Lawrence Boulos v George Kissi & 1 Or.

INTRODUCTION

 

[1]. This case arises from a familiar but persistently troubling feature of land litigation in Ghana: competing claims to the same parcel of family land, traced through a common root of title, complicated by overlapping grants, belated regularisation exercises and prolonged procedural delay. At its core, the dispute invites the Court to determine, on the evidence properly led before it, whether the Plaintiff has succeeded in establishing a superior title to the land in dispute and is consequently entitled to the reliefs sought, or whether his claim must fail for want of proof.

[2]. The Plaintiff commenced this action by a Writ of Summons issued in 2018, seeking against the Defendants the following reliefs;

1. Declaration of title to all that piece of land measuring 0.26 acres he acquired from Odai Ntow family situate and lying and being at Ashongman, Accra in the Greater Accra Region of the Republic of Ghana bounded on the North by lessor's land measuring 136.6 feet more or less on the East by Lessor's land measuring 95.0ft more or less on the South by measuring 132.1 feet more or less on the West by land measuring 77.1 ft more or less containing an appropriate area of 0.26 or 0.107 hectare more or less.

2. Recovery of possession.

3. Damages for trespass.

4. An Order of Perpetual Injunction restraining the Defendants, their servants, agents or whomsoever from entering the land occupying or carrying on building

activities on it in any way interfering with the Plaintiff's use and enjoyment of the land.

He claims to have acquired the land through an assignment in 2011 from a predecessor in title and to have subsequently regularised that interest with the allodial owners, the Odai Ntow family, in accordance with judicial decisions governing the alienation of family land. The Defendants, on their part, asserted rival claims to the same land per their counterclaims, each contending that the land had earlier been granted to him by the same family and that the Plaintiff’s documents were either ineffective,

 

fraudulent or related to a different parcel altogether.

[3]. Although the pleadings raised numerous issues touching on root of title, identity of the land, possession, alleged fraud and the legal effect of land title registration, the trial itself was marked by a striking procedural trajectory. After the Plaintiff closed his case, both Defendants—despite due service of Hearing Notices and court processes—elected not to open their defences. Their respective counterclaims were consequently dismissed by the Court in accordance with the Civil Procedure Rules. The result is that this judgment must be founded primarily on the Plaintiff’s case, tested only by such cross-examination as was undertaken before the Witnesses were discharged.

[4]. It is important to emphasize at the outset that the absence of defence evidence does not relieve the Plaintiff of the burden imposed by law. A Plaintiff who seeks a declaration of title must succeed on the strength of his own case and not on the weakness, default or absence of the defence. The Court must therefore scrutinise with care the pleadings, the oral testimony, the documentary exhibits tendered and the limited cross-examination conducted, to determine whether the Plaintiff has discharged the burden of proof placed upon him by the Evidence Act and settled authority.

[5]. In what follows, I shall first set out the material background and the procedural history of the case. I shall then identify the issues that arise for determination, evaluate the evidence led in support of the Plaintiff’s claim, and apply the relevant principles of land law and evidence to the facts as established. The ultimate question is whether, on a preponderance of the probabilities, the Plaintiff has proved his entitlement to the land and the ancillary reliefs he seeks.

 

THE PLEADED CASE OF THE PARTIES

The Plaintiff’s Amended Case

[6]. By his Amended Statement of Claim, the Plaintiff pleaded that he is the lawful owner of a parcel of land situate at New Ashongman, Accra, measuring approximately 0.26 acre.

He averred that his root of title is traceable to the Odai Ntow family, the admitted allodial owners of lands in Ashongman, Kwabenya, Agbogba and adjoining areas.

[7]. The Plaintiff pleaded that in June 2011 he purchased an initial portion of the land measuring about 0.207 acre from one Ms. Pat Bannerman, who herself had acquired an interest in the land through an assignment from a predecessor in title deriving title from the Odai Ntow family. The Plaintiff pleaded that a Deed of Assignment was duly executed in his favour and that he immediately took possession of the land by erecting a wooden structure and placing a caretaker thereon.

[8]. The Plaintiff further pleaded that there existed an adjoining small parcel of land contiguous to his original holding which had not been allocated at the time of his purchase. He averred that in 2013 he approached Asafo Anye Naa Korkor, a representative of the Odai Ntow family, and purchased that additional portion for valuable consideration, thereby increasing the total size of his landholding to approximately 0.26 acre. He pleaded that following this acquisition he extended the existing fence wall to enclose the entire enlarged parcel.

[9]. The Plaintiff averred that subsequent judicial decisions concerning Odai Ntow Family lands had established that any valid grant of family land

 

must be executed by the principal members of all four branches of the family. Acting in compliance with those decisions, the Plaintiff pleaded that he responded to an invitation by the Odai Ntow Family to regularise existing grants and accordingly obtained a new lease dated May 2018, duly executed by the accredited signatories representing all four branches of the family.

[10]. The Plaintiff pleaded that following this regularisation, he submitted his documents to the Lands Commission and was issued with a Land Title Certificate in September 2018.

He averred that he continued to exercise acts of possession over the land, including the construction of a cesspit, maintenance of a fence wall and the continuous occupation of the land by his caretaker.

[11]. The Plaintiff pleaded that in the course of commencing further development on the land, the 1st Defendant, acting with other persons, entered the land, disrupted his construction activities and destroyed portions of his building profile. He further pleaded that the 2nd Defendant also laid claim to the same land and, at a later time, caused further destruction on the land with machinery.

[12]. The Plaintiff pleaded that the Defendants had never been in lawful possession of the land and that their actions constituted trespass. He accordingly sought declaratory reliefs affirming his title, recovery of possession, damages for trespass and a Perpetual Injunction restraining the Defendants from further interference with the land.

The 1st Defendant’s Amended Defence and Counterclaim

[13]. In his Amended Statement of Defence and Counterclaim, the 1st Defendant denied the Plaintiff’s claim to ownership of the land in dispute. He pleaded that the particular land on the ground had never been validly alienated to the Plaintiff or to the Plaintiff’s alleged grantor.

 

[14]. The 1st Defendant pleaded that the land in dispute was first and earlier in time alienated to him by the Odai Ntow Family in the year 2001. He averred that an indenture in the form of a sublease was executed in his favour and that upon acquisition he went into possession by constructing a fence wall around the land and depositing building materials thereon. He pleaded that he had since remained in possession.

[15]. The 1st Defendant further pleaded that because the land had already been alienated to him in 2001, it could not lawfully have been available for alienation to the Plaintiff or the Plaintiff’s grantor in 2011 or thereafter. He pleaded that any purported assignment to the Plaintiff was therefore ineffective.

[16]. The 1st Defendant pleaded that he too complied with the Odai Ntow family’s regularisation exercise and that in 2015 a Lease was executed in his favour by all four heads of the family. He pleaded that the Plaintiff’s Land Title Certificate was procured fraudulently and particularised several acts of alleged fraud, including the procurement of registration during the pendency of the dispute and the alleged manipulation of site plans to match the land on the ground.

[17]. The 1st Defendant pleaded that when both parties presented their documents before the Chief of Ashongman, it was pointed out that the Plaintiff’s documents related to a different parcel of land altogether. He denied destroying any property belonging to the Plaintiff and counterclaimed for declaration of title, damages for trespass, injunctive relief and ancillary orders, including reliefs against the Lands Commission.

The 2nd Defendant’s Amended Defence and Counterclaim

[18]. The 2nd Defendant, in his Amended Statement of Defence and Counterclaim, likewise denied the Plaintiff’s claim and pleaded that he is the bona fide owner of the land in dispute. He averred that he purchased the land from the Odai Ntow Family and took vacant possession after the execution of the requisite documents.

 

[19]. The 2nd Defendant pleaded that his land is duly registered in his name and plotted at the Land Title Registry. He denied that the Plaintiff had ever been in lawful possession and pleaded that any structures on the land were unauthorised.

[20]. The 2nd Defendant counterclaimed for declaration of title to the land, damages for trespass and a perpetual injunction restraining the Plaintiff from interference.

The Plaintiff’s Reply and Defence to Counterclaims

[21]. In his Reply and Defence to Counterclaims, the Plaintiff joined issue with both Defendants and denied their assertions of title and possession. He maintained that the Odai Ntow Family had never validly alienated the land in dispute to either Defendant and that any documents relied upon by them were ineffective.

[22]. The Plaintiff denied the allegations of fraud and pleaded that his Land Title Certificate was lawfully obtained following proper regularisation and due process at the Lands Commission. He pleaded that the Defendants were estopped from challenging his title and reiterated that he alone had exercised consistent acts of possession over the land.

PROCEDURAL BACKGROUND

[23.0]. This suit was commenced in 2018. Although conceptually a straightforward contest of competing title claims, its procedural trajectory has been regrettably prolonged and uneven. The record discloses a pattern of repeated adjournments, intermittent legal representation, service complications and persistent non-attendance by the Defendants which cumulatively delayed substantive resolution.

