Gladys Anita Agyei v Ben Attipoe Owoo (2025)

INTRODUCTION

[1]. By a Writ of Summons and Statement of Claim filed in the Registry of the High Court, Land Division, Accra, on the 10th day of January, 2018, the Plaintiff claimed the following reliefs:

(i) A Declaration of title to all that piece or parcel of land described in the schedule hereto.

(ii) An Order of the Court directing the Defendant to remove all the sand and stone deposited on Plaintiff’s land.

 

(iii) An Order of perpetual injunction restraining the Defendant, his agents, workers, assigns, privies or anybody who claims through him from using the land of the Plaintiff as a way to go to his house.

(iv) Any other Order that the Court may consider appropriate in the circumstance of this case.

PROCEDURAL BACKGROUND

[2]. The Defendant having been duly served with Plaintiff’s Writ of Summons and Statement of Claim entered appearance and filed his Statement of Defence on the 5th day of February, 2018 defending the claims of the Plaintiff without any Counterclaim. The Plaintiff filed her Reply to the Statement of Defence of the Defendant on the 20th day of June, 2023 and joined issues generally with the Defendant on his Statement of Defence. Upon an Application by the Plaintiff and the Defendant, the Court ordered for a Composite plan to be drawn by the Mapping Division of the Lands Commission to determine the location of both Plaintiff and defendant’s land on the 28th day of February, 2020. On the 20th day of June 2024, the Court differently constituted (Coram: His Lordship Justice Dr. Ernest Owusu-Dapaa, JA) gave directions and adopted the issues proposed by Plaintiff’s Application for Direction s filed on the 20th day of June, 2023 and (1) Additional issue filed by the Defendant as issues for the determination in the trial.

[3]. After Directions had been taken and Orders of the Court at Directions complied with, the Honourable Court ordered the Parties to file their respective Witness Statements in accordance with the Provisions of C.I 87 and the suit was adjourned for Case Management Conference on the 16th of July, 2024 at 9am. The Honourable Court subsequently conducted a Case Management Conference on the 16th of July 2024 and adjourned the matter for trial.

 

PLAINTIFF CASE AS PLEADED

[4]. The Plaintiff, who is a Ghanaian citizen ordinarily resident in Belgium, avers that she acquired the parcel of land in dispute (hereinafter referred to as “the suit land”) sometime in the year 2000 from the late Mr. Thomas Ohene-Djan. She contends that all relevant documents in respect of the suit land were duly executed in her favour upon purchase. Having taken possession, the Plaintiff began constructing a one- storey building on the suit land, which remains incomplete. At the time she completed the ground floor, she placed a caretaker on the property and returned overseas. When the Plaintiff returned to Ghana in 2006, she discovered that the fence wall she had erected around the disputed land had been demolished. She did not initially know who had carried out this act. Subsequently, in 2007, the Plaintiff provided funds for the reconstruction of the fence wall.

[5]. Shortly thereafter, the new fence wall was again demolished, and the Plaintiff came to learn that it was the Defendant who had demolished it. The Defendant, she avers, made it clear to her workers that any renewed attempt to rebuild the fence would be equally thwarted.

Furthermore, the Plaintiff alleges that in 2011, the Defendant broke part of the fence wall constructed along a small stream bordering the disputed land and proceeded to erect a two-bedroom single-storey building that straddled the stream and encroached onto the Plaintiff’s land. After erecting this house, the Defendant is said to have reconstructed another fence wall on the Plaintiff’s land and installed a gate, thereby asserting a degree of possessory control.

[6]. The Plaintiff maintains that the Defendant went further by depositing sand and stones on her land, all in an apparent attempt to establish rights or claims of ownership over portions of the property.

The Plaintiff states that the Defendant, lacking a proper building permit, also created a right of way over the Plaintiff’s land to gain access to his newly constructed house.

 

Plaintiff maintains that she has, at all material times, held a valid land title certificate over the land, issued on 26 May 2017, pursuant to the applicable legal framework governing land title registration in Ghana. The Plaintiff further alleges that the Defendant has not only trespassed onto her land but has also threatened her and her caretaker with harm and death, prompting her to lodge a complaint with the police.

[7]. By reason of these facts the Plaintiff seeks a declaration of title to the disputed land, an order directing the Defendant to remove the sand and stones he has deposited on her land, a perpetual injunction restraining the Defendant (and all those claiming through him) from using the Plaintiff’s land as a passageway, and any further orders the Honourable Court deems appropriate in the circumstances. Plaintiff pleaded the exact identity of her land per what she called Schedule to Plaintiff Land as follows:

All that piece or parcel of land situate, lying, and being at Kisseman, Accra, containing measurements more or less as follows: on the South by the assignor’s land, measuring 80.0 and 120.0 feet respectively, more or less; on the West by the assignor’s land, measuring 100.0 and 60.0 feet respectively, more or less. The said piece or parcel of land is more particularly delineated on the plan attached and thereon shown edged pink, illustrating the relevant measurements.

