Alhassan v Arthur (A1/18/2020) [2024] GHADC 779 (25 November 2024)

INTHE DISTRICT COURT KINTAMPOHELDONTUESDAY 25TH NOVEMBER, 2024BEFOREHIS WORSHIP KWAMEADJEI MANUESQ. SUITNO: A1/18/2020 AWUDUALHASSAN - PLAINTIFF (Per his lawful AttorneyAbdul Rahim Owusu) VRS SALAMATUARTHUR - DEFENDANT JUDGMENT 1. BACKGROUND 1.1. In this suit concerning ownership of land, Plaintiff claims against Defendant as follow: “a. A declaration of title and recovery of possession of building plot Number "91" block "D" Sector "7" lying, situate and being at a place called“BRIGADE" atKintampoin the BonoEast Region. b. Recovery of cash the sum of GH¢3,650.00 being the cost of three (3) bedrooms uncompleted house at window level which the defendant destroyed in 2017. c.General damages fortrespass. d. An order for perpetual injunction restraining the defendant her agents, assign, servant workmen labourers descendants relatives and all those who claim through the defendant from trespassing on the defendantplot” Plaintiff’scase Page 1 of 14 1.1. The sum of Plaintiff’s case is that around 2014 he through his attorney approached the Paagor royal family the owners of the disputed land through one Anthony Saahene a member of the family for a piece of land to put up a house. The Paagor royal family of Kintampo through the said Anthony Saahene sold the plot in dispute to him and he was able to build three (3) bedrooms at window level on the disputed land and has been in possession since. 1.2. Plaintiff says that Defendant has trespassed unto the building plot numbered "91" sector 7 Block D at Brigade Kintampo and is adversely claiming same. Defendant according to Plaintiff has destroyed his three-bedroom uncompleted house at window level valued at GH¢3,650.00 as at the time of the issuance of the writ. Plaintiff says that Defendant had started developing the disputed plot though she has no title thereto and will not stop her trespassoryconduct. Defendant’scase 1.2. I shall not in this judgment beyond the fact that Defendant denies Plaintiff’s ownership of the disputed land and his grantor’s title to the disputed land discuss Defendant’s case any further. Defendant in her pleadings made a positive averment of having surrendered her land to her grantor after the grant made to her became the subject of disagreement and a tussle over ownership. Defendant alleges that the disputed land is the propertyofthe Mostooland she obtained agrant fromthe occupant of thestool. 1.3. My decision to limit the discussion of parties’ cases to what is set out in theforegone will become clearershortly hereafter. Page 2 of 14 Layparties 1.4. Defendant at some point in this suit was self-representing so being a lay court user, the Court will indulge her as far as practicable. In Mante and Another v. Botwe [1989-90] 2 GLR 479 Taylor J.S.C had this to say of the duty owed to illiterate persons, which in my honest view is extendable to lay personsin Court: “In this connection, it is worthy of note that our judges have traditionally taken the view that some indulgence should be shown to illiterates appearing before our courts as is illustrated by the editorial note of Hayes Redwar J. in his judgment in Bossom v. Attonie (1897) Red. 199 at 201. See also the judgment of the Full Court (coram Sir William Brandford Griffiths C.J. and Francis Smith J.) in Ansah v. Kwesi Essuman (1898) Ren. 136 and the Fiakpoli Concession (1903) Ren.281.” 1.5. This duty was explained by Adade J.S.C. in Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G.L.R. 314, S.C. and Justice S.A. Brobbey (Retired) in his book Practice and Procedure in the Trial Courts and Tribunals of Ghana, 2011 both of whom admonish the court to look to the issuesratherthanthe technicality ofthepractice and procedure. Issues 1.6. The main issues raised from parties’ cases as outlined in the foregone are whether Plaintiff is owner of the disputed land and whether Defendant has trespassed unto Plaintiff’s land. Forlogical coherenceof this judgment, the issues are discussed together since they are linked and a negative determinationontheformerwill put the latterto rest. Page 3 of 14 2. BURDENOF PROOF ANDEVIDENCE OF THE PARTIES 2.1. I cannot see how Defendant’s case can be reconciled with that of Plaintiff on the essential issue of ownership. Defendant did not counterclaim, but also denies Plaintiff’s title and the title of his grantor as alleged by him. Whereas Plaintiff claims that the disputed land belongs to the Paagor Royal family of Kintampo, Defendant contends that the Mo Paramountcy is the original owner of the land. A fundamental rule of the law on evidence is that Plaintiff having first made a specific claim bears responsibility of providing evidence to support that claim when it is contested by his opponent. An issue arises that necessitates resolution and the party introducing a fact that is challenged bears the burden of proving thedisputed fact. 2.2. Plaintiff in the event, must establish his case to succeed. 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 then was) stated 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 properly and safely inferred." 2.3. This requirement of law is expressed in statute at section 14 of the Evidence Act, 1975(NRCD323)which provides that: Page 4 of 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- existenceof which isessential to the claimor defence he is asserting." 2.4. It follows then, that a party asserting a claim to land thus Plaintiff, as settled in law, must establish his case based on its merits, that is his own arguments and supporting evidence rather than by a reliance on the deficiencies in that of Defendant. Section 10(1) of the Evidence Act, 1975 (NRCD323) provides concerning this requirement inthese words: “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning afactin the mindof the tribunalof fact or the Court”. 