Ebusuabatan Mustapha Amoakwa v Boaley @ Yene Wosere Kwa & 20 Others

This is an appeal by the Plaintiff/Appellant (hereafter “Plaintiff”) against the judgment of the High Court, Cape Coast, dated 31st January, 2023, by which the learned trial judge dismissed the Plaintiff’s action and entered judgment for the Defendants/Respondents (hereafter “the Defendants”). The grounds of appeal were framed as follows:

1. The judgment is against the weight of evidence adduced at the trial.

2. That the trial judge erred by holding that the land in dispute formed part of the land acquired by the Government from Plaintiff’s family.

3. Additional grounds to be filed upon receipt of the certified true copy of the Record of Appeal.

No further grounds of appeal were filed.

1. PROCEDURAL HISTORY

By a writ of summons issued on 3 rd March, 2022, the Plaintiff, describing himself as the Ebusuabatan of the Egyir Ansah Royal Ebiradze family of Abura, Cape Coast, sued the Defendants for the following reliefs:

1. A declaration that all that piece or parcel of land located at Abura in the Cape Coast Metropolis, bounded by the Abura Roman Catholic School, the Cape Coast– Jukwa road, a gutter and the Abura Roman Catholic School road, on which the Defendants have placed metal containers and other temporary structures, form part of the Plaintiff’s family land.

2. An order directed at the Defendants to remove their metal containers and other temporary structures from the land particularly described in Relief 1.

3. A perpetual injunction restraining the Defendants, their agents, assigns, workmen, privies and all persons claiming through them from siting their metal containers, temporary structures on the Plaintiff’s family land or otherwise interfering with the Plaintiff’s family’s use of the described in Relief 1.

4. Damages for trespass to property. 5. Costs and any further relief as the court may deem fit.

(a) Plaintiff’s case

The Plaintiff’s case was that he is Ebusuabatan of the Egyir Ansah Royal Ebiradze family of Abura, Cape Coast, and commenced the action with the consent of the principal members of the family. He contended that the family owns a large tract of land at Abura, including the land in dispute. The erstwhile head of family, one Kobina Issakah (a.k.a. Ishaque Shaibu), incurred the displeasure of the family by allegedly conniving with third parties to indiscriminately alienate family lands, and was therefore removed as head of family. He further contended that some years ago, the family released part of its land for the construction of the Abura Roman Catholic School. A strip of land adjoining the school, bounded generally by the school and the Cape Coast–Jukwa road, has, in recent times, been taken over by the Defendants, who have placed metal containers and other temporary structures thereon and use them for trading and other commercial activities. He stated that these activities create human and vehicular congestion and noise, which disturb teaching and learning at the school and contribute to traffic jams on that stretch of the road. The school authorities complained to the Plaintiff’s family and requested that the family, as owners of the land, take steps to abate the nuisance. The Plaintiff wrote letters to the Defendants demanding removal of their structures, but they refused to comply. Lawyers for the Plaintiff also wrote, to no avail. On these facts, he claimed the reliefs above stated. At trial the Plaintiff testified in person. During cross-examination, in response to a question that it is only the Cape Coast Metropolitan Assembly that can eject Defendants from the land, the Plaintiff made a notable statement to the effect that they had not been compensated for the land acquired by the CCMA. He called as witness a principal member of the Egyir Ansah Royal Ebiradze family who was described as the leader and eldest member of the Agyeiwa section of the Esi Bosomefi Gate of his family. The witness’s testimony generally matched that of the Plaintiff. He tendered a site plan to indicate the extent of the land belonging to the family.

