Stephen Abiiro Amokasa v Adombila Asakootei & Solomon Atiah

Introduction

1. The Plaintiff commenced this action on 24th May 2022 and claimed against the Defendants as follows: -

a. A Declaration of title to all that piece or parcel of land within Zuarungu Residential Area in the Bolgatanga East District of the Upper East Region of

 

the Republic of Ghana. The boundaries thereof commencing from traverse pillar marked SGUE 7/97/6 measuring at distance of 10,699.5’ feet to more or less and on a bearing of 048⁰48’ which bearing together with all other bearings herein after mentioned is referred to meridian 1⁰ West longitude from a beacon marked MAA 4 runs along a bearing of 324⁰24’ measuring a distance of 103.2’ feet more or less to beacon marked SGUE A0474/17/2 runs along a bearing of 144⁰01 measuring a distance of 100.8 feet more feet more or less to beacon marked MAA I runs along a bearing of 324⁰24’ measuring a distance of 103.2’ feet more or less to beacon marked SGUE 7/97/7 runs along a bearing of 229⁰12’ measuring a distance of 11,188.5’ feet more or less beacon marked SGUEA0474/17/1. The points of commencement and hereby containing an approximate area of 0.64 acres which piece or parcel of land is more particularly delineated on the cadastral plan attached to the lease thereto and thereon shown edged pink:--

b. A perpetual injunction restraining the Defendants, their assigns, agents, successors and workmen from going unto the said plot, to construct or in any manner whatsoever interfere with plaintiff’s ownership and use of the said plot.

c. An order of Court directed at the 2nd Defendant to demolish his 3-bedrooms and 2-store rooms uncompleted houses/structures respectively constructed on the said land.

OR ALTERNATIVELY;

 

An order of Court directed at the 2nd Defendant to bear the cost of demolishing the said 3-bedrooms and 2-store rooms uncompleted houses/structures constructed illegally on the said disputed land by the plaintiff.

d. Possession of the said plot of land situated at Bolgatanga- Zuarungu Residential Area, an unnumbered plot.

e. Costs.

2. Also, the 2nd defendant by his amended statement of defence filed on the 13th day of March, 2023, counterclaimed against the plaintiff as follows:

a. Declaration of title to a 1/4 –size piece of land lying and situate at Zuarungu- Asonge with two building structures erected thereon and bounded to the East by plaintiff’s land, bounded to the West by a certain Pastor’s land, bounded to the North by a vacant parcel of land, and bounded to the South by the Bawku-Bolgatanga highway road.

b. A Declaration that 2nd Defendant is the bona fide owner of a two- storeroom building and three-bedroom uncompleted house situate on the above-named parcel of land.

c. An order of Perpetual injunction restraining the plaintiff and his agents, privies, assigns, servants, workmen from dealing in or in any way interfering with 2nd Defendant’s rights of ownership, beneficial enjoyment and peaceful possession of his ½ parcel of land he acquired lawfully.

 

d. Costs

3. On 13th March, 2023, this court in consideration of the nature of the case and the willingness of the parties to attempt settlement of the matter out of court, referred the matter to the Court Connected Alternative Dispute Resolution pursuant to section 72 of the Courts Act, 1993 (Act 459) as amended. The said section provides as follows:

Section 72—Courts to Promote Reconciliation in Civil Cases

(1) Any court with civil jurisdiction and its officers shall promote reconciliation, encourage and facilitate the settlement of disputes in an amicable manner between and among persons over whom the court has jurisdiction.

(2) When a civil suit or proceeding is pending, any court with jurisdiction in that suit may promote reconciliation among the parties, and encourage and facilitate the amicable settlement of the suit or proceeding.

See also Order 25 Rule 1 sub rules (3) to (8) of the District Court Rules, 2009 (C.I 59) as amended by C.I. 134.

However, the parties could not resolve the matter out of court; hence the court proceeded to determine the matter on its merit.

