Rev. Emmanuel Anim Nketiah v Trespasser

The Plaintiff mounted this action from the Registry of this court against the Defendant/Trespasser on the 23rd of February, 2023 seeking the following reliefs:

a) A declaration that the disputed land being developed by the Defendant trespasser forms part of the parcel of land measuring 0.34 Acres the Plaintiff leased from the Gbawe Kwatei family of Accra

b) Damages for trespass

c) Recovery of possession

d) An order cancelling any document that the Defendant/Trespasser may have obtained from the disputed land

e) Costs

Case of Plaintiff

In a statement of claim accompanying the writ of summons, the Plaintiff stated that he is the Head Pastor of Liberty Church of Ghana, Accra, whilst the Defendant is a trespasser of Plaintiff’s land located at Gbawe a suburb of Accra measuring 0.34 Acres. It is the case of the Plaintiff that, sometime in the year 2010 he was leased a parcel of land measuring 0.34 acres from the Gbawe Kwatei family of Accra and his grantor family duly issued him with the documents covering the said land and had since paid stamp duty on same. That without his consent the Defendant had entered a portion of his land measuring 0.16 acres and is hurriedly developing the said portion of the land. The Plaintiff contends that the said portion being developed by the Defendant which also forms part of his land leased from the Gbawe Kwartei family is the disputed land herein. The Plaintiff says he has drawn the attention of the Defendant/Trespasser’s workmen on the disputed land to the fact that he is the legitimate owner of same but strangely the said workmen continue to work on the said land on behalf of the Defendant/Trespasser. That the Defendant/Trespasser has no legal interest or right in the said disputed land that forms part of the land leased from the Gbawe Kwatei family.

Subsequent to the filing of the action, the court granted an order for substituted service of the writ of summons and statement of claim on the Defendant/Trespasser on the 28th of November, 2022, as personal service had been unsuccessful. There is an affidavit of posting to that effect on 5th December 2022. On the 14th day of February 2023, an ex parte application for substituted service of a motion on notice for interlocutory judgment against the Defendant/Trespasser was granted by the court and same was posted on 20th February, 2023. Furthermore judgment in default of defence was granted against the Defendant/Trespasser on the 15th of March 2023 and this matter being for the declaration of title to land, the action was set down by the court to determine whether or not the Plaintiff had title and Plaintiff was ordered by the court to adduce evidence to prove his title in respect of the land in dispute by filing witness statement and relevant documents. After the Defendant/Trespasser had been served with the documents for Case Management Conference (CMC) by substituted service on 18th July 2023, the court held CMC with the Plaintiff on the 26th day of July 2023. After the Defendant had again been served by substituted service by leave of court on 25th day of April 2025, the Plaintiff’s case was finally heard by the court on the 5th of May 2025.

It is trite law that a party in a civil case who alleges has the burden of proof and would fail if he fails to discharge this burden. In GIHOC V. HANNA ASSI [2005- 2006] SCGLR page 458 at 485, Sophia Akuffo JSC (as she then was) held as follows;

"10. (1) for the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non- existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt....

"11. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue....

(4) In other circumstances, (i.e. civil matters) the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

"12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities

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

"14. Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting."

Since the enactment of the Evidence Decree, NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue (SEE ODAMETEY V. CLOCUH [1989- 90] 1 GLR, 14; ODONKOR V. AMARTEI [1992-93] GLR 59, TUAKWA V. BOSOM [2001-

2002] SCGLR 61). Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgment might be given in favour of a party on the preponderance of the probabilities ...rather than can an archaic principle which might not accord with reason or common sense'

. (See Holding 2, Odonkor v. Amartei).

The Defendant in this suit is unknown however, Section 12(4) of the Lands Act, 2020 (Act 1036) gives such legal backing for such actions.

‘’12(4) A person with interest in land may make an application to court for an interlocutory injunction against a trespasser on the land even though the name of the trespasser is unknown.’’

Therefore the Plaintiff is well within his rights to sue an unknown Defendant/Trespasser as in this case.

A witness statement filed on behalf of the Plaintiff on 17th April 2023 which became his evidence in chief at the trial had exhibits ‘A’ and ‘B’ attached to same. Exhibit ‘A’ is his documents from his grantor and exhibit ‘B’ is a picture of the Trespasser’s development on the land. Plaintiff contends that the Defendant/Trespasser has no legal basis to remain on the land and yet they have evinced a clear intention to continue with their unlawful trespass unless they are restrained by the court.

