Mends v Cobblan and Another (A5/319/2019) [2024] GHADC 769 (17 December 2024)

BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS), MAGISTRATE SITTING AT DISTRICT COURT GBESE, ACCRA, ON TUESDAY THE 17TH DAY OF DECEMBER, 2024. -------------------------------------------------------------------------------------------------------- SUIT NO: A5/319/2019 ANTHONY HAYFORD MENDS ::: PLAINTIFF VRS 1. SAMUEL COBBLAN ::: DEFENDANTS 2. NII MANTEY COBBLAN -------------------------------------------------------------------------------------------------------- Time: 9:03am Parties: Plaintiff present. 1st Defendant present. 2nd Defendant absent. Legal Representation: Thomas Annan, Esq with Cecilia Bona Kwarteng, Esq holding brief of Kwaku Owusu Agyemang, Esq for the Plaintiff. Longinus Chinedu Nwaehie Esq., for the Defendants. -------------------------------------------------------------------------------------------------------- JUDGMENT -------------------------------------------------------------------------------------------------------- 1 The Plaintiff herein invoked the jurisdiction of this court on 29th July, 2019 when he filed a Writ and Statement of Claim in the court’s registry for the following reliefs: 1. Recovery of possession of land space from Defendants forthwith. 2. An order or orders restraining Defendants from further interfering with Plaintiff’s property and also remove the said porch that has entered into Plaintiff’s land space. This led to the Defendants filing on 12th August, 2019 their Statement of Defence. The Plaintiff, not to be outdone filed a reply on 22nd August, 2019. There is no record of an amendment from either party. THE CASE OF THE PLAINTIFF According to the Plaintiff, he shares a boundary with the Defendants herein. Eight (8) years prior to instituting this suit he bought some gravels with the intention of erecting a wall but had to travel to his village to due to illness. In his absence the Defendants erected a porch which ate about 6 feet into Plaintiff’s house. All efforts to bring the Defendants to order proved futile and was rather met with threats to his life. Even reporting the situation to the police could not yield any positive result hence his action. THE CASE OF THE DEFENDANTS The Defendants generally denied all the claims of the Plaintiff and averred that the land belonged to their late parents. On their demise, the Defendants and their eight (8) other siblings became sole beneficiaries of the land in question. They claim that there is no boundary separating the Plaintiff and Defendants. Rather, due to Defendants’ late mother’s generosity, a small portion of land measuring 20ft by 10ft was given to Plaintiff without rent to construct a temporary wooden structure. This was so because the Plaintiff sought their late mother’s assistance for a place to stay as he had nowhere to live. Defendants finally aver that upon the demise of their mother plaintiff is now claiming ownership when he even lacks capacity to sue. 2 Plaintiff replied to this and denied any assistance from the Defendants’ mother. ISSUES: 1. Whether or not the Plaintiff has a valid interest in the disputed land. 2. Whether or not the Defendants have trespassed on part of Plaintiff’s land. 3. Whether or not Plaintiff is entitled to his reliefs. THE BURDEN OF PROOF THE LAW AND THE EVIDENCE REQUIRED It is the principle of law that, the onus of proof first rests on a party whose positive assertions have been denied by his opponent. A person on whom the burden of proof lies depending on the admissions made is directed by sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead convincing evidence such that on the totality of the evidence on record, the court will find that a party’s version of the opponent’s accounts to be more probable than its non-existence. See Douglas Carl Botweh v. Ghana Highway Authority (2018) JELR 64359 (HC), Zambrama v. Segbedzie (1991) 2 GLR 221, Takoradi Floor Mills v. Samir Faris [2005/06] SCGLR 882; Continental Plastics Ltd v. IMC Industries [2009] SCGLR 298 at pages 306 to 307; Abbey v. Antwi [2010] SCGLR 17 at 19 (holding 2); and Ackah v. Pergah Transport Limited and Others [2010] SCGLR 728. To put matters in perspective of the expectations of the Evidence Act, the sections above listed are reproduced below as follows: 10” (1) For the purposes of this Decree, the burden of persuasion 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. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence 3 or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11(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 non-existence. 12” (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (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. 14” 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-existence of which is essential to the claim or defence he is asserting. In the case of Mojolagbe v. Larbi and Others (1959) GLR 190, the court held as follows: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist. … “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that 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.”” 