Maxwell Adufah Ofosu (also known as Maxwell Ofosu) & Solomon Kwame Adufah (Customary Successors of William Kofi Adufah) v Augustine Maxwell Larbi & Richard Kwaku Asiedu

The plaintiffs herein instituted this action on 9th day of March 2023 against the defendants claiming the following reliefs:

1. A Declaration of Title and ownership to all that piece and parcel of land as described in the statement of claim.

 

2. Perpetual injunction to restrain the defendants and their assigns, from interfering with the said land.

3. An order by the Honourable Court for the demolishing of any structure (manhole) and Fence wall unlawfully put up on the said land by the defendants with punitive cost.

The 1st and 2nd defendants entered appearance and filed their statement of defence on 16/05/2023 and counterclaimed for the following:

a) A declaration that the 1st defendant is the lawful or legal owner of the piece or parcel of land situated and lying at Odumase in the Akim Abuakwa Traditional Area in the Eastern Region of the Republic of Ghana and containing an approximate area of 0.65 acre and bounded on the North by existing road and measuring on that side a distance of 147 feet more or less on the South by Yaw Torgbor’s land and measuring on that side a distance of 160 feet more or less on the East by Kwaku Anim’s land and measuring on that side a distance of 228 feet more or less on the West by Togbor and Mensah’s land and measuring on that side a distance of 170 feet is more particularly delineated on the site plan.

b) Perpetual injunction restraining the plaintiff, her agents, assigns, privies, servants, workmen and anybody claiming through him from entering, interfering, developing, or having anything to do with the 2nd defendant’s peaceful enjoyment with the property in dispute.

c) Damages

d) Cost including Legal fees.

e) Any other cost that this Honourable Court deems fit.

 

The plaintiffs on the 27/06/2023 filed their reply. After pleadings closed, the plaintiffs on 24/8/2023 filed an application for directions and defendants’ additional issue and same were set down for trial on 7/9/2023 as follows:

a. Whether or not the reserved 4 feet land to be used as road by Mr. Attipoe to access his poultry farm falls within the 1st defendant’s land.

b. Whether or not the man-hole constructed by the 1st defendant falls within 4 feet reserved land.

c. Whether or not the subject matter land before this Honourable Court falls within the 1st defendant’s acquired land.

d. Whether the defendants have trespassed on the plaintiffs’ land.

In sum, the gravamen of this suit as gleaned by the court is whether the 1st defendant has extended his building wall into plaintiff land and secondly whether the 1st defendant built his man-hole on plaintiffs land.

The parties subsequently filed their witness statements. The 1st plaintiff filed a witness statement. The 2nd plaintiff filed a witness statement. The plaintiff witness 1(Pw1) by name Nana Asare Oturoku the Ankobeahene of Kyebi Odumase who is also the Ahenfie secretary also filed a witness statement on behalf of the plaintiffs. The defendants filed witness statements in compliance with the Order. The 1st defendant filed a witness statement. Defence witness 1 (Dw1), Richard Onomah also filed a witness statement in favour of the defendants.

Upon commencement of trial the plaintiffs could not bring the said Pw1 to court, hence the said statement of the plaintiff’s witness went in as hearsay evidence. Conspicuously also the defendants failed to invite the said elder brother of defendant who is also an elder of defendants family and represented the defendant during the alleged arbitration to testify.

The absence of the plaintiff witness who is the Ahenfie secretary who was to tender the arbitration agreement between parties as one who witnessed the arbitration; and defendants elder brother who represented the defendant did not negate the plaintiffs case as the plaintiff successfully established the arbitration did take place without recourse to the said two witnesses. The court however did not take Pw1 evidence nor the arbitration agreement into consideration as Pw1 did not testify for which he was not cross-examined on the said witness statement and arbitration agreement filed.

