BRAHIM VRS APENGYEB (UW/WA/DC/A7/04/2023.) [2024] GHADC 439 (30 September 2024)

IN THE DISTRICT COURT, WA. HELD ON MONDAY, 30TH DAY OF SEPTEMBER, 2024, BEFORE HIS WORSHIP, MAXWELL M. TTITRIKU, DISTRICT MAGISTRATE. SUIT No: UW/WA/DC/A7/04/2023. FAWZIAH IBRAHIM ............ PLAINTIFF C/o Kabanye Islamic School, Wa. VRS. 1. AARON AAPENGYEB ............ DEFENDANTS District Education Office, Dafiama-Bussie-Issah, Wa. 2. DAUDA Nakori. PARTIES PRESENT IDDRISU MUNJAMILU, ESQ., FOR PLAINTIFF DEFENDANT UNREPRESENTED. JUDGMENT The Plaintiff, on 24th November, 2022, filed writ of summons, and claimed jointly and severally against the Defendants for the following reliefs: a. A declaration that, the subject land is part of the estate of the late Yussif Baba Ibrahim. b. An order for recovery of possession of the subject land. c. An order for perpetual injunction restraining the Defendants, including their agents, assigns, workmen, successors etc. from interfering Plaintiff’s quite enjoyment of the subject land. d. Damages and Costs. 1 CASE FOR PLAINTIFF. In her evidence-in-chief, the Plaintiff (Fawziah Ibrahim), resident Kpaguri, Wa, stated that she is the widow of the late Yussif Baba Ibrahim, the beneficial and legal owner of the subject land particularly described as all that piece or parcel of land, situate lying and being at Nakoripaani Residential Area, Wa, Block “A”, and known as Plot No. 255, containing an approximate area of 0.23 acre, more or less, and bounded on the North- West by plot No. 254, measuring 100feet more or less on that side on the South-East by a proposed lane measuring 100 feet more or less on that side and on the South-West by Plot No. 248 measuring 100 feet more or less on that side. According to the Plaintiff, she knows the 1st Defendant as the trespasser on to the subject land, and also knows the 2nd Defendant as the one who has unlawfully put the 1st Defendant on to the subject land. She said, sometime in January, 2005, her late husband purchased the subject land from the Head of the Jimbina family of Kambali, Yelikuro Naa, and before the unfortunate demise of her late husband, he had successfully registered the indenture (Exhibit “A”) at the Regional Lands Commission, Wa. She said, she also conducted a search (Exhibit “B”), recently which revealed that, the said land is still registered in the name of her late husband. Plaintiff further stated that, until recently, she noticed that, the 1st Defendant has trespassed onto the subject land and started putting up a building on same at a very indecent speed, and she warned the 1st Defendant on several occasions to desist from his acts of trespass onto the subject land, but the 1st Defendant failed to heed to her warnings. She said, she then reported the unlawful conduct of the 1st Defendant to the Commission of Human Rights & Administrative Justice (CHRAJ), Wa, where the 1st Defendant stated that, the subject land was granted to him by the 2nd Defendant and his family, but when the parties were invited to appear before CHRAJ, Wa, for the resolution of the matter, the 2 2nd Defendant and his family failed to honour the invitation on three different occasions without any justifiable reason. According to the Plaintiff, when the officers of CHRAJ, Wa, requested for documents covering the subject land, the 1st Defendant could not produce any. She said, the acts of the Defendants have caused her emotional stress and trauma, economic and financial loss, anger and anguish. However, the Defendants have evinced a clear intention to persist in their acts of trespass to the subject land, unless restrained by orders of this Honourable Court. End of Evidence. CASE FOR THE DEFENDANTS In his evidence-in-chief, the 1st Defendant (Aaron Aapengyeb), resident at plot No. 255, Block “A”, Nakoripaani Residential Area, Wa, stated that, he acquired the said plot in dispute (i.e. Plot No. 255, Block “A”, Nakoripaani Residential Area, Wa, from the Chief and Elders of Nakori Traditional Council, Wa. According to him, he did not trespass, because he duly acquired the said plot of land in dispute from Nakoripaani Naa and a search was conducted by his agent, which showed that, the land was vacant. He said, the said parcel of land situate at Nakoripaani Residential Area is under dispute between the Jimbina family of Kambali and the Nakori Naa and his people at the High Court, Wa, and judgment is still pending. He said, it will be inhumane and unjustifiable, if the Plaintiff places a perpetual injunction to restrain him or any of his agents, assigns, privies, workmen or whosoever from entering or interfering with the said parcel of land, since the land (i.e. plot No. 255, Block “A”, Nakoripaani Residential Area is his current place of abode and his Landlords aver that, the rightful owner of the land is yet to be determined by the High Court, Wa. 3 He said, it is because of the inability of the Plaintiff to develop the land, is the reason why that parcel of land has been lying unattended to, since 2005, if the claim that the parcel of land