Techiman and bounded by the properties of Emmanuel- in-Hotel – Techiman where defendant has erected her metal container and has refused to relocate same despite repeated demands. b. Cost to cater for Plaintiff’s expenses. The case of the Plaintiff as gathered from her Writ of Summons and Particulars of Claim is that, she is a farmer and owner of Plot No. 139A, Block A, sector 5, at a place commonly known and called Pomaakrom a suburb of Techiman. The property devolved on her upon the death of her husband. It is also her case that the Defendant was granted the permission to put her container on a portion of the land described above with the promise that she will give vacant possession whenever she was asked to do so. Plaintiff says that the Defendant has been operating in the container ever since. Plaintiff says that she wants to develop the land but the Defendant has refused to give vacant possession after several demands to do so. The Defendant did not file any form of defense neither did she deny or challenge the averments of the Plaintiff. -1- The Defendant also decided not to plead liable or not liable to Plaintiff’s claims/reliefs. Her case was that it is her mother who sought permission from Plaintiff/s late husband to put the container on the land that event though she is the one operating in the container the Plaintiff should rather bring the action against the her mother. The Plaintiff in her Evidence in Chief under oath averred that it was the Defendant’s mother who sort the permission of the Plaintiff’s late husband to put a container on the subject matter land. However it is the Defendant who has been operating in the container all this while. That all attempts to get the Defendant and her mother to yield vacant possession has fallen on deaf ears. At the end of the Plaintiff’s Evidence in Chief, the Defendant refused to cross examine her. Defendant claimed that she had no question for the Plaintiff but rather asked the Plaintiff to bring the action against her (Defendant’s) mother and not her. The Defendant was then asked to open her Defense. The case of the Defendant per her Evidence in Chief under oath is that, even though she is the one operating in the container it is her mother who sort permission from Plaintiff’s late husband (Defendant’s uncle) to put the container on the subject matter property, therefore the Plaintiff should bring the action against her mother. In Fori vrs Ayerebi (1966) GLR 627 SCGLR, it was held that when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact (see cases of In Re West Coast Dying Industry Ltd; Adams Vrs Tandoh (1984-86) 2 GLR 561 SC and Watalah Vrs Primewood Products Ltd (1973) 2GLR 126. This been a civil action the onus of proof was on the Plaintiff to proof her case on the balance of probabilities as stipulated under Section 12 of the Evidence Act, 1975 NRCD 323. -2- Generally, the law requires that all facts in issue or facts relevant to the determination of an issue in a given matter must be proved. In Majolagbe v Larbi and ORS [1959] GLR 990 Ollenu J, stated: “Proof in law is the establishment of fact by proper legal means in other words, the establishment of an averment by admissible evidence.” Georgina Wood CJ in the case of Poku v Poku [2007-2008] 2 SCGLR 996 stated that generally, the legal burden lies on the party who asserts the existence or non-existence of facts in dispute with the evidential burden shifting as the justice of the case demands Analysis To begin with, the Plaintiff in her Summary of claims stated that it was the Defendant who sought permission to put her container on the land but in her Evidence in Chief under oath, she told the Court that it was the Defendant’s mother who sought the permission from her late husband. One may note a slight inconsistency in the Plaintiff’s case in her Particulars of Claims and her Evidence in Chief under oath. However she stuck to the same averment in her Evidence in Chief throughout the trial which evidence the Defendant corroborated. This is what transpired during the trial: Q: Who came to seek permission? A: It was the Defendant’s mother who came to seek permission to put her table on the land but ended up bringing a container. Q: Who is selling in the container now? A: The Defendant. The Defendant admits that it was her mother who sought permission to put the container on the land. I am of the opinion that this inconsistency is not gemaine to the resolution of this case. In circumstances of this nature the Court is duty bound to evaluate the averments of the party and the evidence before the Court and make its own findings. -3- The Court finds that the Defendant’s mother is indeed the one who sought permission from Plaintiff’s late husband to put the container on the land. The Defendant’s Mother is bare Licensee on the land. It is worth noting that this action is not for declaration of title but for an order for ejection. The ejection of the Defendant from the Plaintiff’s land. A bare licence is a permission granted to another (licensee) by a land owner (licensor) for the licensee to be on the land without any consideration. A bare licence can be revoked by the licensor at time upon reasonable notice to the licensee. A bare license is automatically revoked or extinguished upon the death of the licensor or the assignment of the land in respect of which the land is given . The Defendant’s mother became a bare Licensee on the land through Plaintiff’s late husband the Licensor. It is clear from the foregoing that the container is on the Plaintiff’s land as a result of a bare license granted the Defendant’s mother by the Plaintiff’s late husband. It is also evident that the right of the Defendant herein to be on the subject matter land flows from the bare license her mother obtained from the Licensor. Relating the law to the facts herein the license to be on the land was extinguished upon the death of the Licensor. That is to say that the Defendant’s mother’s licence to stay on the land was automatically extinguished upon the death of the Licensor therefore Defendant’s right to be on the land is automatically also extinguished and she has no right to being on the land. I hereby enter judgment in favour of the Plaintiff. The Defendant is hereby ordered to remove her container from the land within six (6) from the date of judgment. Cost of GH1000.00 awarded against the Defendant. -4- SGN SANDRA XORLALI LAVISON DISTRICT MAGISTRATE TECHIMAN