Danso v Faisal (A1/03/2023) [2024] GHADC 742 (21 October 2024)

IN THE DISTRICT COURT OF GHANA, NGLESHIE AMANFRO DISTRICT COURT HELD ON MONDAY, THE 21ST DAY OF OCTOBER, 2024, BEFORE HER WORSHIP EMELIA K. ABRUQUAH ESQ. (MRS). SUIT NO: A1/03/2023 SAMUEL OSEI DANSO PLAINTIFF VRS FAISAL DEFENDANT PLAINTIFF: PRESENT DEFENDANT: PRESENT JUDGMENT The Plaintiff herein instituted this action against the Defendant on 8th May 2023 for the following reliefs: a. Declaration of title to all that piece or parcel of land being lying and situate at Ngleshie Amanfro particularly described b. An order for recovery of possession c. An order to demolish the illegal single room defendant has built on Plaintiff’s land 1 | Page d. Perpetual injunction restraining the defendant by himself, his agents, assigns, privies workmen and anyone claiming through him from interfering or dealing with the plaintiff's land whatsoever. e. Costs It is the plaintiff’s case that sometime on or about June 2021 he lawfully acquired one plot of land from one Abekah Gyan, following a gift of two plots of land made to Abekah Gyan by one Joseph Dotse Adimer. The Plaintiff asserted that the Defendant subsequently trespassed onto his land by constructing a single-room structure on it. Upon reporting this trespass to his grantor, the Plaintiff was informed that the grantor had not granted the said plot to the Defendant and was willing to testify on the Plaintiff’s behalf. The Plaintiff further stated that the Defendant’s trespassory activities have hindered his ability to commence development on the land. The Defendant, in his response dated 30th May 2023 stated that the land in question belonged to him. He claimed to have acquired the land in 2012 from Nii Armah Okine, head of the Kwashie Gborlor Family of Ngleshi Amanfro, located in the Ga South District of the Greater Accra Region, Republic of Ghana. The Defendant maintained that he had been in peaceful possession of the land since 2012 and had constructed a one-room self- contained structure on it. He further averred that the structure had been in place for nearly eleven years. The Defendant stated that at the time of acquisition in 2012, he conducted a window search on the land and discovered that his grantor, Nii Armah Okine, head of the Kwashie Gborlor Family, was the rightful owner of the land. However, the Defendant recently discovered, through a search at the Lands Commission, that the land in question formed part of the Weija Dam Project. He counterclaimed for a declaration that he is the owner of the disputed land Issues 2 | Page 1. Whether or not Plaintiff has title to all that piece of land located at SGGA J799/14/4 a bearing of 218° 03'28 measuring 53496.71 feet from SODI to SOD2 on bearing of 197° 14'19" at a distance of 70.60 fcet from SOD 2 TO SOD 3 a bearing of 279° 48'06' at a distance of 100.90 feet from SOD 3 to SOD 4 on a bearing of 017° 14'19"' at a distance of 70.59 feet from SOD 4 to SOD 1 on a bearing of 099º 48'06% at a distance of 100.85 feet and having an approximate Area of 0.16 Acre or 0.07 Hectare more or less in which piece or parcel of land is more particularly delineated on the site plan attached hereto and thereon shown edged pink. Evaluation of Evidence and Resolution of Issue It is important to first establish that since the filing of his statement of defence and counterclaim defendant has neither filed any witness statement nor appeared in court to defend the suit despite being served with hearing notices Under Order 25 Rule 1(2)(a) of the District Court Rules, 2009 (C.I. 59), where an action is called for trial and the Defendant fails to attend, the Plaintiff would be allowed to prove his claim. The Defendant had the opportunity to come to Court to cross examine the Plaintiff and his witnesses if any and to also adduce evidence but he elected not to be present to challenge the Plaintiff’s claim by his conduct of not appearing in Court. The Defendant can therefore not raise at any point that the door of justice was shut on him. It was held in the case of Mence Mensah v E. Asiama [2011] 38 GMJ 174 SC that: “It is a salubrious principle of our jurisdiction that a litigant should have the opportunity of being heard, of telling his side of the story, of being free to present evidence and argument to buttress his case; but it is also settled law, and dictates of common sense 3 | Page require also that once these opportunities have been extended to the litigant but the litigant decides not to avail himself of them within the period of the trial, he would not, on judicial considerations, be permitted to come later and plead for the reactivating of the very opportunities he declined to embrace.” However, although the Defendant did not appear before the court to contest the suit, the Plaintiff is not automatically entitled to the reliefs sought solely due to the Defendant’s absence. The Plaintiff must still meet the burden of proof before the court can grant the reliefs requested. It is trite that in civil cases, that the burden of proof lies on the party who in his/her pleadings or writ raises issues essential to the success of his/her case. The one who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S.C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C.A. In