The brief facts to the case as presented by plaintiff is that plaintiffs late father bought a parcel of land measuring about 5 acres in the year 1968, from Abusuapanyin Yaw Torgbor who was the head and lawful representative of his family. At a later time in 1997, the defendant also bought a parcel of land which shared a common boundary with the plaintiffs’ family land. The plaintiffs say the defendants built a house on their land in the year 2019 and in an attempt to build a fence wall around their house, entered into the plaintiffs’ land by about 13 feet. The Plaintiffs protested against the trespass and when they could not resolve the case with the defendants, they complained to the elders of the town who heard the case and went to inspect the common boundary. The elders advised the defendants to move their wall backwards. Even though the defendants obliged and moved their fence wall backwards it still fell within the land of the plaintiffs. After building the new fence wall, the defendants built a manhole to their house behind their fence wall and on the plaintiffs’ land again, causing the plaintiffs to file this suit against the defendants for trespass and other reliefs.

The plaintiffs described their land as All that piece or parcel of land situate and lying at Odumase-Akim and bounded at one side by Asiama, Kwabena Mensah and the Cocoa Marketing Board Hall; on one side by the Odikro of Odumase, on one side by Yaw Tawiah of Apapam and lastly by Yaw Amponsah and Kwaku Anim.

The defendant in denial of plaintiff’s case avers that somewhere in the year 2018 he acquired a lease of assignment of a parcel of land measuring 0.65 acre situated lying at Odumase –Akim from one Richard Odame. The land was originally acquired from one David Akwasi Asiamah. The land he purchased was a bare land which had never been cultivated but was usually razed down by fire during the harmattan season every year. The 1st defendant denies he has encroached on the plaintiff’s land save that they only share a common boundary. The defendant denies extending his wall into plaintiff’s land and says there was a visible pillar which demarcated the boundaries between the parties but the 2nd plaintiff intentionally damaged pillar to enable them make a false claim to defendant’s land. The 1st defendant says the intervention of the elders of the town was only to ask him to create an access road to his house and he therefore left a distance of 4 feet around his entire land before constructing his fence wall. The manhole was constructed within the 4 feet reserved around his entire land. The 1st defendant said since the area was swampy and waterlogged Mr. Attipoe diverted his route through the Western end of the 1st defendant’s property.

The plaintiffs in reply to the defendants counterclaim say that the 1st defendant has extended part of his building and wall into the plaintiffs’ land by about 13 feet and the manhole is within this. The plaintiffs say their father’s land measures about 8.32 acres. Their father used part of the land to cultivate cocoa and teak and the swampy part for sugar cane. The Ministry of Food and Agriculture, Cocoa Division at Amanfrom registered the land as FARM 97/20/7/15.

 

The plaintiffs say the 1st defendant has extended the boundaries of his land into the plaintiffs’ land beyond the Ntome trees that have been there for several years, and marked the boundary between the parties. The plaintiffs say their father sold about 1.2 acres of his original land to the late Robert Lawer Kwamiga Attipoe from Anyako and his wife. The present Mr. Attipoe is their son.

The plaintiffs maintains that the man-hole and part of the defendant’s building are within their land and put the defendants to strict proof of the contrary with the Building Permit, approved structural drawings of the fence wall, and man-hole from the District Assembly and the Environmental Protection Agency.

The dispute between parties is more of a border dispute rather than a claim to the

defendants’ land.

EVIDENCE:

The 1st and 2nd plaintiffs filed their respective witness statements on 22/11/2023. They relied on the said witness statements as their testimony.

The 1st plaintiff Maxwell Adufah Ofosu also known as Maxwell Ofosu commenced the plaintiffs case. The 1st plaintiffs by his Witness Statement which is his evidence-in-chief led evidence to show the existence of the land which belongs to himself and his siblings which they inherited from their late father, William Kofi Adufah of Akim Odumase. The 1st plaintiff testified that the plaintiffs are administrators and successors to their father’s estate. He tendered in evidence the Letters of Administrations which was admitted in evidence as exhibit ‘A’. He testified that their father bought the land in 1968 from one Abusuapanyin Yaw Torgbor of Kyebi Apapam through customary sale in which the “guaha” custom was performed. The land is bounded on one side by the properties of one Asiamah, Kwabena Mensah and the Cocoa Marketing Hall; on one side by Yaw

 

Tawiah of Kyebi Apapam and on one side by Yaw Amponsah and Kwaku Anim and on another side by the Kwabena Asa and the Odikro of Odumase Akim.

