Bosso v Yussif (BE/KTP/DC/A1/05/2025) [2025] GHADC 268 (15 January 2025)

IN THE DISTRICT COURT KINTAMPO HELD ON WEDNESDAY 15TH JANUARY2025BEFORE HIS WORSHIP KWAMEADJEIMANU ESQ. SUIT NO:BE/KTP/DC/A1/05/2025 VICTORIA BOSSO - PLAINTIFF VRS RUKAYAYUSSIF - DEFENDANT JUDGMENT 1. INTRODUCTION 1.1. Plaintiff’sclaims against Defendant inthis suit are asfollow: “1. Declaration of title and recovery of possession of building plot numbered 91 Block A situate and being at Habitat-Kintampo on Asumansia Stool land bounded by plots numbered 89 at the West, 9 0at the south and lanes atthe Eastand North. 2.Damages for trespass 3.Costs.” Plaintiff’scase 1.2. Plaintiff according to her, acquired her interest in the disputed land from the defunct Habitat For Humanity an NGO which operated in Kintampo some years ago on 15th March, 2013. In or around the year 2021 and after Page1of15 Habitat For Humanity had left Kintampo, Nana Effah Guakro Kyeremankomahene and occupant of the Asumansia Stool requested that all those who had acquired lands from Habitat For humanity appear before him for proper documents of their lands to be prepared for them and same was doneby Plaintiff. 1.3. Plaintiff has been occupying the plot since 2013 by constantly clearing same without threat or hindrance. Plaintiff says the Defendant has suddenly trespassed onto the plot and is expeditiously putting up a building thereon. Defendant has refused to honour all invitations by Kyeremankomahene the allodial owner of the land for the matter to be resolved amicably. Unless compelled by the court Plaintiff says Defendant isdetermined touse everyunlawful means possible totakeoverthe land. Defendant’scase 1.4. Defendant’s case is that she purchased the disputed land from one Mabinga Umaru in the year 2019 and an allocation note issued to her by the same chief described by Plaintiff as her grantor. She deposited sand and gravels on it after cutting down a tree that was on the land. She moulded 70 bags of cement’s worth of blocks on the land. The dispute on this land subsequently arose. 1.5. From parties cases narrated in the foregone, two main issues arise for determination in the suit. They are whether Plaintiff owns the disputed landand whether Defendant hastrespassed unto Plaintiff’sland. 2. BURDENANDSTANDARDOF PROOF 2.1. The well-known law is that a parties in civil litigation must succeed on the strength of their own case and not by a reliance on the weaknesses in that of their opponent. Parties accordingly at different junctures bear the Page2of15 burdens of producing evidence and persuading the court. This duty is initially that of Plaintiff. Section 10(1) of the Evidence Act, 1975 (NRCD 323) explains the burden of persuasion to means 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 and Section 11(1) of NRCD 323 explains the burden of producing evidence as the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue. In Ackah v. Pergah Transport Ltd. & Ors (2010) SCGLR 728, the Supreme Court statedthe lawonthis evidentialburden thus: “It is abasic 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 will fail. The method of producing evidence is varied and it includes the testimonies of parties 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 probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the EvidenceAct, 1975(NRCD323)” 2.2. It is this same rule which was applied in Ishack v. Praba (2007) 12 MLRG 172at181,where the CourtofAppealexplained thus: Page3of15 “The general principle of law is that it is the duty of a plaintiff to prove his case, ie. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defendant to lead sufficient evidence to tip the scales in his favour when on a particular issue Plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins, if not he loses on that particularissue.” 2.3. In Memuna Moudy and Others v Antwi [2003-2004] 2 SCGLR 967 at pages 974-975, the Supreme Court speaking through Wood JSC (as she thenwas)explained asfollows: “A cardinal principle of law on proof as enunciated in the age-old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases, including Zabrama v Segbedzi (1991) 2 GLR 221 at 246, is that, a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properlyand safely inferred." 2.4. The sum of the foregone is that at law, the party who alleges a particular fact bears the burden of proving it and where the fact alleged by the party pleading it is denied by his opponent, an issue arises for determination.As explained in the foregoing, it is the party who has introduced a fact which is denied, who has the burden of proving the denied fact. This point has Page4of15 statutory support in section 14 of the Evidence Act, 1975 (NRCD 323) whichprovides that: "Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non- existenceof which isessential to the claimor defence he is asserting." 