2.5. Section 11(1) of the Evidence Act 1975 (NRCD 323) also sets out the burden on a party to produce evidence in a matter before the Court in the following terms: “For the purpose of this Decree, the burden of producing evidence meansthe obligation of aparty to introducesufficientevidence to avoid aruling againsthim on an issue”. 2.6. In Ishack v. Praba (2007) 12 MLRG 172 at 181, the Court of Appeal explained Plaintiff’sinitialevidential dutythus: “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 Page 5 of 14 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.” 2.7. In Ackah v. Pergah Transport Ltd. & Ors (2010) SCGLR 728, the Supreme Courtexplained this duty more extensively in these words: “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)” 2.8. This burden which is initially on Plaintiff would shift if he leads sufficient evidence in support of his case as provided at Section 17(b) of the Evidence Act (NRCD323)thus: Page 6 of 14 “17.Allocationof burdenofproducing evidence Exceptas otherwise provided by law, (a)the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of furtherproof; (b)the burden of producing evidence of a particular fact is initially on the party with the burden of persuasionas to that fact.” 2.9. Authorities such as In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-2004] 1 SCGLR 420 emphasise the shifting nature of the burden of presenting evidence, contingent on the specific issue(s) under consideration. Declarationoftitle toland 2.10. Plaintiff’s reliefs in this suit include a declaration of title and recovery of possession. He must prove on the balance of probabilities his root of title, mode of acquisition and possession. In Rukayatu Usumanu v. Zongo Naa Kun-Gari & 16 Ors (2021) JELR 107957 (SC) relying on Mondial Veneer (Gh) Ltd. v. Amuah Gyebu XV [2011] 1 SCGLR 466 the Supreme Court perGeorgina Wood CJstated atpage 474that: “In land litigation even where living witnesses who were directly involved in the transaction under reference are produced 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 litigation.” Page 7 of 14 2.11. The Supreme Court speaking through Adinyira JSC in Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 outlined the evidence required fromPlaintiff in this suit thus: “It issettled thata person claiming title has to prove: i) hisroot of title, ii) mode of acquisition and iii) various acts of possession exercised over the land ...This can be proved either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must prove the title of his grantor. Awuku v. Tetteh [2011] 1SCGLR366”. 2.12. The governing principle here is that Plaintiff must substantiate, through reliable evidence, both the precise identity and the boundaries of the land he claims, how he came to be owner of the land, and where the title of his predecessor is denied, how his predecessor came to be the owner of that land. 2.13. The court’s statement of the law in Okonti Borley & Another v. Hausbauer Limited (2011) JELR 69139 (CA) through Kusi Appiah JA was that Plaintiff is required to present substantial and reliable evidence to establish a prima facie case, as mandated by Section 14 of the Evidence Act. When he effectively discharges this burden and theDefendant fails by her own credible evidence to counter Plaintiff's evidence, Plaintiff succeeds. As articulated by His Lordship, "For, if they, the Plaintiffs, did not produce that kind of evidence, a ruling would be given against them onthat issue." Page 8 of 14 2.14. Plaintiff was required at the end of his case to have given sufficient evidence in support thereof, to necessitate a shifting of the burden of producing evidence to Defendant. Plaintiff however failed to discharge this burden in my view. The Court received no reliable evidence of Plaintiff’s grantor’s ownership of the disputed land. In Majolagbe v. Larbi [1959] GLR 190 it was held that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, the averment cannot be sufficiently proved by just mounting the witness-box and reciting the averment on oath without adducing some corroborative evidence. Additionally, Faibi v State Hotels Corporation [1968] GLR 471 is authority for the position of the law that “Where a party would not produce evidence which evidence is available and within his peculiar knowledge, itcould be inferred inlawthat that evidence is againsthim”. 2.15. In all, I have not found Plaintiff’s evidence to be satisfactory in this suit, even to establish his case prima facie and shift the burden of proof unto Defendant. The test of satisfactoriness or sufficiency of evidence is the degree of belief that the evidence creates in the mind of the trial court concerning the fact or facts in issue. After assessment of facts on all the evidence adduced, areasonable mind should come to aconclusion that the existence of a fact in issue is more probable and reasonable than its non- existence if the evidence adduced in support is sufficient. This standard has been applied in myriad cases including Ackah v. Pergah Transport Ltd (supra) and Faibi v. State Hotels Corporation (supra). Her Ladyship Mrs. Wood, as she then was, in Yeboah vrs. Amofa (1997-1998) 1 GLR 674 atpage 683explained what sufficient evidence is at law: Page 9 of 14 “I notice from section 11 of NRCD 323 that the statute does not attempt any definition of “sufficient evidence”. In other words no attempt is made in disclosing what evidence will be deemed sufficient and what could be classified as insufficient. The reason is not difficult to find. It is definitely a question of fact determinable on the peculiar facts of each particular case. So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case B.............. I think when the two cases are read in the light of sections 11(1) and (4) and 12 of NRCD 323, all the law required of a person who seeks declaration of title is to lead such particular or sufficient evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude the probabilities of the existencerather than the nonexistenceof the fact”. 