[8]. The Defendant categorically denies all allegations in the Plaintiff’s Statement of Claim, except where the Defendant’s account accords with facts already established by the Plaintiff. Central to the Defendant’s position is his assertion that the land in question belongs to the Owoo family, of which he is a member. He maintains that this family holds the allodial title to the area encompassing the Plaintiff’s purported land. The Defendant claims to have lawfully obtained his own parcel within that area from the then Head of the Owoo family, Mr. John Nee Kwartey Owoo, on 24th May, 2004. Since that time, he avers, he has taken steps to register his interest in the land—including acquiring a Yellow Card in or around 2011—and has constructed a two-bedroom single-storey house thereon, where he has allegedly resided for approximately eight years.

[9]. The Defendant emphatically denies any involvement in demolishing or breaking down any structures that the Plaintiff might have constructed. He further denies depositing sand or stones on the Plaintiff’s land, contending that while he has observed such materials on the Plaintiff’s property, they do not belong to him, nor did he place them there. According to the Defendant, the layout of the area, as provided to him by the Ga East Municipal Assembly (G.E.M.A.), indicates that his plot is numbered 47, whereas the Plaintiff’s plots are shown as Nos. 21, 22, and 26 respectively. He also references a Papao Residential Planning Scheme, which he says confirms that a public road—rather than a private right of way created by him—runs through the area in contention.

[10]. The Defendant insists that he does not dispute the Plaintiff’s title to her own land and that the two parcels are entirely distinct. In his view, the conflict arises from the Plaintiff’s attempts to block what he refers to as a public access road. He maintains that various neighbours have resisted these attempts, which they perceive as infringing upon their right to use a road recognised by local planning authorities. From the Defendant’s standpoint, the Plaintiff’s claims regarding trespass, obstruction, and threats to her land rights are entirely unfounded. He denies threatening her or her caretaker and characterises her allegations as an unlawful effort to deny him access to his legitimately acquired property. Consequently, the Defendant submits that the Plaintiff is not entitled to any of the reliefs sought in her Statement of Claim, and he invites the Court to visit the locus in quo should there be any doubt about the geographical layout and the separate locations of the two properties.

ISSUES ADOPTED FOR TRIAL

 

[11]. The following issues were adopted as issues for the determination in the trial on the 20th of June, 2023.

1. Whether the plaintiff built an uncompleted one storey building on her land and constructed a fence wall around the land.

2. Whether the defendant caused the fence wall constructed by the plaintiff to be demolished.

3. Whether the defendant developed two (2) bedroom single storey house across the stream and onto a portion of plaintiff’s land.

4. Whether the defendants deposited quantities of sand and stones on Plaintiff’s land.

5. Whether the plaintiff’s land is different and distinct from that of the Defendant.

6. Whether the Defendant is liable.

THE LAW ON BURDEN OF PROOF AND ITS ALLOCATION TO THE PARTIES

[12] . In civil litigation, the standard of proof is the preponderance of probabilities. This standard requires the tribunal or court to be convinced that the existence of a fact is more probable than its non-existence. This standard and its application are enshrined in the Evidence Act, 1975, NRCD 323, specifically in sections 10, 11, and 12, which define the elements of burden of proof, burden of persuasion, and burden of producing evidence. Section 10 establishes the "burden of persuasion," which is the obligation on a party to create the requisite degree of belief about a fact in the mind of the court. This burden may require a party to either raise a reasonable doubt about a fact or establish the fact by a preponderance of probabilities or beyond a reasonable doubt. Section 11 discusses the "burden of producing evidence," and imposes the responsibility on a party to introduce enough evidence to avoid a ruling against the party on an issue. Section 12(1) asserts that, in civil cases, the burden of persuasion generally requires proof by a preponderance of the probabilities. Section

 

12(2) further clarifies that this preponderance is the degree of certainty needed in the mind of the court to conclude that a fact’s existence is more likely than not.

[13]. In an action for declaration of title to land, the Plaintiff must succeed on the strength of his own case, not merely on the weakness of the Defendant’s See: Klah v Phoenix Insurance Co Ltd [2012] SCGLR 1139. Where both parties claim from the same stool or family, the Court must determine whose grant followed the lawful procedure or was first in time. See: Mondial Veneer (Gh) Ltd v Amuah Gyebu XV [2011] SCGLR 466.

In Ackah v Pergah Transport Ltd [2010] SCGLR 728 at 736, Adinyira JSC reiterated this principle, when she noted that, "It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce credible evidence of the facts in issue. Without such credible evidence, the claim may fail."

This sentiment is echoed in Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721, where the court reiterated essentially that matters capable of proof must indeed be proven with adequate evidence.

[14]. It is trite law that the Plaintiff carries the initial evidential burden of establishing facts crucial to the reliefs sought. S.A. Brobbey, in Essentials of Ghana Law of Evidence (p. 28), illuminates this point: "In the normal run of affairs, since the plaintiff is the one asking for something from the defendant, he should start the proceedings by giving testimony. That testimony will show what he wants from the defendant and why the court should order the defendant to give it to him."

[15]. Brobbey J.A., in Duah v Yorkwa [1993-94] 1 GLR 217, further distinguishes the burden of persuasion from the burden of producing evidence, noting that the former is the degree of evidence a litigant must adduce to satisfy a fact, while the latter pertains to which party must begin by leading evidence.

