SALMU VRS ASOGRO (UE/BG/DC/A1/4/2024) [2024] GHADC 614 (20 November 2024)

*HWMNJ@DC/BLG-20/11/2024* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON WEDNESDAY, THE 20TH DAY OF NOVEMBER, 2024. SUIT NO. UE/BG/DC/A1/4/2024 OSMAN SALAMATU SALMU PLAINTIFF OF HOUSE NO. E18, ESTATE, BOLGATANGA VRS. ATIMPOGBILA ASOGRO DEFENDANT OF ZUARUNGU, BOLGATANGA TIME: 09:02AM PARTIES PRESENT ISSAHAKU TAHIRU LAWAL ESQ. FOR THE PLAINTIFF PRESENT NO LEGAL REPRESENTATION FOR THE DEFENDANT JUDGMENT Introduction 1. The Plaintiff commenced this action on 9th February 2024 and claimed against the Defendant as follows: - a. A declaration that the land on which the defendant is putting her structure is the buffer zone reserved for the expansion of the Bolgatanga-Bawku road. *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 1 of 15 *HWMNJ@DC/BLG-20/11/2024* b. A declaration that the Defendant’s building completely block access to the plaintiff’s building. c. An order to demolish the building put up by the defendant on the said land at her own cost. d. Cost including solicitor’s fees. Plaintiffs’ Case 2. The plaintiff avers that somewhere in 2021, she acquired a parcel of land known an unnumbered plot at Bolga-Zuarungu Residential Area and registered as title No. UE 3991 under Serial No. 296/012. The plaintiff avers that after acquiring the said parcel of land, she took over possession and exercise acts of control over the said parcel of land. The plaintiff states that she applied for a lease for the said unnumbered parcel of land at Bolga-Zuarungu Residential Area from the Lands Commission, Bolgatanga which was executed between the plaintiff and the Tindana of Benkute with the concurrence of the land owners. 3. The plaintiff says that he commenced building on the said parcel of land without any interference whatsoever with a face as a story building containing stores. That plaintiff states that it is only recently that the defendant started building a structure on the Buffer Zone in front of her building which completely blocks access to her building. The plaintiff aver that she reported the matter to the Bolgatanga East District Assembly and the Assembly requested the defendant to stop the development on the land but the defendant has refused and continued with the construction. The plaintiff states that the building the defendant is *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 2 of 15 *HWMNJ@DC/BLG-20/11/2024* putting up has completely blocked access to the plaintiff’s building. The plaintiff avers that the defendant by his attitude and conduct has evinced every intention not to stop blocking access to her building unless compelled by this Honourable Court to do so. The plaintiff further avers that the defendant’s conduct is illegal, unlawful and unconscionable. It is the plaintiff’s case that the defendant has no defence whatsoever to her claim. Wherefore, Plaintiff prays for the above-stated reliefs. Defendants’ Case 4. Defendant vehemently denies Plaintiff’s claims and says that somewhere in 2008/2009 she had structures on the said buffer zone at Zuarungu which shares boundaries with the main Bolgatanga to Bawku road to the East of Bolgatanga, shares a boundary with (VRA) High tension to the West of Zuarungu (Bolga East) and to the North and the South, with a Vast land. Defendant says that it was Tipper Truck loaded with stones that ran into the shops and destroyed same and the plaintiff is aware of the said incident. 5. The defendant says that the plaintiff told her that she wants to build stores in front of her house and rent one out to the defendant and that defendant’s structure will block the views of plaintiff’s stores. The defendant further says that the plaintiff has access to her house but interested in putting up stores in front of her house. It is the defendant case that the plaintiff has access to the house and from her house without any challenges. The defendant says that the said buffer zone land in question does not belongs to plaintiff but her (defendant) family and that the plaintiff is not entitled to any of the reliefs in endorsed on the writ of *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 3 of 15 *HWMNJ@DC/BLG-20/11/2024* summons. She therefore prays for plaintiff’s action to be dismissed subject to a huge cost. Issues for Determination 6. The issues for determination in this case are as follows: a. Whether or not the land on which defendant is putting up her building is a buffer zone. b. If yes, whether or not the defendant obtained a permit from the Bolgatanga East District Assembly before putting up her structure. c. Whether or not the Defendant’s structure has blocked plaintiff’s access to her building? Burden of Proof 7. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. The law is that he who alleges must prove. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows: *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 4 of 15 *HWMNJ@DC/BLG-20/11/2024* 11(1) For purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (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. 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.” 8. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023. 9. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 5 of 15 *HWMNJ@DC/BLG-20/11/2024* the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff.” 10. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows: “It is a basic principle of 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 witness, 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 minds 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 that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 6 of 15 *HWMNJ@DC/BLG-20/11/2024* 11. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: “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 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.” See also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G.M.J, page 177, Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537 Evaluation of Evidence, Discussion of Issues and Legal Analysis 12. Plaintiff testified herself and subpoenaed an officer from the Bolgatanga East District Assembly. The Defendant testified herself and called two (2) witnesses. The evidence of the parties in effect is the same or similar to the brief facts of their cases as stated above. 