(b) Defendants’ case

The Defendants, in their defence, did not admit or deny internal matters relating to the Plaintiff’s position in the family. Their substantive defence was that they occupy their 5 structures on the authority of the Cape Coast Metropolitan Assembly, having been permitted to operate there temporarily. They contended that the land in question is a road reservation, deliberately delineated in the layout of the area for the construction and future expansion of the Abura–Jukwa road. They submitted that they pay tolls and fees to the Assembly and understand that they can be required to vacate when the Assembly is ready to construct or expand the road. They further contended that the area is effectively part of Abura Market, and any noise or traffic congestion is a function of general market activities, not their particular structures. They denied that their activities had interfered with the school’s activities; on the contrary, they claimed a cordial relationship with the school, and asserted that the 1st and 2nd Respondents were initially allowed there by the school authorities before later regularizing with the Assembly when they became aware that the land formed part of a road reservation. They contended that if indeed there was any nuisance, the school or the Assembly would have been the proper plaintiff. They further challenged the Appellant’s capacity, stating that he lacked authority to institute the action. The 1st Defendant testified for all Defendants. In addition, the Defendants called Kobina Essakah (a.k.a. Ishaque Shaibu) (DW1) who described himself as ebusuapanyin and overall head of the Royal Ebiradze family of Abura. His evidence was that he was duly installed as overall head of family in 2004 and had since controlled and alienated Abura lands. He denied having been validly removed as head of family and stated that he had instituted a suit in the High Court, Cape Coast, seeking declarations to that effect and an order restraining the present Plaintiff and others from interfering with the management and control of the family lands. He contended that in that suit, the High Court had granted interim orders restraining both sides from taking unilateral control of the family properties/land pending final determination. In his view, the land in dispute is not available for private family use; it is Government land, lying within a road reservation and carrying the Ghana Water Company’s main pipeline from Brimsu to Cape Coast 6 and interference with it would have serious public consequences. He therefore asserted that the Plaintiff had no capacity and no substantive right to lay claim to that strip. The Defendants also caused the Head of Physical Planning Department of the Cape Coast Metropolitan Assembly Mr. Nicolas Pinkrah to be subpoenaed as a Court witness. The officer testified that on the approved layout, the area in question is a buffer zone/road reservation for the Abura-Jukwa road, and that road reservations are managed by the Metropolitan Assembly. He further testified that as the Physical Planning Department they work in tandem with the Department of Urban Roads in relation to road reservations. He testified further that under Section 19 of the Lands Act, 2020 (Act 1036) and under Section 91 of the Local Governance Act, 2016 (Act 936), the Assembly is the only authority empowered to grant development and related permits within the metropolis. Within road reservations they only consider applications for temporary structures, and such permits are renewable every six months. He produced a Layout Site Plan being an extract of “Abura Village Extension Revised Planning Scheme” with Approved Plan number TCP/CEN/CC/74/1817 and a letter from the Assembly indicating that the disputed frontage was road reservation on which only temporary structures were allowed.

3. Issues and findings of the trial court

The following issues were framed at trial:

1. Whether or not the land in dispute forms part of the Plaintiff’s family land.

2. Whether or not the land in dispute is a road reservation.

3. Whether or not the defendants have been permitted by the Cape Coast Metropolitan Assembly to be on the land in dispute.

On Issue 1, the trial judge held, on the traditional evidence led by both sides, particularly the evidence of the Plaintiff, his family witness PW1, and DW1, that the Egyir Ansah Royal Ebiradze family are the allodial interest owners of the Abura lands, including the area in dispute.

On Issue 2, the trial judge relied on: (i) the testimony of the 1st Defendant and the letter from the Cape Coast Metropolitan Assembly, signed by the Metro Coordinating Director, to the effect that the area in dispute was a buffer zone and a road reservation created for future expansion of the road, with an attached plan marking the area; and (ii) the evidence of the Head of Physical Planning, Mr. Nicholas Pinkrah, who maintained that the area had been designated as a buffer zone/road reservation in the approved layout and was under the control of the Assembly, and that their department together with other departments such as the Urban Road Department manage the road reservation within the metropolis. The officer also testified that by the provisions of Section 19 of Act 1036 and Section 91 of Act 936, the Assembly is the only authority to permit development within the metropolis. The trial judge observed that this evidence was not challenged on cross-examination, though counsel for the Plaintiff sought in closing address to argue that those laws could not be the source of the Assembly’s mandate to supervise and control the land in dispute. The learned judge further noted that the Plaintiff admitted that portions of the family land at Abura had previously been acquired by Government for the school, roads and other public purposes. The strip in issue, lying between an existing road and the school and carrying the main water pipeline, was, in the judge’s view, too narrow and could only be used for communal purposes. He found that the Assembly, under the Local Governance Act, 2016 (Act 936) and the Land Use and Spatial Planning Act, 2016 (Act 925), had authority to plan development within the metropolis and had treated and managed the strip as part of a road reservation; and that once the Assembly had designated it as a buffer/road reservation, it meant that the road would in the near future be expanded to cover the area currently occupied by the defendants, hence the allowance of only temporary structures. The trial court was therefore satisfied that the strip formed part of the land acquired by Government for the road, with the consequence that the Plaintiff’s family had lost the right to exercise proprietary control over that reservation, just as they had over the road itself and other acquired parcels.