 

[23.1]. The early procedural history already reflected difficulties. On 31st January 2020, the matter was adjourned to enable service of the Defendants’ bundle on the Plaintiff.

Thereafter, progress was sporadic. On 31st May 2023, the Plaintiff’s motion for leave to file a Supplementary Witness Statement could not be moved because the process had not yet been placed on the docket, necessitating adjournment to 13th June, 2023.

[23.2]. On 30th April 2024, the Court was informed that Hearing Notice had been served on only one of the Defendants, and further efforts were required to secure proper service.

The matter was adjourned to 14th May 2024, when trial eventually commenced. Even at that stage, the Court had to inquire into compliance by the Lands Commission and payments connected with the composite survey process.

[23.3]. On 16th July 2024, cross-examination of the Plaintiff commenced but was not completed. The Witness was sealed and the matter adjourned to 19th and 20th November, 2024. On 3rd December 2024, although Proof of Service had been filed indicating service on both Defendants’ lawyers, neither Counsel appeared. The Plaintiff was discharged from the Witness Box and costs were awarded against both Defendants.

[23.4]. On 12th December 2024, the Plaintiff called PW1 and PW2. Counsel for the 1st Defendant was present but declined to cross-examine PW1, stating that she had no instructions. Counsel for the 2nd Defendant was absent despite service. Cross-examination of PW2 was commenced but again sealed and adjourned to 17th December, 2024.

[23.5]. On 17th December 2024, motions were filed by Counsel for both Defendants seeking withdrawal of legal representation. These motions could not be immediately determined due to procedural defects in service,

 

and the matter was adjourned to 28th January, 2025. On that date, both Counsel were granted leave to withdraw, leaving the Defendants unrepresented mid-trial.

[23.6]. Following the withdrawal of representation, the Court directed personal service of Hearing Notices and court notes. On 18th February 2025, the Plaintiff applied for Substituted Service on the 1st Defendant after repeated failed attempts at personal service.

Leave was granted for Supplementary Affidavit evidence, and Substituted Service was eventually authorised.

[23.7]. On 12th March 2025, the matter was again adjourned because it emerged that two versions of PW2’s Witness Statement were on the record and the Court required clarification regarding leave for filing. The suit was adjourned to 26th March, 2025 for regularisation. On 26th March 2025, although served with Hearing Notice, the 1st Defendant failed to appear to continue cross-examination of PW2. The Court deemed cross-examination completed. A relative of the 2nd Defendant briefly participated in cross-examination. The Plaintiff then closed his case.

[23.8]. On 16th April 2025, despite due service of Hearing Notices, both Defendants were absent when called upon to open their defences. The Court dismissed the 1st Defendant’s counterclaim pursuant to Order 36 rules 1(2) and 3 of C.I. 47. On 18th June 2025, the 2nd Defendant likewise failed to appear to open his defence, and his counterclaim was dismissed under Order 36 rule 2(a). The Court had earlier ordered the preparation of a Composite Plan by the Lands Commission to resolve the identity dispute. However, by letter dated 18th June 2025, the Regional Survey Office informed the Court that the Defendants failed to report for the scheduled survey exercise, rendering the Composite Plan exercise abortive. Judgment was first scheduled for 31st July 2025, but was further adjourned to 5th November 2025 to ensure proper service of Hearing Notices on the absent Defendants. From commencement in 2018 to Judgment scheduling

 

in late 2025, the suit traversed nearly seven years. The delays were not attributable to evidential complexity alone but were significantly compounded by repeated adjournments, service challenges, representation withdrawals, incomplete cross-examination sessions and persistent non-attendance by the Defendants despite documented Proof of Service.

[24]. Following the close of pleadings, including amendments by both sides, the matter proceeded intermittently through the pre-trial and trial stages over several years. The progress of the case was affected early on by changes in legal representation, difficulty effecting service and the need to regularise pleadings and Witness Statements. On several occasions, hearing dates were taken primarily to address procedural housekeeping rather than substantive trial.

[25]. A significant source of delay arose from repeated non-appearance of the Defendants or their Counsel despite evidence of service. The record reflects multiple adjournments occasioned by the absence of one or both Defendants, sometimes accompanied by explanations and at other times unexplained. Costs were awarded on more than one occasion in an attempt to ensure compliance with Hearing Notices and to protect the Plaintiff from undue delay.

[26]. The commencement of trial itself was preceded by further adjournments necessitated by service difficulties and issues relating to Lands Commission processes.

Trial eventually commenced with the Plaintiff testifying and tendering documentary exhibits in support of his claim. Cross-examination by the 1st Defendant’s Counsel was undertaken in part but was repeatedly truncated, with Witnesses being “sealed” mid-stream and continuation adjourned to later dates.

 

[27]. The hearing of the Plaintiff’s Witnesses was further complicated by the filing of multiple versions of Witness Statements, necessitating clarification as to which Statements were properly before the Court and whether leave had been obtained for their filing. On at least one occasion, the Court was constrained to adjourn proceedings to allow the Plaintiff to “put his house in order” procedurally before evidence could be adopted.

[28]. A particularly disruptive development occurred in January 2025, when Counsel for both Defendants applied for, and were granted leave to withdraw their representation pursuant to Order 75 rule 6 of C.I. 47. This left both Defendants unrepresented mid-trial.

The Court adjourned the matter to afford the Defendants the opportunity to secure new representation, and ordered service of court notes and hearing notices directly on them.

[29]. What followed was a sustained difficulty in effecting personal service on the 1st Defendant, prompting applications for Substituted Service, including service by WhatsApp and SMS. The Court was satisfied on Affidavit Evidence that reasonable efforts had been made to bring proceedings to the attention of the Defendants and authorised alternative modes of service in the interests of justice and expedition.

[30]. Despite these accommodations, both Defendants repeatedly failed to appear to continue cross-examination of Witnesses or to open their respective defences. On 26th March 2025, after limited participation by a relative of the 2nd Defendant in cross-examination, the Plaintiff closed his case. The Defendants were duly notified to open their defences but elected not to do so. In consequence of this election, and after satisfying itself that due service had been effected, the Court dismissed the counterclaim of the 1st Defendant under Order 36 rules 1(2) and 3 of C.I. 47. Subsequently, the counterclaim of the 2nd Defendant was also dismissed under Order 36 rule 2(a), the Court noting that a party cannot be compelled to open a defence and that the Defendants had, by their conduct, waived their right

 

to be heard further.

[31]. Following the dismissal of both counterclaims, the Plaintiff was directed to file his Written Address. The matter was thereafter adjourned for Judgment. Even at this terminal stage, further adjournment proved necessary to ensure that Hearing Notices for Judgment were served on the absent Defendants through the modes previously approved by the Court. This procedural history discloses more than mere delay; it reveals a sustained pattern of non-participation by the Defendants in proceedings of which they had due notice. The record demonstrates that Hearing Notices were repeatedly served, both through Counsel while representation subsisted and personally thereafter, including through Substituted modes authorised by the Court. Affidavits of service were filed, dates verified and compliance confirmed before each substantive step was taken.

Yet the Defendants consistently failed to attend to prosecute their counterclaims or to defend against the Plaintiff’s case.

[32]. The Supreme Court has addressed such conduct in clear and firm terms. In JULIUS SYLVESTER BORTEY ALABI v PARESH DEE JAY B5 PLUS COMPANY LIMITED (Civil Appeal No. J4/39/2017, 21st

February 2018), DOTSE JSC observed:

“It is quite clear that the general position of the rules of procedure referred to supra is that a court has no jurisdiction to proceed against a party who has not been served, and this principle has been thoroughly dealt with in the locus classicus case of Barclays Bank of Ghana Ltd. v Ghana Cables Co. Ltd [1998-99] SCGLR 1. A writ has to be personally served on all defendants, unless otherwise provided by the Rules...From the record of proceedings in this case, the modus operandi of the Defendants and their Lawyers have been to treat with scorn and contempt processes served on them… It is also instructive to observe that hearing notices have all been served on the Defendants personally as required… Under these circumstances, we are of the view that cases like Lagudah v Ghana Commercial Bank [2005-2006] SCGLR 388 and Barclays Bank of Ghana Ltd. v Ghana Cable Co. Ltd, already referred to supra

 

does not apply. We are therefore of the view that, if a party voluntarily and deliberately fails and or refuses to attend upon a court of competent jurisdiction… to prosecute a claim against him, he cannot complain that he was not given a fair hearing or that there was a breach of natural justice. The Defendants must be respected for making such a choice, but they must not be allowed to get away with it.”

