Appiah v Anokye and Another (A1/02/18) [2025] GHADC 192 (23 January 2025)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA, ON WEDNESDAY, THE 23RD DAY OF JANUARY, 2025, BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO: A1/02/18 BEN KWAME APPIAH PLAINTIFF VRS 1. GIFTY ANOKYE 1ST DEFENDANT 2. SELASIE AMENYO 2ND DEFENDANT PLAINTIFF IS PRESENT AND SELF-REPRESENTED. 1ST DEFENDANT IS PRESENT AND SELF-REPRESENTED. 2ND DEFENDANT IS ABSENT JUDGMENT The plaintiff filed an amended writ of summons at the registry of this court on 14th June 2021 against the defendants for the following reliefs; a. An order for declaration of title to all that piece or parcel of land situate, lying and being at New Weija Accra and covering an approximate area of 0.05 acre more or less and bounded on the North East by a proposed road measuring 25 feet more or less on the North West by the Lessor’s land measuring 100 feet more or less on the South East by the Lessor’s land measuring 100 feet more or less on the South West by the Lessor’s land measuring 25 feet more or less. b. Recovery of possession. c. General damages of trespass d. An order for perpetual injunction to restrain the 1st and 2nd defendants from encroaching upon the disputed property or treating it in any manner that may be inimical to the plaintiff’s interest. 1 e. Costs including legal fees. On 19th July, 2021, the defendants filed a statement of defence and counterclaim for the following reliefs; 1. All that piece or parcel of land situate, lying and being at New Weija in Accra in the region aforesaid and covering an approximate of 0.16 acre. 2. Perpetual injunction and restraining the plaintiff, his agents, servants, licensees, lessees, assigns etc. from having any dealing with or on the said property. 3. An order for a government surveyor to survey that disputed land. 4. General damages for trespass 5. Costs inclusive of litigation fees. SUMMARY OF PLAINTIFF’S CASE It is the case of the plaintiff that in or about the year 1997, he acquired 0.05 acre of land situate at New Weija in Accra, the subject matter of this dispute from the Weija stool represented by the then Mantse Nii Anto Nyame II with the consent and concurrence of the principal members of the stool. He tendered in evidence a copy of an indenture and a site plan given to him by his grantor and same was admitted and marked as Exhibit A. It is the further case of the plaintiff that upon the acquisition of the said piece of land in 1997 for valuable consideration, he has been in undisturbed possession until the recent wrongful acts of the defendants. He added that some of the acts of ownership he has exercised continuously since the acquisition of the land include the erection of a wall round the property and using same for farming activities. 2 According to him, the 1st defendant who lives nearby and knows that he is the owner of the land came with her workmen saying that she had bought the land from 2nd defendant and that she was going to throw him out of the land. He averred that when he protested, 1st defendant caused the 2nd defendant and other land guards to beat him up and, in the process, had his shirt torn off. He prayed the court to grant his reliefs as endorsed on the face of his writ. Plaintiff called Alhassan Abdulai Hamid as PW1. He corroborated the story of the plaintiff by stating that in the year 1995, Nii Anto Nyame II, Chief of Weija engaged the company, Berchie Shalom Construction and Trading Co. Ltd. to construct the layout of his demarcated land at New Weija. It is his case that plaintiff was employed as a security guard to watch over the company’s machinery on a day and night basis. He added that the head of the company executed an agreement with the said Nii Anto Nyame II to the effect that the consideration for the work would be plots of land which in effect will be for all the workers. According to him, the whole area was bushy and undeveloped and workers spent about three months in constructing the layout of the land for Nii Anto Nyame II. He averred that after the contract, workers including plaintiff and himself were given parcels of land as consideration for their work with lease documents duly executed by the said Nii Anto Nyame II. He averred further that the plaintiff has lived on his piece of land for over 20 years without any disturbance and has exercised acts of possession such as farming and quarrying on the land. The witness testified that the defendants approached him to plead with the plaintiff on their behalf to the effect that they had already encroached on plaintiff’s land and that they 3 were prepared to give him a piece of land in place of his. He concluded that defendants went ahead to show plaintiff three pieces of land which he rejected. SUMMARY OF 1ST DEFENDANT’S CASE 1st Defendant testified by herself and called no witness. The case of 1st Defendant as gleaned from her witness statement