On Issue 3, the trial court found that the defendants had shown, through their testimony, receipts and the Assembly’s letter, that they were on the land with the permission of the Assembly, paying license fees in respect of their temporary structures. The Plaintiff led no contrary evidence. In the Court’s view, the willingness of the Assembly to testify in Defendants’ favour presumes that, the Assembly is satisfied with Defendants’ presence on the land. The judge therefore accepted that the Defendants were lawfully on the land at the Assembly’s pleasure. On the question of capacity, the judge noted that a separate suit was pending before the High Court concerning the validity of the removal of DW1 as head of family and the Plaintiff’s assumption of control, and that interim orders had been made restraining both sides from unilateral dealings with family lands. In order not to prejudice that suit, he expressly refrained from making a definitive pronouncement on capacity. He nonetheless observed that the gravamen of the Appellant’s complaint was alleged nuisance to the Roman Catholic School. In his view, the proper parties to bring such an action would have been the school authorities or the District Assembly, who have statutory responsibility to enforce nuisance regulations, and the Plaintiff’s failure to call any representative of the school was a serious evidential gap. On the totality of the evidence the action was dismissed.

4. (a) Submission of Counsel for the Plaintiff

In his written submissions before this Court, Counsel for the Plaintiff contended, in substance, that the learned trial Judge made findings which, on the face of the record, decisively established the Appellant’s family title to the land in dispute, yet erroneously proceeded to enter judgment for the Defendants. Counsel drew particular attention to the trial Judge’s express pronouncement: “The Defendants did not challenge the Egyir Ansah Royal family’s interest in the land. Rather their witness also testified to the family’s interest in the land. I am convinced by the evidence of the plaintiff, PW1 as well as DW1 that the Egyir Ansah Royal Ebiradze family are the allodial interest owners of Abura lands, including the area in dispute.” 9 Counsel submitted that by that finding and the supporting evidence on record, the Plaintiff discharged the burden imposed by the Evidence Act in proving his family’s allodial interest. Counsel argued that the Defendants’ defence was not a denial of title but an assertion that the parcel constitutes a road reservation/buffer zone under the control of the Cape Coast Metropolitan Assembly, from whom the Defendants claimed to derive their right of occupation. Accordingly, once allodial interest was established, Counsel maintained that the burden shifted to the Defendants to prove, by credible and cogent evidence, the creation of a superior or competing interest in favour of the Assembly, their allodial licensor. In relying on Article 20 (1) of the 1992 Constitution; Chapter 7 of the Lands Act 2020 (Act 1036) particularly Sections 233 – 267 and Section 249, Counsel submitted that the Defendants and the subpoenaed officer failed to produce documentary proof of state acquisition, particularly an Executive Instrument as required by law, and also stressed the absence of compensation evidence. Counsel argued that a mere administrative designation as “road reservation” could not extinguish the Plaintiff’s allodial interest without lawful acquisition proof. He further submitted that, the Plaintiff’s admission that some portions of family land had been acquired did not relieve the Defendants of proving that the precise land in dispute fell within the alleged acquisitions. Counsel also attacked the Defendants’ assertion of permits, contending that no temporary permit, permit application, or documentary trail was tendered to prove authorisation; and that given the claim of long occupation (about twenty-five years), the receipts tendered were suspicious. He noted that out of nine receipts only four bore Defendants’ names; all were dated 19th and 20th October, 2022 though the writ was issued on 3rd March, 2022. He argued the receipts “smack of fraud” and ought not to have been accorded any probative value. Counsel criticized reliance on the Assembly’s letter, contending it did not state that the Defendants had been granted permission; and argued that the subpoenaed witness did not corroborate licence and tendered no authorisation document. Counsel also challenged the 10 trial court’s inference that the Assembly’s testimony supported Defendants, arguing the Assembly appeared under subpoena and no favourable inference should have been drawn. Counsel urged this Court to set aside the judgment and allow the appeal.