[33]. The present case is materially analogous. The Defendants were served when represented by Counsel. They were served personally after Counsel withdrew. They were served through Substituted means authorised by the Court. The dates of hearing were verified and confirmed. The Court afforded them opportunity after opportunity to attend, cross-examine, open their defences and prosecute their counterclaims. Their absence was not attributable to procedural ambush or defective service, but to deliberate non-attendance. In such circumstances, the Court is under no obligation to suspend adjudication indefinitely. A party who elects not to participate in proceedings properly brought to his notice cannot later invoke the language of natural justice as a shield.

Respect for party autonomy requires that such election be acknowledged; respect for the administration of justice requires that it not be rewarded.

ISSUES FOR DETERMINATION

[34]. At the directions stage of this suit, the Court adopted a broad set of issues arising from the pleadings of the parties. These original issues reflected the contested positions then taken by both sides, including their respective claims to title and possession. Indeed WOOD (MRS), C.J, stated in

ATTORNEY-GENERAL v SWEATER AND SOCKS FACTORY LIMITED [2014]74 G.M.J 1 at p26:

“Thus, and more especially, where parties are represented by counsel, it is their duty then, as officers of the court to assist the court to justly and effectually determine all matters in controversy between the parties

 

expeditiously. That duty, which understandably rests with the parties in litigation, includes the identification and comprehensive formulation of all the relevant issues for determination. Undoubtedly, the court may, in its purely complementary role, suo motu raise issues for its consideration, after giving parties sufficient notice and opportunity to address the issues so raised. But the primary duty of identifying the issues in any enforcement action rests with the parties, not the court.

Regrettably, the plaintiff, the initiator of this action, failed to file any memorandum of issues as required under the rules. I hesitate to attribute this neglect, to counsel’s difficulty in identifying the issues which lie at the heart of this uncomplicated action.”

The issues adopted were, in substance, as follows:

1. 1. Whether or not the Plaintiff acquired the land in dispute from the rightful owners, namely the Odai Ntow Family.

2. 2. Whether or not the Plaintiff’s first grantor exercised acts of possession over the land in dispute.

3. 3. Whether or not the Plaintiff himself exercised acts of possession over the land in dispute.

4. 4. Whether or not the 1st and 2nd Defendants acquired the land in dispute from the Odai Ntow Family.

5. 5. Whether or not the Plaintiff has title to the land in dispute.

6. 6. Whether or not the 2nd Defendant has had the land in dispute registered in his name and plotted at the Lands Commission.

7. 7. Whether or not the 1st and 2nd Defendants trespassed onto the land in dispute.

8. 8. Whether or not the Plaintiff is entitled to the reliefs claimed.

9. 9. Any other issues arising from the pleadings.

10. 10.

 

[35]. In addition to the foregoing, the Defendants proposed further issues centering on alleged prior alienation, competing identity of the land and entitlement to their respective counterclaims. Those issues were duly noted at the time and formed part of the trial landscape while the Defendants actively participated in the proceedings.

[36]. However, the procedural course of the trial has materially altered the scope of matters now requiring adjudication. Both Defendants, despite due service and repeated opportunity, elected not to open their defences. Their counterclaims were consequently dismissed in accordance with the Civil Procedure Rules. In the result, no defence evidence stands before the Court in support of the rival claims to title, possession or alleged fraud pleaded by the Defendants.

[37]. In these circumstances, it is neither necessary nor appropriate to traverse every issue originally framed in isolation. Several of those issues have collapsed into a narrower set of determinative questions, the resolution of which will conclusively dispose of the Plaintiff’s claim. The Court must therefore identify and address the real and live issues arising from the Plaintiff’s pleaded case and the evidence he has led, bearing in mind the settled principle that a Plaintiff seeking declaratory relief must succeed on the strength of his own case. In ODAMETEY v. CLOCUH AND ANOTHER [1989-90] 1 GLR 14-45 Taylor JSC stated the opinion of the Supreme Court thus:

I think the current principle is quite clear at least since 1 October 1979 when N.R.C.D. 323 came into force. If there was ever a doubt about the true principle, although I am firmly of the view that there has never been any doubt, then N.R.C.D. 323 has now definitely cleared all possible doubts. The position is this: If the plaintiff in a civil suit fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant's case to ask for relief. This is obvious from the dictum of Webber C.J. (supra). If, however, he makes a case which would entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends

 

to support the plaintiff's claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant's case to strengthen his case. This is amply supported by sections 11 and 12, particularly section 11 (4) of N.R.C.D. 323

See also: Webber C.J in Kodilinye v Odu [1935] 2 WACA, 336 at 337. MRS CHRISTIANA EDITH AGYAKWA ABOA AND OKYEAME YIMA & ANOR. v. MAJOR KEELSON (RTD) [16/03/2011] CIVIL APPEAL SUIT NO: JA/11/2010]

[38]. Having regard to the pleadings, the evidence adduced, and the procedural posture of the case, the following issues, in my view, emerge as the salient issues requiring determination:

1. 1. Whether the Plaintiff has established a valid root of title to the land in dispute, tracing his interest to the Odai Ntow Family and demonstrating that his grantor had the capacity to convey a valid interest to him.

2. 2. Whether the Plaintiff duly regularised his interest in the land in accordance with the judicial decisions governing the alienation of Odai Ntow Family land, and the legal effect, if any, of that regularisation on the validity of his title.

3. 3. Whether the Plaintiff has proved identity of the land he claims, such that the land described in his pleadings, documents, and exhibits corresponds with the land on the ground alleged to have been trespassed upon.

4. 4. Whether the Plaintiff has proved acts of possession sufficient to ground his claim for recovery of possession, damages for trespass, and injunctive relief, and whether any rebuttal to that possession arises on the evidence before the Court.

5. 5. Whether, on a preponderance of the probabilities, the Plaintiff is entitled to the reliefs sought, including declaration of title, recovery of possession, damages for trespass, and perpetual injunction.

[39]. These issues are interrelated and will, where appropriate, be considered together. Their resolution turns on the credibility, coherence and legal sufficiency of the Plaintiff’s evidence, tested against the

 

applicable principles of land law and the law of evidence. It is to these issues that I now turn.

ALLOCATION OF THE BURDEN OF PROOF

[40]. The proper allocation of the burden of proof is central to the just determination of this suit. It is therefore necessary, before embarking on an evaluation of the evidence, to state clearly where the law places the respective burdens borne by the parties and the legal consequences that flow from the procedural choices made during the trial.

[41]. The governing framework is statutory. Sections 10, 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) draw a clear distinction between the burden of persuasion and the burden of producing evidence. In civil proceedings, the burden of persuasion rests on the party who would fail if no evidence were led on the issue in dispute, and the standard required is proof on a preponderance of the probabilities.

[42]. The Supreme Court has repeatedly affirmed this position. In GIHOC (DISTILLERIES) CO. LTD v HANNA ASSI [2005–2006] SCGLR 458,

Sophia Akuffo JSC explained that the burden of persuasion in civil matters requires the party asserting a fact to establish, on the totality of the evidence, that the existence of that fact is more probable than its non-existence. This principle was restated in POKU v POKU [2007–2008] SCGLR 996, where Georgina Wood CJ emphasised that the burden lies on the party who asserts the affirmative of an issue, with the evidential burden shifting only where the justice of the case so demands.

[43]. In land litigation, the law imposes an even more exacting responsibility on a Plaintiff who seeks declaratory relief. It is settled law that a Plaintiff must succeed on the strength of his own case and not on the weakness, absence or default of the defence. This principle was firmly stated in YAA KWESI v ARHIN DAVIS & ANOTHER [2007–2008]

SCGLR 580, where the Supreme Court held that a Plaintiff claiming

 

declaration of title, damages for trespass and injunction assumes an onerous burden to prove title to the land by a preponderance of the probabilities.

[44]. Consequently, notwithstanding the dismissal of the Defendants’ counterclaims and their failure to open their defences, the Plaintiff in this case bears the primary burden of proving:

(a) his root of title;

(b) the capacity of his grantor to convey a valid interest;

(c) the identity of the land claimed; and

(d) such acts of possession as ground his claims for trespass, recovery of possession, and injunctive relief.

[45]. The dismissal of the Defendants’ counterclaims does not reverse or dilute this burden. As Brobbey JSC explained in IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & OTHERS v KOTEY & OTHERS

[2003–2004] SCGLR 420, a defendant is entitled to sit back and rely on the weakness of the Plaintiff’s case unless and until the plaintiff has led sufficient evidence to shift the evidential burden. Where a Defendant elects not to adduce evidence, the court must still interrogate whether the Plaintiff has crossed the evidential threshold required by law.

[46]. That said, the procedural choices of the Defendants are not legally neutral. A counterclaim is an independent action, and a defendant who asserts a counterclaim assumes the same burden of proof as a Plaintiff in a principal action. The Supreme Court made this clear in JOHN TAGOE v ACCRA BREWERY LTD (Civil Appeal No. J4/47/2014, 25 March 2015), holding that “he who alleges, whether Plaintiff or defendant, assumes the initial burden of producing evidence.” By failing to open their cases, the Defendants failed to discharge the burdens they assumed in respect of their counterclaims, leading to their dismissal.