 

[16]. The burden on the Plaintiff to establish his case by a preponderance of probabilities means the Plaintiff must produce sufficient evidence to make their claim more probable than the Defendant’s version. This principle was restated by Ansah JSC in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 900:

“This being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Act, 1975 (NRCD 323). The party in whose favour the balance tilts is the party whose case is more probable among the rival versions.”

[17]. The rule is further clarified by Lord Hoffman in Re B [2008] UKHL 3, where he explained the binary nature of fact-finding in litigation. In his view, a tribunal must decide if a fact did or did not occur, leaving no room for ambiguity. The law sets a “0 or 1” value on a fact's existence, making it clear that if a party fails to satisfy their burden of proof, the fact is treated as if it did not happen. For the fear of diluting the wisdom of Lord Hoffman’s dictum in Re B, it is worth quoting his own words here:

“If a legal rule requires a fact to be proved (a fact in issue) a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are O and

1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carried the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of O is returned and the fact is treated as having not happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

SUMMARY OF EVIDENCE ADDUCED DURING TRIAL

 

[18]. The Plaintiff, a Ghanaian resident in Belgium, in her evidence in chief as per Witness Statement filed testified that she acquired a parcel of land at Kisseman in Accra in the year 2000 from the late Mr. Thomas Ohene-Djan. According to her, the property measures approximately 0.50 acres (0.20 hectares). It took some time before her vendor, upon her persistent efforts, finally executed formal documents in her favour in 2010. She says she then took possession and commenced building a one- storey structure, though the house remains unfinished. After completing the ground floor, she placed a caretaker in the building and returned overseas.

[19]. She states that on her return in 2006, she found her original fence wall demolished and another erected in its place. Unable initially to identify the culprit, she arranged for funds in 2007 to reconstruct her wall. Almost immediately after its reconstruction, it was again demolished, and the Plaintiff discovered that the Defendant, Mr Ben Attipoe, was allegedly behind this second demolition. She testifies that the Defendant boasted he would continue to demolish any fence she built. In 2011, she says, the Defendant broke a portion of the fence she had constructed near a small stream and built a two-bedroom single-storey house that encroached approximately five feet onto her land. She further alleges that the Defendant erected another fence wall, complete with a gate, on her property and, without a valid building permit, created a right of way across her land to access his newly constructed house.

[20]. The Plaintiff avers that she undertook the formal registration process, culminating in a Land Title Certificate being issued on 26th May, 2017, which noted encroachments on her parcel. She claims that a corrected Land Certificate, bearing Certificate No GA.51728, Volume 69, Folio 386, was later issued on 6th July, 2022. She has tendered both certificates in evidence. She further attests that on 5th November 2019, she petitioned the Director-General of the Criminal Investigations Department in connection with issues arising from the Defendant’s activities on her land and lodged related complaints with the police, citing threats of harm and death directed

 

at both her and her caretaker. She maintains that these acts by the Defendant constitute trespass, interference with her ownership, and breaches of her lawful rights to quiet enjoyment of the property, and she now seeks the Court’s intervention in obtaining the necessary reliefs to safeguard her interest in the land.

DEFENDANT’S EVIDENCE

[21]. Defendant testified himself per Witness Statement of Ben Attipoe filed on 16th July, 2024 adopted during his examination in chief. Defendant states that he is a businessman and resident at Westland near Kisseman. He is a member of the Owoo family and concedes that it is the same family which Plaintiff claims to have derived root of title from. The Defendant, asserts ownership and possession of land distinct from that of the plaintiff. He claims his land was granted to him by his family in May 2004, evidenced by an indenture (Exhibit "1"- an indenture of lease dated 24th May, 2004 between the Owoo family and Defendant in respect of approximately 0.06 acre or 0.02 hectare) and that he has lawfully occupied it for over nine years, having constructed a two-bedroom single-storey house. He denies any encroachment on the plaintiff’s land, contending that his property is separate.

[22]. A key issue in the dispute concerns an alleged public access road. The defendant asserts that the land in dispute has always been used as a public road by himself and other residents, without restriction or objection, and is recognized as such by the Ga East Municipal Assembly (Exhibit "2"). He maintains that both his and the plaintiff’s land fall within the Papao Planning Scheme, as confirmed by GEMA (Exhibits "3 Series"), and that he has paid property rates for his land (Exhibit "4"). The defendant denies claims that he deposited materials on the plaintiff’s land and further refutes allegations that he has threatened the plaintiff or her caretaker. Instead, he accuses the plaintiff of attempting to block the public road by digging trenches and constructing a wall, which he supports with photographic evidence

 

(Exhibit "5"). He contends that upholding the plaintiff’s claims would deny him lawful access to his property.

[23]. Finally, the defendant maintains that the plaintiff is unjustly seeking to obstruct access to a recognized public road that he and other residents have used for years. He argues that her actions are an attempt to alter longstanding access rights, and her claims should therefore be dismissed.

EVALUATION OF EVIDENCE AND RESOLUTION OF TRIABLE ISSUES

ISSUE 5: Whether the plaintiff’s land is different and distinct from that of the defendant.

