Kaba v Wewobanani (A1/21/22) [2024] GHADC 729 (31 October 2024)

IN THE DISTRICT COURT B SITTING AT AMASAMAN THURSDAY THE 31ST DAY OF OCTOBER, 2024 BEFORE H/W ANNETTE SOPHIA ESSEL (MRS.) – MAGISTRATE SUIT NO. A1/21/22 JAMES AZEGOLA KABA PLAINTIFF VRS: MICHAEL AZEGOLA WEWOBANANI DEFENDANT _____________________________________________________________________________ JUDGEMENT INTRODUCTION: On 23rd February, 2022, the Plaintiff sued the Defendant for the under listed reliefs: (i) Declaration of title to a parcel of land with an approximate area of 0.16 acre located at Medie. (ii) Recovery of possession. (iii) An order for the immediate ejection of the Defendant from Plaintiff’s single room self- contain on the land. Parties in this Suit are uterine brothers. The subject matter of this suit is two (2) sets of single room self-contained apartments with porch situate and lying at Medie in the Ga-West District of the Greater Accra Region of the Republic of Ghana. Page 1 of 14 CASE OF THE PLAINTIFF: The Plaintiff: an older brother of Defendant a resident of Medie averred that on 21st September, 2005 he leased a parcel of land measuring 0.16 acre lying and situate at Medie from Kofi Akrashie of the Ahias Family of Medie and Nsawam at a cost of Two Thousand Cedis (GH¢ 2,000.00) only. Following purchase, he paid an additional Two Hundred and Fifty Cedis (GH¢ 250.00) only for surveyor services. In support of this transaction his grantor issued him with a site plan and receipts for the payment made in respect of this land. According to the plaintiff, at the time of purchase of the said land, he was living at Nima: a suburb of Accra in a rented facility in which he accommodated the defendant, maintained him and also bore the cost of his educational bills. Plaintiff averred that in the course of time, he constructed two sets of single room self-contained with porch apartments on the land. Plaintiff asserted that he owns another property at Medie Zongo. Plaintiff asserted that he subsequently relocated to this property at Medie bringing along with him the defendant. In this property, Plaintiff stayed with his wife in one single room self-contained with porch apartment whilst Defendant occupied the other. The plaintiff claims that over time since December, 2021, the conduct of the defendant whilst in occupation of his premises amounts to various acts of nuisance and thus prays for the reliefs above mentioned. The various act of nuisance committed by the defendant as listed by Plaintiff include the following: “1) Quarrels with Plaintiff. 2) Damage caused to louver blades of windows in the house. 3) Defendant chased Plaintiff with a cutlass; threat of harm. 4) Threat of death which Plaintiff reported to the Kotoku Police Station. 5) Ingestion of marijuana by Defendant through smoking. 6) Late arrivals at Plaintiff home as late as midnight which same causes Plaintiff worry.” Page 2 of 14 Plaintiff concluded that in as much as he raised his brother as part of his household, the Defendant who is currently unemployed following the above –mentioned acts has behaved in such a manner that Plaintiff found intolerable to live with him under one roof and hence the commencement of this suit. In support of his averments, the Plaintiff tendered the following exhibits: Exhibit A: Receipt of full payment of Two Thousand Cedis (GH¢ 2,000.00) only for lease of one building plot from Kofi Akrashie Ahia Family. Exhibit B: Receipt of Two Hundred and Fifty Cedis (GH¢ 250.00) only for surveyor. Exhibit C: Site plan of Plaintiff land at Medie. CASE OF THE DEFENDANT: The Defendant; an artisan by occupation and resident at Medie Kitwaa contended that it was not the plaintiff who raised him. He narrated that he was living in Navrongo in his childhood but relocated to Accra through the benevolence of a relative called Asibi, following his arrival in Accra, the plaintiff enrolled him in a Catholic School alongside working in Plaintiff’s drinking bar at Nima. Defendant narrated that living with Plaintiff was pure drudgery as he served as a drinking bar attendant till late in the night so much so that his education was adversely affected resulting in his dropping out of school. Defendant stated that he subsequently gained employment at Ghana Airways. Whilst in this employment, in the year February, 2003, the defendant gained an opportunity to travel to the United Kingdom. According to the defendant, this trip was a brief one lasting only twenty-eight (28) days. As at this time, the plaintiff lived in a rented facility at Ofankor and land was on sale at Medie for Seven Hundred Cedis (GH¢ 700.00) only per plot. In this regard Defendant in the company of his wife approached the plaintiff in his home in the presence of Kayaga; their late sister and the plaintiff’s ex-wife; Rita and handed over to him Two Thousand Five Hundred Cedis (GH¢ 2,500.00) only for the