4 Therefore, the role of a trial judge “in a civil matter is to determine from the evidence available which of the parties adduced credible and sufficient evidence to tilt in his favour the balance of probabilities on an issue.” To avoid doing injustice it is also important to note, as cited by the Supreme Court with approval the case of Effisah v. Ansah (2005-2006) 943 at 960, in the case of Iddrisu Tifuuro Tatali v. Alhaji Saaka Yakubu (2018) JELR 68888 (SC) the Supreme Court held as follows: “...in the real world, evidence led at any trial which turns principally on issues of fact, and involving a fair number of witnesses, would not be entirely free from inconsistencies, conflicts or contradictions and the like. In evaluating the evidence at a trial, the presence of such matters per se, should not justify a wholesale rejection of the evidence to which they might relate. Thus, in any given case, minor, immaterial, insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who has substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence are clearly reconcilable and there is critical mass of evidence or corroborative evidence on crucial or vital matters, the court would be right to gloss over these inconsistencies...” Also, in the case of Sulemana Alidu v. Baba Alhassan Salifu (2015) JELR 108172 (HC) it was held that “the law is well settled that in an action for declaration of title to land the Plaintiff must succeed on the strength his own case and not on the weakness of the Defendant’s case.” See also Nartey v. Mechanical Lloyd Assembly Plant Limited (1988) JELR 66525 (SC). ANALYSIS Before I proceed with the analysis, I have found it necessary to comment on Counsel for Defendants’ written address which was filed on 18th November, 2024 and out of time. Counsel informs the court that the Defendants counterclaimed against the Plaintiffs. From the record, the Defendants only filed a statement of defence but there is no counterclaim. The only time there are appears to be a semblance of counterclaim is when the Defendants stated in their Witness Statement That they pray for an order to eject the plaintiff. This is not borne out of their pleadings and they will not be allowed to proceed on that line of 5 argument especially since there is no record of an amendment see Iddrisu Tifuuro Tatali v. Alhaji Saaka Yakubu (supra), Odoi v. Hammond [1971] 1 GLR 375 and Akufo-Addo v. Catheline [1992] 1 GLR 377. Secondly, in the written address, counsel claims the suit was commenced with suit number A9/315/19 but the Plaintiff has been using suit number A5/319/2019 and on that basis since there is no order of amendment of suit number the Plaintiff’s case should be dismissed. I am not sure where counsel got this information from but on the writ the suit number is A5/319/19 and this has never changed. Counsel is advised to verify his information carefully before proceeding on an unsustainable tangent. Third, it is important to make this point of why composite plans were not ordered in the course of proceedings. From the facts, the Defendants are challenging the ownership or interest of the plaintiff. Under normal circumstances, if this were a mere boundary issue, composite plans could have disposed the case off. However, the issue of the Plaintiff’s ownership needs to be determined before any other order, if at all, can be made. I shall proceed with issue 1. To determine if the defendants have trespassed on Plaintiff’s land, we must first determine if the Plaintiff has a valid interest in the land. The Plaintiff avers that he shares a boundary with the Defendants which the Defendants have encroached upon by constructing a porch. This is countered by the Defendants denying that the Plaintiff even owns the land and averring that their mother was the one to give him a 20ft by 10ft to build a shed on so he can have a place to lay his head. This Plaintiff has denied this. Thus, the burden of proof lay on the Plaintiff to prove on the balance of probabilities he owned the land. The burden of proof was also on the Defendants to prove that indeed their mother gave the land to the Plaintiff. To establish his claim therefore, the plaintiff exhibited his land documents, and evidence of his ongoing registration of the property in his name at Lands Commission. Defendants on the other hand also exhibited their land documents, water bill payments and property rate payments. In the exhibited land documents, the cover page on the Plaintiff’s land documents is dated 27th June, 1975 whilst in the deed it is dated 27th June, 1995. Counsel 6 for Defendants in the address states that this as well as the power of attorney granted to the grantors of the land in 1997 makes the document a forgery. Considering the fact that the date ‘1995’ was in the indenture exhibited, ‘1975’ is likely to be a typographical error that went unnoticed. From the totality of his testimony at trial, Plaintiff explained that at some point there was a re-demarcation of land after he acquired the land. Looking at plaintiff’s documents it appears he and his grantors concluded everything in 2011. It is not unusual for a commencement date of a grant to begin earlier than the agreement in question. I find this explanation plausible especially since the Defendants also from the land documents they have exhibited have the same grantors. In their land documents their grant commences from 2006. Both parties do not dispute that the Defendants were on the land before the plaintiff and it is also not in dispute that the plaintiff has been on the land since 1995. Since the parties were on the land long before their various land documents were given to them, I find Defendants’ claim that the document is a forgery untenable especially since this was not challenged in cross examination except only the site plan in cross examination unless of course that was supposed to be the challenge: Q: The site plan attached indicates it is dated 23rd July, 2018, not so? A: There is an old one presented by landlord which is with lands and this is the new one, was issued after redemarcation. Q: You never stated it in your Witness Statement not Statement of Claim that the old site plan was withdrawn and now one given to you upon redemarcation? A: I did not because I thought it was the same docket. Q: The description of the land in paragraph 5 of your indenture differs from the description in your attached site plan? A: It is true. The reason for the difference is that Salvation Army Church on the adjoined land and they encroached on my land. What was left is what I used for the redemarcation. Given the explanation of the Plaintiff, I am inclined to find same more probable than not. 7 I must be clear, the Plaintiff never disputed the Defendant’s ownership to their part of land, he disputed the Defendants’ claim that their mother gave him the land on which he occupies. At the hearing the following ensued in respect to Plaintiff’s claim of ownership: Q: Do you know the Defendant’s deceased father? A: I know him very well. Q: Is he not the one that gave you the portion of the land you are laying claim to? A: No. Q: I put it to you that you do not have any boundary with Defendant because the land does not belong to you? A: It is not true. Q: The portion of the land you are claiming belongs to Defendant that is why they built on it? A: That portion of the land I am claiming was given to me by Robertson Kotey and between my land and Defendant’s there is a boundary. Counsel for Defendants’ asserts that because the land in question was not described by the Plaintiff his action must fail. That is indeed the position of the law. See Anane v. Donkor; Kwarteng v. Donkor (Consolidated) [1965] GLR 188, SC. However, this is not to be applied in every case. In Agbosu and Others v. Kotey and Others (2004) JELR 66710 (SC) the court held as follows: “I think the court erred in applying the principle enunciated in the case of Anane v. Donkor; Kwarteng v. Donkor (Consolidated) [1965] GLR 188, SC to the facts of this case. Undoubtedly, the general principle enunciated therein, namely (as stated in the headnote), that: “a claim for declaration of title or an order for injunction must always fail, if the Plaintiff fails to establish positively the identity of the land claimed with the land the subject-matter of his suit, “is sound law, but applicable only in appropriate cases. I would therefore not advocate a slavish application of this principle even where the identity or boundaries of the land claimed is undisputed. In land claims, where the identity or the boundaries of the subject matter as pleaded is admitted by an 8 opponent, the elementary principle which rather comes into play is that which was expounded in Fori v. Ayirebi [1966] GLR 627, SC, namely, that where the averments were not denied no issue was joined and no evidence need be led on them.” In this circumstance there is no dispute as to where the land is located. Both parties are very clear as to which land is in dispute. Non-description of the land is not fatal in this case. In the pleadings of the Defendants, they asserted that the Defendants’ mother gave the land to Plaintiff due to their father’s relationship with him. But under cross examination, they seem to allude that it was the father and not the mother. The Plaintiff on the other hand has consistently denied being given the land by the Defendants whether through their mother or father. Not only has Plaintiff denied receiving any assistance but it is my opinion that he has been able to provide credible evidence, showing his ownership of the land by his land documents and his attempt at registration of the said land with Lands Commission. The onus now lies on Defendants to produce some positive evidence of their parents giving the land to Plaintiff. In their witness statements they repeated their assertions without more. At the hearing the following ensued: Q: You have indicated in paragraph 4 of your Witness Statement dated 25th August, 2020, that your parents allowed the Plaintiff to live in the land in dispute, is that correct? A: That is so. Q: In what year did your parents allow the Plaintiff to live on that land? A: I don’t remember the date or the year but it is a very long time ago. Q: In what year did your parents allegedly acquire the land in dispute? A: I don’t remember the date they bought the land because I was born at Abossey Okai, by the time we moved from Abossey Okai the land has already been bought. 