[24]. All the issues set down for trial and the reliefs being sought by the Plaintiff turn on the question of true identity of the parcel of land claimed by Plaintiff and also contested by the Defendant. Consequently, I deem it apposite to deal with this issue before the rest.

[25]. In any action for declaration of title or land related reliefs like trespass it is fundamental for the true identity of the relevant parcel of land to be established. Thus, the Supreme Court in ANANE VRS DONKOR and KWARTENG VRS DONKOR (consolidated) [1965] GLR 188, at 192 S.C. propounded the proposition that “a claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land the subject matter of his suit,”

[26]. However, the requirement that a party must establish the identity of the land with certainty in order to obtain a declaration of title does not necessitate mathematical exactitude or absolute precision. This principle was affirmed in JASS CO. LTD. & ANOTHER v. APPAU & ANOTHER [2009] SCGLR 265 at 275, holding

2. In BENJAMIN QUARCOPOME SACKEY v ISSAKA A MUSA (2010) JELR

69498 (CA), the Court of Appeal emphasized that although a clear and certain

 

identification of the disputed land is essential, the evidence need only demonstrate that both parties refer to the same parcel on a practical and evidential basis. Minor discrepancies in measurements, for example, a slight difference in acreage or variations in grid values between documents, may be attributed to surveying error rather than signifying distinct properties. The Court of Appeal held further that when both parties are “ad idem” regarding the identity of the land, additional measures such as the preparation of a composite plan are unnecessary.

[27]. The Plaintiff by paragraph 16 of Statement of claim and the scheduled alluded thereto provided compendious geographical description of land that she is claiming. In substance, all that piece or parcel of land situate, lying, and being at KISSEMAN – ACCRA, containing an approximate area of 0.46 acre, more or less, and bounded as follows: North/East: By a proposed road, measuring 225.0 feet, more or less. East: By assignor’s land, measuring 150.0 feet, more or less. South: By assignor’s land, measuring 80.0 & 120.0 feet, respectively, more or less.

West: By assignor’s land, measuring 100.0 & 60 feet, respectively, more or less. Plaintiff pleaded in paragraph 14 of her statement of claim that she has a land title certificate over her land, issued on the 26th day of May, 2017. The Defendant tacitly accepted Plaintiff’s assertion of ownership of land covered by the land title certificated issued on 26th May 2017. Thus, in Defendant pleaded in paragraph 16 of her Statement of Defence as follows: Paragraph 14 of the statement of claim is of no consequence to Defendant, as he is not contesting title to Plaintiff’s land. Defendant asserts that his land is separate and distinct from Plaintiff’s and prays for the Court to visit the site to ascertain the facts.

[28]. To assist the court in resolving the exact identity of land claimed to be occupied by the parties the court differently constituted (coram: H/L Ellen Vivian Amoah J) upon request of Plaintiff ordered composite plan to be drawn by Lands Commission. In the said order the parties were to “submit their relevant documentation to the Survey and Mapping Division of the Lands Commission to determine the location of both plaintiff and Defendants’ land.

[29]. From the Surveyor’s Composite Plan and both parties’ documents, the official site plans show no direct overlap. However, the Surveyor clarified that the Defendant’s land “as per his site plan” and the Plaintiff’s land “as per her site plan” do not intersect on paper, but, in reality, the Defendant’s structures cross onto the Plaintiff’s side. During cross examination of the Court Expert ( Surveyor) by counsel for Plaintiff this is what transpired:

Q: You will also agree with me that the land of the Defendant as depicted by his site plan does not intersect with Plaintiff’s land per his site plan?

A: Yes, my Lord.

Q: Can you also confirm that the land of the Defendant as shown by him overlaps into Plaintiff’s land?

A: Yes, my Lord.

[30]. At the 22 January, 2025 hearing, Defendant’s Counsel conceded “We are not contesting the Plaintiff’s land or her land title. We are simply stating that part of the land is a public access route,” implying that on paper, the Defendant’s land stands apart from the Plaintiff’s. The Surveyor’s evidence also confirms that “if the Defendant had constructed his house using the measurement on his site plan, there wouldn’t be an area in dispute.”

It is undisputed that, in theory, these are distinct plots on paper. However, the encroachment arises because the Defendant’s building is erected in a way that crosses from his distinct plot onto the Plaintiff’s. Thus, the Court finds the two lands are indeed “distinct” in their documentation, but the Defendant’s occupation does not respect that documentary separation on the ground when he embarked upon development of his land.

Issue 3. Whether the Defendant developed a two-bedroom single-storey house across the stream and onto a portion of the Plaintiff’s land

 

[32]. The first part of the issue is not really germane to matters before the court as building on a stream or into a stream is a matter which is regulated by specialised state regulatory bodies and if there has been any such unapproved development the first point of recourse should be those bodies before any resort to court through those bodies or against those bodies if they fail or refuse to act on any such grievance properly lodged with them. Consequently, I decline to deplore scarce judicial resources pf time and energy on the first limb of the issue. The second limb that is whether Defendant has built on a portion of the Plaintiff’s land is the crux of the matter. This issue is very much related to the issue regarding whether the parcel of lands claimed by the parties are distinct or one and the same. Strangely, the Defendant under cross examination could not tell the Honourable Court the size of his land as granted by his grantors. This was his response when Counsel for the Plaintiff asked;

Q: What was the size of the land granted you by the Owoo Family?