purchase of three (3) plots of land. The defendant stated that he planned to use same for a poultry farm. Defendant asserted that upon his return to Ghana in March, 2003, he enquired from the plaintiff of the three (3) plots of land, however the plaintiff was hesitant in directing him to same. Following Page 3 of 14 several requests by the defendant, which same were declined by the plaintiff, the defendant had a tip-off from a friend: DW1 that the plaintiff had been sighted visiting a parcel of land at Medie. According to the defendant it was not until the year 2007 when the plaintiff confessed to the defendant that he indeed bought only one (1) plot out of the three (3) plots requested by the defendant and with a further explanation that he would produce the outstanding two (2) plots of land at a later date. The plaintiff claimed that he wanted his younger brother; the defendant to have a place to lay his head before commencing the poultry business. The Defendant continued that one day, the plaintiff led him to a parcel of land and indicated to him that this was the purchased land. This parcel of land had a distinguishing mark of palm trees planted on it. Following this identification of his land, the defendant cleared the land using labourers and commenced development of same. In the year 2018, the defendant completed building a chamber and hall self-contain with porch on this land. The defendant asserts that in that same year: 2018, he was informed by the plaintiff of a need for urgent accommodation due to the plaintiff’s tenancy expiry and ejection staring him in the face. On this note, the defendant stepped in to help by converting his newly built property into two (2) single rooms with porch and offered the plaintiff one set to occupy. The defendant claims that the plaintiff moved into his premises with a promise that as soon as he fixed windows and doors and plastered his property in Medie, he would move out of the defendant’s house. No fixed date for moving out was fixed between parties and this agreement remained a “gentleman agreement” as same was not reduced into writing. The defendant concluded that the plaintiff continues to live under his roof to date. Plaintiff has refused to release to him the title documents covering the land on which the building sits and had turned around to lay a claim of ownership to the entire property. In support of his averments the Defendant tendered exhibits without objection and counter claimed as per his Statement of Defence. To buttress his testimony the defendant called three witnesses who testified as following: DW1: W.O Ismaela Ananboli, a mutual friend of parties herein testified that one day in the year 2005, Page 4 of 14 the defendant informed him that he remitted funds to the plaintiff for the purchase of land which same Plaintiff had obliged him. Defendant therefore sought the assistance of DW1 in the development of same, which same he obliged Defendant. Additionally, he advised Plaintiff to release the title document covering the land in dispute to the Defendant. DW1 claimed that he witnessed Defendant build on the land in dispute gradually. DW1 testified that during this time, the Plaintiff had simultaneously acquired two (2) plots of land in Medie and was developing same however development stalled on the Plaintiff’s property. DW1 in a retired ex-service man and PW2 is a retired teacher. DW2: Seidu Zakari testified that the defendant complained to him that Plaintiff was usurping ownership of the building in dispute. So, in the year 2022, he served as a mediator over this complaint by the defendant at a family meeting held at the building in dispute where both parties were present together with other family members. At this meeting, the plaintiff admitted that indeed the defendant gave him Two Thousand Cedis (GH¢ 2,000.00) only for the purchase of land which same he bought at Two Thousand Two Hundred and Fifty Cedis (GH¢ 2,250.00) only, so all told the defendant owned him Two Hundred and Fifty Cedis (GH¢ 250.00) only. It was therefore agreed by parties and all present that if the defendant paid to the plaintiff this amount of Two Hundred and Fifty Cedis (GH¢250) only owned, the plaintiff would release the title documents covering same to the defendant. During trial DW2 strongly maintained this testimony as above mentioned. DW3: A retired army officer and head of family of parties herein testified that in the year 2021, the defendant complained to him that he remitted funds to the plaintiff for the purchase of the land in dispute. Following purchase by Plaintiff however, he refused to release the title documents covering the land in dispute to the defendant and thus fell on the assistance of DW3 in this regard for the release of same. DW3 testified that as a natural course of action, he invited Plaintiff to his residence to confirm the veracity of Defendants