Dorothy Eboe Arthur and Naa Ohimea Eboe Arthur (suing as Administrators of the Estate of the Late Ahia Eboe-Arthur) v International Central Gospel Church

1] This is a dispute over a piece of land located at Weija in Accra. Both parties rely on documentary evidence and acts of possession in proof of their respective claims.

2] It is a basic principle of land litigation that in an action for declaration of title to land, recovery of possession and injunction, as in the instant case, the plaintiff must establish by positive evidence, the identity and limits of the land he claims. See cases such as Anane v Donkor [1965] GLR 188, Nortey (No.2) v West African Institute of Journalism [2013- 2014] SCGLR 703 and Agyei Osae and Ors v Adjeifio and Ors [2007- 2008] SCGLR 499.

3] In the instant case, the defendant filed a counterclaim and therefore the defendant also had a duty to adduce positive evidence to establish the identity and limits of the land it claimed. See: Jass Co. Ltd v Appau [2009] SCGLR 269 and Aryeh Akakpo v Ayaa Iddrisu (2010) SCGLR 891.

4] Generally, the standard of proof in civil cases is proof on a balance of probabilities except in instances where proof of a crime is in issue. See: section 13(1) Evidence Act, 1975 N.R.C.D. 323. In civil cases, the party who makes an allegation that is material to his or her claim has the burden to prove the allegation. He or she does so by adducing sufficient and credible evidence to convince the court that the said allegation is more probable than not. This principle was emphasized in the case of Okudzeto Ablakwa (No.2) vs Attorney-

General & Another (2012) 2 SCGLR at 87, where the Supreme Court stated as follows;

“ If a person goes to court to make an allegation, the onus is on him to lead evidence to prove the allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish…”

Also, in the case of Ackah v. Pergah Transport Ltd & Ors (2010) SCGLR 728 at 736 the Supreme Court per Adinyira JSC, explained what is expected of a party who bears the burden of proof on an issue in the following terms;

“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, material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which a 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”

Also in the case of Majolagbe v Larbi [1959] GLR 190 @ 192, it was held that;

“ Proof in law is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the court to have sufficiently proved that averment by merely going into the witness box and repeating the averment on oath if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.”

In the instant case, both parties have a burden to prove their respective cases as the defendant filed a counterclaim.

5] EVIDENCE OF PLAINTIFF

The plaintiffs’ case is that by a lease dated 16th January 1978, the deceased, Ahia Eboe Arthur, acquired the land in dispute from Nii Antonyame II, the then Chief of Weija, acting with the consent and concurrence of the Principal Elders of the stool. The said lease covered a piece of land which was described as: “all that piece or parcel of land situate and lying and being in Weija-Accra bounded on the North- East by a proposed road measuring 112 feet more or less, on the North East by Weija Stool land measuring 90 feet more or less on the North West by Weija Stool Land measuring 110 feet more or less covering an approximate area of 0.24 acre or 0.10 hectare.” The limits and boundaries of the land were delineated on a site plan attached to the lease.

6] According to the plaintiffs, upon acquisition of the land, the late Ahia Eboe Arthur had the lease stamped and registered. He further went into immediate possession of the land by erecting pillars at the boundaries of the

land. Plaintiffs claim that the land was vacant at the material time and few buildings had been put up in the entire area. Plaintiffs maintain that the deceased enjoyed peaceful possession of the land until 2012 when 1st plaintiff noticed that defendant had unlawfully entered the deceased’s land, demolished or removed the pillars and commenced the unlawful construction of a church building.

7] In support of their case, plaintiffs tendered Exhibit ‘A’ as evidence of Letters of Administration empowering them to bring the instant action on behalf of the estate of the late Ahia Eboe Arthur. They also tendered Exhibit ‘B’, which is the lease dated 16th January 1978 and its accompanying site plan as evidence of the transaction between the deceased and the Weija Stool. Again, plaintiffs tendered Exhibits ‘C’ and ‘D’ which were search reports from the Lands Commission dated 7th February 2019 and 10th October 2018 respectively.

8] EVIDENCE OF DEFENDANT

The defendant was represented by one Pastor Eric Totimeh who testified that he acquired the land in dispute in 2008 from one Sackey Quarcoopome for the use of the church. He claimed that his vendor was the son of the late Antonyame who allegedly gifted the land to him. Defendant’s representative claims that subsequently, he was informed that he required a lease from the Weija Stool in order to have a valid interest in the land. As a result, on 28th January 2012, he executed a lease with the Weija Stool acting through Nii Boafo Danyina Nse I, Weija Dzasetse with the consent and concurrence of the Principal Elders of the Weija Stool. The lease was to take effect from 1997.