(b) Submission of Counsel for the Defendants

Learned Counsel for the Defendants contended that the appeal, founded principally on the omnibus ground, was misconceived and bereft of merit. Counsel submitted that the Plaintiff failed to identify any material misdirection or wrongful evaluation by the learned trial Judge. He argued that the Plaintiff failed to prove essential elements, including the alleged nuisance. Counsel emphasized that the Plaintiff did not controvert DW1’s evidence that the principal water pipeline supplying Cape Coast is situated upon the land in dispute, consistent with public control. Counsel placed reliance on admissions by the Plaintiff, including the statement that land had been acquired without compensation, and argued that this corroborated the Defendants’ narrative. He argued that the Plaintiff’s admission indicated awareness of Government acquisition, and that the present action was a tactical attempt to take back land acquired for public purposes. Counsel urged dismissal of the appeal and affirmation of the judgment.

5. GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION

The omnibus ground that the judgment is against the weight of evidence throws the whole case open for a fresh examination of the record by this court. As the Supreme Court has repeatedly emphasized, particularly in Tuakwa v Bosom [2001–2002] SCGLR 61 and Owusu-Domena v Amoah [2015–2016] 1 SCGLR 790, an appeal on this ground is by way of rehearing. The appellate court is required to analyze the entire record, including 11 pleadings, oral and documentary evidence, and test whether the conclusions of the trial court are reasonably supported, bearing in mind the burden of proof. An appellate court is entitled to make up its mind on the facts and to draw inferences to the same extent as the trial court could do. See Praka v Ketewa [1964] GLR 423 SC, Fofie v Zanyo [1991] 2 GLR 472 SC; Sarkodie v FKA Co. Ltd [2009] SCGLR 65; Fosua v Adu-Poku [2009]SCGLR; Ago Sai & ors v Kpobi Tetteh Tsuru III [2010] SCGLR 762; Akuffo- Addo v. Cathline 1992]1GLR 377, SC; Djin v Musah Baako [2007-2008]SCGLR 636. However, as cases such as Achoro v Akanfela [1996–97] SCGLR 209 and the long line of authorities following it caution, an appellate court should be slow to interfere with primary findings of fact based on the trial judge’s assessment of credibility unless it is demonstrated that he misdirected himself on the evidence, overlooked material pieces of evidence, or his conclusions are plainly wrong. Reference also Gregory v Tandoh [2010] SCGLR 971 at 985. Every Appellate Court has a duty to make its own independent examination of the record of proceedings. It is the duty of an appellate court to analyze the evidence before it and decide whether or not it supported the conclusions by the trial judge. If the conclusions were so supported, then the appellate court might be considered to have erred in setting the judgment of the trial court aside. The converse applies; in other words, if the conclusions were not supported by the evidence on record, then an appellate court was right in setting the judgment aside and an appeal to a second Appellate Court would be allowed. We shall consider the merits of the appeal as argued, bearing in mind that the principal live complaint of the Appellant, concerns Ground (2) and the trial court’s acceptance of the road reservation/acquisition narrative, together with the consequential finding that the Defendants were lawfully permitted to remain there.

6. ANALYSIS OF GROUND (2):

The Plaintiff strenuously relies on the following finding of the trial judge, which he quoted in his written submissions: “The defendants did not challenge the Egyir Ansah Royal family’s interest in the land. Rather their witness also testified to the family’s interest in the land. I am convinced by the evidence of the plaintiff, PW1 as well as DW1 that the Egyir Ansah Royal Ebiradze family are the allodial interest owners of Abura lands, including the area in dispute.” He argues that once the trial judge accepted that the family held the allodial interest in the land in dispute, the burden shifted to the Defendants to prove that Government had lawfully acquired that specific strip as part of the road, by tendering an Executive Instrument and proof of payment of compensation pursuant to section 249 of Act 1036. In the absence of such proof, counsel submits, the learned judge erred in concluding that the land formed part of any acquisition. With respect, that submission conflates two related but distinct questions into one:

1. Whether historically the Egyir Ansah Royal Ebiradze family were the allodial owners of Abura lands (including the area in dispute); and 2. Whether the family presently retains enforceable proprietary rights over the specific strip such as to enable it, as against persons placed there under municipal authority, to obtain the declarations, ejectment, injunction and trespass reliefs claimed.