[47]. The Court must therefore proceed on the following settled footing. First, the Plaintiff carries the full burden of persuasion in respect of his claims, and judgment cannot be entered in his favour unless he has

 

satisfied the Court, on a balance of probabilities, that his claim is well founded in law and fact. Second, the Defendants’ failure to adduce evidence means that no competing factual narrative stands before the Court to rebut the Plaintiff’s evidence, but this absence cannot cure any fundamental defect in the Plaintiff’s proof.

[48]. Finally, where the Plaintiff establishes acts of ownership or possession over the land, section 48 (2) of the Evidence Act raises a rebuttable presumption of ownership in his favour. As the Supreme Court observed in OSEI (SUBSTITUTED BY) GILLARD v KORANG

[2013–2014] 1 SCGLR 221, possession is prima facie evidence of ownership, good against the whole world except one who proves a better title. Whether that presumption arises on the evidence in this case, and whether it is sufficient to sustain the Plaintiff’s claim, are matters to be determined in the substantive analysis that follows.

[49]. It is against this legal allocation of burdens, and no other, that I now proceed to examine the evidence led by the Plaintiff in support of his claim.

APPLICABLE LEGAL PRINCIPLES ON PROOF OF TITLE TO LAND

[50]. Before I proceed to evaluate the evidence and make my findings of fact, I consider it appropriate to restate, in outline, the governing legal principles applicable to proof of title to land. A party who seeks a declaration of title assumes a special evidential burden.

Unlike claims for damages simpliciter, a declaration is a discretionary remedy which the court will not grant unless the claimant establishes his title affirmatively and conclusively on the evidence before the court.

[51]. The starting point is the long-standing principle that a Plaintiff in an action for declaration of title must succeed on the strength of his own case and not on the weakness or absence of the defence.

 

This rule has been consistently affirmed by the Supreme Court. In YAA KWESI v ARHIN DAVIS & ANOTHER [2007–2008] SCGLR 580, the

Court held that where a Plaintiff seeks declaration of title, damages for trespass and injunction, “the Plaintiff assumes the onerous burden of proving his title to the land by a preponderance of the probabilities or risks losing the case.”

[52]. The consequence of this principle is that even where a defendant leads no evidence, or as in the present case elects not to open a defence, the court is still bound to examine whether the Plaintiff has discharged the evidential and persuasive burden imposed by law. The absence of defence evidence cannot cure defects in the Plaintiff’s proof.

[53]. The Supreme Court has further articulated what a Plaintiff must prove in order to establish title to land. In MONDIAL VENEER (GH) LTD v AMUAH GYEBU XV [2011] SCGLR 466, Georgina Wood CJ stated that a party asserting title to land must prove, by credible evidence, the root of title, the mode of acquisition, and the acts of ownership or possession exercised over the land. These elements are not alternatives; they form a composite evidential framework within which title is assessed.

[54]. Proof of root of title is foundational. The claimant must establish that his grantor had a valid title capable of being conveyed. This reflects the ancient and enduring principle of nemo dat quod non habet—no one can give what he does not have. The Supreme Court reiterated this in BENYAK COMPANY LTD v PAYTELL LTD [2013–2014] 2 SCGLR 976,

where it was held that “there was always the requirement of law that the party claiming title must prove his root of title and that his grantor had a valid title to pass.”

[55]. Accordingly, where a Plaintiff traces his title through a chain of assignments or leases, each link in the chain must be legally sound. If the chain breaks at any point, the claim collapses, regardless of the apparent

 

strength of later documents, including registration.

[56]. It is also settled that registration of land or an instrument affecting land does not, by itself, confer or guarantee title. Registration affords security of title but does not cure defects in root of title. In ANTHONY WIAFE v DORA BORKAI BORTEY (Civil Appeal No. J4/43/2015,

Supreme Court, (1st June 2016), the Court emphasised that registration is not the source of title; the first inquiry is always whether the grantor had title to convey, and whether the conveyance was validly executed.

[57]. In addition to proving root of title, a Plaintiff must prove identity of the land claimed. The land described in the pleadings, documents and testimony must correspond precisely with the land on the ground. Failure to establish identity is fatal. In ANANE & OTHERS v DONKOR & ANOTHER [1965] GLR 188, the court held that a claim for declaration of title or injunction must fail if the plaintiff does not establish with certainty the identity of the land in dispute.

[58]. The requirement of certainty in land identity is particularly critical where rival claims emanate from a common grantor or where allegations are made that documents relate to different parcels of land. In such cases, the court must be satisfied that the land claimed is the same land to which the Plaintiff’s documents relate.

[59]. Acts of possession and ownership also play a significant evidential role. Section 48(2) of the Evidence Act, 1975 (NRCD 323) provides that a person who exercises acts of ownership over property is presumed to be the owner of it. This presumption, however, is rebuttable and does not displace the need to prove root of title where title is contested.

[60]. The Supreme Court explained the evidential significance of possession in OSEI (SUBSTITUTED BY) GILLARD v KORANG

[2013–2014] 1 SCGLR 221, observing that possession is prima facie

 

evidence of ownership, good against the whole world except a person who proves a better title. Possession therefore strengthens a claim but cannot substitute for proof of title where a superior title is established by another party.

[61]. Finally, where a Plaintiff claims damages for trespass and seeks injunctive relief, proof of title or lawful possession is indispensable. Trespass is an injury to possession, and injunction is a consequential remedy dependent on the establishment of a proprietary or possessory right.

[62]. These principles collectively define the legal framework within which the Plaintiff’s evidence must be assessed. The court must therefore examine whether, on the totality of the evidence led, the Plaintiff has proved his root of title, the validity of his grant, the identity of the land claimed, and such acts of possession as entitle him to the reliefs sought.

[63]. It is against this settled body of law that I now turn to a careful evaluation of the evidence adduced by the Plaintiff in support of his claim.

SUMMARY OF THE EVIDENCE LED BY THE PLAINTIFF

[64]. The Plaintiff testified on his own behalf and called two additional Witnesses. His case was presented through oral testimony, Witness Statements adopted as evidence-in-chief, and documentary exhibits tendered without objection. The evidence was directed principally at establishing his root of title, regularisation of his interest with the allodial owners, acts of possession, and the alleged acts of interference by the Defendants.

Evidence of the Plaintiff (LAWRENCE BOULOS)

[65]. The Plaintiff testified that he acquired an initial parcel of land at Ashongman, Accra, in June 2011 from one Ms. Pat Bannerman. He stated that the transaction was evidenced by a Deed of Assignment executed in his favour and that his grantor traced her title to the Odai Ntow Family.

 

He tendered the Deed of Assignment and related documents as exhibits.

[66]. According to the Plaintiff, upon acquiring the land, he took immediate possession by engaging labourers to clear the land and by placing a caretaker thereon. He testified that there existed an adjoining small portion of land contiguous to his original holding which had not been allocated at the time of his purchase. He stated that in 2013 he approached Asafo Anye Naa Korkor of the Odai Ntow Family and purchased that additional portion for consideration, thereby increasing the total size of his land to approximately 0.26 acre. He further testified that following this purchase he caused the fence wall to be extended to enclose the entire enlarged parcel.

[67]. The Plaintiff stated that subsequent judicial decisions affecting Odai Ntow Family lands required all grantees to regularise their interests with the family. He testified that he complied with this directive and, in May 2018, obtained a new Lease executed by the accredited signatories representing the four branches of the Odai Ntow Family. He tendered the Lease and related correspondence confirming the Family’s recognition of his grant.

[68]. The Plaintiff further testified that following the regularisation, he submitted his documents to the Lands Commission and was issued with a Land Title Certificate in September 2018. He tendered the Land Title Certificate and a Search Report from the Lands Commission.

[69]. On acts of possession, the Plaintiff testified that he constructed a cesspit on the land, maintained a fence wall and erected a wooden structure occupied by his caretaker. He tendered photographs depicting the fence wall, cesspit, foundation trenches and wooden structure as exhibits. He stated that these developments predated any alleged entry by the Defendants.

[70]. The Plaintiff testified that in the course of commencing further development, the 1st Defendant, accompanied by other persons, entered

 

the land and disrupted his construction activities, including the destruction of foundation profiles. He stated that the 2nd Defendant later also entered the land with machinery and caused further destruction. The Plaintiff testified that he reported these incidents to the Police, including the Property Fraud Unit, and tendered a Police Investigative Report in support of his account.

[71]. Under cross-examination by Counsel for the 1st Defendant, the Plaintiff answered questions relating to the timing of his regularisation with the Odai Ntow Family and the execution dates appearing on the documents tendered. Cross-examination was limited in scope and was later sealed. No further cross-examination took place when the matter was adjourned, and the Plaintiff was subsequently discharged when the Defendants and their Counsel failed to attend court despite service.