Plaintiff’s Case

 

4. The Plaintiff avers that by a Receipt dated 3rd November 2002, Between 1st Defendant of Zuarungu-Asonge, Bolgatanga and head of the Asakootie family of Zuarungu-Asonge and Plaintiff, 1st Defendant sold his family land at a cost of Three Hundred Thousand Cedis (then GHC300,000.00 but now GHC30.00) and transferred all that piece of land lying, being and situate at Zuarungu/Asonge, then unnumbered to the plaintiff for value. Plaintiff avers that sometime in 2022, he got the disputed land registered with title No. UE. 8772 and under serial No. 13/2022 in his name at the Regional Lands Commission, Bolgatanga. Plaintiff avers that sometime in 2012 he constructed 2 bedrooms on the potion of his plot of land; and that sometime in 2015; he again constructed a kitchen on portion of his plot of land.

5. Plaintiff avers that sometime in 2019, he realized that someone has deposited sea sand on the disputed land and his enquiries revealed that it was the 2nd Defendant who deposited the said sea sand on his plot of land. Plaintiff avers that he confronted the 2nd Defendant as to why he deposited sea sand on his plot of land without his knowledge and consent. Plaintiff avers that 2nd Defendant told him that he bought the disputed land from 1st Defendant. Plaintiff avers that he reported the conduct of 1st and 2nd Defendants to the Acting Benkote Tindana, Baba Awankuah Asaamalgo. Plaintiff says that the Acting Tindana asked 1st Defendant whether or not he sold plaintiff’s plot of land to the 2nd Defendant and the 1st Defendant admitted that he actually sold the disputed plot to 2nd Defendant knowing very well that he had earlier sold the same land to the plaintiff.

 

6. Plaintiff states that the act of 1st Defendant in selling the land to 2nd Defendant after selling same to plaintiff in 2002 sins against section 277 of Act 1036 of 2020. Plaintiff avers that he protested and objected to the conduct of 1st Defendant because plaintiff was the first to buy the disputed plot of land from the same 1st Defendant sometime in 2002. Plaintiff states that the Acting Tindana of Benkote then directed the parties to go back home and settle the dispute. Plaintiff avers that when they went back home some elders from Zuarungu/Moshie namely; Asaanyure Abeeru, Akolgo Apii, Azumah Adaarigu and the plaintiff went to meet the 2nd Defendant in his house at Asonge. Plaintiff avers that 2nd Defendant was reminded about the Acting Tindana’s directives that the dispute over the land be resolved amicably.

7. Plaintiff avers that the 2nd Defendant in the presence of the elders said that he was going to dig a foundation on the disputed land and commence construction thereon and all efforts to stop him failed. Plaintiff avers that one of the elders, Akolgo Apii told the 2nd Defendant not to dig the said foundation because they came to settle the matter amicably, but he did not pay heed to that attempt to settle the matter. Plaintiff avers that with these attempts to persuade the 2nd Defendant he still threatened to dig the foundation; and that the 2nd Defendant actually with all the directives of the Tindana and his elders of the community, went ahead and dug the said foundation and put up 3-bedrooms with 2-store rooms on the disputed land. Plaintiff avers that several demands from the elders of the community for the 2nd Defendant to stop the said illegal construction on the disputed plot have failed. Wherefore, Plaintiff prays for the above-stated reliefs.

 

1st Defendant’s Case

8. 1st Defendant vehemently denies Plaintiff’s claims and stated that it is a fact that his father sold a plot of land to plaintiff and remaining a portion. According to 1st Defendant his father told plaintiff that he was not well and so he should buy the remaining portion but plaintiff informed his father that he was not having money. So 1st Defendant’s father sold that portion of land to 2nd Defendant. 1st Defendant also stated that when 2nd Defendant bought that piece of land he invited his father and the Tindana to the land and the Tindana poured libation before 2nd defendant started building.

9. It is the 1st Defendant’s case that as plaintiff claims that his mother thumbprinted the land documents, the fact is that plaintiff forced his mother and used her hand to thumbprint the land documents. 1st Defendant stated that the rightful person to have thumbprinted the documents is Ayinea Asakootei, his father but he did not. 1st Defendant stated that Plaintiff told his mother that he was preparing his land documents but in their tradition, women are never the heads of the house but the man.