2.16. As discussed in the foregone, Defendant denied Plaintiff and his grantor’s title. Accordingly, Plaintiff’s grantor’s title was in issue. To Plaintiff’s misfortune, the Court did not receive any evidence at all from Plaintiff as to his alleged grantor’s ownership of the disputed land, save his testimony and that of his witness that the disputed land was owned by his grantor, and that Anthony Saahene the admitted member of the family Plaintiff alleges are owners of the disputed land granted the land to him. It is trite that only the head of a family has the capacity at law to alienate family property. However, this issue will not detain the court much since it is not therealbasis for thecourt’sconclusions in this suit. 2.17. Having considered all of Plaintiff’s evidence including his Exhibits A and Cwhich are asite plan, and anallocation note respectively, theyare not by themselves sufficiently probative of the nature of Plaintiff’s ownership of Page 10 of 14 the land, the root ofhis title, or the root ofhis grantor’s title. These exhibits are in my view insufficient. 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 LandAct, 2020(ACT 1036). Itdoes notconfer title toland onits holder. 2.18. 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 by obtaining the appropriate documents that will have to be registered. The allocation paper per se cannotpass titleto the grantee.” Page 11 of 14 2.19. Accordingly, an allocation note, paper, chit, or sheet howsoever described, by itself is of no real weight in establishing a person’s title to land. It is not an instrument affecting land and many purchasers of land uneducated on this point have been led astray and had their land transactions and ownership go awry when they eventually came to the realisation that they did not ownthe land in the way theybelieved themselvesto. 2.20. This Court on the totality of the evidence on record finds that Plaintiff failed to lead sufficient evidence in proof of his ownership of the disputed land and by extension his claims as endorsed on his writ of summons and his pleadings. Considering all the evidence on record, the court finds that Plaintiff failed at the end of his evidence to discharge the burden of proof and same never shifted to Defendant. Sufficient evidence in Plaintiff’s title and by extension his case would necessarily have included evidence of his grantor’s title. Though Plaintiff called witnesses in this suit, in addition to the testimony of his attorney, nowhere in this evidence did the court receive some matter probative of how the Paagor Royal family of Kintampo came to be owners of the disputed land whether by way of traditionalevidence, documentaryevidence orclear actsofownership. 2.21. The requirements of proof in law as was required of Plaintiff in this suit are well laid out in the Supreme Court decision in Nortey (No.2) v. West African Institute of Journalism [2013-14] SCGLR 703 where the Court explained that such evidence must include, testimonies of parties and witnesses which are material admissible hearsay, documentary evidence and things or real evidence, that will suffice to prove title unless it is admitted.Not ashred ofthis kind ofevidence wasreceived. Page 12 of 14 2.22. I shall apply the principle in Majolagbe v. Larbi (supra) to this suit. The trite learning is that 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 if he does not adduce that corroborative evidence which if his averment be true is certain to exist. Plaintiff at the end of his case had still been unable to unsettle burden of proof and I need not consider the case or evidence of Defendant beyond what has for coherence of the judgmentbeen discussed in the foregone. CONCLUSION As explained by A. M. Dordzie, JSC (sitting as an additional Justice ofAppeal) in Dr. Eric Graham & Another v. Vivian Aku Brown-Danquah & 3 Ors (2019) JELR 65252 (HC), proprietary interest in land cannot originate from a vacuum. In this court’s considered view as supported by law, a claimant’s root of title may be established by documentary evidence or some ancestral history capable of proof perhaps by way of tested traditional evidence. Until the Court has exacted the standard of proof that will justify a finding that a partyhas sufficiently established his rootof title or that of his grantor where challenged, a declaration of title, recovery of possession and perpetual injunction would be rendered spineless as it is founded on nothing as concluded by the court in Dr. Eric Graham & Another (supra). Plaintiff having failed to prove that the disputed land is owned by whom he alleges to have obtained a grant of it from, has by extension failed to sufficiently prove his ownership of the disputed land, hisactionfails entirely and same is accordingly dismissed. Considering the length of time this suit has taken, Defendant’s need and having retained counsel at some point as is clear onthe record, and the industrythat the suit has required I assess costs at GHS 10,000.00 in favour of Defendant against Plaintiff Page 13 of 14 with interest at a rate of 27.1% per annum being the Bank of Ghana 91-day treasury billinterestrateas atjudgment, fromjudgmenttill final payment. SGD. H.W. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Parties present (Unrepresented). Page 14 of 14