was leased at that time is true, and that, he has never had any good sleep since Plaintiff showed up with her leased document (Exhibit “A”), especially when Plaintiff backdoored negotiation to sell that parcel of land in dispute (i.e. Plot No. 255, Block “A”, Nakoripaani Residential Area, Wa) to him, to forestall the litigation and he (1st Defendant) could not pay, because he has exhausted all avenue and he could not raise any funds. He said, for seven (7) months, since he was made to know that, the land was not encumbered, he constructed the building without any obstruction or caution from anybody concerning the subject land, until he built the house to its current state, when the Plaintiff showed up. According to the 1st Defendant, the assertion that, the Plaintiff was looked down upon because she was a poor widow is untrue, and that, his first meeting with the Plaintiff, she drove into the venue for their meeting in an Opel Saloon Car, and certainly, nobody in his right senses, will perceive such a fellow as a poor widow, and he (1st Defendant) was rather intimidated by that. He said, the Plaintiff again threatened him that, she was going to pull down his house because his house was unlawfully built on her land, and he (1st Defendant) was consumed with inferiority complex. He said, he did not see any indecent speed at which the house was raised, granting that, the building materials have already been bought, and he used seven (7) months to raise the three-bedroom flat to its current state. The 1st Defendant further stated that, at the time Plaintiff wrote on the wall that, he should stop work, he had already packed all his belongings to his house and travelled to Nandom. He said, the allegation that, CHRAJ, Wa, demanded for his documents is not true, rather, they demanded that, his Landlords should come along with their land title 4 documents, knowing very well that, both the two Landlords have no title to the whole of that parcel of land, since the matter is yet to be resolved by the High Court, Wa. End of Evidence. Thereafter, the legal issue that emerged for determination by this Honourable Court was: • WHETHER OR NOT PLAINTIFF IS ENTITLED TO HER CLAIM. • WHETHER OR NOT THE DEFENDANTS HAVE TRESPASSED ON THE SUBJECT LAND. The law requires the person asserting title to land and to 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 the litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities that, the party would be entitled to the claim. See: • Salley & Anor v Braimah & 5 Ors [2017] 105 GMJ 231 @ 236, SC. • Mondial Veneer (Gh) Ltd v Amuah Gyebu XV [2011] 35 GMJ 164, SC. At the close of the evidence, the court ordered Counsel for the Plaintiff to address the Court, and same was filed on 11/08/2024. SUBMISSION OF COUNSEL FOR PLAINTIFF In his submission, Counsel for and on behalf of the Plaintiff stated that, Plaintiff has successfully established that, the subject land (i.e. plot No. 255, Block “A”), as granted to her late husband by the Jimbina Family of Kambali, Wa, and he accordingly registered a Deed of Lease which was executed to that effect. He said, the Plaintiff has exhibited the said Deed of Lease and an official search report which she conducted at the Regional Lands Commission, Wa to establish the fact that, the said Deed of Lease was registered. 5 According to Counsel, the Defendants however, have not been able to show any document to prove their alleged claim to the subject land. he said, Defendants claim that, there is a judgment in respect of the subject land in their favour, but the alleged judgment was not tendered. Counsel further stated that, on the identity of the subject land, the 1st Defendant admitted in no uncertain terms that, the land his alleged grantors granted him is different from the subject land which belongs to the Plaintiff. Counsel therefore relied on the Supreme Court case of: Agbesi & Others v Ghana Ports & Harbours Authority [2007-2008] SCGLR 469, and submitted that, where a party to a suit admits the existence of a fact, it absolves the other party from the burden of establishing same., and since in this case, the Defendants have admitted that, the land his alleged grantors granted him, is different from the subject land, and that, his alleged grantors do not own the subject land. Counsel further submitted that, it is Plaintiff’s contention that, Defendants, by their conduct, have trespassed onto her (Plaintiff’s) land. He said, the 2nd Defendant purported to sell the said land to the 1st Defendant when they (the Defendants) knew or ought to have known that, same dis not belong to him (the 2nd Defendant). According to Counsel, from the evidence on record, the 1st Defendant put up a building on the said land in dispute, at an indecent speed, despite all warnings to desist from same, and it is their submission that, the Defendants have trespassed onto Plaintiff’s land. He said, since the Defendants have admitted the allegations made against them by the Plaintiff, it is their prayer that, the Court holds that, the Defendants