A: I can’t tell now unless the site plan. The land was given to me as a gift. When it was given to me, there was a big gutter in front of the land, they had not constructed it, just bare gutter. When my family was selling the land, they were winning smooth sand from the land for various construction purposes. So, when they gave a contract to a contractor to build a gutter around the area. The contactor came to see all the tenants, those who had the land so that they can use where they dig the sand.

[33]. The inability of Defendant to state the size of his land on which he claims to have put up his building raises questions about his credibility. Particularly so since Defendant had access to his site plan and could have just sought the leave of the court to refresh his memory. The Court is justified in making Defendant’s credibility a matter of concern here because during the cross-examination Defendant had boldly insisted that he was representing his family (that gifted the land to him) in all

 

matters concerning their lands in the area. Indeed, during cross examination of Defendant by Counsel for Plaintiff on 20/11/2024 this is what transpired.

Q: I am suggesting to you that you are not part of the Owoo Family and the land was not granted to you by way of Gift by your own indenture.

A: My grandfather was twins. The senior is the Head of Family. He is called Amos George Tawiah Owoo and my grandfather was the junior called Agoe Owoo. I walked with them over thirty years now so they have left the place for at West Legon and I am taking care of the whole area. There is no case which does not pass through my office in the whole of the area.

[34]. A person who for many years has been taking care of the whole area within which disputed land falls and is unable to tell the size of his land despite having access to size plan and other title deeds he relies on must be suppressing a certain truth relevant to matters in controversy. See Section 80 (2) of Evidence Act 1975 (NRCD 323). Also see: KWASI ABENE V. MADAM YAA AFRA (2017) JELR 64862 (CA).

The Defendant was highly selective in what specific information he presented during cross examination. While he could not tell the court the size of his land even having access to his site plan, he could give detailed geomatic information regarding length of walls. For example, under cross examination by counsel for Plaintiff this is how Defendant demonstrated his appreciation of figures;

Q: Are you aware that the gutter your house sits on, is supposed to serve as a boundary between the land of the Plaintiff and her neighbours.

A: Yes. My Lord that gutter, they called all of us who were in that lane. So, they approached all of us that because the gutter is supposed to be at the other lane because of the sand that they dug, they want to use that place to construct the gutter. Instead of 2 feet gutter, it has become about 7 feet gutter so that we can cover. When they finished the gutter, they covered it for all of us, about 10 houses. The gutter is covered so all of us are enjoying it. So, I am not the person

 

who is sitting on the gutter. If the Assembly wants to do something now, they come to consult us not only me. It is in front of our house, some people their houses are on it.

[35]. If the Defendant was capable of providing such detailed measurements yet deliberately omitted to disclose the actual size of his land on which his building stands, it raises serious doubts about his willingness to be forthright with the court. Another glaring indication of Defendant credibility deficit is when he was challenged regarding non-registration of his interest in the land. He insisted that he had registered his land and when pushed to produce his evidence of registration he then conceded that that he had not registered yet but was in the process of doing so. Under cross examination by counsel for Defendant, this is what ensued;

Q: Have you registered your interest with the Lands Commission?

A: Yes, Land Title.

Q: Do you have any evidence before this Court to prove your assertion?

A: Yes.

Q: Kindly show the Honourable Court your Land Title Certificate.

A: Yes, I processed to a level, they gave me a card called Yellow Card.

Q: I suggest to you that you haven’t registered your land or made any attempt to register same.

A: I have made attempts. My documents will show.

It is noteworthy that Yellow Card alluded to by Defendant was never produced in court during the trial. Although, Defendant did not make counterclaim yet such inconsistencies become part of the general background against which his credibility and veracity of his testimony is evaluated.

[36]. On the same day under cross examination, the Defendant admitted the issue under contention;

 

Q: Recently they constructed the gutter upstream into the main drainage, is that correct?

A: Yes

Q: Is it also correct that they had to break part of your wall before it could be linked to the main drainage?

A: Yes. They came to beg me that the gutter was not supposed to be there…….

Q: Are you aware that the gutter your house sits on is supposed to serve as a boundary between the land of the Plaintiff and her neighbours.

A: Yes, my Lord.

A picture which emerges from this is that the Defendant is making admission that his house is seated on the gutter which ought to serve as a boundary and his frontage wall is further encroaching on the land of the Plaintiff. Counsel for Plaintiff could not be faltered for opining that;

“it is for this reason that the Defendant did not procure a building permit before constructing his house. The unlawful citing of the building will not permit the assembly to give authorisation by way of a building permit.”

[37]. Under cross-examination, the Defendant initially informed the Honourable Court that he had applied for a permit and that his application was still being processed. He did not offer any proof of this supposed application beyond his mere assertion contrary to the principle in MAJOLAGBE V. LARBI & ORS [1959]. GLR 190 @ 192 However, in response to a subsequent question, he abruptly changed his account and stated that he had completed construction of his house some 15 years earlier. Under cross examination by counsel for plaintiff this is how Defendant entangled himself;

 

“Q. Did you procure a building permit before you built your house? A: It is in process.