Issue

WHETHER OR NOT PLAINTIFF HAS TITLE TO THE LAND IN DISPUTE

I will now consider the evidence led by the Plaintiff in support of his case to ascertain whether or not he has been able to make a case which entitles him to judgment. In AKOTO II & ORS V. KAVEGE & ORS [1984-86] 2 GLR 365, it was held that in a suit for declaration of title, the plaintiff has to establish his root of title, mode of acquisition, positive acts of unchallenged and sustained possession or of substantial user and the boundaries of the land.

To prove his status as owner of the land, the Plaintiff tendered into evidence exhibit “A” a duly executed indenture dated 18th November, 2006 between Nii Adama Kwatei Quartey head and lawful representative of the Gbawe Kwatei family with the consent and concurrence of the principal members of the said family and Rev Emmanuel Anim Nketia. Exhibit ‘B’ is the photograph of the illegal structure.

It is settled law that, a party who claims for declaration of title to land, injunction and possession must clearly identify the land. See Ollenu JSC in the case of Anane v Donkor [1965] GLR 188. At page 192 of the report. In the case of DZOKUI vrs ADZAMLI 2015 GHASC 118 (9 December 2015) Dotse JSC quoting from the case of Jass Co. Ltd. & Anr. V Appau & Anr. [2009] SCGLR 265, holding 2 thereof, the Court held that “The Courts have consistently refused to declare title in any claim for land when the land cannot or has not been clearly identified. As a matter of fact, the contention that a party must prove the identity of the disputed land with certainty to enable a court decree title in the party does not mean mathematical identity or certainty.”

In the instant case, even though the writ of summons and the statement of claim gives a scanty description of the identity of the land in issue as ‘’land which forms part of the parcel of land measuring 0.34 acres leased from the Gbawe Kwatei family’’, exhibit ‘A’ the indenture at page 3 has a full schedule on the land which gives a detailed description of the land in question as follows:

ALL THAT PIECE OR PARCEL OF LAND situate lying and being at Gbawe in the Ga District in Accra Region of the Republic of Ghana bounded on the North by proposed road measuring on that side one hundred and fifty (150) feet more or less on the East By Gbawe Kwatei Family property measuring on that side one hundred (100) feet more or less on the South by Gbawe Gbawe Kwatei family property measuring on that side one hundred and fifty feet (150) more or less on the West by proposed road measuring on that side one hundred (100) feet more or less and containing an approximate are of zero dot three four (0.34) acre or zero dot one four (0.14) hectare as the same is more particularly delineated on the plan attached hereto and thereon shewn edged PINK with an attached plan attached plan of the land in the name of the Plaintiff herein.

Therefore the Plaintiff‘s Exhibit “A” the indenture and the plan attached, clearly identified the land claimed by Plaintiff. Using plans to identify subject-matter land for purposes of declaration of title and associated reliefs has been approved by the courts in the cases of Laryea v Oforiwah [1984-86] 2 GLR 410 CA and Agbosu v Kotey [2003-2004] SCGLR 420 SC. See also Amoa VI Vrs Okine & Others 2014 GHASC 122 (15th January 2014). I therefore find that on the whole of the evidence put across, by Plaintiff the identity of the land is clear. Plaintiff has brought evidence that he has duly acquired the land, the other party has failed to respond as already discussed earlier in this judgment. Therefore he has failed to disable himself from challenging the evidence of the Plaintiff.

The evidence in support of the Plaintiff’s case was not challenged in any way by the Defendant/trespasser. Where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court (see TAKORADI FLOUR MILLS V. SAMIR FARIS [2005-2006] SCGLR 882 AT 900.

Since the Plaintiff’s evidence is unchallenged, I accept same and enter judgment for him as the lessee or owner of ALL THAT PIECE OR PARCEL OF LAND situate lying and being at Gbawe in the Ga District in Accra Region of the Republic of Ghana bounded on the North by proposed road measuring on that side one hundred and fifty (150) feet more or less on the East By Gbawe Kwatei Family property measuring on that side one hundred (100) feet more or less on the South by Gbawe Gbawe Kwatei family property measuring on that side one hundred and fifty feet (150) more or less on the West by proposed road measuring on that side one hundred (100) feet more or less and containing an approximate are of zero dot three four (0.34) acre or zero dot one four (0.14) hectare as the same is more particularly delineated on the plan attached hereto and thereon shewn edged PINK.

The Plaintiff is to recover possession of the said land and the Defendant/Trespasser, their relations, family members, assigns, privies or workmen are restrained from ever laying any claim whatsoever to the above property or going onto it except by the invitation of the Plaintiff. Defendant is further ordered to remove all offending structures placed on the land.

I award general damages of Ghc20,000.00 to the Plaintiff against the Defendant/Trespasser. Cost of Ghc10,000.00 is awarded in favour of Plaintiff against the Defendant.