It must be noted that these facts appear on the face of the executed document given to William Adufa and tendered as Exhibit B. the search report from the Lands Commission and Site Plan that was used for the search which is Exhibit B1.

The 1st plaintiff testified further that the boundaries of their family land were marked by perennial boundary trees called Ntome trees which have survived till now. The Ntome trees along the common boundary with the defendants’ land were however removed by the defendants when they caused a grader to level their land. He said one big Ntome tree which has grown very tall and well established remains standing on the border edge. He tendered a photograph of the Ntome tree in evidence as exhibit C. The 1st plaintiff tendered in evidence photographs of the 1st defendant’s building, the fence wall and the manhole which have generated this law suit as exhibits C series (C1, C2, C3 and C4). The 1st plaintiff testified that they have used their land for farming ever since they bought the land. One portion of the land was used to cultivate cocoa and the swampy part for sugar cane.

The 1st plaintiff testified further that they are not claiming the defendants land but the problem between them and their neighbor, the defendants started in the year 2019 when a company called EATON TOWERS acquired a portion of plaintiffs’ land to build their telecommunication mast or tower on it. When the company started the project, the defendants maliciously raised an illegal fence wall on plaintiffs’ land to obstruct the movement of the workers and materials to the project site.

This caused the Company to halt the project on plaintiff’s land. The defendant then managed to get the company to transfer their project to the defendants’ land and eventually sabotaged the project on plaintiffs’ land. The Telecommunications mast or tower was eventually built on the defendants’ land.

The defendants then tried to build a fence wall which extended unto plaintiffs’ land. The plaintiffs protested and the defendants moved their fence backwards but not far enough. Later the 2nd defendant approached the 2nd plaintiff to persuade him to sell that portion of plaintiffs’ land to them. The 2nd plaintiff declined the offer.

Despite the refusal of the plaintiffs to sell that portion of the land to defendants, they started building a manhole to their new building behind the illegal fence wall without the consent of the plaintiffs. The plaintiffs reported the matter to the Odikro of the Town and his elders for arbitration. The parties paid arbitration fees and after the elders had heard them, the elders went with the parties to inspect the site. Their findings were that the defendants had entered the plaintiffs’ land. The elders including the head of the defendants’ family called Odame Larbi advised the defendant not to construct the manhole there and they gave him 21 days to remove it. The defendants agreed to remove the manhole but they did not and instead made a report to the Kibi Police that the plaintiffs have stopped their workers from constructing a manhole on their land. The plaintiffs also filed this suit for the Honourable Court to determine it.

The 1st plaintiff testified that they found it very irritating for the defendants to build a fence wall illegally on their land and again build a manhole behind the wall on plaintiffs’ land. He said it is a great insult and a nuisance as well as environmental hazard to them and pray the court to order the defendants to remove the manhole and build it within the perimeter of their building which they are now using as a guest house. The 1st plaintiff exhibited pictures of the manhole, the fence wall and the story building which were marked as exhibits C1, C2 and C3 (instead of D1, D2 and D3).

 

The 1st plaintiff testified to the counterclaim and said the 1st defendant is not entitled to his counterclaim. He said they are not claiming the defendants’ land but are worried at the disdainful attempt to annex the dispute portion. they submited that the plaintiff’s father acquired his land in the year 1968 by customary sale in which the “guaha” and other customary rights were performed to seal the sale transaction.