13. I will now proceed determine the following issues together: (a)Whether or not the land on which defendant is putting up her building or structure is a buffer zone and (b) If yes, whether or not the defendant obtained a permit from the Bolgatanga East District Assembly before putting up her structure *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 7 of 15 *HWMNJ@DC/BLG-20/11/2024* 14. It is noteworthy that Municipal or District Assemblies are mandated by law to regulate putting up of structures by given out building permit as well as prohibit putting up of structures that do not conform to approve plan for the area in issue. Any person who fails to obtain a permit before putting up a building or put up a structure contrary to the approved plan for the area will face the consequences of his or her action. Sections 91 and 94 of the Local Governance Act, 2016 (Act 936) provides as follows: “Permit to carry out physical development 91. (1) A person shall not carry out a physical development in a District except with the prior written approval in the form of a written Permit issued by the District Planning Authority. (2) A District Planning Authority may approve an application Referred to in subsection (1), before the adoption of an approved District Development Plan for the district. (3) A District Planning Authority shall consult public agencies and local communities as may be prescribed by Regulations issued by the Minister in the determination of an application for a permit to develop prior to the adoption of an approved District Development Plan. Enforcement in respect of unauthorised development *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 8 of 15 *HWMNJ@DC/BLG-20/11/2024* 94. (1) Where (a) a physical development has been carried out without a permit or is being carried out without a permit, or (b) conditions incorporated in a permit are not complied with, a District Planning Authority shall give written notice in the form that shall be prescribed by Regulations, to the owner of the land to require that owner on or before a date specified in the notice to show cause in writing addressed to the District Planning Authority why the unauthorised physical development should not be prohibited, altered, abated, recovered or demolished. (2) If the owner of the land fails to show sufficient cause why the development should not be prohibited, altered, abated, removed or demolished, the District Planning Authority may carry out the prohibition, abatement, alteration, removal or demolition and recover any expenses incurred from the owner of the land as if it were a debt due to the District Planning Authority. (3) A District Planning Authority may issue an enforcement notice that demands the immediate stoppage of work that is being carried out contrary to this Act or the terms of an approved development plan. (4) A person who fails to comply with a notice to stop work commits an offence and is liable on summary conviction to a fine of not less than two hundred penalty units and not more than four hundred penalty units or to a term of imprisonment of not less than three months and not more than six months or to both the fine and term of imprisonment and in the case of a continuing offence to an additional fine of not more than four penalty *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 9 of 15 *HWMNJ@DC/BLG-20/11/2024* units for each day that the contravention continues, after written notice has been served on the offender.” See also sections 113 and 117, 118, 119 and 121 of the Land Use and Spatial Planning Act, 2016 (Act 925). 15. The inference from above authorities is that if people put up structures or containers on the buffer or the space reserved for road expansion or put up a structure contrary to the approved plan for the area as well as without a building permit, the Assembly is authorized to take appropriate action against them in accordance the provisions Acts 925 and 936 as stated supra. 16. In the instant case, the subpoenaed witness from the Bolgatanga East District Assembly (Alhassan Hamdu, Physical Planning Officer) testified that the Assembly gives permit to people to put up temporary structures in the buffer zone. He also testified that the buffer zone is not part of Plaintiff’s land. Thus, during cross examination of the subpoenaed witness by the defendant on 21st October, 2024, the following transpired: Q. What documents should a person submit in order to put up temporary structures in the buffer zone for commercial purpose? A. You need to provide the permission to use the place, drawings of the structure and it will be accessed and the permit can either be given or not. Q. Are you here to testify because of the plaintiff or the Assembly? A. I was subpoenaed to come. *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 10 of 15 *HWMNJ@DC/BLG-20/11/2024* Q. Is the buffer zone part of the plaintiff’s land? A. The buffer zone is not part of the plaintiff’s plot. 17. Also, during re-examination of the subpoenaed witness from the Bolgatanga District Assembly by the counsel for plaintiff on 21st October, 2024 the following transpired: Q. What kind of temporary structures does the Assembly give permit to put up at the buffer zone? A. We have metallic or wooden sign posts or structures that can be moved easily. 