BEYIFENE VRS NDAALI (NR/DC/KPA/A1/9/2024) [2025] GHADC 1 (17 January 2025)

IN THE DISTRICT COURT SITTING AT KPANDAI IN THE NORTHERN REGION OF THE REPUBLIC OF GHANA ON 17TH JANUARY, 2025 BEFORE HIS WORSHIP, GODSON ETSE KUMADO, ESQ. – THE DISTRICT MAGISTRATE SUIT NO: NR/DC/KPA/A1/9/2024 BEYIFENE YAW ] PLAINTIFF OF KPANDAI ] VRS NDAALI YAJAR MUNANBE SAMPSON ] OF KPANDAI ] DEFENDANT __________________________________________________________________ JUDGMENT __________________________________________________________________ INTRODUCTION By his amended writ of summons filed on 26th September, 2024, the Plaintiff claims against the Defendant the reliefs as endorsed on his writ of summons as follows: 1. A declaration of title and ownership of a farming land of about 8 acres, lying and situate at the eastern part of Balai and bounded by the dam and the main stream/river Lanteh to the south-east flowing to Kumdi; the north is one Kojo Atorsah, the west was a farmland by one madam Akonye; and the land is surrounded by mango and palm trees which defendant has encroached by 198 by 198 feet. 2. Recovery of the said land (198 by 198 feet) that the defendant has encroached and claiming he bought same. 1 | P a ge 3. Damages for uprooting/cutting down four (4) cash crops (palm trees). 4. An order of perpetual injunction restraining the Defendant and his family, his agents, representatives and workmen from in anyway interfering with Plaintiff and his family’s quite enjoyment of the said farmland. 5. Cost of trial. 6. Any other order that the court may deem fit. The Defendant pleaded not liable to the reliefs being sought against him by the Plaintiff. The parties were therefore ordered to file their respective witness statements in proof of their cases. THE CASE AND EVIDENCE OF THE PLAINTIFF By the summary of subject matter attached to his writ of summons, the Plaintiff claims that the disputed land was purchased by his late mother, Issah Asamawu from one Afishata on 29th August, 1988 for ¢10,000. Since then his family managed the palm and mango trees on the land and harvested them for sale. He says he went onto the land recently and found out some trips of gravel were deposited onto the land and workers were moulding concrete blocks on the land. He confronted the workers and they said the Defendant engaged them to work for him. The Plaintiff testified in support of his case and called no other witness. By his witness statement which was adopted as his evidence in chief, the Plaintiff testified that in the year 1988 his mother purchased the disputed plot together with the palm and mango trees from one Afishata who was of the Gonja tribe and the owner of the land in dispute. He says that at the time, the Kpandai township was under the control of the Gonjas. His mother paid an amount of ¢10,000 after which a receipt was executed in her favour to evidence payment for the disputed 2 | P a ge land. The said receipt was attested to by Atorsah K. James who is now a member of the Defendant’s family. The Plaintiff tendered the said receipt in evidence and same was marked as Exhibit A. According to the testimony of the Plaintiff, his family took possession of the land, clearing and maintaining the mango and palm trees thereon and selling the fruits thereof every year. The Plaintiff continued that his mother was into trading and as such, she bought palm seedlings to plant to add to those already on the land and the land became covered with palm trees to the extent that it could no longer be used for crop farming. He and his siblings continued to clear and harvest from the trees on the land even after the death of their mother. The Plaintiff testified that he went onto the land and noticed the presence of some workers who were moulding concrete blocks. His investigations revealed it was the Defendant who placed them on the land. He also noticed that four (4) of his palm trees have been cut. According to the Plaintiff, each of the palm trees bears between eight and nine bunches of palm fruits each year and a bunch is sold at GH¢ 50. His family has therefore been denied an annual income of GH¢ 1,600 as a result of the felling of the four palm trees. In support of his case the Plaintiff tendered in evidence Exhibit B series which are pictures of the felled palm trees. THE EVIDENCE OF THE DEFENDANT The Defendant on his part testified and called PW1, Attah Ankibamu Awuyagei Atorsah, to testify in support of his case. According to the testimony of the Defendant, he needed land to buy and his inquires led him to PW1 as the person having the right to sell the lands at Kpandai. He made a part payment for the plot and the disputed plot was demarcated for him by an