On the other hand, it was only recently in the year 2018 that the 1st defendant obtained assignment of the land to him by his assignor. Initially the The transaction covering the plaintiff land from his grantor was originally not in writing but a confirmatory document of sale was later given to the purchaser, their father known as William Kofi Adufa by the nephew of the vendor Yaw Torgbor, called Kwaku Sona on 28th September, 1970 after the death of the deceased. See Exhibit ‘B’, the document is over 54 years and by its age, it is classified as an ancient document, which actually by law proves itself.

Excerpts of cross-examination of 1st plaintiff by counsel for defendants

…

Q: Take a look at exhibit B that was the original document given to your father is that not correct.

A: Yes.

Q: And there is a description of the land on that document is that not correct. A: That is so.

Q: And there is no site plan attached to that document is that not correct.

A: That is so. The land was bought by my late father. After his demise and I sighted the document there was no site plan attached.

Q: And the acreage of land is also not stated on that document, is that not correct.

 

A: Yes. When he purchased the land myself and other siblings were working on the land. At a point in time, we wanted to know the size of the land hence we went to conduct the search.

Q: So, it was during the conduction of the search that you prepared the site plan. A: That is so.

Q: So, the site plan was prepared on 12th April 2023 as stated on it. A: Yes

…

Q: I put it to you. That the site plan you prepared dated 13th April 2023 which you provided 8.32 acres was a calculated attempt to over reach the defendants of their portion of the land.

A: It is not true. I know the boundaries of the land. There are Ntorme trees planted on the boundaries which are grown.

Q: How many Ntorme trees can be found on the land.

A: They are many I cannot count it whilst sitting here in court.

Q: These Ntorme trees can be found in different portions of the land aside the boundaries, is that correct.

A: No.

Q: I put it to you. The Ntorme trees found on the boundary is between the defendants’

land and that of Mr. Atippoe and not your land.

 

A: The trees are many on the land. I sold the said land to Mr. Attipoe. In my witness statement paragraph 6 I stated that the schedule of my land to be as purchase by my late father.

…

Q: And that you institute this action when you did not know the size of your land. A: I know the size of my land.

Q: Whilst this case was pending, you applied for L.A. from the Circuit Court Kyebi, is that not correct.

A: I started the process before I instituted this action. Q: When did your father die.

A: He died in 1977.

Q: And you applied for the L.A. on 30th May 2023. A: That is what it says but I started long before that.

Q: You so applied for the L.A. 26 years after the death of your father. A: That is so.

Q: I put it to you. All these processes were calculated just to extend your family property unto the defendants land.

A: It is not true. In our Akan customary practice, when your father dies it is his elderly child who succeeds him. I am the elder child so I succeeded him and being carrying out my responsibilities even prior to instituting this case in court.

Q: So, when the 1st defendant constructed his fence wall you were on your family property is that not correct.

 

A: That is so.

Q: And you have notice of the construction of the wall is that not correct.

A: I noticed it. When Eston Towers came for my land to plant the mask. It was during that period the defendant started the fence wall just to block the company access to my land.

Q: And when they constructed the fence wall in 2019 you did not complain is that not correct.

A: I complained that is why same was demolished.

Q: I put it to you. The fence wall is currently sitting there and has never been broken down.

A: It is not true. It is the 2nd time of construction of the wall that is in place now.

Q: You agree with me it was the construction of the manhole that brought you to this court.

A: It is part of the reasons.

Q: Is that the reason you are preparing site plan to cover that part of the land when in

exhibit B which is your father’s original document, that portion was not part of your land.

A: It is not true. The land with its boundaries of Ntorme trees are still there.

Q: You agree with me the said Ntorme trees you mention is not in your father’s original

document.

A: I disagree with the counsel’s reason being that when you purchase a land, items on the land are not mentioned on the land document, it only states whom you share boundaries with.

 

Q: In your father’s original document, it said the land is bounded on one side by the properties of Mr. Asiamah but the length of that portion of land was not stated on the said exhibit B.

A: It is true. That is the Ntorme trees used as boundaries.

Q: And that all the boundaries as provided in exhibit B did not specify the length of each of the boundaries.

