Acheampong v Yahuza (A1/31/2024) [2024] GHADC 738 (23 December 2024)

IN THE DISTRICT COURT OF GHANA, NGLESHIE AMANFRO DISTRICT COURT HELD ON 23RD DECEMBER, 2024 BEFORE HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS). SUIT NO: A1/31/2024 SAMUEL KWAME ACHEAMPONG PLAINTIFF VRS ALHAJI UMAR YAHUZA DEFENDANT PLAINTIFF PRESENT DEFENDANT ABSENT JUDGMENT The Plaintiff herein instituted this action against the Defendant on 29TH April 2024 for the following reliefs: a. Declaration of title and ownership of the land described in the schedule. b. Recovery of vacant possession. c. Perpetual injunction restraining the defendant, his agents, privies, workmen, etc and anyone claiming ownership through the Defendant from further development of the land. d. Cost 1 | Page The Plaintiff avers that he acquired four plots of land from Nii Quashie Borlor III through Frank Ocloo Quaye at Amanfrom Asabahan within the Ga South District in 2012. Plaintiff states that he constructed a six (6) bedroom storey-building on part of the land. Plaintiff also constructed another foundation for a six (6) bedroom house on the same land and later on raised same to lintel level. Plaintiff says to be sure of the grantors ownership of the lands he acquired, he conducted a search at the lands commission, Accra on the 21st January 2022 which results was that the land was registered in the name of one Dr. Lawrence Acquaye. He averred further that, he went to Dr Lawrence Acquaye, his new grantor and he gave him an indenture covering the land he acquired from him, all duly signed. Plaintiff says that about three (3) years ago, he visited the land and saw that the Defendant has developed a portion of his land so he reported the matter to the Amanfro Customary Land Secretariat in 2021 and both parties were invited. Plaintiff says that on 25th April, 2024 Plaintiff went to the land and met Defendant and some workers constructing a foundation on the same land and the matter was reported to the police for settlement. Issues 1. Whether or not Plaintiff is entitle to all that piece of land located at Asabahan- Amanfro in the Ga South District in the Greater Accra Region containing an approximate Area of 0.53 Acres or 0.21 Hectare more or less and boundaries as follows, starting from SGGA EX TD/19/2 on a bearing of 259 51’ and a distance of 145239.6 feet from SGGA C0089/22/1 on a bearing of 110 26’ and distance of 107.0 feet and from SGGA C0089/222/2 on a bearing of 201 51’ and a distance of200.7 feet from SGGA C0089/22/3 on a bearing of 294 17’ and a distance of 125.6 feet and from SGGA C0089/22/4 on a bearing of 027 19’ and a distance of 193.6 closing on SGGA C0089/2222/1 more particularly delineated on the plan attached hereto and thereon shown edged Pink 2 | Page Evaluation of Evidence and Resolution of Issue It is important to first establish that despite being served with all processes and hearing notices personally, defendant neither filed any process nor appeared in court to defend the suit. Under Order 25 Rule 1(2) (a) of the District Court Rules, 2009 (C.I. 59), where an action is called for trial and the Defendant fails to attend, the Plaintiff would be allowed to prove his claim. The Defendant had the opportunity to come to Court to cross examine the Plaintiff and his witnesses if any and to also adduce evidence but he elected not to be present to challenge the Plaintiff’s claim by his conduct of not appearing in Court. The Defendant can therefore not raise at any point that the door of justice was shut on him. It was held in the case of Mence Mensah v E. Asiama [2011] 38 GMJ 174 SC that: “It is a salubrious principle of our jurisdiction that a litigant should have the opportunity of being heard, of telling his side of the story, of being free to present evidence and argument to buttress his case; but it is also settled law, and dictates of common sense require also that once these opportunities have been extended to the litigant but the litigant decides not to avail himself of them within the period of the trial, he would not, on judicial considerations, be permitted to come later and plead for the reactivating of the very opportunities he declined to embrace.” However, although the Defendant did not appear before the court to contest the suit, the Plaintiff is not automatically entitled to the reliefs sought solely due to the Defendant’s 3 | Page absence. The Plaintiff must still meet the burden of proof before the court can grant the reliefs requested. It is trite that in civil cases, the burden of proof lies on the party who in his/her pleadings or writ raises issues essential to the success of his/her case. The one who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S.C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C.A. In the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court captured the trite position of the law relating to the burden of proof and stated as follows at page 900: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). 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, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favorable verdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a 4 | Page determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” In Plaintiff's evidence in chief by way of Witness Statement filed on 14th June, 2024, he testified that he acquired four plots of land from Nii Armah Okine, head of the Kwashie Gborlor family. He testified that an indenture was prepared for him. According to the plaintiff, in 2022, he started developing part of it but later decided to conduct a search on it at the Regional Lands Commission and it revealed that the land was registered in the name of one Dr. Lawrence Acquaye so he contacted him and upon several meetings with him, he was made to buy the same land the second time and another indenture prepared for him. Plaintiff added that he went on the land three years ago and saw that someone had trespassed on it and started putting up two separate structures on it. He reported the defendant to the Amanfro Customary Land Secretariat for amicable settlement and after a year later, the decision was that, the defendant would be given land closer to the plaintiff’s land which he did not agree. Plaintiff testified further that, he went on the land in April 2024 and saw some people working so he reported to the police and the persons were arrested and the defendant went to the police station and pleaded for their release. Plaintiff also stated that the illegal dilapidated structure on the land should be demolished to allow him construct his property on the land. The plaintiff concluded by stating that the Defendant had no valid title to the disputed land. As already indicate, the defendant has been repeatedly served personally with several hearing notices but neither Defendant non his counsel appeared in court to conduct the hearing and to cross examine the plaintiff on the facts he averred so the matter went on without his presence in court. 5 | Page Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at page 890, the Supreme Court held as follows; ’’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 that evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court." Plaintiff mounted the witness box and his witness statement and exhibits were formally admitted into evidence. Defendant was fully aware of the date when the matter was adjourned for trial to commence because defendant was served with a hearing notice and the affidavit of service duly filed before the court. In the absence of the defendant in court to cross examine the plaintiff the court discharged the plaintiff and issued hearing notice once more but the defendant still failed to be in court to open his defence. Plaintiff has thus satisfied the onus on him to produce sufficient evidence to make his claim before this court. Plaintiff’s testimony evidencing his claim to the reliefs was not challenged and upon examining the documents, the court is convinced that the plaintiff has a legitimate claim in law that has not been impeached at all. In the circumstance, Judgment is accordingly entered for the plaintiff against the defendant for; 1. Declaration of title to all that piece or parcel of land being lying and situate at Ngleshie Amanfro Asabahan in the Ga South Municipality and particularly described in the schedule as the rightful owner. 2. Recovery of vacant possession of the said four plots of land 3. An order for the demolishing of the illegal structure defendant built on plaintiff’s land 4. Defendant, his agents, assigns, privies, workmen and anyone claiming through him are perpetually injuncted from interfering or dealing with the Plaintiff enjoyment of his land. 6 | Page I award cost of GHC 2000.00 in favour of the plaintiff (SGD) HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS) (MAGISTRATE) 7 | Page