2nd Defendant’s Case

10. The 2nd Defendant denies plaintiff claims and says that he is not aware of the sale of the entire land in dispute as described from 1st Defendant to plaintiff and the transfer of title to plaintiff as alleged. 2nd Defendant says that he is aware that 1st Defendant is not the head of the Asakootei family of Zuarungu-Moshie and could not therefore have sold and transferred title in the land to plaintiff as alleged, and that since Plaintiff did not buy the land from the rightful owner, he does not have title to the land. 2nd Defendant says that he understands that

 

plaintiff’s registered land title document is said to include his own bona fide parcel of land (a one-quarter (1/4) size parcel of land) and that renders the said land documents invalid.

11. 2nd Defendant confirms that he was indeed the owner of the sand as deposited on his small portion of the land in dispute, and this was after he had bought his said small portion from the rightful owner, and that he did not buy any land from 1st Defendant. 2nd Defendant says that 1st Defendant never told him (2nd Defendant) that he (1st Defendant) sold the same small parcel of land 2nd Defendant bought from Asakootei Ayinea, father of 1st Defendant to plaintiff, and would not know what 1st Defendant told plaintiff.

12. 2nd Defendant says that he negotiated with and bought a ¼ of a parcel of land from the owner of the land, Asakootei Ayinea, head of Asakootei family of Zuarungu-Asonge, with active involvement and participation of his wife Apambire, for six hundred Ghana cedis (GHC600.00) in 2019, which said owner and his wife measured out the ¼ portion for him. 2nd Defendant says that Asakootei Ayinea had in turn inherited that portion of land from his deceased father as his share of the family land.

13. 2nd Defendant says that upon going unto the land, he noticed plaintiff’s existing building structure on plaintiff’s far bigger plot of land sharing boundaries with his land on one side, and his grantor as above-named assured him that the smaller portion he was selling to 2nd Defendant did not form part of the parcel he had already sold to plaintiff in the past, so 2nd Defendant was free to buy it. Additionally, 2nd Defendant’s grantor had indicated that he needed money to

 

treat his sick health condition and had offered that smaller portion to plaintiff to buy to add to the existing one plot of land plaintiff already had, but plaintiff had declined, telling him that he could sell it to anyone and that he plaintiff did not have money to buy it in addition.

14. 2nd Defendant says that soon after purchase, he immediately commenced construction of his two-store-room building on his land by first putting in sand and stones, after all the parties, in concert with the Benkote Tindana and the Customary Land Secretariat in Bolgatanga all met and gave him the nod to put up his building structure. 2nd Defendant says that plaintiff did protest at his building at a certain point but when they met with his grantor as named herein, he was allowed to continue building.

15. 2nd Defendant says that he had finished his store-room building by 2020, did the decking, and continued with the three-bedroom situate right behind the store- room building, all within the boundaries of his ¼ plot of land as purchased. 2nd Defendant says that it was then that Plaintiff stopped him from further building, claiming that he owned the land, leading to numerous meetings directed at compelling him to leave the land and his investment on it for him. 2nd Defendant says that after stopping him from building the said structure at first, plaintiff and his relatives promised to pay him the value of his investment before taking it away from him, but soon changed their minds, and just ordered him to leave the land, which he refused because of the manifest injustice.

16. It is the 2nd Defendant’s case that his land he purchased from the rightful owner is distinct, separate from plaintiff’s parcel of land, and only shares a boundary

 

with plaintiff’s land. 2nd Defendant says that plaintiff appears to have practiced fraud on him. He particularized the issue of fraud as follows:

Particulars of Fraud

a. Plaintiff illegally and secretly included 2nd Defendant’s 1/4 –size parcel of land in his much larger parcel of land when processing his own land that he has since registered as a lease document despite fully knowing his boundaries with plaintiff’s land boundary shared with him without the knowledge or notice of 2nd Defendant or his grantor Asakootei Ayinea.

b. Plaintiff falsely claimed that 2nd Defendant had built his two building structures

on plaintiff’s land.

c. Plaintiff falsely claimed that 1st Defendant had sold the same parcel of land to both plaintiff and 2nd Defendant.