A: It is true, but that is why we all have Ntorme trees as our boundary and we do not use length as a boundary.

Q: I put it to you. That any purported site plan that you have prepared after the

institution of this action is contrary to the terms of your father’s original document.

A: It is not true. The boundaries on the document is what we are looking at.

Q: And therefore, purported site plan you prepared is not born out of your father’s

original document (exhibit B). A: It is not true.

Q: The Ntorme trees that you referred to there is also another at the other side between defendants and Mr. Attipoe. Does that also serve as your boundary point.

A: I have already indicated to the court that there are Ntorme trees on the land as my boundaries. And I am the same person who sold Attipoe’s portion of the land to him. So, if there is Ntorme trees on his side of the land, I am the owner of the Ntorme trees.

Q: So, the purported site plan exhibit B is Mr. Attipoe land also part.\

A: Yes it forms part because I have not given Attipoe an indenture yet covering his land.

 

Q: I put it to you. You have no interest whatsoever in the land that you sold to Mr. Attipoe and cannot prepare a site plan to cover the land you claim you have sold out.

A: It is not true.

Q: I put it to you. All your evidence before this court are calculated untruth just to deprive the defendants their interest in their land by preparing document to cover everything.

A: It is not true.

The 2ND PLAINTIFF: is Solomon Kwame Adufah. He relied on his witness statement filed on the 22/11/2023 as his testimony. He largely corroborated the evidence of the 1st plaintiff. He confirmed to the court that the arbitration held by the Odikro with his elders went in the plaintiffs’ favour for which the defendant were directed to move their fence wall backwards. This the defendants partially complied with this as they moved the wall backwards but not as far backwards as directed by the elders which point is the Ntome trees that served as boundary between parties.

In his testimony the 2nd plaintiff confirmed that their late father had been in possession of the land since 1970 when the indenture was officially executed until 1997 when he passed on. Indeed their late father never had a dispute on boundary with the original owner/neighbors which included the grantor of defendants land. This is because the Ntorme trees served as boundary demarcation.

The 2nd plaintiff testified that 1st defendant approached him and tried to convince plaintiffs to sell the disputed boundary land to him but the plaintiffs refused. Upon the plaintiffs refusal the defendants sought to trespass on the said land by building the manhole on it. Despite the arbitration award in favour of plaintiffs and against defendants which arbitration hearing defendants elder brother on his behalf participated; the defendants flagrantly seeks to trespass unto plaintiff’s land. Indeed the Odikro and his elders including the defendants family head who is defendants elder brother called Odame larbi after the arbitration directed the defendants not to construct the manhole and gave the defendant 21 days to remove the manhole. The defendant agreed to comply but has failed to do so and gone ahead to construct the manhole.

This manhole the plaintiffs considers as a great insult and a nuisance, as well as environmental hazard to the public since there is a public standpipe close nearby.

Excerpts of cross-examination of 2nd plaintiff by counsel for defendants

…

Q: In your paragraph 8 of your witness statement, you claimed the defendants caused a grader to mow down the Ntorme tress at the boundary point between your land and their land. Is that correct.

A: Yes, that is so.

Q: And in your paragraph 9 of you witness statement you claim there is one big Ntorme tree which stands at your common boundary point is that correct.

A: Yes, that is so.

Q: Can you identify this one big Ntorme tree from the exhibits you have put before this court.

A: Yes, I can identify.

Q: Please show it to the court.

A: Exhibit C attached to my witness statement.

Q: I put it to you. That what is found in exhibit C is not one big Ntorme tree.

A: It is true.

Q: From your evidence before this court can you show to the court the exact point of your land where this Ntorme tree in exhibit C you claim is located.

A: Yes.

 

Q: Please show it to the court the exact point of your land where this Ntorme tree is located.

A: Per exhibit C 3 where I have just marked with red pen is where the Ntorme tree is.

Q: I put it to you. In exhibit C3, there is no one big Ntorme tree on it.

A: It was there.

Q: I put it to you. You do not know the boundaries of your land.