18. Moreover, from the evidence, the defendant admitted that the place she is putting up her structure is a buffer zone and that she did not obtain a permit from the District assembly. The defendant also testified that the structure she is putting up is a temporary structure. Thus, during cross examination of the Defendant by counsel for Plaintiff on 7th October, 2024 the following transpired: Q. You agree with me that where you are building your store is the buffer zone? A. Yes. Q. You know the buffer zone is managed by the District Assembly for the area? A. Yes. Q. Because the Assembly manages it, you must have a permit before you can put up a structure on the buffer zone? *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 11 of 15 *HWMNJ@DC/BLG-20/11/2024* A. Yes, I know of that. Q. Do you have a permit from the Bolga East Assembly to put up a structure on the buffer zone? A. Not yet. When I went to the assembly they said they have no issue with me putting up a structure on the buffer zone. It is the plaintiff that brought me to court and not the Assembly. Q. Before you started building on the land, did the assembly grant you a permit to do so? A. I went to the Assembly and they told me plaintiff came to make a complaint. Q. You know that the buffer zone is meant for what we called essential services like high tension poles, telephone services lines. A. Yes, I know. Q. The buffer zone is also there for expansion of the road if the need arise? A. Yes. Q. The Assembly will not allow permanent structures to be put on the buffer zone A. It is not a permanent structure but a temporary one which I know I will have to vacate the place when the Assembly needs it. Q. The structure you putting up you are using cement blocks. Not so? A. Yes, I am using cement but it is temporal. *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 12 of 15 *HWMNJ@DC/BLG-20/11/2024* Q. I am putting it to you that what you are putting up is not a temporary structure? A. It is a temporary structure. Q. I am further putting it to you that temporary structures are containers, wooden kiosks and not cement blocks? A. It is temporal to me because anytime the Assembly needs the place for essential services I will vacate the place. 19. The fundamental duty of a trial judge or magistrate is to make up his mind one way or the other on the primary facts and when he has made up his mind, he should state his findings and then proceed to apply the law. See the case of Quaye V. Mariamu [1961] GLR 93-96. The duty of this court is to make up its mind, states its findings of facts from the evidence on record and applies the law. From the evidence on record, the court found the following facts: The place in dispute is a buffer zone which is under the control of the Bolgatanga East District Assembly. The Assembly gives permit to people to put up temporary structures on the buffer zone. The defendant in the instant case claims the structure she is putting up is a temporary structure. She however did not obtain a permit from the Bolgatanga East District Assembly before putting up her structure on the buffer zone. 20. This court therefore holds and declares that the land on which the defendant is putting her structure is a buffer zone reserved for the expansion of the Bolgatanga-Bawku road. Accordingly, since defendant obtained no permit from the Bolgatanga East District Assembly, she is hereby restrained from developing *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 13 of 15 *HWMNJ@DC/BLG-20/11/2024* or building on the part of the buffer zone reserved for the expansion of the Bolgatanga-Bawku road. 21. The next issue to consider is whether or not the defendant’s structure has blocked plaintiff’s access to her house. Plaintiff claims access to her house has been blocked completely which defendant denied. It is the responsibility of the plaintiff to prove to the satisfaction of this court that access roads or ways to her house have been blocked completely. Unfortunately, the plaintiff failed to convince this court with sufficient evidence that the defendant completely blocked access roads or ways to her house with her structure. The court finds as a fact the plaintiff has been having access to her house. 22. Finally, the plaintiff is seeking an order to demolish the building put up by the defendant on the said land at her own cost. It is worthy of note that a person in possession or control of land can do whatever he/she wishes with any structure on the land. This court is of the view that since the buffer zone is under the control of the Bolgatanga East District Assembly, the Assembly is at liberty to do whatever it wishes with the structure the defendant is putting up on the buffer zone. Accordingly, the plaintiff’s relief for an order to demolish the building put up by the defendant on the said land at her own cost is dismissed. This is because an order for demolition is not sanctioned by the rules of court. See the Supreme Court case of Laryea Marteye and Mohammed Tahiru vs. Abubakari Mohammed and Jamil Iddriss Civil Appeal No. J4/31/2023 dated 11/08/2023 [2023] DLSC 16994. *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 14 of 15 *HWMNJ@DC/BLG-20/11/2024* Conclusion 23. Having examined the whole evidence adduced by the plaintiff and the defendant on record in accordance with the foregoing authorities as well as the analysis, the court holds as follows that: a. Plaintiff’s action succeeds in part and it is hereby declared that the land on which the defendant is putting her structure is a buffer zone reserved for the expansion of the Bolgatanga-Bawku road. Accordingly, since the defendant obtained no permit from the Bolgatanga East District Assembly before putting up the structure, she is hereby restrained from developing or building on the part of the buffer zone reserved for the expansion of the Bolgatanga- Bawku road or any other essential services. b. Plaintiff has failed to convince the court that defendant’s building or structure completely blocks access to her house. c. The plaintiff’s relief for an order to demolish the building being put up by the defendant on the said land at her own cost is dismissed as an order for demolition is not sanctioned by the rules of court. d. There will be no order as to costs. The parties are to bear their respective cost incurred in pursuing this matter. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-OSMAN S. SALMU VRS. S. ATIMPOGBILA ASOGRO (SUIT NO. A1/4/2024) * Page 15 of 15