The trial judge’s finding on Issue 1 is properly understood as recognition of the family’s original allodial title to Abura. That title is expressly stated in Section 2 of Act 1036 Lands Act 2020 to be the highest interest in land. But the Constitution and the statute also recognise that allodial title is subject to compulsory acquisition, and may have been acquired through compulsory acquisition, conquest, pioneer discovery and settlement, gift, purchase or agreement.

Section 2- Allodial title is (a) the highest or ultimate interest in land. and (b) held by the State or, a stool or skin, or clan or family or an individual; and may have been acquired through compulsory acquisition, conquest, pioneer discovery and settlement, gift, purchase or agreement. And where land is validly acquired and vested in the State by Executive Instrument, the pre-existing interests are no longer enforceable as full proprietary rights over the acquired parcel; the former holders become entitled to compensation. The Plaintiff’s central thesis is that the Defendants could not succeed on the road reservation/acquisition narrative without production of an Executive Instrument (or equivalent instrument of compulsory acquisition), and that the trial judge therefore erred by treating the frontage as acquired Government land. There is no controversy as to the legal route for compulsory acquisition. Under the State Lands Act, 1962 (Act 125), where land is required in the public interest, the President may declare it so by Executive Instrument; and upon publication, the land vests in the President on behalf of the Republic, free from encumbrances. But the Appellant’s proposition, stated as an absolute, requires refinement. First, even where an Executive Instrument is the best evidence of compulsory acquisition, civil proof is not confined to a single documentary form in every factual setting. Where parties admit material facts, the court is entitled to act on those admissions. In DakpemZobogu Naa Henry A. Kaleem v Lands Commission & Anor CIVIL APPEAL NO. J4/17/2020 13TH MAY, 2020, the Supreme Court faulted an appellate approach that ignored the historical/statutory basis of acquisition and observed that compulsory acquisition was admitted by the parties at the trial and found as a fact, and that it was an error of law to conclude otherwise. In the instant case, the Plaintiff himself, under cross-examination, made the notable admission that the family had not been compensated for land acquired by the CCMA. That admission was part of the record, and the trial judge was entitled to treat it as relevant background in evaluating whether the frontage had already been absorbed into public land arrangements. Second, the evidence accepted by the learned trial judge was not merely a bare label. The Defendants produced, and the learned trial judge accepted as credible and determinative: (i) the Assembly’s letter (signed by the Metro Coordinating Director (ROA Page 80) stating that the disputed strip is a buffer zone and a road reservation with an attached plan 14 marking the reservation; and (ii) the testimony of the Head of Physical Planning, Mr. Nicholas Pinkrah, who confirmed that per the approved layout the area is a buffer zone/road reservation within the Assembly’s development control mandate, and that only temporary structures, subject to renewable permits, are allowed on such reservations.

The learned trial judge further relied on the Plaintiff’s admission that portions of the family’s Abura lands had been acquired in the past for the Roman Catholic School, roads and other public purposes, and on the physical realities on the ground, namely, that the strip lies between an existing road and the school and carries the main Ghana Water Company pipeline. The trial court observed that the physical planning evidence and the Assembly’s documentary evidence were not challenged in cross-examination that Counsel for the Plaintiff only sought to undermine them in the closing address. In our view, unchallenged expert evidence from a witness, supported by an official plan and written report, is entitled to considerable weight. Beyond the foregoing, two further considerations must be taken into account. First: the nature of the proceedings.

This action is not framed as a direct challenge to a compulsory acquisition, nor is it brought against the Attorney-General and the Lands Commission seeking declarations of invalidity, reversion, or compensation enforcement. It is an action in declaration of title, trespass, and injunction between a customary family and private traders occupying a strip which the local authority and planning authorities have consistently treated as a road reservation. It is my thinking that in such a context, it is right to treat credible planning evidence of a road or road reservation as determinative of the character of the land between private parties, without insisting on production of the Executive Instrument within the private dispute itself. The decisions in Adjei v Johnson Complex Ghana Ltd AdjeI v. Johnson Complex Ghana LTD. [1984-86] 1 GLR 644-646 and Celestine Kuagbenu v Cecilia Spencer Civil Appeal J4/58/2013 Date 3/June/2015 are herein relied on. In Adjei v Johnson Complex Ghana Ltd, the court treated a plan showing that the disputed space was part of 15 a road reservation as materially supporting the contention that the defendant’s occupation was on reserved road space. In Celestine Kuagbenu v Cecilia Spencer, the Supreme Court affirmed an appellate approach that focused on what the admitted evidence on the record objectively showed about the space between parties and treated the Appellate task as a rehearing directed at whether the judgment was supported by the evidence. It follows that in the posture of this case the operative question is whether the Plaintiff proved a better present right to the disputed strip than the Defendants.