is that in late 2015, she was looking for a piece of land to put up a structure for a residence. She met the 2nd defendant who informed her that his father had a small plot of land which he intended to sell. It is her further case that 2nd defendant took her to his father at Weija and the father agreed to sell the land to her at a cost of GHC4,000.00. She added that two days after meeting the father of 2nd defendant, she paid a deposit of GHC1,500.00 to the father of 2nd defendant who asked her to begin work on the land and pay the outstanding balance in instalments. She testified that the 2nd defendant’s father passed on a few months later after which 2nd defendant approached her with a request to complete payments to him to enable him organise his father’s funeral which she obliged. According to 1st defendant, 2nd defendant’s father acquired the land from Nii Anto Nyame sometime in 2004 and he has been in uninterrupted occupation of same to the exclusion of the plaintiff until the year 2015 when he sold the land to her. 1st defendant averred that after the burial of 2nd defendant’s father, 2nd defendant gave her the documents to the land and she continued building slowly without any interference from any quarters whatsoever. She tendered the said document in evidence and same was admitted and marked as Exhibit 1. 4 She described the said land at paragraph 10 of her witness statement as all that piece or parcel of land situate, lying and being at New Weija, Accra and covering an approximate area of 0.06 acre more or less and bounded on the North by a proposed road measuring 105 feet more or less on the south by the Lessors land measuring 100 feet more or less on the East by a proposed road measuring 23 feet more or less and which piece or parcel of land is more particularly delineated on the plan attached hereto and thereon shewed edged pink. 1st defendant averred further that when the building got to lintel level, she was served with plaintiff’s writ of summons which alleged that the land she was building on belonged to him. She claimed that plaintiff’s story is not tenable because the location of the land as stated on plaintiff’s site plan is different and separate from the location of the land the subject matter of this dispute. According to her, on 13th August 2018, the presiding magistrate of this court differently constituted gave an order that she can continue developing the project since plaintiff was not showing up in court. As a result, she continued developing the property until 14th June 2021 when a fresh writ was issued against her. She prayed the court to grant her counterclaim. ISSUES SET DOWN FOR TRIAL The court set down the issue of whether or not the plaintiff is the owner of the land the subject matter of this dispute and if so whether or not plaintiff is entitled to recover possession of the land? BURDEN OF PROOF 5 The standard burden of proof in civil matters including land cases is proof by the preponderance of probabilities in accordance with sections 11(4) and 12(1) of the Evidence Act, 1975, (NRCD 323) Section 11(4) of NRCD 323 reads; (4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its nonexistence. Section 12(1) of NRCD 323 also reads; Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. In JASS CO. LIMITED V APPAU (2009) SCGLR 265, the Supreme Court in holding1stated as follows; “The burden of proof was always on the plaintiff to satisfy the court on a balance of probabilities in an action for a declaration of title to land. Where the defendant has not counterclaimed and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed. Whenever the defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant.” In ACKAH V PERGAH TRANSPORT LTD. & OTHERS [2010] SCGLR 728, Adinyira JSC held as follows; “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary 6 and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its nonexistence.” In YEHANS INTERNATIONAL LIMITED V MARTEY TSURU FAMILY & ANOR (2018) suit no. J4/34/2018 dated 24th October 2018, Adinyira JSC stated as follows; “It is settled and trite law that a person claiming title has to prove i) His root of title ii) Mode of acquisition and iii) Various acts of possession exercised over the land” EVALUATION OF THE EVIDENCE Issue one Plaintiff testified that he acquired the land the subject matter of this dispute from Nii Anto Nyame II. In support of his claim and to prove the root of his title and identity of his land, he tendered in evidence Exhibit A, which is an indenture with an attached site plan dated 21st October 1997 executed between Nii Anto Nyame II Weija Mantse of Weija Stool with the consent and concurrence of the principal members of the stool and the plaintiff. Counsel for the 1st defendant argued that plaintiff had originally tendered in evidence a completely different site plan and when he realised that the site plan he tendered was a failure, he