Evidence of PW1 (NII AMARTEY ARMAH)

[72]. PW1 testified that he is a documentation officer at the Nii Odai Ntow Customary Land Secretariat and a member of the Odai Ntow Family. He adopted his Witness Statement as his evidence-in-chief.

[73]. PW1 testified that the Odai Ntow Family has been judicially declared the allodial owner of lands situate at Ashongman, Kwabenya, Agbogba, Dome, Haatso and surrounding areas. He referred to and tendered Judgments of the courts which, according to him, established that any valid grant of Odai Ntow Family land must be executed by the principal members of all four branches of the family.

[74]. PW1 testified that following these Judgments, the Odai Ntow family invited all grantees to regularise their land documents. He stated that the Plaintiff approached the family pursuant to this invitation and obtained a new Lease dated 20th May 2018, executed by the accredited signatories representing the four branches of the family.

 

[75]. PW1 further testified that the family wrote to the Lands Commission confirming the Plaintiff’s grant as genuine. He stated that, to the best of his knowledge, the Plaintiff is the owner of the land in dispute.

[76]. PW1 was offered for cross-examination. Counsel for the 1st Defendant, though present in court, declined to cross-examine, stating that she lacked instructions. Counsel for the 2nd Defendant was absent. PW1 was accordingly discharged without cross-examination.

Evidence of PW2 (DANIEL AKEY)

[77]. PW2 testified that he is a mason and driver and that he has served as caretaker on the Plaintiff’s land at Ashongman since about 2012. He adopted his Witness Statement as his evidence-in-chief.

[78]. PW2 testified that he resided on the land and assisted the Plaintiff with various activities thereon, including moulding blocks using water from the cesspit constructed on the land and extending the fence wall together with other masons engaged by the Plaintiff. He stated that the fence extension followed the Plaintiff’s purchase of the adjoining small parcel of land.

[79]. PW2 testified that in or about November 2018, while he was on the land, a man who identified himself as George approached him and questioned his presence on the land.

According to PW2, he informed the man that the Plaintiff had placed him on the land as caretaker. He stated that the man claimed the land had been purchased on his behalf by a relative and left a telephone number to be given to the Plaintiff.

[80]. PW2 was partially cross-examined by Counsel for the 1st Defendant, who asked limited questions and then applied to seal the Witness. Cross-

 

examination was later continued briefly by a relative of the 2nd Defendant after the Plaintiff had closed his case. PW2 was thereafter discharged.

[81]. This constitutes the entirety of the evidence led by the Plaintiff in support of his claim. No defence evidence was adduced, and both Defendants failed to open their cases despite due service and opportunity.

THE COURT’S ORDER FOR A COMPOSITE PLAN AND THE LANDS COMMISSION SURVEY LETTER OF 18TH JUNE

[82]. During the pendency of the trial, and having regard to the centrality of land identity to the dispute, the Court exercised its case management powers to direct that a Composite Plan be prepared by the Lands Commission. The object of that Order was neither ornamental nor collateral. It was a deliberate judicial intervention aimed at resolving, with technical clarity, whether the land claimed by the Plaintiff and the lands asserted by the Defendants were in fact the same parcel on the ground, overlapped in whole or in part, or were distinct.

[83]. The need for a Composite Plan arose directly from the pleadings and the evidence. Both sides traced their alleged interests to a common allodial owner, the Odai Ntow Family, and each asserted that his documents related to the land in dispute. In such circumstances, oral testimony and documentary descriptions, however detailed, are often insufficient to resolve questions of identity with the precision required by law. A Composite Plan prepared by the statutory survey authority is a recognised and objective means of placing competing claims on a single cartographic frame for judicial evaluation.

 

[84]. The Court’s order therefore placed a corresponding obligation on all parties, particularly the Defendants who disputed the Plaintiff’s claim of identity, to cooperate with the survey process. The survey exercise was not an indulgence to the Plaintiff; it was an evidential opportunity equally available to the Defendants to demonstrate, if they could, that the Plaintiff’s documents related to a different parcel or that the lands overlapped in a manner inconsistent with his claim.

[85]. The record, however, reveals that the survey exercise did not proceed as ordered. By a letter dated 18th June from the Regional Survey Office of the Lands Commission, the Court was formally informed that although arrangements had been made to undertake the composite survey, the Defendants failed to report or present themselves for the exercise. The letter indicated that the Plaintiff was available and willing to proceed, but the absence of the Defendants made it impossible for the survey team to complete the task as directed.

[86]. This development is procedurally and evidentially significant. Where a court orders a technical process intended to clarify a disputed fact, and one party frustrates or declines to participate without lawful excuse, the court is entitled to take that conduct into account in its overall assessment of the case. The failure of the Defendants to attend the survey exercise deprived the Court of neutral technical evidence that could have conclusively resolved the question of identity one way or the other.

[87]. Importantly, the Court does not treat the absence of a Composite Plan as proof of the Plaintiff’s case. That would be an impermissible reversal of the burden of proof. The Plaintiff still bears the obligation to establish identity of the land by the evidence he has led. However, where the Defendants themselves placed identity in issue and then failed to cooperate with the very mechanism designed to test that issue, the Court cannot ignore the forensic consequences of that choice.

 

[88]. The Defendants’ failure to participate in the Composite Survey mirrors their broader procedural posture in this suit: repeated non-attendance, failure to open their defences, and eventual dismissal of their counterclaims. In each instance, the Court afforded opportunity, issued hearing notices, and made accommodations consistent with procedural fairness. The Defendants’ non-participation in the survey exercise must therefore be seen as part of a pattern of election not to engage with the fact-finding processes of the Court.

[89]. In the circumstances, the Court is constrained to determine the issue of identity on the basis of the Plaintiff’s documentary evidence, oral testimony and the limited cross-examination conducted, without the benefit of the Composite Plan it had prudently ordered. The absence of that plan is not attributable to any default on the part of the Court or the Plaintiff, but to the Defendants’ failure to cooperate with the survey process.

[90]. This context will inform, but not displace, the Court’s evaluation of the Plaintiff’s evidence on identity. The Court remains mindful that identity of land must be proved with certainty. At the same time, it would be contrary to both justice and common sense to permit a party to obstruct a neutral evidential process ordered by the Court and then rely on the resulting absence of evidence as a shield against adjudication.

EVALUATION OF EVIDENCE ON ROOT OF TITLE

Issue 1: Whether the Plaintiff has established a valid root of title

[91]. The first and foundational issue is whether the Plaintiff has proved a valid root of title to the land in dispute. This inquiry precedes all others. If the Plaintiff fails at this stage, his claim for declaration of title, and all consequential reliefs, must necessarily fail.

[92]. The Plaintiff’s case on root of title is documentary and derivative. He does not claim original ownership. Rather, he traces his interest through a

 

chain of grants ultimately emanating from the Odai Ntow Family, whom both sides accept as the allodial owners of the area in question.

[93]. The Plaintiff tendered in evidence a Deed of Assignment dated June 2011, by which one Ms. Pat Bannerman assigned her interest in the land to him. That document constitutes the immediate source of the Plaintiff’s claim. On its face, it purports to convey a defined parcel of land situate at Ashongman to the Plaintiff for value.

[94]. The Plaintiff’s evidence did not stop at the production of that assignment. Conscious of the legal requirement that he must prove not merely the existence of the assignment but also the capacity of his grantor to convey title, the Plaintiff led evidence on the antecedent title of Ms. Pat Bannerman. He testified that her interest itself derived from the Odai Ntow Family through earlier transactions and that her assignment to him was therefore not a naked conveyance but one resting on an existing proprietary interest.

[95]. That evidence was materially corroborated by PW1, a documentation officer of the Nii Odai Ntow Customary Land Secretariat, who testified that the Odai Ntow Family is the allodial owner of lands in Ashongman and surrounding areas and that the Plaintiff’s chain of title was recognised by the family. PW1’s evidence was documentary in character, supported by judgments tendered and directed specifically at the question of family ownership and authority to grant.

[96]. It is significant that PW1 was not cross-examined at all. Counsel for the 1st Defendant, though present in court, expressly declined to cross-examine on the stated ground of lack of instructions, and Counsel for the 2 nd Defendant was absent. The evidence of PW1 on the ownership of the Odai Ntow Family and the recognition of the Plaintiff’s grant therefore stands unchallenged.

 

[97]. On the Plaintiff’s own testimony, he acknowledged under cross-examination that the regularisation of his interest with the Odai Ntow Family occurred in 2018. When asked:

“Do you agree with me that you approached the Odai Ntow family in 2018 to regularise your interest?”

he answered:

“Yes, my Lord.”