complaint. DW3 stated that Plaintiff confirmed the transaction yet stated that he received Two Thousand Cedis (GH¢ 2,000.00) only and not Two Thousand Five Hundred Cedis (GH¢2,500.00) only as averred by Defendant. Plaintiff further told DW3 that as at the time of purchase of the land in dispute, it cost Two Thousand Two Hundred and Fifty Cedis (GH¢ 2,250.00) only, thus the defendant’s money he received for this purpose was short by Two Hundred and Fifty Cedis (GH¢ 250.00) only. He therefore notified the Defendant to Page 5 of 14 forward a top-up amount of Two Hundred and Fifty Cedis (GH¢ 250.00) only which Defendant failed, neglected and refused to forward the difference. So, Plaintiff had no option but to make up the difference, which he did and then Plaintiff proceeded to put his (Plaintiff) name on the title documents until such times that Defendant was capable or willing to pay the top-up amount when he would then transfer the documents into Defendant’s name. DW3 claimed the he admonished Plaintiff to effect the necessary changes as he would compel the defendant to pay the top-up amount. DW3 stated that following the plaintiff’s visit, he subsequently called the defendant to listen to his version, the defendant maintained that he paid to the plaintiff an amount of Two Thousand Five Hundred Cedis (GH¢ 2,500.00) only. Nevertheless, DW3 admonished Defendant to pay Plaintiff Two Hundred and Fifty Cedis (GH¢ 250.00) only being the “alleged top-up amount” but this advice had not yet been heeded by Defendant. DW3 testified that at a later date Rita and Clare, ex- wife and daughter respectively of Plaintiff confessed to him; DW3 that they had been duly informed by Plaintiff that the land in dispute and also another parcel of land within Medie belonged to the defendant who had remitted funds to Plaintiff for purchase on the defendant’s behalf. Rita and Clare upon this disclosure knew full well that the land in dispute did not belong to Plaintiff and were willing to testify in any forum on same. DW3 concluded that in order to bring an end to this land issue that was fast destroying the brotherly relations between parties, on 5th February, 2022, he convened a family meeting with parties together with other relatives present. Proceedings in their meeting were recorded on audio which DW3 tendered as Exhibit 2. Snippets of this meeting are were the reasons advanced by the plaintiff for non-release of the title document of the land in dispute being that the defendant had delayed in releasing the top-up amount. Another reason was that the defendant had been disrespectful to him (Plaintiff) and also disgraced him (Plaintiff) in the eyes of right-thinking persons in the community. For this reason, the plaintiff claimed that he needed time to cool off before effecting the necessary change of documents for the defendant. According to DW3, throughout the meeting, Plaintiff did not deny the transaction between parties. Eventually, it was Page 6 of 14 agreed that the defendant would pay the plaintiff Three Hundred and Thirty-Three Cedis Fifty Pesewas (GH¢333.50) only being top-up amount plus interest on same so that the plaintiff would do the needful. Sadly, these oral terms of settlement were not reduced into writing either. ISSUES FOR DETERMINATION BY THE COURT: In view of the pleadings and evidence of parties together with their respective cross-examination the court set down one issue for determination i.e. whether or not the land in dispute together with the building thereon belongs to the plaintiff. PROCEDURE OF TRIAL: Parties in this suit were self-represented. Attempts at Court-Connected Alternative Dispute Resolution (C.C.A.D.R) proved futile. The court proceeded to hear the matter and went through full Hearing. During trial, parties testified by themselves Plaintiff called no witness and Defendant called three witnesses to buttress his testimony. Parties thereafter announced the closure of their respective cases. BURDEN OF PROOF: In civil trials, the standard of proof is on the preponderance of the probabilities. Section 12(1) of the Evidence Act, 1975 (NRCD 323) provides that: “Proof by a Preponderance of Probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. “Preponderance of the probabilities” is defined under Section 12(2) of the Evidence Act, 1975 (NRCD 323) as (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. Page 7 of 14 Furthermore, the principles on which our civil jurisprudence is hinged on require that a party who asserts a fact leads credible evidence to prove same. This is codified under Sections 10, 11(1) and (4), 14 and 17 of the Evidence Act, 1975 (NRCD 323), which provides that: “10. Burden of Persuasion Defined (1) For the purposes of this Act, 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 (a) To raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) To establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of Producing Evidence Defined. (1) For the 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 Allocation of burden of persuasion Except as otherwise provided by law, unless 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 defense that party is asserting. 