Dennis Kwabena Santiago v Nii Kotey Onyabrempong Susubiribi (alias Nii One) & Isaac Ofori Boakye

INTRODUCTION:

By a Writ of Summons filed in the Registry of this Court on 10th March, 2023, Plaintiff claims against Defendant as follows:

a) A declaration of title to all that piece or parcel of land situate lying and being at Abehenease and bounded on the West by Grantor’s Land measuring 129 feet more or less, on the North by proposed road measuring 97.2 feet more or less, on the East by Lessor’s land measuring 129.0 feet more or less, on the South by a proposed road measuring 99.5 feet more or less and containing an approximate area of 0.29 Acre or 0.12 Hectare more or less which piece or parcel of land is more particularly delineated on the Plan attached hereto and thereon shewn edged pink which shows the relevant measurement;

b) An order of perpetual injunction restraining Defendants herein by himself, his workman, agent, assigns, privies, representatives or whomever claiming from or through Defendant from having any dealing with or on the sais land belonging to Plaintiff;

c) Costs including legal fees;

d) Any further order(s) as this Honourable Court may deem fit.

The subject matter of this suit are two (2) plots of land lying situate at Abehenease in the Ga-West District of the Greater Accra Region of the Republic of Ghana more particularly described as ‘’ALL THAT PIECE/ PARCEL OF LAND situate at Abehenease-Accra and bounded on the West by Lessor’s land measuring 129.9 feet more or less on the North by proposed Road measuring 97.2 feet more or less on the East by Lessors land measuring 129.0’’ more on the South by proposed road measuring 99.5 feet and containing an approximate area of 0.29 acre or 0.12 hectare more or less.

CASE OF PLAINTIFF:

Plaintiff avers that sometime on 19th June, 2013, he acquired two (2) plots of land as described above from the Agbeti Lanquaye Family after conducting due diligence. Plaintiff avers that he has been in possession of same and in peaceful enjoyment of same and subsequently commenced the construction of a three-bedroom house on one side and a single room on another side of same land.

Plaintiff avers that Defendants trespassed on his land 19th and 24th November, 2022 respectively claiming ownership of same. Plaintiff alleges that 2nd Defendants grantor is the 1st Defendant. He adds that not even his report on Defendants conduct to the police has deterred him. Hence the instant action.

Plaintiff concluded that defendants have to date not shown any evidence indicating their legal interest in the land he lawfully acquired yet they have with impunity and total disregard of him continually trespassed on his land, harassed his workmen on the land and buy such actions gravely affected the purpose for which he lawfully acquired the land.

CASE OF DEFENDANTS:

Defendants denied the claim of Plaintiff. The 1st Defendant contended that he was the Chief and Head of the Ama Asor Family and the legitimate grantor of Abehenease lands. He added that by virtue of his position and consequently the allodial title owner of all Abehenease lands he cannot be said to have trespassed on his own.

He further added that by a judgment of the Appeal Court instituted Nii Otoe Din II vrs Kotey Neequaye and eight others (Civil Appeal No H1/42/2011), the Amo Asor Family was declared owner of the Abehenease lands. The land in dispute falls within this huge parcel of land. He narrated that following this judgment all occupiers of the Amo Asor Family lands at Abehenease have been requested to regularize their occupancy, thus Defendants have legally acquired the land in dispute and committed no act of trespass on Plaintiff’s land. They consequently counter claimed for the following:

1. A declaration that the land in dispute falls within the Abehenease Lands which belongs to the Amo Asor Family.

2. That Plaintiff has trespassed on 1st Defendant’s lands and needs to make the requisite payment for the land from the right and lawful grantor, the Amo Asor Family of Abehenease.

3. That Plaintiff be made to bear all the cost incurred.

4. That Plaintiff bear the full legal cost of this action borne by Defendants.

ISSUES FOR DETERMINATION:

At the close of Hearing the Court is of the opinion that in resolving this matter the following issues will bring this matter to rest:

1. Who is the owner of the land in dispute?

2. Who has trespassed unto the land in dispute?

PROCEDURE OF TRIAL:

The parties were both legally represented. The pleadings into the matter was unduly delayed by Defendants through their inconsistent attendance and legal representation in this suit. Attempts at settlement proved futile so the court proceeded to hear the matter. Plaintiff testified by himself and Defendants willfully failed, neglected and elected not to appear before the court for Hearing. The court consequently closed Hearing and adjourned for judgment.

BURDEN OF PROOF:

The rules of evidence regarding the burden of proof in civil cases are set out by the Evidence Act, 1975 (NRCD 323) to establish who bears the burden of proof of the issues in this case. In the case of Majolagbe v Larbi [1959] GLR 190, Ollennu J (as he then was) noted that:

“Proof in law is the establishment of a fact by proper legal means, in other words, the establishment of an averment by admissible evidence.”