Environmental officer by name, Adam Iddi. On the said day, two plots were demarcated; one for him and the other for his sister, Vivian Ndarli. His mother paid the balance of GH¢ 4,400 to add to the initial GH¢ 3,000 he paid. He told his friend, Timb Nteyinbor Magina of the land and also bought one plot. Each of the plots was sold to them at the cost of GH¢ 3,700 and receipts 3 | P a ge were issued to them. The Defendant tendered the said receipts in evidence as Exhibit 1 series: 1, 1a and 1b. The Defendant stated that he was developing the land when the Plaintiff confronted and told him the land belongs to his family. He told the Plaintiff to go to the land owners since he bought the land from them. He led the Plaintiff to the person who sold the land to him but the Plaintiff left and never returned. The Defendant avers that the palm trees were felled by the land owners before the land was sold to him. EVIDENCE OF DW1 In support of his case the Defendant called DW1, Attah Ankibamu Awuyagei Atorsah to testify. He testified that the land in dispute forms part of the Kpandai lands which stretches from the Belewu stream to the east; the Lanteh stream to the west; the Alfai forest to the north and the Damanko hill to the south. According to him, his great grandfather, Attah Akpaku who was the “odikro” of Kpandai at the time, farmed on the disputed land. After his death, succeeding Odikros also farmed on the disputed land. He stated the names of Odikro Lewuyagane Njimileh, Nana Ayadong and Nana Awuyagei as the successive “Odikros” who farmed the land in dispute. DW1 averred that the land does not form part of the Balai lands as claimed by the Plaintiff. He stated that before the Nkachina primary school (now Kpandai Senior High School) was built in 1964 during the time the Gonjas inhabited Kpandai, it was Odikro Bunyaluweh who offered prayers by pouring libation. DW1 further says the said Afishata only sold the mango trees on the land to the Plaintiff’s mother, Issah Asamawu and not the land. He insisted that women did not sell lands at the time. It was a committee set up by the Gonja chief that had the power to sell the lands at the time. ISSUES FOR DETERMINATION From the respective cases of both parties, the issues for determination are: 4 | P a ge 1. Whether or not the Plaintiff’s mother acquired title to the disputed land. 2. Whether or not the palm trees on the disputed land were felled by the Defendant. BURDEN OF PROOF The law is settled that in an action for declaration of title to land, the burden rests on the Plaintiff to proof his or her claims on the balance of probabilities. In the instant case, the Defendant has not filed any counterclaim. The burden therefore solely rests on the Plaintiff to prove his case, failure of which his claim must fail. This position is finds support with the case of JAAS CO. LTD v APAU (2009) SCGLR 265 where the court held per Holding 1 as follows: “The burden of proof was always on the Plaintiff to satisfy the court on a balance of probabilities in an action for declaration of title to land. Where the Defendant has no counterclaim and the Plaintiff has not been able to make out a sufficient case against the Defendant, then the Plaintiff’s claim would be dismissed” The Plaintiff must prove his title to the land. He must adduce credible and sufficient evidence so that the court, on all the evidence, may find the facts he avers are true. In a civil case such as this, the standard of proof required as provided by Sections 11 and 12 of the EVIDENCE ACT, 1975 (NRCD 323) is a proof on the balance of probabilities. The relevant provisions are as follows: Section 11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a 5 | P a ge reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 12 (2) “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. To satisfy the burden, the Plaintiff is required to produce further evidence in the nature of testimonies of material witnesses, documents or things in support of his case so as to convince the court of the truth of the those matters he alleges. In reaffirming the duty of the party who bears the burden of proof to prove his claims, the Supreme Court in the case of DON ACKAH v PERGAH TRANSPORT [2011] 31 GMJ 174 had this to say (per Adinyira JSC): It is a basic principle of the 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 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 that are 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 non-existence. With these principles in mind, I will now analyse the evidence led by the Plaintiff to determine if it meets the standard required by law. In an action for declaration of title to land, it is 6 | P a ge necessary, for