2.5. Guided by the Supreme Court’s explanation in Memuna Moudy v Antwi (supra) and section 14 of the Evidence Act, it is Plaintiff who bears the initial responsibility of proving what she claims to be entitled to from Defendant as explained in In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-2004] 1 SCGLR 420. In stating the general position of the law on the burden of proof, the authorities have been careful to clarify the point that, the burden of producing evidence in any given case is not fixed, but shifts from party to party at various stages of the trial, depending on the issue(s), and the facts asserted and or denied.” This position finds expression at section 17 of NRCD 323 particularly subsection (b), but for clarity the entire section is provided in full as follows: “17.Allocationof burdenofproducing evidence Exceptas otherwise provided by law, (a)the burden of producing evidence of a particular fact is on the party againstwhom afinding on that factwould be requiredin the absenceof furtherproof; (b)the burden of producing evidence of a particular fact is initially on the party with the burden of persuasionas to that fact.” Page5of15 2.6. Additionally, in assessing evidence led by parties, the Court is mindful of the settled rule of law as applied in Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 by Ansah JSC at page 890 referring to the following case Tutu v. Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, where Ollenu JA said that: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and mustbe accepted by the court.” 2.7. The duty of the Court in this suit is to assess all the evidence on record to determine in which of the parties’ favour the balance of probabilities is tilted. In the discharge of this duty, I rely on the mind of the Court in the case of In re Presidential Election Petition (No. 4) Akuffo-Addo & Ors. v. Mahama & Ors. [2013] SCGLR (Special Edition) 73, where the Supreme Courtheld at page322asfollows: “Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff, or the defendant, mustbe considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.” Page6of15 3. PARTIES’ EVIDENCE ANDTHE ISSUES WhetherPlaintiff ownsthedisputedland 3.1. Plaintiff gave testimony by herself and her witness and put in evidence a number of documents including her application to Habitat for humanity for a plot of land, receipt of payment for registration and processing fees dated as far back as the year 2013, an allocation note from Nana Effah Guakro the original owner of the disputed land dated 2021, and a site plan duly endorsed by the Municipal Planning officer for the area dated 2021. Exhibits C and D relate specifically to the disputed land. These were received in evidence as Exhibits A, B, C and D respectively. Plaintiff’s witness PW1 who corroborated her case and evidence also testified and put in evidence a copy of the allocation note which according to him was given to Defendant’s grantor when he purported to purchase the disputed land. This wasreceived inevidence asExhibit E. 3.2. Defendant alsotestified andput in evidence anallocation noteas Exhibit1 which is identical to PW1’s Exhibit E, and a site plan. Defendant’s site plan lacked the regularizing endorsements of the Physical planning officer, so I will not count it as having any probative value, since it does not. She called two witnesses, her husband and her grantor Umaru Mabinga, but I will focus more on the evidence of the latter which to my mind is more relevanttothe issues. 3.3. What I find curious is that Defendant’s grantor’s allocation note itself never had any plot number on it, so it is rather concerning how both Defendant and her grantor who rely on it concluded that it related to the disputed land. Defendant’s ownExhibit1is atestament tothis. Page7of15 3.4. In all truth, as admitted by Defendant’s own witness DW2 her grantor, parties’originalgrantor who sold the disputed land to Defendant’s grantor also admitted that he made a mistake in selling the same land to both Defendant’s grantor and Plaintiff at different times. This admission was in both his evidence-in-chief and under cross-examination. This was what transpired while DW2 wasunder cross-examination: Q: I put it to you that if the land belongs to you, the chief would not have asked you tocome for a replacement? A: Not true. The land does not belong to Plaintiff. When we appeared before the chief he said that he made a mistake because he sold the land tome and inadvertently sold the same land toa differentperson. 3.5. Again, DW2 admitted that Plaintiff’s purchase of the disputed land was prior in time to his. This was what transpired while DW2 was under cross- examination: Q: I put it to you that I purchased my land in 2013 whereas you bought yoursin2019. A: That istrue. 3.6. I have cautioned myself that these admissions are evidentiary admissions and should not form the basis of any conclusion except in the absence of contrary evidence on the record. I have indeed found no such evidence on the record to contradict DW2’s admission. It was held in Samuel Okudzeto Ablakwa & Anor v.Jake Obetsebi Lamptey& Anor[2013-2014] 1 SCGLR 16, that where a matter is admitted proof is dispensed with. Page8of15 Again, the effect of admission of a fact advantageous to an opponent’s case was discussed in the case of In re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III (substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656, the court explained the effect ofanadmissionthus: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an exampleof estoppel byconduct.” 