17. Allocation of burden of producing evidence (1) Except as otherwise provided by law, 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 further proof Page 8 of 14 (2) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. This principle received judicial mention in the case of Lydia Akwandua Quarcoo Ahele (Suing as Administratix of The Estate of Jama Ahele Zinabu) and Abiba Awudu Adjonako v Alhaji Baba Salifu and Solomon Kwabena Tetteh Suit No FAL/191/14, decided on 20th June, 2019 where Barbara Tetteh-Charway J. (Mrs.) cited with approval, the following proposition from the case of Zabrama v. Segbedzi (1991) 2 GLR 221: “The correct proposition 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 this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” DETERMINATION OF THE ISSUE SET DOWN BY THE COURT: Indeed, it is the policy of the law that only those issues which are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. In the case of Domfe v Adu (1984-86) 1 GLR 653 Abban JA. stated as follows: “I have to state that the primary facts which a trial judge may find as having been proved to his satisfaction are those necessary to establish the claim of a party or in some cases the defence and which have been alleged on one side and controverted on the other. It must also be borne in mind that the trial judge is not required to make findings of fact in respect of irrelevant matters on which the parties have led evidence when such findings would not assist in the determination of the issues involved in the case.” I shall now proceed to examine the evidence adduced in support of the Plaintiff’s case and will relate same in the context of the standard of proof I have already set out in this judgment. It is the Page 9 of 14 claim of Plaintiff that he was the owner of the property in dispute. He therefore bore the evidential and persuasive burden in respect of his averment. How did the plaintiff discharge this burden? In the case of Ackah v Pergah Limited & Others [2010] SCGLR 728 the Supreme Court speaking through Her Ladyship Sophia Adinyira (Mrs.) JSC. stated that: “It is a basic 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 may fail. The method of producing evidence is varied and it includes the testimonies of the party 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 reasonable than its non- existence.” The evidence before the court to support the plaintiff claim are receipts to the tune of Two Thousand Two Hundred and Fifty Cedis (GH¢2,250) only and a site plan which is not signed by the Regional Surveyor and same is unstamped. It is trite learning what is required to prove the ownership of the land at Medie and same was bankrupt in the evidence of Plaintiff. A careful examination of the copies receipts of Plaintiff shows no identifiable name. Although the Plaintiff reserved the option of leading evidence in respect of his case, the court would have preferred to see the original receipts. The copies filed in the court look self-serving. Although Plaintiff mentioned the name of his grantor he led no evidence as to the capacity of this person and whether or not this person had capacity to grant same. Plaintiff did not disclose his root of title, what is more the property in dispute being land is not described. With the title of Plaintiff being challenged, the court expected that at least his grantor would be present in Court to support the transaction but strikingly he was absent during proceedings. Without more, the site plan of Plaintiff which he relied on as proof of ownership of the land was no more than a self- serving document carefully manufactured solely for this litigation to throw dust into the eyes of the court. The site plan alone without an indenture had not ever seen the stamp of the registrar of Page 10 of 14 a court. Again, same was poorly executed, unstamped and consequently inadmissible. The Court holds that a receipt and poorly executed site plan falls far below the requirement of proof of ownership of land. On the other hand, the Defendant together with his witnesses testified that Defendant forwarded funds to Plaintiff for the purchase of the property in dispute. During trial these witnesses together with Exhibit 2 went in as evidence which same was not challenged by Plaintiff. It is trite that an admitted fact does not require further proof. In the wise words of Ollenu JSC. in the case of Fori v. Ayirebi and Others [1966] GLR 627-649: “The law is that when a party makes an averment and that averment is not denied, no issue is joined on that averment, and no evidence need be led. Again, when