the Plaintiff to succeed, to prove his root of title, the mode of acquisition of the land and overt acts of possession exercised by him over the land. See the case of COMFORT OFFEIBEA (SUBSTITUTED BY VIVIAN ANKRA) v NII AMARTEY MENSAH (SUBSTITUTED BY DAVID OBODAI AND OTHERS, Civil Appeal No: J4/12/2019, dated 5th February 2020, where the Supreme Court affirmed its earlier decision in ABBEY AND OTHERS v ANTWI V [2010] SCGLR 17 which held that: “In an action for declaration of title to land, the Plaintiff must prove, on the preponderance of probabilities, acquisition either by purchase or traditional evidence, or clear and positive acts of unchallenged and sustained possession or substantial user of the disputed land” See also the case DANIEL RAMSEY ADJEI OKOE AND ANOR v NII AKWETEY LAWANI AND ANOR. [2021] 174 GMJ 465 at 495 where the Court held per Dordzie (Mrs) JSC as follows: By their claims the Plaintiffs seek among other claims a declaration of title to land, they are therefore required to adduce satisfactory evidence to establish the following: a) their root of title, b) their mode of acquisition and c) overt acts of possession. This has been the position of the law established in several decisions of this court. In the case of Mondial Veneer (GH) Ltd V Amuah Gyebu XV [2011] SCGLR 466, [2011] 35 GMJ 164 SC, this court per Georgina Wood CJ restated this position in the following words: “In land litigation, even where living witnesses who were directly involved in the transaction under reference are procured in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls…to prove the root of title, mode of acquisition and various acts of possession exercised over the subject-matter of 7 | P a ge litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim.” The Plaintiff in the instant case must therefore lead evidence to establish his root of title, the mode by which he acquired the land, whether by purchase or customary grant, and the acts of possession exercised by him over the land in dispute. The Plaintiff testified for himself and called no other witness to testify in support of his case. By his witness statement which was adopted as his evidence in chief, the Plaintiff testified that land in dispute is his family property. According to him, in the year 1988, at the time the Kpandai township was under the control of the Gonjas, one Afishata Gonja expressed her intention of selling the disputed land which consisted of mango and palm trees. His mother purchased the disputed land from the said Afishata on 29th August, 1988 for an amount of ¢10,000. A receipt was issued to his mother and attested by one Akorsah K. James who is now a member of the Defendant’s family. The said receipt was tendered in evidence by the Plaintiff as Exhibit A. According to the Plaintiff, his family took possession of the land, clearing and maintaining the mango and palm trees, and harvesting the fruits thereof which they sold for income. His mother was a trader and she bought more palm seedlings to plant to add to those already on the land. Others also germinated by themselves on land and the land became occupied to the extent that it could no longer be used for crop farming. The Plaintiff continued that after the demise of his mother, he and his siblings continued to clear the land, harvesting the fruits from the farm until recently when he noticed the presence of some workers engaged by the Defendant to mould concrete blocks on the land. As indicated earlier, the Plaintiff called no other witness in support of his case 8 | P a ge The Defendant on his part maintains that he bought the land from DW1, Attah Ankibamu Awuyagei Atorsah. He therefore called him to testify in support of his case. The legal battle substantially, was between the Plaintiff and DW1 who each claimed the land for their families, with the Defendant in between them who has his money to lose if it is found that his vendor, DW1 had no title to the land. During his cross-examination by the Plaintiff, DW1 admitted that indeed the mango trees on the land were purchased by the mother of the Plaintiff from the said Afishata as claimed by the Plaintiff. He however insisted that it was only the mango trees on the land that were purchased by the mother of the Plaintiff and not title to the land. According to him, the land was acquired by his grandfathers, Attah Kpako and Awuyagei who farmed on same. It then passed on to his father and his brother who is deceased. It was his sick father who instructed him to sell the land in order to raise money for his medical treatment. PW1 maintained his case during his cross-examination by the Plaintiff as follows: Q. I met a man on my land and when I