The law is that a person who institutes an action against another bears the burden of proving his case. The burden of proof as known in the law of evidence is stated in terms of the burden of persuasion and the evidential burden. This was reiterated by Dr. Date Bah JSC in the case of Sumaila Bielbiel v. Adamu Dramani & AG (NO.3), [2012] 1 SCGLR 370 in the following words;

“.... There are two kinds of burden of proof recognized by the common law and which are preserved in Ghanaian law by the Evidence Act. In common law, some cases and text writers have made the distinction between the “legal burden of proof” and “evidential burden of proof”. This distinction is mirrored in the Evidence Act as the ‘burden of persuasion” and “burden of producing evidence ”

The burden of producing evidence, also known as the evidential burden is defined in Section 11(1) of the Evidence Act, 1975 (NRCD 323) as follows:

1. For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.

In addition, Section 17(1) of the Evidence Act, NRCD 323 provides that:

“The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof, except otherwise provided by law.”

The persuasive burden/burden of persuasion on the other hand, is defined in Section 10(1) of the Evidence Act, 1975 (NRCD 323) as:

“ the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.”

The burden of persuasion is the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. Thus, a party who fails to discharge a persuasion burden placed on him to the requisite standard of proof will lose on the issue in question. In the case of Adwubeng v Domefeh [1997-98] 1 GLR 282 it was held that the standard of proof amounting to discharge of the burden of persuasion in civil cases is on the preponderance of probabilities. This is the essence of Section 10(2) of the Evidence Act,1975 (NRCD 323), which is to the effect that;

“the burden of persuasion may require a party to establish the existence or non-existence of a fact by preponderance of the probabilities.

As a general rule a party who asserts a claim or defence bears the burden of persuasion on its existence or non-existence as stated in Section 14 of the Evidence Act, 1975 (NRCD 323). This section supra also re-states the general rule that the degree of proof normally required to satisfy the burden of persuasion in civil actions is proof by a preponderance of the probabilities.

Section 11(4) of the Evidence Act, 1975 (NRCD 323) then provides that the burden of producing evidence, also known as the “the evidentiary burden”, demands of a party the production of adequate evidence that would convince a reasonable mind that “the existence of the fact was more probable than its non-existence.” Section 12 of the Evidence Act, 1975 (NRCD 323) then goes on to provide as follows;

(1). “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.

Thus, in the case of Gihoc Refrigerator & Household v. Jean Hanna Assi [2005-2006] SCGLR 458, the Supreme Court held at page 485 as follows:

“Since the enactment of NRCD 323, therefore, except otherwise specified by statue, 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. ”

In both civil and criminal proceedings, the general rule is that the party bearing the persuasive burden will also bear evidential burden. Thus, where a party has an evidential burden, it may be satisfied either by adducing himself or by eliciting evidence from the witnesses of his adversary. In his book, Essential of the Ghana Law of Evidence, the learned jurist S.A Brobbey says of the burden of proof that:

“It is the burden on a party to establish from evidence led the requisite degree of belief in the mind of the trier of fact. In other words, a party will not succeed on his claim unless he has led evidence to establish the claim or its basis.”

EVIDENCE ADDUCED BY PLAINTIFF:

Plaintiff testified under oath that in June, 2013, he acquired two plot of land from the Agbeti Lanquaye Family at Abehenease. He claimed that prior to the acquisition of the land, he undertook the necessary due diligence to satisfy himself that the grantors were the rightful owners of the land. In support of his averment he tendered without objection Exhibit A which is a copy of the Search Report undertaken at the Lands Commission.

Plaintiff averred that based on the positive Search Report, he paid for the land and same was executed in an indenture dated June 19, 2023. In support of his averment, he tendered Exhibit B which same has been duly stamped in accordance with law. Plaintiff avers that he commenced registration of his interest on the land. Plaintiff further avers that he went into possession of the said land and commenced development works of a three-bedroom house on one plot and a single room on the other. Plaintiff tendered Exhibit C which are colored photographs of the above-mentioned buildings at various stages of development.