17. It is the 2nd Defendant’s case that the plaintiff’s claims against him should be dismissed as unfounded and he therefore counterclaimed against the plaintiff for the above-stated reliefs.

Issues for Determination

18. The issues for determination in this case are as follows:

a. Whether or not the land in dispute forms part of Plaintiffs’ land he bought from the 1st Defendant or 1st Defendant’s father in 2002.

 

b. Whether or not the land in dispute belongs to plaintiff or 2nd Defendant.

c. Whether or not the 2nd defendant is entitled to his counterclaim.

Burden of Proof

19. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. The law is that he who alleges must prove. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows:

11(1) For 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 Except as otherwise provided by law, unless and until 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 defence he is asserting.”

 

20. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023.

21. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus:

“The effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the 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. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff.”

 

22. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows:

“It is a basic principle of 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 witness, 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 minds 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 that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”.

23. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated:

“Where a party makes an averment 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 be satisfied that what he avers is true.”

 

See also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G.M.J, page 177, Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537

24. The law is that in any civil action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. Thus, it was held by the Supreme Court in Susu Bamfo vrs. Sintim (2013) 1 SCGLR 136 in holding 3 that:

“the law regarding forgery or any allegation of a criminal act in civil trial was governed by section 13(1) of NRCD 323; that section provided that the burden of persuasion required was proof beyond reasonable doubt.”

See also the case of Fenuku v John Teye (2001-2002) SCGLR 985

Evaluation of Evidence, Discussion of Issues and Legal Analysis

25. Plaintiff testified himself and called two witnesses. The 1st Defendant testified but the 2nd Defendant did not. The defendants however called three (3) witnesses. It must be stated that one of the defendant’s witnesses (Baba Awaankua, Tindaana of Benokote) did not come to testify and neither was his witness statement adopted as hearsay evidence. It must also be stated that 1st defendant's witness statement filed on 05/02/2025 was struck out since it was filed long after plaintiff had closed his case and after three of the defendants’ witnesses had testified as

 

well as filed without leave of the court. The 1st Defendant was however allowed to give his evidence in chief orally.

26. I will now proceed determine the following issues together: Whether or not the land in dispute forms part of Plaintiff's land he bought from 1st Defendant or his father in 2002; and whether or not the land in dispute belongs to plaintiff or 1st Defendant. The fundamental duty of a trial judge or magistrate is to make up his mind one way or the other on the primary facts and when he has made up his mind, he should state his findings and then proceed to apply the law. See the case of Quaye V. Mariamu [1961] GLR 93-96. The duty of this court is to make up its mind, states its findings of facts from the evidence on record and applies the law. From the evidence on record, the court found the following facts: A piece of land was sold to the Plaintiff in 2002 by 1st defendant or his father. The Plaintiff entered into possession and put a building on a portion of it. He was in possession of it till 2019 when the 2nd defendant encroached upon a portion of it claiming that he bought it from 1st defendant’s father. 1st defendant confirmed that a portion of land was sold to Plaintiff by his father leaving a portion that was sold to the 2nd Defendant but he did not describe to this court the boundaries of that remaining portion sold to 2nd Defendant as well as the one sold to Plaintiff.