confronted him, he said he bought the land from you. How did you become the owner of the land? A. The land belongs to my grandfathers, namely: Attah Kpako and Awuyagei. They are deceased and my father and his brother were farming on the land. My father’s brother is deceased while my father is also sick at the moment. He was the one who instructed me to sell the land to enable him raise funds for his treatment. Q. Were the persons whose names you mentioned as being the owners of the land farming on the land at the time the Gonjas were inhabiting the land? A. Yes. Even though DW1 claims the land belongs to his family, he admits that at the time his grandparents farmed the land, there were mango trees on the land. He further admitted that 9 | P a ge these mango trees were for a Hausa man who sold them to Afishata, who in turn sold them to the Plaintiff’s mother. He therefore says that it was only the mango trees on the disputed land that were purchased by the Plaintiff’s mother and not title to the land in dispute. The cross- examination of DW1 by the Plaintiff continued as follows: Q. Were the mango trees on the land at the time you claim your grandfathers farmed on the land? A. Yes, the mango trees were there. Q. Were the mango trees for them? A. The mango trees were not for them. They belonged to one man and he sold them to the Gonja man as you stated. Q. What tribe is the man to whom the mango trees belong? A. He was a Hausa. When he was vacating the land, he sold the mango trees to the said Gonja man. Q. Which Gonja person was the mango trees sold to? Where does he live? A. The Gonja man Afishatu also sold the mango trees to your mother. Q. In the Kpandai community which people own majority of the mango trees? A. I cannot tell. 10 | P a ge Q. It is not true that it was a Hausa man who sold the mango trees to the Gonja man. A. It was a Hausa man who sold the mango trees to the Gonja man. Q. In which year did the Hausa man sell the land to the Gonja man? A. I cannot tell Q. Then how did you know that it was a Hausa man who sold the mango trees to Afishatu? A. My father told us so when we grew up. Q. Do you know the boundaries of the land which the said Afishatu sold together with the mango trees to my mother? A. When my father was farming the land, he did not tell us that the land was sold to anybody. What he told us was that it was the mango trees that were sold. Q. Are the mango trees not part of the land? A. The mango trees were not part of the land. The case of Plaintiff having been fiercely contested by PW1, the Plaintiff was duty bound to prove with sufficient evidence that his mother, Issah Asemawu, purchased not only the mango trees on the land but title to the disputed land. The Plaintiff tendered in evidence Exhibit A which appears to be a receipt in support of his case and says his mother was issued with the 11 | P a ge said document after making payment for the land. I will reproduce the content of Exhibit A for a better appreciation. It reads as follows: House NO. A/45 Kpandai 29/8/88 LAND AND MANGO TREES SOLD I Afishata Gonja sold land and mango trees to Issah Asamawu on the 29th day of August 1988 at an amount of ¢10,000 (Ten Thousand cedis). Owner of Land and Mango trees. Afishata ( thumbprint) Witness: Atorsah K. James (signature). LEGAL EFFECTS OF A RECIEPT Does Exhibit A alone prove that the Plaintiff’s mother purchased the land in dispute? Is Exhibit A to be regarded as a mere receipt indicating payment or a document of title? A consideration of a number of case law reveals a settled rule that receipts are generally not to be regarded as documents of title, transferring an interest in land. Rather, they are evidence of payment pursuant to an agreement to transfer an interest in land. In DONKOR V. ALHASSAN 1987-88 2GLR 253 AT 256 the court held that: “[R]eceipts were not meant to transfer, by themselves any interests in land. They only evidenced payment in pursuance of an agreement to transfer an interest in the land.” 12 | P a ge See also the case of YAW OPPONG v CHARLES ANARFI [2011] 32 GMJ 118 SC at page 128. Also in the case of ELIZABETH OSEI v MADAM ALICE EFUA KORANG [2013] 58 GMJ SC 1, the court reaffirmed the legal effect of receipts in the following words: “It is settled that receipts, building permits, building plans, title documents etc, do not confer titles on their holders per se, but are nevertheless strong acts of ownership” The learned author and Justice of the Court of Appeal, Justice Sir Dennis Adjei also added his voice to the legal effect of a receipt when he stated at page 283 of his book, LAND LAW, PRACTICE AND CONVEYANCING IN GHANA, 3rd edition as follows: “The law is that receipts cannot