This answer is consistent with, rather than destructive of, his pleaded case. His case was never that the 2011 assignment alone constituted a perfected family grant in the face of subsequent judicial pronouncements; rather, his case was that the 2011 assignment vested him with an interest which he later regularised in compliance with binding judgments affecting Odai Ntow Family land.

[98]. The Plaintiff further tendered the 2018 Lease executed by the accredited signatories of the four branches of the Odai Ntow Family, together with correspondence from the family to the Lands Commission confirming his grant. This evidence is legally significant.

It addresses directly the defect that might otherwise have arisen from the judicial requirement that grants of Odai Ntow Family land be executed by all principal branches.

[99]. On the evidence before the Court, therefore, the Plaintiff has not merely asserted a root of title; he has demonstrated a progressive consolidation of title: initial assignment, followed by family-wide regularisation and culminating in registration.

Issue 2: Effect of regularisation on the Plaintiff’s root of title

[100]. The next issue is whether the Plaintiff’s regularisation in 2018 cured any defect in his earlier assignment and thereby perfected his root

 

of title.

[101]. The evidence establishes that the Plaintiff’s regularisation was not unilateral or informal. It was undertaken pursuant to existing Judgments governing Odai Ntow Family lands, and it resulted in the execution of a Lease by the accredited signatories recognised by the courts as competent to alienate Family land. This fact was established through PW1 and supported by documentary exhibits.

[102]. In law, where an interest in land is regularised by the true owners with capacity to grant, the resulting instrument does not merely evidence possession; it operates as a fresh and valid conveyance, provided no intervening superior interest is proved. On the evidence, no such superior interest has been proved in this case.

[103]. The Plaintiff’s evidence further shows that following regularisation, the Lands Commission processed his documents and issued him with a Land Title Certificate. While registration does not itself create title, it is a strong indicium that the grantor’s authority and the grantee’s documents passed administrative scrutiny. At this juncture, it is apposite to recall what the Supreme Court taught regarding the effect of land title certificate. In the case of MRS JENNIFER KANKAM & ANOR V. JOSEPH AMENYA [2020] 154 G.M.J 184 SC, the Supreme Court

speaking through Gbadegbe, JSC stated:

“It is trite law as the learned justices of the CA held that as the owner of a land title certificate to the land, the defendant had an indefeasible title to the disputed land and in the absence of proof of any vitiating circumstances such as fraud and or mistake, the registered proprietor, the defendant herein was entitled to be adjudged as the owner of the area comprised in the land title certificate…”

[104]. Crucially, the Defendants led no evidence to demonstrate that the Odai Ntow Family lacked capacity in 2018, that the signatories were unauthorised, or that the Plaintiff’s regularisation related to a different

 

parcel of land. These matters were pleaded but not proved by the Defendants.

Issue 3: Whether the Plaintiff’s root of title was displaced or impeached

[105]. The Defendants pleaded earlier alienation, fraud and mismatch of land identity.

However, pleadings are not evidence. Once the Defendants elected not to open their cases, those allegations remained unsubstantiated assertions. It is trite law that the Court determines the merits of a case on legally proven evidence and not on mere averments in pleadings. In FORDJOUR v KAAKYIRE [2015] 85 GMJ 61 at 93, Ayebi J.A. stated emphatically that:

“It has to be noted that the court determines the merits of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without adducing evidence in support of that assertion is not evidence to require denial in cross examination by an opponent.”

This principle applies with full force here. The Defendants’ assertions of prior alienation and fraud, having not been supported by evidence, do not acquire probative value merely because they were pleaded.

[106]. The Supreme Court reiterated the same foundational rule in

ADJETEY ADJEI & ORS v NMAI BOI & ORS [2013–2014] 2 SCGLR

1474, where Sophia Adinyira JSC held in Holding 1 that:

“… It is trite law that pleadings would not constitute evidence. To hold otherwise would negate the requirements of proof as provided in the Evidence Act, 1975 (NRCD 323).”

To treat the Defendants’ unproved pleadings as creating evidential doubt would indeed negate the statutory regime of proof under NRCD 323.

 

[107] It must also be observed that cross-examination is the proper forensic vehicle through which a party places his competing version before the court. In ABDUL RAHMAN GIWA & 2 OTHERS v BABA LADI

(2012) 43 GMJ 1 at 8, Aduama Osei JA explained:

“An important thing to note about cross-examination is that it affords the party cross-examining the opportunity to put his case across.”

The Defendants were afforded that opportunity. They partially cross-examined the Plaintiff and his witness, but did not put to them, in any structured manner, the full case pleaded regarding prior alienation, mismatch of identity or fraudulent manipulation of site plans. More significantly, after withdrawing representation and electing not to open their cases, they placed no evidence before the Court to substantiate their pleaded narrative.

[108]. In these circumstances, the Court cannot elevate unproven pleadings into competing evidence. The Plaintiff’s documentary chain and corroborated testimony stand on the evidential field uncontradicted by proof. Allegations, however serious in tone, do not displace title unless proved. In particular, the allegation that the land had been previously alienated to the 1st Defendant in 2001, if true, would have been fatal to the Plaintiff’s claim under the nemo dat principle. But no documentary or oral evidence was adduced to establish that alleged earlier grant, its precise location, or its continued subsistence.

[109]. The Court also notes that the Defendants failed to cooperate with the court-ordered composite survey, which was intended precisely to test the competing roots of title on the ground. Their failure to report for the survey work, as confirmed by the Regional Survey Office of the Lands Commission, deprived the Court of neutral technical evidence that could have impeached the Plaintiff’s root of title if it were unsound. In the absence of such evidence, and having regard to the Plaintiff’s documentary evidence, the Court is unable to find any legal basis upon which the Plaintiff’s root of title can be said to have been displaced.

 

[110]. On a preponderance of the probabilities, and applying the settled principles of land law, I am satisfied that the Plaintiff has established a valid root of title to the land in dispute. He has shown that his interest emanates from the allodial owners, that any procedural defect in earlier conveyances was cured by lawful regularisation, and that no superior title has been proved to defeat his claim. I now turn to the evaluation of the evidence on identity and possession, which are necessary to determine the remaining reliefs sought.

[111]. The conclusion reached on the Plaintiff’s root of title is further reinforced by well-settled principles governing the treatment of unchallenged evidence, party default in proof, and the evidential consequences of non-cooperation with court-directed fact-finding processes.

[112]. First, where material evidence led by a party goes unchallenged under cross-examination, the court is entitled, and indeed obliged, to treat that evidence as admitted unless it is inherently incredible. This principle has been consistently applied in Ghanaian jurisprudence. The law on not cross-examining a witness after he has given his evidence-in-chief is well settled. In the case of TAKORADI FLOUR MILLS V. SAMIR FARIS [2005-06] SCGLR 882, Ansah JSC referred to the case of TUTU V. GOGO, [Civil Appeal No. 25/67, dated 28th April, 1969, unreported digested in 1969 CC, 76], where Ollenu, JA stated thus:

“In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.”

[113]. In the present case, the evidence of PW1, a documentation officer of the Odai Ntow Customary Land Secretariat, went directly to the ownership of the land, the authority of the family, and the regularisation of

 

the Plaintiff’s grant. That evidence was not tested in cross-examination at all. The Court is therefore entitled to treat it as admitted, particularly as it was neither implausible nor inconsistent with the documentary exhibits tendered.

[114]. Second, the Defendants’ failure to open their cases has distinct legal consequences.

While it is correct, as already stated, that the Plaintiff must still succeed on the strength of his own case, it is equally settled that pleaded allegations unsupported by evidence are worthless. It is communis opinio in the common law world that a party who alleges must prove, and allegations in pleadings without evidence are of no probative value. The Defendants’ allegations of prior alienation, fraud, and mismatch of land identity therefore remain bare assertions without evidential weight.

[115]. Third, the Defendants’ non-participation in the court-ordered composite survey attracts adverse forensic inference. While Ghanaian courts are cautious not to punish a party merely for non-attendance, it is settled that where a party frustrates a neutral evidential process ordered to clarify a disputed fact, the court is entitled to draw reasonable inferences from that conduct. In RE: ASHALLEY BOTWE LANDS; ADJETEY AGBOSU v KOTEY [2003–2004] SCGLR 420, Brobbey JSC

recognised that litigation is not a game of ambush and that courts may take account of conduct that undermines truth-finding.

[116]. The Composite Plan was ordered precisely to test the competing roots of title on the ground. The Defendants’ failure to report to the Regional Survey Office, as confirmed by the Lands Commission’s letter of 18th June, deprived the Court of technical evidence that might have impeached the Plaintiff’s claim. That failure cannot now be deployed indirectly to cast doubt on the Plaintiff’s root of title.

 

[117]. Fourth, the Plaintiff’s regularisation with the allodial owners is legally significant in a manner that goes beyond mere possession. Where the true owners of land, acting through accredited representatives recognised by the courts, execute a fresh lease in favour of a grantee, that act constitutes a renewed and authoritative affirmation of title.