9 For an assertion such as what the Defendants made, I find it rather surprising that they never bothered to find anyone who could corroborate their version of events, nor produce any documentation. In addition, they were not able to give a date as to when the Defendants parents gave the said land to Plaintiff. The Defendants’ also claim that because the land has not been plotted in the Plaintiff’s name then the land cannot be his. In the case of Nartey v. Mechanical Lloyd Assembly Plant Limited supra, the court held as follows: “…By the same token non-registration being a defect, which can be cured, its absence will not deprive a party of the protection of the courts. In a proper case the courts can order that a document which has been registered be removed from the register and one which has been refused registration be registered.” In this instance, the Plaintiff has demonstrated that he is in the process of registering his document thus his non-registration cannot invalidate his ownership. Another thing I find interesting is the area of the land. The Defendants claim the Plaintiff was given a 20ft by 10ft amounting to 200sq ft the equivalent being approximately 0.0004591368 acres portion to stay. But from the site plan the Plaintiff has exhibited, on the face of it, the Plaintiff’s land measures about 0.046 acres. The Defendants did not, once again, produce any evidence or witness to prove this. The Defendants made bare assertions which cannot hold weight in this matter. Finally, what has also not been in dispute is that Plaintiff has at all material times been in possession of the land. Counsel for Plaintiff impressed upon this court in her written address that where none is able to show title because of want of evidence or that the evidence is confusing and conflicting, the safest guide to determine the rights of the parties is by reference to possession. Counsel applied the cases of Dkokui II vs. Adzamli (Dec’d )substituted by Adzamli and ors [2017-2020] 1 SCGLR 663 at 674. Also in Summey vs Yohuno [1962] 1 GLR 160 and Barko vs Mustapha [1964] GLR SC 78 the Court held; 10 “It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it”. Both parties exhibited land documents from the same vendor. As to why the Defendants did not call their vendors as witnesses beats my imagination. They, better than anyone, could have been able to assist the Defendants prove the case. Nevertheless, my work is to evaluate the totality of the evidence before me. Since Plaintiff’s possession was only challenged by virtue of who gave him the land, considering that it has been established that the Plaintiff has been in possession of the land since 1995 and his grantors are the same as that of Defendants’ then for all intents and purposes Plaintiff is more probable than not the owner of the said land he is in possession of. Based on the evidence before the court, it will be difficult to decide as to whether the Defendants have encroached on the land. To determine if the Defendants have encroached on the Plaintiff’s land a composite plan will need to be drawn up to determine the extent if at all of the encroachment. In conclusion, granted that the parties agree that Plaintiff is on the land in dispute, their point of disagreement is on how he came by that land. I find that the Plaintiff has been able to prove through his documents that he has a valid interest in the land. The Defendants have not been able to discharge the burden of producing evidence as required by the Evidence Act supra and enunciated by Mojolagbe v. Larbi and Others supra to prove otherwise. Plaintiff’s claim therefore succeeds pending the outcome of the results of the composite plan. FINAL ORDERS An order for the following is hereby made: a. A composite plan is to be drawn up using the site plan and the boundaries of the parties on the ground to show the extent of encroachment by the Defendants if any. b. Plaintiff to recover possession of the part or portions encroached upon 11 c. Defendants to remove the portion of the porch that has entered into Plaintiff’s land space. d. Defendants are restrained from further interfering with Plaintiff’s property. (SGD.) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS) (DISTRICT MAGISTRATE) 12