transfer an interest in land but it is evidence of payment in pursuance of an agreement to transfer an interest in land. Receipts are clear evidence showing that there was an agreement and money was paid to the vendor as either a part payment or the full purchase price of the property. A receipt could be the basis for an action for specific performance under section 36(2) of the Land Act. Admittedly, most of these case which affirm the law that receipts are not documents affecting interest in land relate to the legal requirement of stamping under the Stamp Duty Act, 2005 (Act 689) and registration of documents affecting interest in land as required by the Conveyancing Act, 1973 (NRCD 175) (now repealed by the Land Act, 2020 (Act 1036). Thus, these are cases which facts relate to the admissibility and reliance of the court on a receipt which has not been stamped or registered in accordance with law. The issue then rises as to whether the said document is a receipt, which need not be registered, or a document conveying title, which ought to be registered so as to be admissible. Be it as it may, I am of the view that the law on the legal effect of a receipt remains applicable to the instant case. There are exceptions however to the general rule. That is, even though a document may be described as a receipt, the courts have held that if it contains all the characteristics of a conveyance, it will be regarded as a 13 | P a ge conveyance despite its description as a receipt. The case of GBO v ANTIE [2008] 16 MLRG 93 SC therefore held that in order to determine whether a document is a receipt or document conveying title, the document in question ought to be construed as a whole and not in piecemeal. In the words of the court: “A conveyance may contain a receipt clause on moneys had and received, or make reference to transactions that standing alone may qualify as receipt as defined. But per se, would not qualify the instrument as a receipt. Therefore, to discover the type of instrument requires that in conformity with the basic and well known canon of construction, the document should be read as a whole and not in piecemeal” Exhibit A must therefore be read as a whole so as to determine whether it is a receipt evidencing payment or an instrument conveying title. To qualify as a conveyance, Exhibit A must conform to the requirements of Section 1 of the Conveyancing Act, 1973 (NRCD 175) which is the statute in force at the time Exhibit A was executed. These provisions have however been reproduced by Section 35 of the Land Act, 2020 (Act 1036) which repealed the Conveyancing Act. The said sections provide: Section 35—Mode of transfer (1) A transfer of an interest in land other than a transfer specified in section 36, shall be in writing and signed by (a) the person making the transfer or by the agent of that person duly authorised in writing; and (b) the person to whom the transfer is made or the agent of that person duly authorised in writing. 14 | P a ge (2) A transfer of an interest in land made in a manner other than that provided in this section does not confer an interest on the person to whom the transfer is made. By a reading of Section 35, the instrument conveying title must be signed by both the transferor and the transferee in order to be a valid transfer of title. Section 36 of the Act provides for the transactions exempted from the requirement of writing. An examination of Exhibit A reveals that it contains the date on which it was executed and the parties thereto. The wording of the document is to the effect that the land and mango trees were being sold by Afishata Gonja to the Asemawu. It appears however that Exhibit A was only thumb printed by the transferor. There is no indication on the said document that it was signed by the Plaintiff’s mother, Asemawu, the transferee therein. Be that as it may, it is also noted that Exhibit A does not sufficiently describe the land in question which is being conveyed. It only states that Afishata was selling land and mango trees to Asemawu. No demarcations of the land were given neither did the document state the names of the adjoining land owners of the land being sold. The extent of land being sold was also not stated. In my view, Exhibit A falls short of a conveyance and can only be regarded as a receipt evidencing payment of money. Being in the nature of a receipt, Exhibit A is only an evidence of payment and does not confer title on the Asemawu, the mother of the Plaintiff. Consequently, Exhibit A, standing alone, is not conclusive evidence that the land together with the mango trees were sold to the mother of the Plaintiff. I must say that on the face of Exhibit A, one Atorsah K. James