In RE: ADJANCOTE ACQUISITION; KLU v. AGYEMANG II [1982-83]

GLR 852-863, the Court of Appeal as Supreme Court then recognised that subsequent validation by persons with authority can cure earlier defects in conveyancing, provided no intervening superior title is established. In particular in holdings (vi) and (vii) of IN RE: ADJANCOTE ACQUISITION; KLU v. AGYEMANG II [1982-83] GLR 852-863the

Supreme Court held as follows:

“(vi) where the admission of one party established that the other party had been in long undisturbed possession and occupation of the disputed land, the party making the admission assumed the onus to prove that such possession was inconsistent with ownership. The law was that such a person in possession and occupation was entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title; and

(vii) in a claim for title to land where none was able to show title because of want of evidence, or that the evidence was confusing and conflicting, the safest guide to determining the rights of the parties was by reference to possession. Dictum of Van Lare J.S.C. in Summey v. Yohuno [1962] 1

G.L.R. 160 at 167. S.C. cited.”

[118]. In this case, no evidence was led to show that the Odai Ntow Family lacked capacity in 2018, that the signatories were impostors, or that the family had already divested itself of the land beyond recall. The nemo dat principle therefore operates in favour of the Plaintiff, not against him.

[119]. Finally, the Plaintiff’s conduct is consistent with ownership rather than opportunism. He regularised his documents when invited, submitted to Lands Commission scrutiny, cooperated with the survey process, and

 

subjected his witnesses to cross-examination where offered. This pattern of conduct aligns with the evidential indicators of bona fide title recognised in MONDIAL VENEER (GH) LTD v AMUAH GYEBU XV [2011] SCGLR 466.

[120]. Taken together, these considerations place the Plaintiff’s root of title on firm legal and evidential footing. They also explain why, even applying the strictest standards applicable to declaratory relief, the Plaintiff’s case does not rest on default or sympathy but on affirmative proof tested against law, procedure and reason.

EVALUATION OF EVIDENCE ON IDENTITY OF THE LAND

[121]. Having found that the Plaintiff has established a valid root of title, the next critical inquiry is whether he has proved, with the degree of certainty required by law, the identity of the land to which that title relates. This issue is distinct from root of title and admits of no presumption. Even a Plaintiff with a valid root of title will fail if he cannot demonstrate that the land described in his documents is the same land on the ground alleged to be in dispute.

[122]. The law on this point is settled. In ANANE & OTHERS v DONKOR & ANOTHER [1965] GLR 188, the Court held that a claim for declaration of title or injunction must fail if the plaintiff does not establish positively the identity of the land which is the subject matter of the suit. The burden lies squarely on the plaintiff to show that the land described in his pleadings, plans, and documents corresponds with the land on the ground.

[123]. The Plaintiff’s case on identity was advanced through a combination of documentary description, oral testimony, and acts of possession physically manifested on the land. He tendered his deed of assignment, the subsequent lease obtained on regularisation, and the Land Title Certificate, all of which described the land by boundaries,

 

measurements and location at Ashongman, Accra. These documents were consistent internally as to size (approximately 0.26 acre) and location.

[124]. Beyond paper description, the Plaintiff led evidence of physical features on the land. He testified to the existence of a fence wall enclosing the land, a cesspit constructed thereon, foundation trenches for a proposed building and a wooden structure occupied by his caretaker. He tendered photographic exhibits depicting these features. These were not abstract or theoretical descriptions but tangible indicia of a defined parcel on the ground.

[125]. This aspect of the Plaintiff’s evidence was materially corroborated by PW2, the caretaker, who testified that he had lived on the land since about 2012, assisted in extending the fence wall after the Plaintiff acquired the adjoining portion, and was present when persons claiming through the Defendants came to the land. PW2’s evidence was directed not at title but at the physical reality of the land occupied and maintained by the Plaintiff.

[126]. Significantly, the Plaintiff’s evidence on identity was not seriously challenged in cross-examination. The limited cross-examination undertaken focused primarily on dates of regularisation and execution of documents, rather than on whether the land described in the Plaintiff’s documents differed from the land on which the physical structures stood.

No alternative description, coordinates, or competing site plan was put to the Plaintiff or PW2 during cross-examination.

The record of proceedings demonstrates that the cross-examination of the Plaintiff was confined to matters of chronology and execution dates, and did not extend to a substantive challenge to the identity of the land on the ground. The following exchanges are illustrative. On 14th May 2024, Counsel asked:

 

Q: “According to you, you approached the Odai Ntow Family to regularize your interest in the land. Which year was this?”

A: “I don’t have my documents at hand so I can’t give you the details. Having looked at the Witness Statement, there is no year.”

Q: “The Odai Ntow Family gave you a document dated 20th May 2018 and this found in Exhibit D. Do you agree with me that you approached the Family in 2018 to regularize your interest?”

A: “Yes, my Lord.”

Q: “On the last page where you have the Oath of Proof, please tell this court when that document was sworn to before the Registrar of Lands?” A: “30th day of October 2017.”

Q: “I suggest to you that the Odai Ntow Family did not execute any document for you in 2018.”

A: “It is not correct.”

On 16th July 2024, the cross-examination continued along similar lines:

Q: “Per your Exhibit A the lease was signed by Madam Pat Bannerman and dated 31st (sic 30th) June 2011?”

A: “Yes.”

Q: “Kindly open to the oath of truth. Kindly read to the court when the witness of Pat Bannerman swore to the execution of the document?” (Plaintiff reads in open court)

Q: “I suggest to you that this document was executed on 30th October 17?”

A: “Yes.”

Q: “And it is not true that Pat Bannerman executed the document for you in 2011?”

A: “Yes, my Lord.”

These questions, faithfully reproduced from the record, were directed at the timing of regularisation and the execution of documents. No question was put to the Plaintiff concerning the physical boundaries of the land, the measurements on the site plan, the correlation between documentary description and the structures on the ground, or any alleged discrepancy

 

between the land described in his documents and the land he occupied. The same position applies to PW2, whose cross-examination did not traverse issues of boundary, coordinates or site identity. It is therefore accurate to state that the Plaintiff’s evidence on identity was not meaningfully challenged in cross-examination.

[127]. The Defendants’ pleaded case had suggested that the Plaintiff’s documents related to a different parcel of land and that there was a mismatch between paper title and land on the ground. That plea, if established, would have been fatal to the Plaintiff’s case.

However, the Defendants led no evidence whatsoever to demonstrate where their alleged land was located, how it differed from the Plaintiff’s land, or how the Plaintiff’s documents corresponded to a different site.

[128]. In recognition of the centrality of this issue, the Court prudently ordered the preparation of a Composite Plan by the Lands Commission, so as to place the Plaintiff’s land and the Defendants’ alleged lands on a single technical framework. This was an objective and neutral mechanism designed to resolve identity with scientific precision.

[129]. That exercise, however, was frustrated by the Defendants’ failure to present themselves to the Regional Survey Office, as formally communicated to the Court by the Lands Commission in its letter of 18th June. The Plaintiff was available to proceed, but the survey could not be undertaken in the absence of the Defendants.

[130]. The Court reiterates that the absence of a Composite Plan does not, by itself, prove identity in the Plaintiff’s favour. However, where a Plaintiff has led prima facie evidence of identity through documents and physical occupation, and the Defendant—who disputes identity—fails to cooperate with a court-ordered mechanism to test that dispute, the Court is entitled to resolve the issue on the evidence available, rather than permit the

 

dispute to remain perpetually indeterminate.

[131]. The Defendants’ failure to participate in the composite survey assumes particular significance in this case because identity was peculiarly within their pleaded contention. It was their case that the Plaintiff’s land was different from theirs. Having raised that issue, they bore at least an evidential responsibility to demonstrate the alleged difference. Their non-participation deprived the Court of any competing spatial narrative.

[132]. The Court also takes into account the consistency between the Plaintiff’s documentary description and the physical features observed and photographed on the land, as well as the Police investigative report tendered, which recorded the presence of a fence wall, cesspit, foundation trenches and a wooden structure on the land claimed by the Plaintiff. These observations anchor the Plaintiff’s claim to a definite location on the ground.

[133]. In the totality of the evidence, the Court is satisfied that the Plaintiff has identified the land he claims with sufficient certainty. The land described in his documents correspond with the land on which he exercised acts of possession and which formed the subject of the alleged trespass. There is no credible evidence before the Court establishing the existence of a different parcel to which the Plaintiff’s documents allegedly relate.

[134]. I accordingly find that the Plaintiff has discharged the burden placed upon him to prove the identity of the land in dispute. He has shown, on a balance of probabilities, that the land described in his title documents is the same land on the ground over which he exercised possession and which the Defendants allegedly interfered with.