9] Defendant’s representative’s further case is that his vendor was operating a block factory on the land at the material time and had two single rooms on the land, one of which he occupied. Defendant’s representative claims that he paid for the land in 2010 after which the church built a temporary church auditorium and a temporary structure for children’s service. They also began the process of registration during which it came to light that a small section of the land they were seeking to register had already been registered in the name of the deceased. Defendant’s representative claimed that the said section of land was less than the

0.24 acre claimed by plaintiffs in this action and that plaintiffs were entitled to only that section of land that had been registered in favour of the deceased.

10] In proof of its claim, defendant tendered in evidence Exhibit ‘1’ which was a receipt showing payment of GHC18,000 by defendant’s representative to Mr Samuel Sackey Quarcoopome being full cost of two plots of land sold to defendant. Defendant’s representative also tendered in evidence Exhibit ‘2’, the lease executed between the defendant and the Weija Stool acting through Nii Boafo Danyina Nse I dated 28th January 2012. Exhibit ‘3’ was a search report from the Lands Commission dated 5th September 2018 while exhibit 4 was also a search report from the Lands Commission dated 14th March 2019.

11] To assist with the resolution of this dispute, the court ordered the Survey and Mapping Division of the Lands Commission to prepare a composite plan using the documents relied on by the parties. The composite plan and report from the Lands Commission were received in evidence as exhibits ‘CE’ and ‘CE1’. Counsel on both sides cross-examined the court appointed surveyor.

12] EVALUATION OF EVIDENCE AND OPINION OF COURT

In the course of the presentation of evidence and cross examination, it emerged that the land described in the site plan attached to plaintiffs’ Exhibit ‘B’, did not fully correspond with the limits and boundaries of the land in dispute. Whereas the limits and boundaries of the land in dispute corresponded with the land as described in the defendant’s site plan, as regards the plaintiffs, there was an overlap between the land described in deceased’s site plan and the land in dispute, such that only a small section of deceased’s land, as described in its site plan, fell within the land in dispute. As a result, the plaintiffs did not succeed in proving that the land described in their site plan was substantially identical to the land in dispute.

13] The court notes that plaintiffs also relied on acts of possession in relation to the land in dispute, which was challenged by the defendant. Plaintiff therefore had the burden to adduce positive evidence from which the said acts of possession could be inferred. See: Zabrama v Segbedzi 1991 2 GLR 221 CA, Majolagbe v Larbi & Others 1959 GLR 190

14] In the case of Rosina Aryee vs Shell Ghana and Fraga Oil, Civil Appeal No J4/3/2015 dated 22nd October 2015, Benin JSC made the following observation regarding proof of possession in relation to land in Accra;

“Possession in law is one of the most difficult and complex areas of the law, hence the impossibility in placing it in a pigeon hole. It is normally determinable from the facts of a given case. We are concerned with possession of land in a city like Accra. We cannot lose sight of the numerous problems associated with land ownership in Accra. People who have gone through the process of acquiring land genuinely stand the risk

of losing it if they fail to develop it immediately because of multiple sales or leases by the same vendor or lessor as the case may be. Hence developments have been rushed through without building permits all because people want to protect their land. So in order not to violate the laws of the land people have resorted to erecting temporary structures on the land to serve as visible sign to everybody who goes there to know that at least somebody is on the land. Needless to say squatters also take advantage to settle on unoccupied lands with kiosks and all sorts of temporary structures.”

15] From the above, it is clear that proof of possession of land in Accra especially in fast developing areas where multiple sale of land is rampant may be an uphill task. In the instant case, plaintiffs claim that the deceased took immediate possession of the land in dispute by erecting boundary pillars. This must have happened in 1978 or thereabouts since deceased acquired the land in 1978. 1st plaintiff testified that the deceased erected six pillars on the land in dispute. Her further testimony was that in 2011(or 2016?) when she last visited the land in dispute, she saw two of the pillars. The question is what did she do when she noticed that the pillars had reduced from six to two? There is no indication from the evidence before the court that 1st plaintiff took any action when she noticed that the pillars her husband erected had reduced to two, neither is there any photographic evidence of the said pillars to support the plaintiffs’ claim. There is also no evidence of the state of the land that she saw in 2011. In the court’s view, it is unlikely that the vacant piece of land that the deceased acquired in 1978 would have remained in its same state 30 years on given the rate of development in Accra and the issue of multiple sales of the

same land. This court therefore finds it hard to accept the 1st plaintiff’s claim that

in 2011 when she last visited the land in dispute she saw two pillars on the land.