Q. Do you have any evidence before this Court to prove this?

A. I don’t have it here but it is in the process.

Q. When did you finish your house?

A. About 15 years ago.

[38]. The Plaintiff claims that in 2011, the Defendant broke part of her fence wall along a small stream and developed a two-bedroom house that encroaches on her registered land. The Court-appointed Surveyor’s testimony (as recounted on 25 July, 2024) supports this. When he was cross-examined by Plaintiff’s Counsel, the Surveyor confirmed as follows;

Q: Can you also confirm that the land of the Defendant as shown by him overlaps into Plaintiff’s land?

A: Yes, my Lord.

Q: On the land, the Defendant structure is on the drainage as seen on the ground?

A: Yes, my Lord.

[39]. The Defendant, in open court, admitted that part of his boundary wall had to be broken by the authorities “to link the main drainage,” and also conceded, “Yes my Lord,” when asked if he was aware that the gutter where he built was intended to serve as a boundary between the Plaintiff’s land and her neighbours.

When the Defendant was asked, “Do you recall that in this matter, a Surveyor was appointed to do a Composite Plan?” he answered “Yes,” but he insisted it is “not on the Plaintiff’s land but a public access route.” It was therefore not surprising that Defendant’s Counsel reiterated on 22 January 2025: “We are not claiming that road as ours either, nor are we saying it is the Plaintiff’s. It is a public access route used by the community.”

[40]. The Court-appointed Surveyor’s composite plan and testimony are unequivocal that the Defendant’s actual building straddles the stream (the drainage) and intrudes upon the Plaintiff’s documentary boundaries. Although the Defendant contends that the area is a public route, the Surveyor’s evidence indicates that the Defendant’s house physically sits “across the drainage.” Even if part of the land is a route or drainage, that does not negate the Surveyor’s conclusion that it is within the Plaintiff’s site plan boundary. Hence, the Court finds that the Defendant did develop his two-bedroom building in a manner that encroaches onto Plaintiff’s land. Simply put, in assessing the totality of the Surveyor’s report and testimony, the Court accepts that, on the ground, the Defendant’s building or boundary wall intrudes onto the Plaintiff’s plot.

[41]. I must stress that no complaint of bias or lack of neutrality whatsoever was made by the parties or their lawyers during cross examination against the court appointed surveyor. See: Great Commission Church International Vs. Acolatse & Anor (2014) 75 GMJ 39 AT PAGE 45.)

It is well known proposition of adjectival law that expert witnesses, such as surveyors, provide opinions and reports to assist the court in determining the identity, location, and boundaries of disputed land. However, the court is not bound by expert evidence but may use it as guidance to arrive at its own conclusion.

Thus, in the case of Fenuku V. John Teye [2001-2002] SCGLR 985 Ampiah JSC speaking on behalf of the court held that: -

“The principle of law regarding expert evidence was that the judge need not accept any of the evidence offered. The Judge was only to be assisted by such expert evidence to arrive at a conclusion of his own after examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions.”

 

Moreover, in the case of Tetteh V. Hayford (2012) 44 GMJ 11, Dotse JSC held at page 17 thus:

It is generally understood that a court is not bound by the evidence given by an expert such as the surveyor in this case. But the law is equally clear that a trial court must give good reasons why expert evidence is to be rejected”.

[42]. My findings premised upon report and testimony of the court appointed surveyor is fortified by the weight of these foregoing teaching by the supreme court particularly the dictum of Dotse JSC just quoted above. This court does not have any cogent basis to disregard or accord little or no probative value to the court appointed surveyor’s report and his testimony. It would therefore be preposterous for court to disregard a scientific report which has not been challenged as lacking in credibility or authenticity.

Issue (1): Whether the plaintiff built an uncompleted one storey building on her land and constructed a fence wall around the land.

[43]. The Plaintiff in her evidence in chief testified that she “took immediate possession of the land acquired and proceeded to build a one-storey building on part of the land, which house is yet to be completed.” The Defendant neither seriously refuted that the Plaintiff had commenced building nor did he deny the existence of the Plaintiff’s fence wall. Cross examination of Plaintiff by Defendant did not impeach this aspect of her testimony in any way. It is therefore established and I so hold that the Plaintiff indeed erected a fence wall and began construction of an uncompleted one-storey building on the land she claims as hers.

Issue (2) Whether the defendant caused the fence wall constructed by the plaintiff to be demolished.

 

[44]. The Plaintiff testified that the Defendant threatened to demolish the wall “100 times” if she rebuilt it. Asked by Defendant’s Counsel whether she had provided any evidence showing he demolished the wall, she replied, “That is true,” meaning she had not produced direct proof such as pictures or witnesses. However, she insisted that the Defendant was responsible, alleging he had even boasted openly about doing so. When Counsel for Defendant cross-examined Plaintiff on this;

Q: Did you provide any evidence to show clearly that the Defendant broke any so-called wall of yours?

