WAZAM VRS. SACKITEY (G/WJ/DG/ A1/08/23) [2024] GHADC 555 (17 October 2024)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON THURSDAY THE 17TH DAY OF OCTOBER, 2024 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO. G/WJ/DG/ A1/08/23 ABDUL RAMANI WAZAM PLAINTIFF VRS DANIEL SACKITEY DEFENDANT PLAINTIFF IS PRESENT AND SELF REPRESENTED DEFENDANT IS ABSENT. JUDGMENT Plaintiff filed a writ of summons and particulars of claim at the registry of this court on 25th January 2023 against the defendant for the following reliefs; 1. A declaration that the plaintiff herein is the lawful owner of all that piece of land at Ngleshie Amanfro which he acquired from Nii Kwashie Gborlor family of Ngleshie Amanfro acting per its then Head of Family called Nii Armah Okine. 2. A declaration that the defendant has trespassed unto plaintiff’s land 3. An order of recovery of possession of all that land in dispute 4. A perpetual injunction against the defendant, his agents, assigns, privies, servants and all persons claiming through him from interfering with plaintiff’s peaceful ownership of the said land. 5. An order for recovery of the total cost of the construction work and building materials plaintiff placed on the land which is five thousand, two hundred and ninety Ghana Cedis and interests thereon. 6. General damages 7. Costs. 1 Although the writ of summons and several hearing notices were served on the defendant, for unknown reasons defendant failed to attend court or give any reasonable explanation for his absence from court. The court proceeded without the defendant by allowing the plaintiff to prove his claim pursuant to order 25 r1(2)(a) of the District Court Rules 2009, C.I.59. The issues set down for determination by the court are as follows; 1. Whether or not the plaintiff is the lawful the owner of the land the subject matter of this dispute and if so whether he is entitled to recovery of possession of the land. 2. Whether or not defendant has trespassed on plaintiff’s land 3. Whether or not plaintiff is entitled to perpetual injunction against defendant and his privies 4. Whether or not plaintiff is entitled to the sum of GHC5,290.00 being costs of construction and building materials Plaintiff’s case Plaintiff’s case is that sometime in 2010, he acquired the land the subject matter of this dispute in 1994 from Kwarshie Gborlor of Ngleshie Amanfro acting per its then head of family Nii Armah Okine and duly paid consideration for same. It is plaintiff’s further case that defendant acquired his land after he had acquired his. Plaintiff testified further that after the acquisition, he erected a foundation for a single room and porch and laid blocks thereon. Plaintiff added that he left about 60 moulded blocks and half trip of stones thereon and he constructed a wall between his land and that of the defendant. Plaintiff stated that he spent about Five Thousand, Two Hundred and Ninety Ghana cedis for the building materials and the labour for the said works on his plot. 2 Plaintiff stated further that work on his land halted because he fell ill and it came to his notice that defendant had used the blocks he left on his land to construct a short wall on his own land which plaintiff protested. Plaintiff says it came to his notice that defendant had planted an oil palm, mango and coconut tree on his land and when he inquired defendant said he was only helping him to secure his land as he was unwell and construction had halted. According to him, he reprimanded defendant and asked him to uproot the trees. According to plaintiff, he reported the defendant to the chief of Amanfro who invited the defendant but he failed to honour the invitation. Plaintiff added that defendant broke down his wall and destroyed his foundation without his knowledge and consent. Plaintiff says he again informed the chief of Amanfro who invited defendant but he could not justify his actions and was warned to desist from his trespassory actions. Plaintiff testified that he reported the defendant to the police however he failed to appear or produce his land documents and so he was advised to institute the present action. Plaintiff says that defendant has been laying claim to his land and has been threatening plaintiff not to step foot on the land or develop same. Plaintiff concludes that defendant’s actions has caused him serious financial loss, embarrassment and untold hardship as the price of building materials keep escalating and he is preventing him from developing the land and that unless the court intervenes, the defendant would persist in his unlawful acts. THE BURDEN OF PROOF In civil cases, the general rule is that the party who in his pleading or his writ of summons raised issues essential to the success of his case assumes the burden of proof. The burden only shifts to the defendant to lead sufficient evidence to tip the scales when on a particular issue the plaintiff leads some evidence to prove his claim. 3 The standard of proof is proof on a preponderance of probabilities. See section 12 of the Evidence Act 1975, NRCD 323. In Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882, it was held as follows’ “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 the preponderance of probabilities as defined by section 12(2) of the Evidence Act 1975, NRCD 323. In assessing the balance of probabilities, all the evidence be it that of the plaintiff or defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.” In resolving the issues before this court, it is trite that a person asserting title to land must prove the root of his title, mode of acquisition and various act of possession over the land. In Modial Veneer (GH) Ltd v Amuah Gyebu XV (2011) SCGLR 446, the Supreme Court held as follows; “In land litigation,…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. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to his claim.” The plaintiff tendered a leasehold agreement marked as Exhibit A between one Nii Armah Okine, Head of the Kwashie Gborlor family and himself dated 15th MAY 2010 as evidence that he traces his root of title to the Kwashie Gborlor Family of Ngleshie Amanfro. With regard to acts of possession exercised over the land the subject matter of this dispute, plaintiff testified that he constructed a foundation and fence wall which defendant has destroyed. He tendered a picture of the destroyed wall and foundation as Exhibit B and B1. 4 It is plaintiff’s evidence that at all material times since he purchased the land in 2010 he has been in active possession by constructing a foundation and a fence wall until he fell sick and could not visit the land as often as he wanted. . He tendered costs incurred on the land totalling the sum of GHC5,290.00 and same was admitted and marked as Exhibit C. The defendant on the other hand failed to attend court to contest the claim of the plaintiff. In Ankumah v City Investment Co. Ltd [2007-2008] SCGLR 1064, Adinyera JSC held as follows; “A Court is entitled to give a judgment in default as in the instant case if the party fails to appear after notice of the proceedings had been given to him. For then it would be justifiable to assume that he does not wish to be heard. The defendant cannot take cover under these procedural lapses to attack a judgment that has in the circumstances been regularly obtained.” From the totality of the evidence before me, I find that plaintiff has been able to prove his claim as endorsed on the writ of summons on a balance of probabilities. Accordingly I do hereby enter judgment in favour of the plaintiff against the defendant as follows; 1. It is hereby declared that plaintiff is the lawful owner of the land the subject matter of this dispute and is entitled to a recovery of same. 2. It is hereby declared that defendant has trespassed onto plaintiff’s land and as a result defendant, his agents, assigns, privies, servants and all persons claiming through him are perpetually restrained from dealing or interfering with the land the subject matter of this dispute. 3. General damages for trespass is assessed at GHC10,000.00 in favour of plaintiff against the defendant. 4. Costs of GHC5,000.00 is awarded in favour of plaintiff against the defendant. 5 ………………(SGD)…………………… H/W RUBY NTIRI OPOKU (MRS.) DISTRICT MAGISTRATE 6