3.7. The trite law is that a grantor of land retains no valid title in himself to transfer to another person after the same portion of land has previously been transferred to another party. The Supreme court in Tetteh & Ors v. Hayford (substituted by Larbi & Decker) [2012] 1 SCGLR per Dotse JSC making afinding onsimilar factssaid atpage430asfollows: “as rightly found by the Court of Appeal, Asere stool having divested itself in the land in favour of the original defendant long ago in 1974 (per the nemo dat quod not habet maxim), had nothing (with regard to the divested land) to convey again, and so any purported sale of the alreadydivested land to the plaintiffsubsequentlyis null and void” 3.8. Additionally, the law as applied in myriad cases including the celebrated case ofBrown v.Quarshigah (2003-4) SCGLR930 favorsPlaintiff who was first in time. The court applied the same reason as in the forgone that when a land owner grants land he cannot purport to grant the same land to another person later, the reason being that the earlier grant has the effect of divesting the owner of whatever interest he might have had in Page9of15 the land and so he would have nothing in the land to purport to grant the same land thesecond time. 3.9. Defendant’s grantor had no land to sell to Defendant since the original owner’s sale to him was void. That original owner has not been demonstrated in this suit to have had some other valid interest in the land to have purported to grant to him. As such any such purported transfer from Defendant’s grantor to her would be void and I so find. The principle of law is that “nemo dat quod non habet” that is to say that no one can give what he does not have. In Saanbaye Basilde Kangberee v. Alhaji Seidu Mohammed (2012) JELR 66777 (SC), the Supreme Court explained that this principle operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance. I cannot also consider Defendant as a purchaser in good faith as she has at all material times from the evidence on record had clear notice of Plaintiff’s adverse title but proceeded brazenly to develop the land. Her vendor breached his duty as explained in Kama Health Services Limited v. Unilever Ghana Limited (2013)JELR68603(SC) thus: “The vendor has an obligation to sell property free from all encumbrances except those that were known to the purchaser. The position of the law as stated in the book titled Lawof Property authored by Megarry & Wade, 6th edition, pp. 686-7, para. 12-067 is that “A vendor is under a two-fold obligation as to title of the property which he is selling. First, he must disclose to the purchaser prior to contracting all latent defects in title save those of which the purchaser is aware. Secondly, by the contractual completion date he must both have the title which he has contracted to give and be able to prove that fact.”” Page10of15 3.10. I must add since both parties rely on allocation notes in this suit as evidence of their ownership of land, that in Boateng (No. 2) v. Manu (No. 2) and Another [2007-2008] 2 SCGLR 1117 the Supreme Court stated that the issuance of an allocation paper cannot be conclusive of land acquisition, but evidence only of the initial acquisition process geared towards the acquisition of land or plot. An allocation paper is not an instrument affecting land and it is for this reason that it is not registrable under the Land Act, 2020 (ACT 1036) in the same way as the predeccessor tothis legislation.Itdoesnot confertitle toland onitsholder. 3.11. The Supreme Court in the Boateng (No. 2) case (supra) outlined three main reasons why land allocation papers cannot be conclusive of land ownershipasfollows: “Firstly, the allocation paper may or may not state the nature of the acquisition, i.e. whether it is a lease, a sale, a pledge, mortgage, a gift, etc. Secondly, it may not specify the duration of the acquisition; and thirdly it may not give details of the extent of the land acquired. In the instant case, the allocation given to the plaintiff did not indicate the nature of the allocation, for how long the land was allocated, the terms of the allocation and even the consideration for the allocation. Registering a documentlike that would not validate itto be able to give it any more probative value. At best it may be stamped for the sake of its admissibility. When admitted in evidence, it can only show that some transaction had taken place to signify that the owners or holders of the land had purported to give some land to an individual or corporate body. The grantee will thereafter proceed to perfect his title Page11of15 by obtaining the appropriate documents that will have to be registered. The allocation paper per se cannotpass titleto the grantee.” 