A: Yes, because he spoke through his own mouth… He broke it and now he has used my broken wall to make big pillars…

Q: I put it to you that you have not provided any evidence to show that the Defendant broke your wall.

A: That is true.

[45]. While the Plaintiff credibly asserted that her wall was indeed broken, there was no contemporaneous photographic or witness evidence tying the Defendant directly to its demolition. The Plaintiff relied on her recollection of threats. Accordingly, the Court finds that while the fence wall was indeed demolished, the available evidence does not conclusively identify the Defendant himself (or his agents) as the demolisher. The Plaintiff’s assertion stands primarily on her testimony and caretaker’s claims, which the Defendant refutes. This is a contested factual point, partially unresolved by direct evidence, but strongly alleged by the Plaintiff. Indeed, the Court agrees with Counsel for Defendant that Plaintiff failed to discharged the evidential burden on these issues as required by Section 11 (1) of NRCD 323 and plethora of decisional law including Ababio v Mensah [ 1989-90] 1GLR 27; Adjei v Adjei [ 2021] GHASC 5

Issue (4): Whether the Defendant deposited quantities of sand and stones on the Plaintiff’s land

 

[46]. The Plaintiff had evidential burden with respect to this issue. No cogent evidence whatsoever was adduced by Plaintiff to establish this averment in paragraph 12 of the statement of claim that “… the defendant deposited quantities of sand and stones on plaintiff’s land asserting a kind of possessory rights over some portions of plaintiff’s land.”

[47]. Also, in his written address Counsel for Plaintiff submitted inter alia that;

My Lord, additionally, the Plaintiff testified that the Defendant on several occasions demolished her fence wall. This matter was severally reported to the Ghana Police and a police extract was attached to the Witness Statement of the Plaintiff. This incontrovertible evidence was not impeached in any way by the Defendant. This shall remain an admitted fact

For the records, in paragraph 18 of her Witness Statement Plaintiff testified that Defendant has threatened her and her caretaker with harm and death. She proceeded to tender Exhibit D which is Extract from Station Diary of Ghana Police. When Exhibit D is examined, it essentially indicates that on 14th November, 2019 Plaintiff lodged complaint that Defendant had destroyed portion of her wall and constructed his defence wall inside her plot. It is true that Counsel for Defendant did not challenge this Exhibit D. Nevertheless, it cannot be taken for granted that Defendant has by his failure to impeach Exhibit D has admitted its content. Even, if such admission is upheld by Court, it is not dispositive of the issues of depositing sand on Plaintiff’s land and also demolition of the wall. The Court notes that no arrest or invitation of Defendant or his agents whatsoever was made consequent upon the complaint made by Plaintiff. Exhibit D is self-serving particularly so when the Police investigator was not invited to testify regarding any investigation made into the one-sided story contained in Plaintiff’s complaint.

 

[48]. The only remotely related evidence that emerged in the trial as far as the issue of dumping sand and stone on Plaintiff’s land was tangential unsolicited statement when Defendant was answering a question posed by Counsel for Plaintiff as follows;

Q: What was the size of the land granted you by the Owoo Family?

A: I can’t tell now unless the site plan. The land was given to me as a gift. When it was given to me, there was a big gutter in front of the land, they had not constructed it, just bare gutter. When my family was selling the land, they were winning smooth sand from the land for various construction purposes. So, when they gave a contract to a contractor to build a gutter around the area. The contactor came to see all the tenants, those who had the land so that they can use where they dig the sand…

From the foregoing, there was obviously no specific question-and-answer sequence establishing that the Defendant placed sand and stones on the Plaintiff’s land without permission. I accordingly hold that Plaintiff has failed to prove this assertion and issue (4) is resolved against Plaintiff.

Issue (6). Whether the Defendant is liable

[50]. A preliminary issue which is a predicate for determining Defendant’s liability is whether Plaintiff had title to the land she claims. The court has no difficult at all in holding without elaborate analysis that Plaintiff has land title to all that parcel of land as per the corrected Land Certificate with Certificate No. GA.51728, Volume 69, Folio 386. Throughout the trial and in Defendant’s written address there has been no challenge to Plaintiff’s land as per the corrected land title certificate issued in 2022 to replace the earlier issued on 26th day of May, 2017. It is well known proposition of law of evidence that facts admitted need no further proof. In Kusi Vrs Bonsu (2010) SCGLR 60 page 101-102 the Supreme Court opined that: “It is a basic principle in evidence that no evidence is necessary to prove an admitted fact. This is so basic as to admit of no dispute”.

 

[51]. In the final analysis, the question of liability rested on whether the Defendant interfered with the Plaintiff’s possessory rights. Since the Surveyor’s uncontested testimony was that the Defendant’s physical structures encroach onto the Plaintiff’s land and sit over the major drainage that ought to demarcate the boundary, the Court finds that the Defendant did interfere with the Plaintiff’s lawful possession.

When cross-examined by Plaintiff’s Counsel, the Defendant denied wrongdoing but acknowledged having no final building permit and conceded that part of his wall had been “broken” to allow the authorities to complete the gutter. The Plaintiff also insisted the Defendant’s frontage was on her land, especially where the big pillars and gate were placed.