Credible planning evidence that the land is a road reservation - subject to public planning control and incompatible with private exclusive possession - is capable, of defeating a private claim for title and trespass, even if the Executive Instrument is not produced within the private dispute itself. To insist that every private trespass action involving land near a road corridor must, as a condition precedent, produce the historic acquisition instrument would unrealistically convert ordinary private litigation into a collateral compulsory acquisition trial. Second: the section 37 presumption. Under section 37 of the Evidence Act, 1975 (NRCD 323), the Court must presume, in the absence of contrary proof, that official duty has been regularly performed. The section provides:

Section 37—Official Duty Regularly Performed.

(1) It is presumed that official duty has been regularly performed.

If the Assembly and the Physical Planning Department testify that the area is a road reservation within an approved scheme, and that the Department of Urban Roads is involved in its management, the court is entitled to presume that the underlying acquisition and planning processes were regularly undertaken, unless the party challenging this shows cogent evidence to the contrary. The Plaintiff put forward no such rebutting evidence. In light of these considerations, we find no error in the trial judge’s approach. On the record before us, there was: technical expert evidence supported by an official plan that the strip is a road reservation; evidence that the strip carries essential public infrastructure which is the main water pipeline; evidence that the Assembly manages the area and allows only 16 temporary structures there; and a concession by the Plaintiff that some of the family’s land had been taken for public purposes around the school and road. We are therefore unable to say that the learned trial judge erred in concluding that the road reservation forms part of land acquired and set aside for road purposes and that, vis-à-vis that reservation, the family’s former allodial interest has been reduced to a claim to compensation rather than a right to sue private occupiers positioned there by the Assembly. The Plaintiff is not entitled to treat the road reservation as ordinary family land and to eject those placed there under the colour of the Assembly’s authority. As to whether the Defendants were permitted by the Cape Coast metropolitan assembly to be on the land in dispute, the trial judge found that the Defendants proved by oral evidence, receipts for licence fees, and an Assembly letter, that they were permitted by the Cape Coast Metropolitan Assembly (CCMA) to maintain temporary structures on the disputed strip, and that the Plaintiff led no evidence to the contrary.

Before us, the determinative question is whether given the character of the land as found as a road reservation, the Defendants’ reliance on CCMA permission constitutes a lawful justification sufficient to defeat the plaintiff’s claims in trespass, and injunction. By Section 17(1) of the Evidence Act, 1975 (NRCD 323), the burden of producing evidence of a fact lies on the party against whom a finding would be required in the absence of further proof. Once the Defendants asserted that they were on the land by CCMA’s permission and produced receipts and a letter consistent with that assertion, the evidential burden shifted to the Plaintiff to discredit that permission by showing for instance that the documents were not genuine, procured irregularly, related to a different site, were revoked, or that CCMA had no management authority over the strip. He did none of these. The Plaintiff attacks the receipts as suspicious, even alleging fraud. But allegations of fraud must be distinctly raised and strictly proved 17 at a standard which is beyond reasonable doubt. Reference the case of FENUKU AND ANOTHER vs. JOHN-TEYE AND ANOTHER [2001-2002] SCGLR .

“With regard to proof of forgery or for that matter any allegation of a criminal act in a civil trial, one cannot go outside the statutory provisions. In this country, the position is governed by section 13(1) of the Evidence Decree, 1975 (NRCD 323). Generally in a civil trial, the burden of persuasion is on the preponderance of probabilities. Where, however, a criminal act is the issue in a civil trial, the burden of persuasion requires proof beyond reasonable doubt.”