27. From the evidence, Plaintiff is relying on the lease dated 31st May 2021-Exhibit B in addition to the receipt dated 3rd November, 2002-Exhibit A. It is worthy of note that the lease did not make reference to 2002 when the plaintiff bought the land. The lease appears as if the Plaintiff acquired his land in November 2020. Also, the lease stated the acreage of the land as 0.64 acre whiles the site plan

 

dated 11/04/2017 stated the acreage as 0.23 acre. To this court, since the plaintiff bought the land in 2002, the lease should have commenced from November 2002 and not November 2020. This means that the date of execution will be different from the date of commencement. As it stands now the lease commenced from 1st November 2020 instead of 3rd November 2002. It must also be noted that as at November 2020, Plaintiff had already exhausted 18 years of his interest in the said land and the lease cannot be for a period of 99 years but less than that or 81 years. It is for the above reasons that this court did not put any weight on the said lease. This court is of the opinion that the lease is invalid and any registration by the Lands Commission is of no legal effect. The said lease and its registration are hereby set aside. The Lands Commission is hereby ordered to expunge the said registration from its register.

28. Notwithstanding the invalidity of Plaintiff lease as stated above, it is not in dispute that 1st Defendant or his father sold a piece of land to the plaintiff in 2002 as per Exhibit A. The 1st defendant in his evidence in chief testified that his father sold a piece of land to the plaintiff. The inference that could be made is that even though Exhibit A was signed by the 1st Defendant, he was acting on behalf of his father, Asakootei Ayinea. DW1-Apambire Asakootei, the mother of 1st defendant also testified they sold a piece of land to the Plaintiff. It is not in dispute that the plaintiff entered into possession of the land sold to him and put up a building on a portion of the said land. See Exhibit C.

29. Though the 1st Defendant and DW1 confirmed that a piece of land was sold to the plaintiff, they did not describe the boundaries of the land sold to the plaintiff.

 

1st Defendant and DW1 testified that after the piece of land was sold to the Plaintiff, there was a portion remaining that was sold to the 2nd Defendant in 2019 but they did not tell the court the boundaries of that remaining land sold to 2nd Defendant.

30. There is no evidence that the 1st Defendant or his father or his family was in possession of the alleged remaining portion till it was sold to the 2nd Defendant in 2019. This court is of the view that if there was any remaining land the 1st Defendant and his family could have been in occupation of it or doing something on it to show ownership but that there is no evidence to that effect. This means that for more than 15 years, plaintiff was in possession of the said land without any challenges till 2019 when the 2nd Defendant put sea sand on a portion of it. The law is settled that a person in possession of land has good title against the whole world except one with a superior title. From the evidence, the 2nd Defendant did not convince this court that he has a superior title to the land in dispute or where he put up the three bedrooms with two store rooms and the inference that could be drawn is that the land sold to 2nd Defendant in 2019 forms part of the one sold to plaintiff in 2002. The court therefore found as a fact from the evidence on record and holds that the land in dispute forms part of plaintiff’s land he bought from 1st Defendant or his father in 2002.

31. It is worthy of note that the 2nd Defendant during cross examination of the plaintiff sought to demonstrate that plaintiff initially agreed for him to put up the stores and that when he added 3 bedrooms he was reported to the Tindana again. He also sought to demonstrate that they were asked to resolve the matter and plaintiff agreed to accept the three bedrooms and pay for it but plaintiff later

 

changed his mind. Thus, during cross examination of Plaintiff by 2nd defendant on 23rd April, 2024, the following transpired:

Q. I further put it to you that you went to the Land Secretariat and they came to see the Tindana, we went to inspect the land in dispute after deliberation, there you agreed I should put up the stores.

A. The land in dispute belongs to me and I have witnesses.

Q. I am suggesting to you that when the Land Secretariat and other elders came, you told me to build my stores at a certain portion of the land in dispute.

A. That is not true. You are only using your strength to take the place from me.

Q. After I built two stores, I built three bedrooms behind the stores and you went and informed the Tindana that I built three bedrooms in addition to the stores instead of building only the stores. Is that not so?

A, It is true that after building the stores you added three bedrooms. I reported to the Tindana and he said the matter is beyond him so we can take it to court.

Q. I put it to you that the Tindana also stated that we should go and resolve the matter, you said you would pay for the 3 bedrooms but you later went to inform the Tindana that you have changed your mind.

 

A. That is not true. That family relationship is not there again. The Tindana knows the land belongs to me I want you to demolish your building and leave the land form me.