 

[135]. I now turn to the final evidential inquiry, namely the evaluation of evidence on possession, trespass and the entitlement to injunctive relief.

[136]. Having determined that the Plaintiff has established both a valid root of title and the identity of the land claimed, the next inquiry concerns possession and the alleged acts of trespass, and whether these entitle the Plaintiff to recovery of possession, damages for trespass and a perpetual injunction.

[137]. Trespass to land is an injury to possession. Accordingly, the claimant must establish either lawful possession or a better title coupled with possession. Where possession is proved, the law presumes a right to possession against all the world except one who proves a superior title.

[138]. The Plaintiff’s evidence on possession was consistent, detailed and corroborated.

He testified that immediately after acquiring the land in 2011 he took possession by clearing the land, placing a caretaker thereon and later constructing a cesspit, extending the fence wall and erecting a wooden structure. These were not sporadic or equivocal acts; they were continuous and visible manifestations of dominion over the land.

[139]. This account was corroborated by PW2, the caretaker, who testified that he had lived on the land since about 2012, assisted in extending the fence wall after the Plaintiff acquired the adjoining portion, and used the cesspit and structures on the land in the course of daily occupation. His testimony placed the Plaintiff in actual, physical possession over an extended period.

[140]. The Plaintiff further tendered photographic exhibits showing the fence wall, cesspit, foundation trenches, and wooden structure. These exhibits were consistent with the oral testimony and depicted permanent

 

and semi-permanent developments ordinarily associated with possession.

[141]. Importantly, the Plaintiff’s evidence of possession was also corroborated by the Police Investigative Report tendered. The Report recorded that upon visiting the site, the Police observed “a fence wall, manhole, foundation trench and a wooden structure on the land,” all attributed to the Plaintiff. This constitutes independent confirmation of the Plaintiff’s physical presence and control over the land at the material time.

[142]. The Plaintiff’s possession was not effectively challenged in cross-examination. The limited cross-examination undertaken did not put to the Plaintiff or PW2 any competing acts of possession by the Defendants. No Witness testified that the Defendants were in occupation, maintained structures or exercised control over the land prior to the alleged incidents.

[143]. On the contrary, the Defendants’ own pleaded case suggested prior possession but, having failed to open their defences, they led no evidence to substantiate those assertions. Pleadings without proof do not displace established possession.

[144]. On the totality of the evidence, I am satisfied that the Plaintiff proved actual possession of the land at all material times preceding the alleged acts of interference.

[145]. Trespass is committed when a person enters upon land in the possession of another without lawful justification. The Plaintiff testified that the 1st Defendant, accompanied by others, entered the land and disrupted construction activities, including the destruction of foundation profiles. He further testified that the 2nd Defendant later entered the land with machinery and caused further destruction.

[146]. These allegations were not left at the level of assertion. The Plaintiff testified to reporting the incidents to the Police, and the Investigative Report tendered corroborated the fact of disturbance on the

 

land. The Police report also recorded physical features consistent with recent interference.

[147]. PW2 testified that while he was on the land, a man who identified himself as George approached him, questioned his presence and asserted a competing claim to the land. This encounter was consistent with the Plaintiff’s account of interference by persons claiming through the Defendants.

[148]. The Defendants, having failed to open their cases, provided no lawful justification for entry onto the land and no evidence of a superior right of possession. In these circumstances, entry onto land in the possession of the Plaintiff constituted trespass.

[149]. The Court therefore finds that the Plaintiff proved, on a balance of probabilities, that the Defendants committed acts of trespass upon the land in dispute.

[150]. Having established possession and trespass, the Plaintiff is entitled in principle to recovery of possession where his possession has been disturbed, and to damages for trespass as compensation for the unlawful interference with his possessory rights.

[151]. As regards damages, the Plaintiff did not lead evidence of specific pecuniary loss.

In such circumstances, the law permits the award of general damages, the purpose of which is to vindicate the Plaintiff’s possessory right and mark the Court’s disapproval of unlawful entry.

[152]. The final issue concerns the propriety of request for Perpetual Injunction. An Injunction is a discretionary remedy. It will issue where the Plaintiff has established a legal or equitable right, there is evidence of

 

actual or threatened infringement and damages alone would be an inadequate remedy.

[153]. In the present case, the Plaintiff has established title and possession. He has further demonstrated actual interference by the Defendants and a real risk of recurrence, particularly given the Defendants’ persistent assertion of competing claims and their previous entry onto the land.

[154]. In these circumstances, damages alone would not afford adequate protection. A Perpetual Injunction is necessary to prevent further trespass and to secure the Plaintiff’s quiet enjoyment of the land.

[155]. I accordingly find that the Plaintiff has proved possession of the land in dispute, established acts of trespass by the Defendants, and demonstrated entitlement to recovery of possession, general damages for trespass and a Perpetual Injunction restraining further interference.

[156]. With these findings, all the substantive issues for determination have been resolved. I now proceed to the final conclusions and Orders of the Court.

CONCLUSION AND FINAL ORDERS OF THE COURT

[157]. This suit has traversed a long and procedurally chequered path. Notwithstanding the delays, interlocutory detours and the eventual election by the Defendants not to open their defences, the Court has approached the determination of the Plaintiff’s claim with the discipline demanded by law. At every stage, the Plaintiff was required to succeed, not by default but on the strength of his own evidence tested against settled legal principles.

 

[158]. Upon a careful and holistic evaluation of the pleadings, the testimony of the Plaintiff and his Witnesses, the documentary exhibits tendered and the applicable principles of land law and evidence, I have reached the following conclusions:

[159]. First, the Plaintiff has established a valid root of title to the land in dispute. He traced his interest to the Odai Ntow Family, the admitted allodial owners of the land, and demonstrated that any earlier conveyancing defect was lawfully cured through regularisation in 2018 by the accredited signatories representing all four branches of the family.

[160]. Second, the Plaintiff has proved the identity of the land claimed. The land described in his title documents corresponds with the land on the ground over which he exercised acts of possession. The Court-ordered Composite Plan, intended to provide technical confirmation, was frustrated by the Defendants’ failure to participate in the survey exercise. In the absence of any competing technical or factual evidence, the Plaintiff’s proof of identity stands.

[161]. Third, the Plaintiff has proved actual possession of the land. His possession was established through continuous physical occupation, construction of permanent and semi-permanent structures, placement of a caretaker on the land and corroborated by photographic evidence and a Police Investigative Report.

[162]. Fourth, the Plaintiff has proved acts of trespass by the Defendants. The Defendants entered the land without lawful justification, interfered with the Plaintiff’s possession, and caused destruction to ongoing development works. No evidence of superior title or lawful right of entry was adduced by the Defendants.

[163]. Fifth, the Plaintiff has demonstrated that damages alone would be inadequate to protect his proprietary and possessory rights, given the Defendants’ persistent assertions of competing claims and prior acts of interference. The grant of Injunctive relief is therefore justified

 

.

[164]. Having found that the Plaintiff has proved his case on a preponderance of the probabilities and is entitled to the reliefs sought, the Court hereby grants Judgment in favour of the Plaintiff in the following terms, as endorsed on the Writ of Summons and maintained in the Amended Pleadings:

1. 1. It is hereby declared that the Plaintiff, LAWRENCE BOULOS, is the lawful owner of all that piece or parcel of land measuring approximately

0.26 acre, situate and lying at Ashongman, Accra, in the Greater Accra Region of the Republic of Ghana, as described in the schedule to the Writ of Summons and the Amended Statement of Claim.

2. 2. The Plaintiff is entitled to recovery of possession of the said land, and the Defendants, their agents, servants, assigns, workmen or any persons claiming through them are hereby ordered to yield up vacant possession of the land to the Plaintiff forthwith.

3. 3. The Defendants are adjudged to have committed acts of trespass upon the Plaintiff’s land. One Hundred Thousand Ghana Cedis ( GH₵100,000.00) being General damages for trespass are accordingly awarded in favour of the Plaintiff against the 1st Defendant and One Hundred Thousand Ghana Cedis (GH₵100,000.00) being General damages for trespass are accordingly awarded in favour of the Plaintiff against the 2nd Defendant.

4. 4. An Order of Perpetual Injunction is hereby granted restraining the Defendants, their servants, agents, assigns, workmen, or any person claiming through them from entering upon the said land, occupying it, carrying out building or other activities thereon, or in any manner interfering with the Plaintiff’s quiet use and enjoyment of the land.

5. 5. Costs of Sixty Thousand Ghana Cedis (GH₵60,000.00), inclusive of reasonable legal fees, are awarded in favour of the Plaintiff against the Defendants, jointly and severally.

 

[165]. This Judgment finally determines the rights of the parties in respect of the land in dispute as pleaded and endorsed on the Writ. The Court expects full compliance with its orders so as to bring this long-standing dispute to a definitive and peaceful conclusion.