The Plaintiff did not plead fraud with particularity, and the record does not disclose that the factual foundation was properly laid through focused cross-examination and contrary evidence. We are as an Appellate Court unable to elevate rhetoric in an address into a finding of fraud. The above apart, even if the receipts are approached with caution, the Defendants’ case did not stand or fall on receipts alone. The Assembly’s evidence went to the management status of the area. On the whole record, there was evidence beyond the receipts supporting the conclusion that the Defendants were persons operating within a regulated municipal space. The reliance on other admissible evidence in a trial finds support in the following words of Acquah JSC (as he then was)in the case of West African Enterprise LTD. V Western Hardwood Enterprise LTD. [1995-96]1 GLR 155 at 166 “Now, when in a trial, any exhibit is found to be ineffective and invalid, as in the instant case, inadmissible, the court ought to consider further whether apart from that inadmissible exhibit, there is no other evidence and materials on record to sustain the party’s claim. If there are other admissible evidence and materials on the record to sustain the party’s claim then the court is duty-bound to consider those other matters. The inadmissible or invalidity of an exhibit does not mean the automatic failure of the party’s claim unless from the pleadings and evidence that claim cannot be sustained on any other ground apart from that exhibit.” 18 Further, the presumption of regularity applies: omnia praesumuntur rite esse acta, codified in Section 37(1) of NRCD 323. The onus lay on the Plaintiff to rebut that presumption with credible evidence. He did not.

Regarding the Plaintiffs relief of trespass, trespass is an injury to possession. Where land is under the management of a public authority and the Defendants occupy by that authority’s permission, the occupation is not unlawful vis-à-vis that authority; and in the instant case which is framed purely against private occupiers, without joinder of the Attorney-General or the CCMA to impeach the administrative basis of the permission, the licence operates as a complete answer to trespass as between the plaintiff and those occupiers. Accordingly, having affirmed the trial court’s finding that the strip is treated and managed as a road reservation/buffer zone under municipal planning control, together with the findings on the CCMA permission, letter and receipts support the conclusion that the Defendants were lawfully on the land at the Assembly’s pleasure, and the Plaintiff failed to rebut that position. Finally, as to the trial judge’s observation that the real complaint sounded in nuisance affecting the Roman Catholic School, the evidential point was legitimate which is that no school representative was called. This Court as well as the trial court is entitled to scrutinize a party’s case where a crucial witness, who would naturally be expected to testify on the core complaint, is not called without explanation. The reasonable inference may be drawn against the party in default. In NANA AMUA GYEBU XV CHIEF’S PALACE, APOWA vs MONDIAL VENEER (GH) LTD APOWA INDUSTRIAL AREA APOWA, TAKORADI. CIVIL APPEAL NO. J4/31/2010 11TH AUGUST, 2010, the principle was articulated in terms consistent with the trial judge’s approach. The trial court is not obliged to grant far-reaching injunctive and ejectment orders on assertion without cogent supporting proof.

CONCLUSION

Having subjected the entire record to a fresh and anxious scrutiny, consistent with an appeal on the omnibus ground, we are unable to find any misdirection, improper evaluation of the evidence, or erroneous application of legal principle that would warrant appellate interference with the judgment of the learned trial judge. On the evidence accepted at the trial, particularly the unchallenged technical testimony from the planning authority, the official correspondence and plan indicating the disputed frontage as a buffer/road reservation, the admitted public character of the strip (lying between the road and the school and carrying essential public infrastructure), and the Defendants’ occupation under municipal permission, the Plaintiff failed to demonstrate a superior present right to exclusive possession capable of grounding the reliefs in declaration, ejectment, trespass and perpetual injunction as framed against the Defendants. The Plaintiff’s further insinuations of fraud in relation to the receipts were neither distinctly pleaded nor strictly proved to the standard required where criminality is alleged in a civil trial. Equally, the nuisance-based narrative advanced as the practical grievance was left evidentially thin, particularly in the absence of testimony from the Roman Catholic School or other independent witnesses naturally expected to speak to the alleged disturbance. In these circumstances, the learned trial judge’s ultimate conclusion that the Plaintiff’s family’s original allodial title, even if historically established, does not translate into an enforceable proprietary right to evict persons placed on a road reservation under municipal development control is reasonably supported by the evidence on record and the applicable legal principles. If, as the Plaintiff suggests, compensation remains outstanding in respect of any public acquisition, that is a matter to be pursued against the proper public authorities in appropriately constituted proceedings; it cannot be resolved indirectly by ejecting private traders occupying the space at the pleasure of the Metropolitan Assembly. Accordingly, the appeal is dismissed.

The judgment of the High Court, Cape Coast dated 31st January, 2023 is hereby affirmed.

Costs are awarded in favour of the Defendants/Respondents. Costs of GH₵15,000.00 in favour of Defendants/Respondents.