appended his mark as a witness to the transaction. He was however not called by the Plaintiff to testify in support of his case. According to the Plaintiff, he has become a member of the Defendant’s family. Be it as it may, having held that Exhibit A is a receipt and therefore does not convey title, the testimony of the said witness to the transaction would not have changed the legal effect of Exhibit A. 15 | P a ge In support of his case that he purchased the land in dispute from DW1, the Defendant tendered in evidence Exhibit 1, 1a and 1b which are the receipts he says, were issued to him by PW1 after purchase of the land. Exhibit 1 is in the Defendant’s name while Exhibit 1a is in the name of Ndarli Vivian who the Defendant says is his sister. Exhibit 1b is also in the name of Tinob Ntenyinbor Magma. Regarding Exhibit 1b, the Defendant testified that after purchasing his plot, he informed his friend about it and his said friend also purchased one plot. Applying the principle on the legal effect of a receipt as held by the case law to these receipts tendered by the Defendant, I am of the view that they do not constitute instruments transferring title in the said plots to the Defendant and the persons named therein. If at all, they are only receipts evidencing the payment of money consequent to an agreement to transfer an interest in land. On the face of these Exhibits, it appears Nana Bristiam Okore Atorsah is the allotting party. The respective Exhibits also contain the names of the allotees. It is noted that even though the contents of these receipts are that the within named persons have acquired a plot of land measuring 66 by 66 feet, no amount has been quoted as to the purchase price of the plots. There is also no description of the plot acquired in the said receipts. In my view, it is questionable whether Exhibits 1, 1a and 1b can be described as a receipt properly so called since it contains no statement on money paid. Were they intended as allocation papers? I think not since no specific plots were described therein. ACTS OF POSSESSION Apart from Exhibit A, the Plaintiff may succeed if he is able to lead other evidence to substantiate his claim. According to the Plaintiff, his family remained in possession of the disputed land even after the demise of his mother, clearing the land and harvesting the mango and palm fruits thereof. He stated that his mother, being a trader, bought more palm seedlings to add to the palm trees already on the land. DW1 does not deny that the mother of the Plaintiff harvested mango fruits on the land in dispute. He says that the mother of the Plaintiff bought 16 | P a ge the mango trees and so she harvested the fruits thereof. He stated during his cross-examination by the Plaintiff as follows: Q. Did you harvest mangoes on the disputed land during the time the Gonjas’ were inhabiting the land? A. Your mother bought the mango trees. That was why she was harvesting the mango trees. With regards to the palm fruits, both the Plaintiff and DW1 claim they planted same. While the Plaintiff claims they were planted by his mother, DW1 on his part claims his father gave the land to someone who cultivated the palm trees for him. Both Plaintiff and DW1 claim they have been harvesting the palm fruits on the disputed land till date. This is what transpired during the cross-examination of DW1 by the Plaintiff: Q. We were the ones who planted the palm trees on the land, not your father. A. The palm trees belong to us. My father gave it to someone who cultivates it. When it ripens for harvesting, my father goes to harvest it. Now that my father is ill, my siblings and I go and harvest same. Due to the rival claim by both the Plaintiff and DW1 to the ownership of the palm trees on the disputed land, it was necessary for the Plaintiff who bore the burden of proof to satisfy the court on his claim by calling further evidence so as to prove his ownership of the palm trees. One way by which the Plaintiff could do this was to call the adjoining boundary owners of the disputed land to testify in support of his case. By his claims, the Plaintiff mentions the name of one Akonye as sharing a common boundary with the disputed plot to the West. He also stated that the land shares a common boundary with the farmland of Nana Kojo Atorsah to the 17 | P a ge northern side. The Plaintiff could have called these boundary owners to the land as witnesses in support of his case that it was his mother who planted the palm trees and also that the Plaintiff and his family have been harvesting the palm fruits and have been clearing the land over the years without any opposition from any person. The Plaintiff however failed to do