quickly tendered Exhibit A. During cross examination of plaintiff, he explained that he owns three pieces of land and that he inadvertently tendered the site plan of one of his lands in evidence and that the site plan counsel is referring to is the right exhibit tendered in this case. 7 Counsel submitted that the said site plan attached to plaintiff’s Exhibit A was undated. A careful study of the site plan attached to plaintiff’s Exhibit A shows that even though the site plan is signed by a licensed surveyor, same was undated. It is trite law that a site plan duly surveyed by a licensed surveyor must be officially dated to confirm the date it was prepared and signed. During cross examination of PW1, the following information was gathered; Q: You have stated that the land was given to you and the plaintiff after your job was done is that correct? A: Yes that is so. We each have separate lands Q: How many plots were given to the plaintiff? A: Half plot Q: You know the identity of his land? A: Yes, I do because we worked on the lands Q: When you say the land is big what do you mean? A: We worked with a company and what he was given, he worked on it and fenced it. What was given to the plaintiff was a half plot. Q: Was your grantor around or did he go with you to the bush to demarcate the land for you A: It was the surveyor who went with us to demarcate the plots. Q: So whether the chief was aware that the land he was granting to plaintiff had already been given to another person he will not know A: At the time we worked on the layout, the land had not been given to anybody by then. 8 From the exchanges reproduced supra, it is to be noted that the identity of the land the subject matter of the dispute was not in contention. At paragraphs 11 and 12 of the witness statement of PW1, he testified that the 1st and 2nd defendants approached him to plead with plaintiff on their behalf to accept the fact that they have already encroached on plaintiff’s land and that they were prepared to give the plaintiff a piece of land in place of his land and showed three different areas to the plaintiff but plaintiff had rejected them all. Counsel for the 1st defendant failed to cross examine PW1 on his assertions in paragraphs 11 and 12 of his witness statement. This evidence therefore stood unchallenged. In FORI V AYIREBI [1966] 2 GLR 627, it was held; “…when a party had given evidence of a material fact and was not cross examined upon, he need not call any further evidence of that fact.” I find that the evidence of PW1 as contained in paragraphs 11 and 12 of his witness statement which remains unchallenged corroborates the claim of plaintiff that he is the owner of the land in dispute and that defendants are well aware of this fact and that explains why they spoke to PW1 to convince plaintiff to accept a different land in place of the disputed land. In considering the case of the defendants, a look at paragraphs 6,7 and 8 of the statement of defence and counterclaim shows that 1st defendant stated that the late Anto Nyame gave the disputed land to 2nd defendant’s father in the year 2004 who later handed it over to 2nd defendant who in turn sold the land to 1st defendant due to financial hardship. The story of 1st defendant changed when she stated at paragraphs 2, 3, 4,5 and 6 of her witness statement that she met the 2nd defendant who informed her that his father had a small plot of land which he intended to sell off. She stated further that 2nd defendant took her to see his father who agreed to sell the land to her at a cost of GHC4,000.00. According 9 to her, she gave him a deposit of GHC1,500.00 and two days later he asked her to begin work on the land and pay the balance by instalments. She added that few months later, the father of 2nd defendant died and 2nd defendant approached her to complete payment of the land to him to enable him organise his father’s funeral. I find that there is a clear departure from the pleading of 1st defendant as contained in her statement of defence and counterclaim and her evidence at the trial. It is difficult to ascertain whether or not she bought the land from 2nd defendant’s father or the 2nd defendant. She has also failed to exhibit a copy of the purchase receipt from either the deceased father of 2nd defendant or the 2nd defendant to prove her claim. It is worthy of note that the 1st defendant did not have her name on Exhibit 1, which is the indenture she tendered in support of her claim. The indenture had the name of one Kudjo Amenyo who she alleged was the deceased father of 2nd defendant. If Kudjo Amenyo whose name appears on Exhibit 1 is deceased as 1st defendant wants the court to believe, then her testimony with regard to her alleged transaction with the deceased ought to be looked at with suspicion especially when she has failed to tender any purchase receipt from the deceased by way of evidence of her purchase of the disputed land. See KWAME BONSU & Ors v KWAME KUSI & ORS (2010 GMJ) SC. 1st defendant stated at paragraph 8 of her witness statement that Exhibit 1 was given to her by the 2nd defendant after the burial of his deceased father. If this statement is anything to go by, then the question which begs for an answer is whether or not the 2nd defendant gave Exhibit 1 to 1st defendant as a beneficiary of the estate of his father and if so whether or not 2nd defendant has a valid vesting assent to clothe him with capacity to alienate the property of which he is a beneficial owner. 