Acheampong v Nyame (A1/02/2023) [2024] GHADC 685 (11 November 2024)

IN THE DISTRICT COURT SITTING AT TWIFO PRASO, CENTRAL REGION ON MONDAY THE 11TH DAY OF NOVEMBER, 2024 BEFORE HIS WORSHIP MAXWELL OFORI KPODO, ESQ SUIT CASE NO. A1/02/2023 ACHEAMPONG ADJEI PLAINTIFF VRS AKWESI NYAME DEFENDANT --------------------------------------------------------------------------------------------------- J U D G M E N T INTRODUCTION This judgment addresses a land boundary dispute between Acheampong Adjei (the Plaintiff) and Akwesi Nyame (the Defendant), who both reside in Twifo Mampong, Central Region, Ghana. The Plaintiff alleges that the Defendant has encroached upon his land, despite boundary demarcations he set when he acquired the land in 1972. PLAINTIFF'S CASE The Plaintiff claims that he acquired his land in 1972, setting boundaries with flowers. He asserts that he settled on the land before the Defendant and that the Defendant began trespassing on his land in 2022, asserting a coconut tree as the boundary marker. Following unsuccessful attempts to resolve the issue through local authorities, the Plaintiff instituted this suit to restrain the Defendant from further encroachment and to remove any unauthorized structures erected on the disputed portion. PLAINTIFF'S WITNESSES Statements from Mr. Mubarak Denteni and Mr. Richard Obeng, witnesses for the Plaintiff, support his claim. Mr. Denteni confirmed that the Plaintiff and Defendant share boundaries, which the Plaintiff initially marked with flowers. He also testified that the Defendant had previously asked to buy the land from the Plaintiff, but the Plaintiff refused. Mr. Obeng, chairman of the Twifo Mampong Committee, stated that upon 1 | P age inspection, he observed that the Defendant had set another boundary in line with a coconut tree, contrary to the Plaintiff’s original floral markers. DEFENDANT'S CASE The Defendant contends that the land in question belongs to him. The Defendant, Akwesi Nyame, contends that the boundary between his land and the Plaintiff’s was marked by a coconut tree planted by the Plaintiff. He maintains that the tree has always been the agreed boundary marker and denies encroaching on the Plaintiff’s land. The Defendant claims that upon returning from a period of travel, he found that his original bathroom had collapsed, prompting him to rebuild a kitchen and lavatory near the established boundary. Defendant relies on the testimony of Nana Adutweabam IV, who testified that he was involved in the initial division of land among the parties and their brother, Arhin. According to him, the Plaintiff initially set the boundary with coconut trees. The Defendant’s other witnesses, Mr. Francis Baidoo and Mr. Kwasi Nyame, confirm a longstanding boundary marked by a coconut tree and deny any trespass on the Defendant’s part. ISSUES FOR DETERMINATION Whether the boundary is marked by the flowers as asserted by the Plaintiff or by the coconut tree as asserted by the Defendant. CONSIDERATION BY THE COURT The law on proof in Ghana is regulated by the Evidence Act 1975 (NRCD 323) and the common law. The general position of the law is captured in the maxim. “He who asserts must prove”. That general position of the law was affirmed by Kpegah J. A. (as he then was) in ZABRAMA VRS. SEGBEDZI [1991] 2GLR 221 at 224 as follows: “a person who makes an averment or assertion which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden, unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and 2 | P age safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”. The general rule of proof in civil is that a party who in his pleadings or writ of summons raises issues essential to the success of his or her case assumes the onus of proof. See FAIBI VRS THE STATE HOTELS [1968] GLR 471 SC. See also the case of BANK OF WEST AFRICA VRS ACKUN [1963] 1 GLR 176 SC. See also section 10(1) of the Evidence Act, NRCD 323 which provides as follows: “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.” Similarly, section 12(1) of the NRCD 323 also reads as follows: “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” The learned Appau JSC, in delivering the decision of the Supreme Court held in Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah & 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S.C. (Unreported) as follows: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975, Act 323 and the decision of this Court in Adwubeng v. Domfeh [1996-97] SCGLR 660 at p. 662”. In the case of Yehans International Ltd. v. Martey Tsuru Family and 1 Other [2018] DLSC 2488 Adinyira JSC at page held that: “It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and iii) various acts of possession exercised over the land … This can be proved by either traditional evidence or by overt acts of ownership in respect of the land in dispute. I will now consider the issue whether or not plaintiff is entitled to a declaration of title to the land in dispute, and possession. 