the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court captured the trite position of the law relating to the burden of proof and stated as follows at page 900: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts 4 | Page is the person whose case is more probable of the rival versions and is deserving of a favorable verdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” In Plaintiff's evidence in chief by way of Witness Statement filed on 7th March 2024 he testified that he had been in the process of developing his piece of land situated at Ngleshie Amanfro when the Defendant unlawfully interfered on same. He further claimed that he had acquired the disputed land from one Abekah Gyan, who had received two plots as a gift from Joseph Adimer. Upon discovering the Defendant's illegal actions, the Plaintiff reported the matter to the police, leading to the Defendant's apprehension. The Plaintiff also averred that, following the report, the Defendant began developing the land by constructing a single-room structure on it. He concluded by asserting that the Defendant was falsely claiming ownership of the disputed land. The first witness of Plaintiff, Joseph Dotse Adimer, testified in his witness statement that he knew the Plaintiff, as well as P.W.2 in this matter. He stated that he was the bona fide owner of eighteen (18) plots of land at Ngleshie Amanfro, as described in the schedule of the Plaintiff’s Writ of Summons. He further explained that P.W.2, Abeka Gyan, had been his caretaker for the said eighteen (18) plots of land at the relevant time. He attached a copy 5 | Page of the indenture covering the eighteen (18) plots of land as evidence. Due to Abeka Gyan’s good behavior and character, and in light of his serious illness at the time, he gifted him two plots out of the eighteen. Later, P.W.2 sold these two plots to the Plaintiff to raise funds for his medical treatment. The witness stated that P.W.2 had informed him that one Faisal was contesting the Plaintiff's ownership of the disputed land. He concluded by asserting that the Defendant was not the rightful owner of the land in dispute. The first witness therefore urged the Court to grant the Plaintiff the reliefs sought in the Writ of Summons. The second witness, Abeka Gyan, testified that he had been gifted two plots of land at Amanfro by Joseph Dotse Adimer, who was P.W.1 in the case. At the time, he was acting as the caretaker for P.W.1. The witness explained that he had fallen seriously ill and needed financial assistance for medical treatment. As a result, he decided to sell the two plots of land gifted to him by P.W.1. The Plaintiff expressed interest in purchasing the land, and he sold the two plots to him without any interference from his grantor, P.W.1. He further testified that the Plaintiff had been in peaceful possession of the disputed land until recently, when the Plaintiff informed him that the Defendant was now claiming ownership of the land, as detailed in the schedule to the Defendant’s statement of defence. The witness concluded by stating that the Defendant had no valid title to the disputed land and urged the court to hold the Defendant to strict proof when the matter proceeded to hearing. However despite repeated hearing notices served on defendant, neither Defendant non his counsel appeared in court to conduct the hearing and to cross examine the plaintiff and his witnesses on the facts averred Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at page 890, the Supreme Court held as follows; ’’In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court." 6 | Page Plaintiff, 1st and 2nd witnesses of the plaintiff all mounted the witness box and their witness statements and the exhibits were formally admitted into evidence. Defendant was fully aware of the date when the matter was adjourned for trial to commence because defendant’s counsel was served with a hearing notice and the affidavit of service duly filed before the court. In the absence of the defendant to be in court to cross examine the plaintiff and his witnesses, the court discharged each of them . Plaintiff has thus satisfied the onus on him to produce sufficient evidence to make his claim before this court. Plaintiff’s testimony as well as those of his witnesses evidencing his claim to the reliefs were not challenged and upon examining the documents the court is convinced that the plaintiff has a legitimate claim in law that has not been impeached at all. In the circumstance, Judgment is accordingly entered for the plaintiff against the defendant for; 1. Declaration of title to all that piece or parcel of land being lying and situate at Ngleshie Amanfro particularly described in the schedule as the rightful owner. 2. An order for the recovery of possession 3. An order is hereby given for the demolishing of the illegal single room defendant built on plaintiff’s land 4. Defendant, his agents, assigns, privies, workmen and anyone claiming through him are perpetually injunction from interfering or dealing with the Plaintiff enjoyment of his land. No order as to cost. 7 | Page HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS) MAGISTRATE 8 | Page