16] Having regard to the totality of the evidence before the court, it is the view of the court that the plaintiffs are entitled to that section of land that overlaps defendant’s land and not to the entire land in dispute as they have not been able to establish that the land acquired by the deceased in 1978, corresponds fully with the limits and boundaries of the land in dispute.

17] As regards the defendant, counsel for plaintiff challenged the sale of the land in dispute to defendant by a son of plaintiff’s grantor on the basis that same was invalid. He contended that the Weija Stool, having divested itself of its interest in the land in dispute to the deceased, had no right per the nemo dat quod non habet principle to resell the same land to the defendant.

18] The question whether the defendant’s vendor actually sold the same land that had been previously sold to the deceased to the defendant was answered by the composite plan. Prior to the commissioning of the composite plan by the court, the 1st plaintiff was already aware that per the deceased’s site plan, the section of land claimed by deceased did not correspond with the entire land in dispute. She admitted as much under cross-examination;

Q: So your claim in respect of this suit is for the entire 0.24 acre, is that correct?

A:  Yes

Q: It is also your case that your late husband’s interest in the entire property

has been registered with the Lands Commission, correct?

A: Yes

Q: It is also your case per your evidence that a search result at the Lands Commission will show your late husband’s interest in the property in question, correct?

A: Yes

Q: Kindly take a look at Exhibit ‘C’, annexed to your witness statement. Was this search conducted in respect to the entire property you claim belonged to your late husband?

A: Yes

Q: And this search was conducted by the Weija Stool? A: Yes

Q: And the Weija Stool per your evidence granted the land to your deceased husband

A: Yes

A: Take a look at page 2 of Exhibit ‘C,’ from page 2 the only part of the page where your late husband’s name is recorded is on bullet number 2 (Counsel reads) Is that correct?

Q: From page 3 of Exhibit ‘C’ the portion hashed blue does not apply to the entire 0.27 acres is that correct?

A:  No, at the end of my husband’s land there is no land there

Q:  I suggest to you that you are not being truthful to this honourable court

A:  I do not get it because at the end of my husband’s land there is a road so I do not see any land behind my husband’s land

Q: You yourself indicated a few minutes ago that the search conducted by the Weija Stool, your husband’s grantor was in respect of the entire property granted your late husband

A: Yes

Q: And the search results shows that the only portion granted to your late husband is the portion hashed blue

A:  Yes

See proceedings of 30th October 2023.

The above admission made by 1st plaintiff supports the defendants’ case that the only section of land plaintiffs were entitled to was the area of overlap and not the entire land in dispute.

19] The court further notes that the shape of the deceased’s land as depicted in his site plan did not correspond with the shape of the land in dispute. From the above, the court finds that the Weija Stool resold a small section of the land they had already sold to the deceased to the defendant.

To that extent, one cannot say that the entire sale was invalid. This court finds that the sale of the land in dispute by the Weija Stool to the defendant was invalid only in respect of the section that overlapped with the deceased’s land.

20] Counsel for plaintiff further contended that the defendant’s lease was invalid because Nii Boafo Danyina Nse I had not been gazetted as a chief at the material time. The question is; can a chief who has not been gazetted alienate land? Counsel for defendant did not cite any law that shows that a non-gazetted chief cannot perform the functions of a chief which include alienation of land. A chief who has been properly nominated and installed can perform the functions of a chief unless he is destooled by the proper customary procedure. Therefore, the mere fact that Nii Boafo Danyina Nse I had not been gazetted at the time he sold the land to defendant, did not render the sale invalid or void.

21] Having regard to the totality of the evidence before the court, the holds that the defendant is entitled to the section of the land in dispute that excludes the area of overlap with plaintiff’ land.

22] NOW THEREFORE THE COURT ORDERS AS FOLLOWS:

1) Judgment entered in favour of defendant in the following terms;

2) Defendant is entitled to the section of the land in dispute that excludes the section registered in the deceased’s name as shown on the composite plan.

3) Perpetual injunction restraining plaintiff from interfering with defendant’s possession of that section of land that excludes the section registered in the deceased’s name as shown on the composite plan.

4) Parties are at liberty to decide what to do with the area of overlap between defendant’s land and the deceased’s land in view of the fact that defendant has buildings on that section of land.

23] No costs awarded.