so. No further evidence was led by the Plaintiff to prove any overt acts of ownership exercised by him and his family over the disputed land. All that the Plaintiff did was to claim damages from the Defendant for cutting down four of his palm trees. He then went ahead to testify that each palm fruit could bear about eight (8) or nine (9) bunches of palm fruits each year and a bunch could be sold for GH¢50. Consequently, the Plaintiff claims the Defendant cutting down four of his pal trees has denied his family of an income of GH¢1,600 yearly. He then went ahead to tender in evidence Exhibits B and B1 which are pictures of felled palm trees. To entitle the Plaintiff to his claim for damages, it was essential that he first proves ownership of the palm trees. A successful proof of ownership and possession of the palm trees on the land would have aided the Plaintiff’s claim of ownership of the disputed land and would have shifted the evidential burden to the Defendant to prove a better title to the disputed land. This is so because the law presumes the one in possession to be the owner of the land and he has good title against all persons except the actual owner. See Section 48 of the Evidence Act, 1975 (NRCD 323) which provides that: 48. Ownership (1) The things which a person possesses are presumed to be owned by that person. (2) A person who exercises acts of ownership over property is presumed to be the owner of it. 18 | P a ge As I indicated, in an action for declaration of title to land, the burden is solely on the Plaintiff to prove his title to the land. The law is also settled that where a party makes an averment which is capable of proof in some positive way, he must adduce the necessary evidence to prove same. He cannot go into the witness box and repeat on oath the same averments he made which his opponent denied. He must lead other evidence by calling material witnesses, producing documents or things so as to convince the court of the truth of his averments. This was the view held in a number of cases, one of which is KLAH v PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139 where the court re-stated the dictum of Ollenu J in the often cited MAJOLAGBE v LARBI [1959] GLR 190 at 192 in the following words: “Where a party makes an averment capable of proof in some positive way eg. by producing documents , description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating his averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true” This was exactly what the Plaintiff did. Even though he bore the burden to prove his title to the disputed land, he walked into the court with a mere receipt and some photographs in hand and failed to call material witnesses to testify in support of his case. Perhaps he erroneously believed he could rely on the weakness of the Defendant’s case. During his cross-examination of the Defendant, the Plaintiff relied on the fact that the Defendant was not a native of Kpandai and that the person who sold the land to him did not have the right to do so. Since the Defendant did not file a counterclaim to the action, he bore no duty in law to prove his title to the land. The law is settled that the Plaintiff must prove his case and he cannot rely on the weakness of his opponent’s case. Thus, the Plaintiff must come to court armed with evidence in support of 19 | P a ge his case. He cannot come to court empty handed and expect the court to declare title to him merely because his opponent has a weak case. See the case of DUAH v YORKWA [1993-94] 1 GLR 217 at 228 where the court summarized the position of the law in the following words; “… [T]here are several decided cases of this court and the Supreme Court which point to the fact that in an action for declaration of title to land, the statement that the plaintiff should succeed by the strength of his own case presupposes that the plaintiff should lead evidence to establish his case. Three of such cases will be instanced to illustrate this point. In Asare v Appau II [1984-86] 1 GLR 599, CA it was held that the plaintiff must prove his title and not rely on the weakness of his opponent’s. Needless to say, the plaintiff can only prove his title by adducing evidence. Then there was the case of Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314 at 344, SC where Adade JSC stated that a “person who comes to court, no matter what the claim is, must be able to make a case for the court to consider, otherwise he fails.” Lastly, in Odametey v Clocuh [1989-90] 1 GLR 14, SC it was held that if the plaintiff totally failed to make out a case for title to land, he could not rely on the weakness in the defendant’s case. All these cases and others too many