3 | P age In an action for declaration of title, the onus lies on the plaintiff to satisfy the court that She is entitled on the evidence brought by her to a declaration of title. The plaintiff in this case must rely on the strength of her own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help her and the proper judgment is for the defendant. See Kodlinye v. Mbabefo Odu [1935] 2 WACA 336. In another case of Akoto II v. Kavege [1984 -86] 2 GLR 365, CA, the court held that: “The suit being one for a declaration of title, the plaintiffs have an onerous burden to discharge. This is trite law and would have necessitated no further comment but for the procedure adopted by the plaintiffs of throwing this burden to the winds. No root of title was disclosed. Neither the tradition of acquisition of an inherited estate nor the incidents of purchase, if acquired by sale, were divulged. No clear and positive acts of unchallenged and sustained possession or of substantial user emerged from the evidence. The boundaries of the land were not established. No boundary neighbours were called to testify to the ownership of the adjoining lands.” Also in Nyikplorkpo v Agebdotor [1987 - 88] 1 GLR 165 at 171, Abban JA (as he then was) held that to succeed in action for the declaration of title to land, injunction, and recovery of possession, the plaintiff must establish by positive evidence the identity and the limits of the land he claims. The onus of proof required by law as regards the identity of land would be discharged by meeting the conditions clearly stated in this court’s decision in Tetteh v Hayford (2012) SCGLR 417 citing the case of Kwabena v Atuahene (1981) GLR 136 thus: (i) the plaintiff has to establish positively the identity of the land to which he claimed title subject matter of the suit. (ii) Plaintiff also has to establish all his boundaries (iii) Where there is no properly oriented plan drawn to scale, which made compass bearings vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title. 4 | P age The reasons why the disputed land subject of the claim must be clearly identified are well stated by Ollennu JSC (as he then was) in Anane v Donkor (1965) GLR 188 at p 192 as follows: “Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated, the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgment for declaration of title to land should operate as res judicata to prevent the parties relitigating the same issues in respect of the identical subject matter, but it cannot so operate unless the subject matter thereof is clearly identified. For these reasons 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 to which he claims title with the land the subject matter of the suit.” From the above stated authorities, a party claiming title to the land in dispute carries the burden of identifying the boundaries of the land in dispute. The party must also show the limits of the land in dispute. The party must also call boundary neighbours to testify to the ownership of the adjoining lands. See the case of JASS CO LTD & ANOR v. APPAU & ANOR [2009] SCGLR 265 @ 275. ANALYSIS The primary question is the rightful boundary between the Plaintiff’s and Defendant’s lands. The Plaintiff asserts that his land was demarcated with flowers, while the Defendant and his witnesses maintain that coconut trees served as boundary markers. Evidence provided suggests that the Plaintiff settled on the land first and used flowers to set the boundaries, while the Defendant left portions of his land undeveloped, returning later to build additional structures. The Plaintiff’s witness Mr. Obeng corroborated that the Plaintiff initially used flowers to mark the boundary, which the Defendant altered in the year 2022 by aligning it with a coconut tree. This adjustment by the Defendant, particularly in constructing structures 5 | P age on the disputed land, is an indication of trespass onto what the Plaintiff has consistently regarded as his land. The Plaintiff’s witnesses consistently confirm the floral boundary markers, whereas the Defendant’s witnesses, including Mr. Baidoo, do not provide sufficient evidence to counter the Plaintiff’s boundary claim beyond a single coconut tree. The Defendant’s assertion that the Plaintiff previously marked the boundary with coconut trees lacks clear support in the historical boundary arrangement. Upon consideration of the testimonies and evidence presented, I hold that the Plaintiff has established that his land was bounded by flowers, a demarcation respected until the Defendant’s recent actions. The Defendant’s claim to a boundary based solely on a coconut tree is insufficient to override the Plaintiff’s boundary markers, which were in place for several decades. Cost of GH¢1,000.00 is awarded in favour of the Plaintiff against the Defendant. (SGD) H/W MAXWELL OFORI KPODO (DISTRICT COURT MAGISTRATE) 6 | P age