[52]. The evidence from the Surveyor and from the Defendant’s own admissions about building on the gutter support a conclusion that the Defendant is liable for trespass on the Plaintiff’s land. Even if the Municipal Assembly had designated a portion as a “future” or “emergency” route, there is no conclusive proof that it formally overrides the Plaintiff’s existing title as per Land Title Certificate. The question of demolition liability is more ambiguous due to conflicting evidence and already resolved in Defendant’s favour. However, as to building encroachment on Plaintiff’s land as encompassed in his land title certificate, the Defendant’s liability is established by the cumulative effect of the evidence on record.

Defendant’s Counsel insisted the disputed land as shown on Exhibit CW1 (survey report) is a “public access route,” and also cited a local authority plan. The Plaintiff rightly acknowledged that the Ga East Municipal Assembly demarcated some emergency road in 2018 after her 2017 land title registration.

[53]. If the Defendant wanted to use that as a stronger claim, he should have formally challenged or sought to revoke part of the Plaintiff’s registered title, but he did not. In my view Counsel for Defendant in his address both written and orally highlighted before the court respectfully conflates two distinct matters namely whether Defendant has wrongfully extended his building onto portion of Plaintiff’s

 

land with the issue of whether the portion of the Plaintiff’s land which Defendant might trespassed has been taken over for development as public access route under statutory law or by reason of emergence of easement.

[54]. In the instant case, the court has not been invited to cancel the Plaintiff’s land title certificate and the court has made a finding that Defendant has extended his development into Plaintiff’s portion of land.

Plaintiff did not have any evidential burden regarding his parcel of land as covered by land title certificate originally issued in 2017 had been taken over for development as road or public access route. It is rather the Defendant who set that assertion up as theory of his defence and had evidential burden. Having considered the entire evidence I am not satisfied that Defendant made any convincing defence regarding parcel of land embodied in the land title certificate or portion thereof had lawfully been taken over for public access route since the land title certificate was issued in 2017 and corrected in 2022.

CONCLUSION

[55]. Having considered the pleadings and all evidence both oral and documentary the Court is satisfied that to a large extent Plaintiff has proven its case on preponderance of probabilities in the following specific terms. In respect of Issue One—whether the Plaintiff built an uncompleted one-storey building and constructed a fence wall—the Court found that she had indeed erected both structures, thereby resolving Issue One in the Plaintiff’s favour. As to Issue Two, concerning whether the Defendant caused the demolition of the Plaintiff’s fence wall, the Court holds that the Plaintiff did not adduce sufficient corroborative proof; accordingly, Issue Two was resolved in favour of the Defendant. Turning to Issue Three—whether the Defendant developed a two-bedroom single-storey house across the stream and onto a portion of the Plaintiff’s land—the Court-appointed Surveyor’s report and the Defendant’s admissions showed that his structure encroached onto the Plaintiff’s registered plot, so Issue Three is resolved in the Plaintiff’s favour.

Regarding Issue Four, which examined whether the Defendant deposited sand and stones on the Plaintiff’s land, the Court finds that the Plaintiff failed to present concrete or contemporaneous evidence and therefore resolves Issue Four in favour of the Defendant. On Issue Five—whether the Plaintiff’s land is distinct from the Defendant’s—the Court accepted the composite plan and documentary evidence showing that, on paper, the two parcels are separate; however, in reality, the Defendant’s boundary extended into the Plaintiff’s territory. Notwithstanding that overlap, the central question of distinctness was answered in the Plaintiff’s favour because she proved her separate registered title. Finally, on Issue Six—whether the Defendant is liable—the Court hereby concludes that the Defendant’s encroachment on the Plaintiff’s registered land amounts to trespass, and accordingly Issue Six is resolved in the Plaintiff’s favour.

FINAL ORDERS

[56]. Relief (a) is granted and so it is hereby declared that the Plaintiff is the lawful owner of all that parcel of land situate at Kisseman in Accra and duly covered by Land Title Certificate No. GA.51728, Volume 69, Folio 386.

Relief (b) is refused.

Reliefs (c) and (d) are granted in the following terms;

(i) The Defendant, whether by himself, his agents, workmen, or privies, is hereby ordered to remove at his own expense any portions of his boundary walls, house extensions, or other structures that lie on or encroach upon the Plaintiff’s registered parcel of land within six (6) months from the date of this order.

 

(ii) A perpetual injunction is hereby granted, restraining the Defendant, his servants, agents, assigns, or any other persons acting on his authority from: Demolishing any fence wall, building, or other structure lawfully erected by the Plaintiff on her land; and entering, using, or passing through the Plaintiff’s land without her express permission, save if the appropriate planning authorities duly acquire or designate any portion as a public right of way under applicable law.

(iii) The Defendant is further directed to ensure that the drainage channel, partly covered by his structure, is reinstated or modified, under the supervision of the relevant municipal authority, so that it aligns with the rightful boundary between the two parcels.

Cost of Thirty-Five Thousand Ghana Cedis (GH¢35,000.00) awarded in favour of Plaintiff against Defendant

So ordered.