He claimed that in October, 2022, the 1st Defendant trespassed on his land. Then again on 19th November, 2022 the 2nd Defendant acting under the instructions of 1st Defendant trespassed into his land in the company of other land guards to drive Plaintiff workers off his land. Then on 24th November, 2022, the 2nd Defendant deposited sand and gravels with workers to commence construction works in the middle of his land. Plaintiff avers that he reported the acts of Defendants to the Amasaman Police Station and tendered Exhibit D which is a Police Extract in support of his averment where he was advised to seek civil redress. Plaintiff concluded that despite the pending action which he has commenced, Defendants despite having failed to show any evidence of his interest in the land with impurity and total disregard of Plaintiff’s interest continues to correct various acts of trespass on the land, the subject matter of tis suit thereby disregarding Plaintiff’s right of peaceful enjoyment and ultimately affecting the purpose for which Plaintiff acquired the land. In support of his averment, he tendered Exhibit E Series. Plaintiff tendered Exhibit F to prove that this 1st Defendant had a penchant for such acts and was at the time of trial a convict of a similar offence.

EVIDENCE OF DEFENDANTS:

The 1st defendant in this matter failed to appear before the court. His testimony was consequently expunged from the records in accordance with Section 8 of the Evidence Act, 1975 (NRCD 323). The 2nd defendant testified that he was a maternal nephew of the 1st defendant. He stated that to the best of his knowledge the Ama Asor Family of Abehenease were the allodial title owners of all Abehenease lands. He narrated that on the dates as stated by Plaintiff he acted on the instructions of 1st Defendant to meet a tipper truck for the deposition of sand and stones when he was arrested by the police who subsequently advised parties herein to seek civil redress on the complaint of trespass by Plaintiff. He concluded that that Plaintiff’s grantors who hail from Korle Gonno owned no land at Abehenease.

THE COURT’S EVALUATION OF THE EVIDENCE:

The meaning of land in Ghana can be gleaned from Section 281 of the Land Act, 2020 (Act 1036). The said section provides that:

“land’ includes the solid surface of the earth, trees, plants, crops and other vegetations, a part of the earth surface covered by water, any house, building or structure whatsoever, and any interest or right in, to or over immovable property”

I shall determine the main issue based on the facts and evidence adduced at the trial. Title to land is defined by B.J Da Rocha and C.H.K Lodoh in their textbook Ghana Land Law and Conveyancing (2nd Edition) at page 99 as;

“… the means by which a person establishes his right to land. Title to land may take the form of possession

or it may take the form of a document or a series of documents.”

Firstly, it is trite law that where ones title to a land is disputed the person has to lead evidence on the acquisition, title, ownership and possession of the land. In the case of Asante Appiah v Amponsah alias Mansah [2009] S.C.G.L.R 715 the Supreme Court stated as follows:

“The law is well established that where a party’s claim are for possession and perpetual injunction, he puts his title in issue: He thereafter assumes the onus of proving his title by a preponderance of probabilities, like any other party who claims declaration of title to land.”

Also in the case of Yaw Kwesi v Arhin Davis &Or [2007-08] S.C.G.L.R 580 the Supreme Court stated that:

“since the Plaintiff –appellant sued not only for declaration of title but also damages for trespass and order for perpetual injunction, he assumed the onerous burden of proof of title to the disputed land by the preponderance of the probabilities as required by sections 11 (1) and (4) and 12 of the Evidence Act N.R.C.D 325 of 1975”

It is again settled in law that to successfully maintain an action for declaration of title, the Plaintiff has to prove with certainty by positive evidence the identity and limits of the land he or she claims, the boundaries of the land claimed, how much the land was bought for, the documentary proof establishing his or her title, root of title, mode of acquisition, overt acts of ownership. In the case of Mondial Veneer (GH) Ltd v Amua Gyebu XV [2011] I S.C.G.L.R 466 at 475 Her Ladyship Georgina Wood (Mrs.) the Chief Justice said as follows:

“In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in this instant case, to prove the root of his title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation”

It is also trite learning and the Courts have on numerous occasions emphasized the obligation of prospective land purchasers to undertake diligent searches at the Lands Commission and also within the community before entering into any land transaction. In the Supreme Court case of Owusu and

Others v Hydrafoam Estates Ltd (J4 62 of 2013) [2014] GHASC 150 (26th March, 2014) Anin Yeboah JSC. stated that:

“It is indeed a notorious fact that persons seeking to acquire any interest in land I Ghana resort to conducting searches to ascertain whether the vendor or transferor has title to pass at the Lands Commission being the governmental agency set up for keeping official records of transactions in Ghana.”

From the record, it is manifestly evident that Plaintiff satisfied the requirement of due diligence. One of the ways this can be done is by conducting a search to ascertain the root of title and also to ascertain if the said land is encumbered. Plaintiff tendered Exhibit A which is a search report from the Lands Commission of Ghana.