32. Also, during cross examination of DW3-Azure Adugbire by the counsel for Plaintiff on 22nd January, 2025, the following transpired:

Q. Are you aware the uncompleted bedrooms were handed over to the Plaintiff?

A. He gave them to Plaintiff.

Q. Did you visit the disputed plot of land?

A. No

Q. Were you there when the three uncompleted bedrooms were handed over to the Plaintiff?

A. It was in my palace that the 2nd Defendant handed over the three bedrooms to the Plaintiff

Q. I am putting it to you that if the three bedrooms had been handed over to the Plaintiff, the three of you would have visited the site to do the proper handing over.

 

A. We had planned to visit the site but it was the following day that the Plaintiff came and said he was no longer interested in taking only the three rooms.

Q. Are you referring to the following day after the alleged settlement at the palace?

A. Yes

Q. I am putting it to you that, you are not being truthful to this court.

A. That is the truth that I am saying.

Q. Do you know the size of the disputed land?

A. No.

Q. I am putting it to you that, your assertion that the disputed land is for the 2nd Defendant is not true.

A. I did not say the land belong to the 2nd Defendant, I told them I am a chief and do not know their boundaries.

Q. I am putting it to you that, it is because the disputed land is not for the 2nd Defendant that is why he initially agreed to give the three bedrooms to the Plaintiff as you alleged?

A. I do not know the boundaries of the land. So I can’t tell.

 

33. The inference that could be drawn from the above cross examination of Plaintiff by 2nd defendant and evidence of DW3-Azure Adugbire is that the 2nd defendant at the time of putting up the three bedrooms knew that the land in dispute does not belong to him. To this court, if the 2nd Defendant had not put up the 3 bedrooms in addition to the stores, this matter would not have come to court. The 2nd defendant could have taken advantage of the opportunity given to the parties by this court to resolve this matter out of court through the Court Connected Alternative Dispute Resolution.

34. Having found that the land in dispute forms part of plaintiff’s land he bought from 1st Defendant or his father in 2002 or that the 1st defendant or his father had no interest in the land sold to 2nd Defendant in 2019, the Nemo dat principle will be applied. It is an established principle of law that you cannot give what you do not have (nemo dat quod non habet). Thus, a person who has no title to a thing cannot pass title to another person. In other words, an owner of land can only convey what he owns. In the case of Bishopsgate Motor Finance Corporation Ltd. V. Transport Brakes Ltd. [1949] 1 KB 322 or 1 All E.R. 37, at 46, Lord Justice Denning (as he then was) said:

"… No one can give a better title than he himself possesses …”

The Supreme court also held on the nemo dat quod non habet maxim in the unreported consolidated suit No. 81/92 and L. 20/92 dated 16th March 2011 entitled Mrs. Christiana Edith Agyakwa Aboa v Major Keelson (Rtd) and Okyeame Yima & Anr v Major Keelson as follows:

 

“It can thus be safely concluded that, the principle nemo dat quod non habet applies whenever an owner of land who had previously divested himself of title in the land previously owned by him to another person, attempts by a subsequent transaction to convey title to the new person in respect of the same land cannot be valid. This is because an owner of land can only convey what he owns, and having already divested himself of title, the new occupant of the Begoro Stool Nana Antwi Awuah III cannot revoke what his predecessor had done.”

In addition, in the case of Seidu Mohammed V. Saanbaye Kangberee [2012] 2 SCGLR 1182, the court noted as follows:

“This principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance…”

35. It is very clear from the evidence on record that the land in dispute belongs to Plaintiff. Hence, the 1st Defendant or his father having sold the disputed land to Plaintiff in 2002 had nothing to give or convey to the 2nd Defendant in 2019. The purported grant of the land in dispute to 2nd defendant in 2019 by 1st defendant or his father is therefore null and void and of no legal effect. The Plaintiff is accordingly declared the owner of the land in dispute.

36. Moreover, section 12(3) of the Land Act, 2020 (Act 1036) provides that:

(3) A person with interest in land may apply to a court for a restraining order against a person who unlawfully exercises or purports to exercise supervision or control of the land.