have trespassed onto the subject land, which belongs to the Plaintiff. DETERMINATION OF ISSUES In every civil case, the general rule is that, the burden of proof rests on the party whether plaintiff or defendant, who substantially asserts the affirmative of his case. 6 In the Supreme Court case of: Yaa Kwesi v Arhin & Anor Adams [2007-2008] SCGLR 580-584 (per Holding 1), it was held as follows: “Since the plaintiff/Applicant sued not only for declaration of title, but also damages for trespass and an order for perpetual injunction, he assumed the onerous burden of proof of title to the disputed land by preponderance of probabilities as required by sections 11 (1), (4), and 12 of the Evidence Act, 1975 (NRCD 323), or else risks the prospect of losing his case.” In the instant case, Plaintiff, stated in Paragraph 5 of her evidence-in-chief as follows: Paragraph 5: “Sometime in January, 2005, my late husband purchased the subject land from the Head of the Jimbina Family of Kambali, Yelikuro Naa.” Paragraph 7: “My late husband before his unfortunate demise had successfully registered the indenture at the Regional Lands Commission, Wa, in the Upper West Region of the Republic of Ghana.” ...........AND, to prove her case, the Plaintiff tendered in her evidence, Exhibit A, a Deed of Lease dated 1st January, 2005, with the Plan of Land, made between Yelikuro Naa (Head of Jimbina Family of Kambali), and Yussif Baba Ibrahim, in respect of Plot No. 255, Block “A”, Nakoripaani Residential Area, In the Supreme Court case of: Kusi & Kusi v Bonsu [2010] SCGLR 60 @ 84, WOOD, CJ, it was held as follows: “Indeed, under section 25 of the Evidence Act, 1975 (NRCD 323), the facts recited in the document were conclusively presumed to be true between the parties and all person claiming through them in short, it created an estoppel by written document binding the defendants and their successors.” The legal effect of this declaration (i.e. Exhibit “A”) against interest is that, the Defendants and other persons claiming through them are estopped from asserting otherwise. On the evidence, the 1st Defendant, however stated in Paragraphs 2 and 3 of his evidence- in-chief respectively as follows: 7 Paragraph 2: “I acquired Plot No. 255, Block “A”, Nakoripaani Residential Area, from the Chief and Elders of Nakori Traditional Council.” Paragraph 3: “I did not trespass, because I acquired the parcel of land from Nakoripaani Naa and a search was conducted by his agent to be non-encumbered land.” It was interesting to note that, the 1st Defendant could not state anywhere in his evidence- in-chief, the date he claimed he bought the said land from the Chief and Elders of Nakori Traditional Council, apart from the Plan of Land, dated 28/05/2020. ..........This clearly showed that, the Plaintiff’s acquisition of Plot No. 255, Block “A”, Nakoripaani Residential Area in 2005 was first time, than that of 1st Defendant in 2020. In the Supreme Court case of: Hammond v Oddoi & Anor [1982-83] 2 GLR 1215, it was held as follows: “A prior customary sale takes precedence over subsequent dispositions whether registered or not. The rationale for this is that, the earlier customary grant would dispose the vendor of any interest that he had in the land, and he cannot therefore grant a land not owned by him.” ...........This clearly showed that, the subsequent disposition made to 1st Defendant is null and void. See: i. Dovi & Dovi v Adabunu [2005-2006] SCGLR 905 @ 911 ii. Land Act, 2020 (Act 1036), Section 124. Moreover, the 1st Defendant’s Site Plan (Exhibit “1”), per se, is not legally conclusive in proving title to the land in dispute. See: Edmund Danso v Moses Adjei [2013] 58 GMJ 71 @ 91-92. It was also evident that, both the Plaintiff and the 1st Defendant derived their titles from different grantors at different times. Whereas Plaintiff acquired her Lease (Exhibit “A”), in respect of plot No. 255, Block “A”, Nakoripaani Residential Area, from the Head of the Jimbina Family of Kambali, Yelikuro Naa in 2005, 1st Defendant however claimed, he 8 acquired same plot of land from the Chief and Elders of Nakori Traditional Council, in 2020. In the High Court case of: Kwofie v Kakraba [1966] GLR 299 @ 231-232, it was held, per Archer, J(as he then was) as follows: “Where the parties derived their titles from different grantors, registration is of no consequence and the court will not neglect its duty to ascertain who has the valid title..............” In the instant case, evidence showed that, Plaintiff acquired the land in dispute with the requisite documents (Exhibit “A”), since 2005, and was in legal possession and occupation of same. See: i. Evidence Act, 1975 (NRCD 323), Section 35. ii. Brown v Quashigah [2003-2004] SCGLR 930 @ 951. iii. Evidence Act, 1975 (NRCD 323), Section 35. It was also interesting to note that, on the identity of the subject land, the 1st Defendant admitted in no uncertain terms that, the land his alleged grantors granted him is different from the subject land in dispute (i.e. plot No. 255, Block “A”, Nakoripaani Residential Area, Wa), as 1st Defendant answered the following questions from Counsel for the Plaintiff: Q: You indicated that, even the plot you were shown was not plot number 255, but it was plot number 254? A: Yes, it is true. Q: So, clearly, even your Landlords gave you a different land, but you built on the subject land? A: I notice so. Q: I am putting it to you that, your Landlords do not own the subject land? A: They made me believe they own the land. 9 ..........This testimony from the 1st Defendant clearly showed that, the Landlords of the 1st Defendant do not own plot number 255, Block “A”, Nakoripaani Residential Area. Moreover, 1st Defendant’s Landlords did not grant the subject land (i.e. plot number 255, Block “A”, Nakoripaani Residential Area) to the 1st Defendant. The only land granted to the 1st Defendant was plot number 254, Block “A”, Nakoripaani Residential Area, Wa. .............Interestingly, 2nd Defendant denied selling land to the 1st Plaintiff, as he answered the following questions among others from Counsel for the Plaintiff: Q: You are aware of the pending case, but you went ahead to sell same to others? A: Am not the one who granted the land to 1st Defendant Q: Who sold the land to the 1st Defendant? A: I don’t know, but 1st Defendant can testify to that. Q: When you sold the subject land to the 1st Defendant, you did not know that, the Plaintiff was still alive to protect her property? A: Am not the one who granted the said land to the 1st Defendant, and even the person who granted the land to Plaintiff at the time he has no authority. In the instant case, the 1st Defendant who has a 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, failed to call his Landlord or any witness to prove his case. The 2nd Defendant also failed to substantiate the claim of the 1st Defendant. In the Supreme Court case of: In Re: Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] 1 SCGLR 420 @ 444, it was held, per WOOD, CJ, as follows: 10 “It Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial, depending on the issues asserted and/or denied.” In another development, 1st Defendant stated in paragraph 12 of his evidence-in-chief as follows: Paragraph 10: “I have never had any good sleep since the plaintiff (Madam Fawziah) showed up with her Leased document.” Paragraph 12: “Especially when the plaintiff backdoored negotiation to sell that parcel of land (i.e. plot No. 255, Nakoripaani Residential Area), to me to forestall the litigation and I couldn’t pay because, I had exhausted all avenue that I can raise funds.” .........These corroborative averments in paragraphs 10 and 12 (supra) of the evidence-in- chief of the 1st Defendant, in which 1st Defendant tried to persuade the Plaintiff to sell same to him, were clear admission of Plaintiff’s claim of her legal title of plot number 255, Block “A”, Nakoripaani Residential Area, Wa. In the case before this Honourable Court, the burden of persuasion, defined under section 10(1) of the Evidence Act, 1975 (NRCD 323), as meaning “The obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the Court,” remains on the 1st Defendant, even if the evidential burden shifts as a result of any assertion made by the Plaintiff in response to her claim. See: Bakers-Woode v Nana Fitz [2007-2008] 2 SCGLR 879, SC. In the instant case, the Plaintiff was consistent and acquitted herself creditably, by discharging satisfactorily, the legal burden placed on her. The Defendants however failed to discharge the burden of persuasion shifted upon them as to the existence of the facts or its non-existence, which is essential to their defence in relation to the land in dispute. 11 However, granting without admitting without admitting that, the land in dispute was sold to the 1st Defendant, it was held in the Court of Appeal case of: West African Enterprise Ltd v Western Hardwood Enterprises Ltd [1995-96] 1 GLR 155 @ 158, as follows: “A purchaser of land had no right to remain in ignorance of the fact that, what he was buying belonged to someone other than the vendor. Accordingly, a purchaser of land who failed to conduct thorough investigations into his vendor’s title does so at his own risk, for he would be bound by all equities.” On the evidence, Defendants failed to satisfy themselves as to the right title and interest he was buying. This Honourable Court, is hereby satisfied with the evidence of the Plaintiff, supported by her authentic legal documents (i.e. Lease Document, dated 1997, (Exhibits “A”) and the search conducted (Exhibit “B”). Accordingly, on the balance of probabilities, considering the totality of the evidence adduced by both parties, I uphold the claim of the Plaintiff, and enter judgment in favour of the Plaintiff. The claim of the Defendants, dismissed. I access the costs of this litigation at Twelve Thousand Ghana Cedis (GH¢12,000.00), against the Defendants, in favour of the Plaintiff. ............................................ MAXWELL M. TITRIKU MAGISTRAT DISTRICT COURT, WA, UW/R. 30/09/2024. 12