From Plaintiff’s case he claims that he acquired two plots of land on 19th June, from his grantors. He also claims that his grantors ownership of the land in dispute can be traced to judgement of the courts. In the case of Awuku v Tetteh [2011] S.C.G.L.R 366 the Supreme Court through Ansah JSC. said as follows:

“We believe we state the law correctly that where the appellant’s title was derivative, he ought to demonstrate that the predecessor-in-title held a valid title for if the foundation was tainted, the superstructure was equally tainted”

Also, in the case of Sanbaye Basilde Kangberee v Alhaji Seidu Mohammed [2012] 51 G.M.J 173 Dotse JSC. stated that:

“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.”

Plaintiff tendered Exhibit A which is a search report. From the said search report, Plaintiff’s grantors have successfully registered their judgement dated 14th June, 2018 at the Public and Vested Lands Division Commission, Accra. This supports Plaintiff’s evidence that he conducted due diligence.

Thirdly, it is settled in law that the Plaintiff bore a duty to state the acts of ownership she had asserted to the land acquired. In the case of Elizabeth Osei v Madam Alice Efua Korang [2013] G.M.J 26 – S.C in the wise words of Ansah JSC.:

“a Plaintiff in possession has a good title against the whole world except one with a better title It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it.”

Also, in the case of Ababio v. Mensah (No. 2) [1989-90] 1 G.L.R. 573 at 595 Taylor JSC. reiterated this hackneyed position when he said:

"[T]he... principle is that a person in possession is entitled to retain his possession as against the whole

world except the true owner.”

In proof of ownership of the land, Plaintiff tendered an indenture dated 19th June, 2023 between himself and his grantors. A careful perused of the indenture shows that it is duly executed by parties and stamped in accordance with the Stamp Duty Act, 2005 (Act 689).

The court observes that site plan showing the coordinates of Plaintiff land is purported to be done by one S. O Koranteng a licensed surveyor. As it stands now the evidence of Plaintiff is not being challenged as to him being the owner of the land described in his indenture as stated supra.

An owner of land must also demonstrate that he is the owner of the land and has carried out exert acts of possession. In the case of Ernestina Owusu Frimpong v Mr. & Mrs. Biney (Unreported) Civil Appeal No. J4/24/2015 dated 11 May, 2016 SC the apex Court held as follows:

“When the law talks of developing the land it mean substantial development that involves the expenditure of considerable sums of money in improving upon it such as building a house to completion. A fence wall and standpipe certainly do not qualify as improvements to the land so as to found the equitable defence of estoppel by conduct.”

In proof of his acts of possession, in paragraph six (6) of his Witness Statement he stated that he had built on both plots. Plaintiff attached Exhibit 3 Series in support of this.

Plaintiff contends that 1st and 2nd Defendant have trespassed into his land by bringing land guards to his land and further heaping sand and gravels at the centre of the land. Plaintiff also tendered a Police Report dated 16th January, 2023. Plaintiff also tendered pictures of the building materials owned on the land by Defendant. Despite the fact that 1st and 2nd Defendant had notice of the instant suit after they have been served with same, they filed their response to the claim of plaintiff late in the matter in which the 1st defendant counterclaimed against Plaintifff as stated supra. Defendants however failed to attend court during trial. As it stands the evidence of Defendants stand unchallenged. The court proceeds to struck out the Statement of Defence and Counterclaim of Defendant. Since they failed to appear before the court during trial and also to cross-examination Plaintiff.

As between Plaintiff and 2nd Defendant. I find the unchallenged evidence of Plaintiff more probable. I proceed to enter judgement for Plaintiff as follow:

1. As between Plaintiff and Defendants I declare title of the subject matter of this suit for Plaintiff as follow as per his demarcations in his site plan.

2. The Court perpetually restrains forthwith Plaintiff, her agents, workmen and assigns from any manner claiming the land granted Defendant and from any manner harassing or interfering and dealing in respect of the said land.

3. I award cost of Ten Thousand Cedis (GH¢10,000.00) only against each of the defendants in favour of the plaintiff.

4. Plaintiff is asking for further orders, since Plaintiff claim is uncontested and Defendants didn’t actively participated in the trial for the court to have ordered a composite plan to determine the exact location of the land in dispute I hereby give an order that Plaintiff within three (3) months

should submit his title documents dated 19th June, 2013 between the Agbeti Lanquaye Family and himself together with accompanying site plan to the Head of the Survey and Mapping Division of the Land Commission Accra for a judgement plan to be drawn based on Plaintiffs afore-mentioned documents in order for the exact coordinates of Plaintiff land to be determined.

5. I further order that the (fourteen (14) days after completing his work) Head of the Survey and Mapping Division of Land Commission should furnish the Registrar of his court with a copy of the judgement plan in order for same to be placed on the docket as filed. Plaintiff is to bear the entire cost of the exercise (within three (3) months).