 

37. In the instant case, the plaintiff has demonstrated to this court that the land in dispute belongs to him or has interest in the land in dispute and which is being developed by the 2nd defendant. In the circumstances, an order of perpetual injunction is hereby granted in favour of the Plaintiff restraining the defendants, their Agents, Successors and Workmen or whoever from going unto the said land to develop or build on it or deal with the land in any manner or interfere with the plaintiff’s ownership and use of the said land. Plaintiff is also granted an order to recover possession of the land in dispute from the defendants.

38. The plaintiff’s relief for an order of the court directed at the 2nd Defendant to demolish his 3-bedrooms and 2-store rooms uncompleted houses/structures constructed on the said disputed land or bear the cost of demolition is however dismissed. This is because an order for demolition is not sanctioned by the rules of court. See the Supreme Court case of Laryea Marteye and Mohammed Tahiru vs. Abubakari Mohammed and Jamil Iddriss Civil Appeal No. J4/31/2023 dated 11/08/2023 [2023] DLSC 16994.

39. The next issue to consider is whether or whether or not the 2nd defendant is entitled to his counterclaim. It is a well-established principle of law that a defendant who files a counterclaim has the same burden of proof as a plaintiff. In the case of Nortey (No.2) V. African Institute of Journalism and Communication & Others (No.2) [2013-2014] 1 SCGLR 703, the principle was stated as follows:

 

“Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she has to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323, the Evidence Act (1975)”.

40. The law is that a party can only succeed in his or her counterclaim on the strength of his or her evidence. The standard of proof required that for a party to succeed on his or her counterclaim, he or she must lead satisfactory evidence, either by himself/herself or otherwise which, on the balance of the probabilities, makes his or her case more probable than not. See the cases of 2000 Ltd Vrs Otoo [2018] GHASC 68 (17 October 2018) and Osei v Korang [2013] 58 GMJ 1.

41. In the instant case, the 2nd defendant counterclaimed against the plaintiff for the land in dispute. He therefore has a burden of proof to discharge. But having examined the evidence of the parties on record as well as the above analysis under issues one and two supra, this court is of the considered opinion that the 2nd defendant has failed to establish the existence of facts contained in his counterclaim by the preponderance of the probabilities. The 2nd defendant’s counterclaim is accordingly dismissed.

Conclusion

 

42. Having examined the whole evidence adduced by the plaintiff and the defendant on record in accordance with the foregoing authorities as well as the analysis, the court holds as follows that:

a. Plaintiff’s action succeeds in part. Thus, plaintiff has established the existence of the facts contained in his claim by preponderance of the probabilities and the plaintiff is declared the owner of the land in dispute. Plaintiff is granted an order to recover possession of the land in dispute from the defendants.

b. The defendants, their agents, assigns, privies and all those claiming through them are perpetually restrained from developing or building on the said land or interfering with plaintiff’s ownership, quite enjoyment and use of the said land.

c. The plaintiff’s relief for an order of the court directed at the 2nd Defendant to demolish his 3-bedrooms and 2-store rooms uncompleted houses/structures constructed on the said disputed land or bear the cost of demolition is however dismissed as an order for demolition is not sanctioned by the rules of court.

d. The plaintiff lease dated 31st May 2021 and its registration at the Lands Commission are hereby set aside on the grounds that the said lease is invalid. The Lands Commission is hereby ordered to expunge the said registration from its register.

 

e. The 2nd defendant failed to prove his counterclaim to the satisfaction of this court. Accordingly, 2nd defendant’s counterclaim is dismissed.

f. Cost of Ten Thousand Ghana Cedis (GHC10,000.00) is awarded against the Defendants in favour of the Plaintiff. This is because this matter started since May 2022, the Plaintiff engaged a lawyer and incurred expenses like filling fees, transportation etc. in pursuing this matter. The Plaintiff will also incur additional expenses if he intends to demolish the structures put on the land by the 2nd Defendant.