to permit easy elaboration here lay down that if the plaintiff fails to lead evidence to make out his case he should lose the case.” On a consideration of the evidence led, I am of the view that the Plaintiff has failed to discharge the burden on him to produce the necessary and sufficient evidence in support of his case. The Plaintiff was supposed to lead evidence to establish that his mother purchased the land in dispute and not only the mango trees on the land. The Plaintiff tendered was Exhibit A, receipt, which the law says, is only evidence of payment of money consequent to an agreement to transfer an interest in land. Exhibit A therefore does not confer title on the Plaintiff. Apart from Exhibit A, the Plaintiff could have led evidence of uncontroverted possession of the disputed land in support of his claim for ownership. The boundary owners Plaintiff mentioned in his claim were very material to his case but the Plaintiff failed to call them. The Plaintiff therefore 20 | P a ge could not substantiate his claim that his family possessed and harvested the palm fruits on the land. I therefore find that the Plaintiff has not been able to lead sufficient evidence to prove that his late mother, Asemawu purchased the land in dispute from Afishata Gonja. I find from the evidence that it was only the mango trees on the land that were sold to the Plaintiff’s mother and not title to the land. Consequently, the Plaintiff claim for title to the disputed land fails. The next issue is whether it was the Defendant who felled the palm trees belonging to the Plaintiff on the disputed land. To succeed, the Plaintiff must prove that he or his family is the owner of the palm trees and that it was the Defendant who felled the palm trees as contained in Exhibits B and B1. I indicated in this judgment that the Plaintiff and DW1 both claim ownership and possession to the palm trees on the land. The burden was therefore on the Plaintiff to call further evidence to substantiate his claim. I have held that the Plaintiff failed to do so because even though he stated in his claims the persons who own the lands adjoining the disputed land, he failed to call any of them to testify in support of his case. The boundary owners could have testified to seeing the Plaintiff and his family exercising possession over the disputed land by harvesting the palm fruits and regularly clearing the land without any opposition from any person. Having failed to prove ownership of the palm trees, the Plaintiff could not claim for damages for their destruction. In any case, it is the case of the Defendant that the palm trees were felled by his vendors before the land was sold to him. No person was called by the Plaintiff to testify that he or she saw the Defendant felling the palm trees. It is only after the Plaintiff successfully proves ownership to the palm trees, and that it was the Defendant who felled the palm trees that the court could assess the damages as claimed by him. CONCLUSION The Plaintiff’s claim for declaration of title to the dispute land met the opposition of the Defendant’s vendor. According to DW1, Plaintiff’s mother only purchased the mango trees but not the land which he claims, is the property of his family. The Plaintiff therefore, to succeed, was to prove that his mother did not only purchase the mango trees but also acquired title to 21 | P a ge the land in dispute. He was also to prove positive acts of possession exercised by him and his family over the land beyond the harvesting of the mangoes on the land by his mother. To do so, the Plaintiff only tendered in evidence a receipt of payment and photographs of some felled palm trees. No other witnesses were called by him to prove acts of possession exercised by him or his family over the land. He only went into the witness box and repeated his averment that his mother planted the palm trees on the land and his family continued in possession till date, a claim which was denied by DW1 who also claimed it was his father who planted the said palm trees. The boundary owners who were material witnesses to the Plaintiff’s case were not called by him. In my view and having regards to the particular facts of this case, prove of ownership of the palm trees on the land was crucial to the Plaintiff’s case as it constituted possession in law. The burden would then have shifted to the Defendant to lead further evidence to rebut same. Failing to do so, I hold that the Plaintiff has failed to prove his title to the land in dispute. Plaintiff’s reliefs are hereby dismissed entirely. Cost of GH¢2,000 is awarded against the Plaintiff in favour of the Defendant. H/W GODSON ETSE KUMADO DISTRICT MAGISTRATE 22 | P a ge