10 At page 77 of the book, Land Law, Practice and Conveyancing in Ghana Third Edition by Dennis Dominic Adjei, the learned author and jurist opined that any grantor of land must have an interest in the said land before he can alienate it…any alienation by a beneficiary of a property without a valid vesting assent is of no legal consequence and the purchaser or donnée cannot have a valid title. Curiously, 2nd defendant, who is the alleged grantor of 1st defendant never attended any of the court’s sessions or filed any process to contest the suit even though he was joined as second defendant and served with all the processes and hearing notices to attend court. Counsel for the 1st defendant argued that 1st defendant is in possession of the land having built a structure on same which is at lintel level and that even though plaintiff lives a stone throw away from the disputed property and saw the development of the land from the foundation stage to the present stage, he did not take any action until the year 2018 when the defendant had built the structure to lintel level. He submitted that even if the land belongs to the plaintiff which is denied, it would be fair if the court orders the 1st defendant to compensate the plaintiff as the land has already been developed. To press home this point,1st defendant and her lawyer stated that, on 13th August 2018, this court differently constituted ruled that 1st defendant should go ahead and continue the development of the disputed land as plaintiff had failed to attend court. I have looked at the record of proceedings of this court differently constituted dated 13th August 2018 and I find that on the said date, both parties failed to attend court compelling the learned magistrate to strike out the suit for want of prosecution. It is therefore difficult to ascertain how the court ruled that 1st defendant should go ahead and continue with development of the disputed land when both parties had failed to attend court on the said date! 11 The practice where a party and her lawyer desperately build their cases on fabrications and falsehoods is to be deprecated in no uncertain terms as same ultimately undermines the judicial integrity. From the totality of the evidence before me, I find the story of the plaintiff to be more probable than that of 1st defendant because plaintiff’s evidence accorded with his pleadings and same was corroborated with the unchallenged testimony of PW1. 1st defendant’s evidence on the other hand was a complete departure from her pleading and fraught with inconsistencies. The story of 1st defendant is not worthy of belief. It is declared that plaintiff is the owner of the land the subject matter of this dispute and entitled to recovery of same. In AYISI V ASIBEY AND OTHERS [1964] GLR 695, it was held in holding 5 as follows; “In assessing damages for trespass, consideration should be taken not only on the extent of the land on which the trespass has been committed by the individual defendants, but also the length of the time that the plaintiff had been wrongfully kept off the land.” Accordingly, judgment is entered in favour of the plaintiff against the defendants as follows; 1. It is hereby declared that the plaintiff is the owner of all that piece or parcel of land situate, lying and being at New Weija Accra and covering an approximate area of 0.05 acre more or less and bounded on the North East by a proposed road measuring 25 feet more or less on the North West by the Lessor’s land measuring 100 feet more or less on the South East by the Lessor’s land measuring 100 feet more or less on the South West by the Lessor’s land measuring 25 feet more or less. 2. Plaintiff is to recover possession of the disputed land described in paragraph one (1) immediately. 12 3. The 1st and 2nd defendants, their assigns, privies, workmen, representatives etc. are perpetually restrained from entering the land the subject matter of this dispute described in paragraph one (1) or treating it in any manner that may be inimical to the plaintiff’s interest. 4. General damages of GHC50,000.00 is awarded in favour of the plaintiff against the 1st and 2nd defendants. 5. Costs of GHC20,000.00 is awarded in favour of the plaintiff against the 1st and 2nd defendants. ………………(SGD)…..…………….. H/W RUBY NTIRI OPOKU (MRS) DISTRICT MAGISTRATE 13