3.12. However, there is reliable evidence that Plaintiff in this suit was in possession of the disputed land before Defendant’s entry and that alone is enoughtoestablish ownership. The law has alwaysbeenthat the personin possession of land is presumed to be the owner so that as held in Twifo Oil Plantation Project Limited v. Ayisi and Others [1982-83] GLR 881 “mere possession is sufficient to maintain an action for trespass against anyone who cannot prove a better title.” Though it is clear from the evidence that Defendant’s grantor was not entirely candid and I daresay perpetrated fraud on Defendant, she clearly did not take any steps to mitigate her losses when this became clear to her. From the evidence, not only did Defendant’s grantor know of the prior sale of the disputed land toPlaintiff, but he had no reasonable basis to believe or conclude that that specific portionofland had beensold to him. 3.13. Again, Defendant was informed in the presence of her grantor by the original owner of the land that the sale to her grantor was inadvertent and offereda replacement which fromthe evidence she did not takethe benefit of. She can therefore not be the subject of any pity. In view of this, I find that Plaintiff is the possessory owner of plot numbered 91 Block A situate atHabitat-Kintampo onAsumansia Stoolland. WhetherDefendant has trespassed untoPlaintiff’sland 3.14. On this issue, the Court’s conclusion is rather straightforward. Any entry unto land without the permission of the true owner or those authourised by him amounts to trespass. It is a wrong against possession as explained Page12of15 in Chegu v.Dagomba [1977] 1 GLR 412 and the law remains the same that it is actionable per se. However, as stated by Wiredu J, once a court has found trespass it must award damages though there must be a basis for awarding morethananominal sum. 3.15. Defendant admits that she has developed the disputed land, and in this suit sets up a claim inimical to that of Plaintiff’s title, so it goes without saying that she is currently a trespasser on Plaintiff’s land, and I find so accordingly. Having found therefore, that the disputed land belongs to Plaintiff, it follows, and I find, that Defendant has dealt with that land unto which she has entered without Plaintiff’s permission, she has trespassed thereunto. Additionally, Damages cannot be nominal since Plaintiff if she so desires may need to return the land to the state it was in before Defendant’s trespass. Any such activities I surmise will involve direct financial and indirect cost and should reflect in the quantum of damagesawarded. 4. DAMAGES 4.1. Having found that Defendant has trespassed unto Plaintiff land, I apply Chegu v. Dagomba (supra), to the end that damages are in order. The purpose of such an award of damages is to compensate the injured party and to place her in the same position as if the breach had not occurred or as close thereto as possible. As held in Cornelius Ogbu v. Access Bank (Gh) Ltd (2015) JELR 69870 (CA) the object of an award of damages is to give Plaintiff compensation for the damage, loss or injury suffered. Defendant has developed the land and Plaintiff if she deems this undesirable may need to take steps to remedy the situation. This ought to be reflected in the quantum of damages awarded. This is fair to my mind since the substantial part of the development happened after Defendant Page13of15 had come to know that she had acquired and held no valid interest in the disputed land. 4.2. Additionally, by the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C.I. 52) each judgment debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment as provided in Rule 2(1). By Rule 1 that interest shall be calculated (a) at the bank rate prevailing at the time the order is made, and (b) at simple interest, but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner. In this suit, there is no agreement or some other applicable statutesetting outthe applicable interest. 4.3. The statutory or prevailing bank rate as provided under Rule 4(1) is the bank rate prevailing at the time the judgement or order is made by the court and where there is doubt as to the prevailing bank rate, the 91 days Treasury Bill interest rate as determined by the Bank of Ghana shall be the prevailing bank rate as provided by rule 4(2). I fall on the reasoning of the Supreme Court in Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC), since to my mind Rule 4(2) of C.I. 52 is applicable in computing interest in this suit at the statutory rate of 28.3% per annum, which I have taken notice of as the Bank of Ghana 91-day treasury bill interestrateasat judgment. CONCLUSION Plaintiffs’actionsucceeds, theCourt makesthe following ordersin favourofPlaintiff against Defendant: Page14of15 a. Adeclaration of Plaintiff’s possessory ownership of all that land numbered 91 Block A situate and being at Habitat-Kintampo on Asumansia Stool land bounded by plots numbered 89 at the West, 90 at the south and lanes atthe Eastand North. b. Recoveryof possession of the land described inorder (a) above. c. Damages for trespassin the sumof GHS2000.00 d. An order of perpetual injunction restraining Defendant and all those claiming through her from laying adverse claim to or dealing adversely with the land describedin order (a) above. e. Iassess Plaintiff’s costs at GHS 4000.00 f. Defendant shall pay interest on the sums mentioned in orders (c) and (e) atthe statutory rate of 28.3%per annumfromjudgmenttill finalpayment. SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Parties present (Unrepresented) Page15of15