a party gives evidence of a material fact and is not cross-examined upon it, he needs not call further evidence of that fact.” It is the further claim of Plaintiff that he built the property in dispute. Notably the averments of Plaintiff is without architectural drawings of any sort, no building permit and no receipts were tendered for building materials purchased in respect of same. No pictorial evidence as to the progress of work, no estimation of cost or duration of the construction works in respect of the said building. Strikingly no right-thinking member of the community or vendor of building products or workman of Plaintiff testified in supporting of his averment. All told, during trial the plaintiff did not challenge the corroborated evidence of the defendant witnesses’ family meeting and was simply not seen as a witness of truth. In the case of Klah v Phoenix Insurance Co Limited [2012] SCGLR 1139, the apex court held that; “Where a party makes as averment at 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 satisfy itself that what he avers is true.” Page 11 of 14 The defendant maintained that he had no documentary evidence because the plaintiff had refused on countless occasions to release same to him. He also testified that the plaintiff had processed all title documents in his name. The court having noted the testimony of Defendant assured itself that the action was not statute-barred before proceeding with this matter. It therefore comes as no surprise that Exhibit A and Exhibit B is in the name of the plaintiff. The defendant called three family members who were present at the family meeting of the parties on this same land issue. Throughout the trial, Plaintiff did not challenge the meetings or proceedings in respect of same. The Court finds that the defendant advanced money to the plaintiff for the purchase of the land in dispute. The defendant has demonstrated the gradual development of this land which same the plaintiff did not succeed in rebutting. The Defendant stated that Plaintiff had his self-acquired property in Medie which same development works had stalled and Plaintiff did not challenge him on this. Defendant asserted that Rita and Clare were disturbed by the conduct displayed by Plaintiff and yet Plaintiff did not make a prayer for these persons to attend Court to challenge their averment. Adade JSC. stated in the case of Akyea-Djamson v. Duagbor and Others [1989-90] 1 G.L.R 223-259 that: “In my view, having regard to section 119 (a) of N.R.C.D. 323, by failing to cross-examine the first plaintiff witness on the evidence he led concerning the meeting, the co-defendant must be deemed to have admitted the evidence. Indeed, as Lord Herschell pointed out in the said Browne v. Dunn (supra) at 71, H.L. “.... if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him.” The court has carefully examined Exhibit 3 which same was tendered without objection. Without a doubt this amounts to a confession by the plaintiff that the subject matter in this suit belonged to the defendant. Section 1(4) of the Evidence Act, 1975 (NRCD 323) states as follows: “Where the Court determines that a party has not met the burden of producing evidence on a particular issue the Court shall as a matter of law determine that issue against that party.” CONCLUSION & DISPOSITION: Page 12 of 14 In the case of Fordjour v Kaakyire [2015] 85 G.M.J 61 where Ayebi JA. at page 93 enunciated as follows: “it has to be noted that the court determines the merit of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without adducing evidence in support of that assertion is not evidence to require denial in cross-examination by an opponent.” From the evidence, both oral and documentary it is clear that the plaintiff failed to adduce credible and admissible evidence in accordance with the standard prescribed by law on the balance of probabilities for this court to grant the reliefs endorsed on his writ of summons, the court is unable to grant the reliefs he claims from this court. Consequently, all of the plaintiff’s reliefs are dismissed. In my opinion, based on the pleadings and the evidence led on record, the defendant has been able to make out his case and is therefore entitled to judgment. Consequently, judgment is entered in favour of Defendant against Plaintiff. The court therefore orders as follows: 1. Defendant is to recover full possession of the property in dispute. In this regard, the plaintiff is to vacate the premises and yield vacant possession to the plaintiff within thirty (30) days of this order. 2. The Court hereby perpetually injuncts the plaintiff, his assigns, agents, workmen or women, from interfering with the defendant’s land. 3. Cost of Ten Thousand Cedis (GH¢10,000) only is awarded against Plaintiff in favour of Defendant. (SGD) Page 13 of 14 H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 14 of 14