A: I know it.

Q: Per your exhibit B before this court what is the size of your land.

A: It was Ntorme tree that was mounted to indicate its size.

Q: You claim that the land was conveyed to your father from one Abusuapanin Yaw Togbor from Kyebi Apapa.

A: Yes that is so.

Q: So your father was given document in respect of this land, is that correct. That is so.

Q: And the size of this land was not provided in that document, is that not correct.

A: I have stated that it was Ntorme tree that was erected on the land to show the boundaries.

Q: So can you show this court from the document as provided in exhibit B where the Ntorme trees were provided in the documents as the boundary point of your father’s land.

A: Yes, it is at the boundary of those I share boundary with.

Q: I put it to you. Ntorme trees are not in exhibit B as Boundary points.

A: It is there.

Q: I put it to you. You are not being truthful to the court; you are fabricating stories to the court.

A: I am speaking the truth, those I share boundaries with are on the document.

 

Q: You agree with me that there was no site plan attached to your father’s document

originally.

A: I have bought it into my witness statement that at that time there was no site plan attached to the indenture

Q: You agree with me that in paragraph 3 of your statement of claim you stated the size

of your father’s land is 5 acres.

A: Yes. At that time there was no preparation of site plan, it was later we came to realise that we should prepare one.

Q: In your paragraph 6 of your reply to statement of defence and counterclaim you stated

your father’s land is 8.32 acres is that not correct.

A: Yes.

Q: In y our exhibit B1 which is the said report the site plan you attached to that search also has 8.32 acres, is that correct.

A: That is so.

Q: And on that site plan you have the name of William Kofi Adufah on it.

A: That is so.

Q: You have also filed a survey instruction before this court which was used in the preparation of a composite plan by A1 Surveyors is that correct.

A: Yes, that is so.

Q: On that site plan you have the name of Maxwell Ofosu Adufah, Mrs. Christiana Adufah, Miss Elizabeth Korkor Adufah, Rev. Dr. Mary Adufah, Miss Florence Adufah, Mr. Christopher Narh Kwadwo Adufah, Mr. Solomon Kwame Adufah and Miss Victoria Adufah.

A: Yes. We are siblings that is why we brought all our names on it.

Q: So, you agree with me that the site plan attached to exhibit B1 and the one attached to your survey instructions are different and distinct.

 

A: The said Mr. William Kofi Adufah is my father, but because he is no more that is why we write we the siblings name on it.

Q: I put it to you. There are 2 different site plans.

A: Our Dad is Kofi Adufah, after his death we had to write all we the siblings name on it. Q: You agree with me the site plan as attached at 5th January 2024 has no date of preparation.

A: The surveyor delayed and there was financial constraints.

Q: You agree with me the said site plan was not signed as at 5th January 2024 when you filed it.

A: It was delayance due to financial constraints.

Q: I put it to you. The size of the land on that site plan is 8.20 acres.

A: That is what you are claiming.

…

Q: Your late father sold a portion of land to Mr. Attipoe is that not right.

A: That is so.

Q; And that portion was one (1) acre is that not correct.

A; It is not one (1) acre.

Q: Tell the court the size of the land sold to Mr. Attipoe by your father. A: Mr. Attipoe bought some of the land for himself and some for his wife.

Q: So, you agree with me you do not know the size of the land your father sold to Me Attipoe.

A: Yes, that is so because I have not given the said Mr. Attipoe a document.

Q: I put it to you. Your father prepared document in favour of Mr. Attipoe for the said land he bought from your father.

A: He gave Mr. Attipoe cover note.

 

Q: I put it to you. At the time your father died that portion of land measuring one (1) acre did not form part of his estate.

A: It forms part of my father’s estate.

Q: Do you know Auntie Julie. A: I know her.

Q: So, you know as a fact that you have sold a portion of your father’s land to her is that

not so.

A: Yes, that is so.

Q: So, you agree with me the portion sold to Auntie Julie does also not form part of your land.

A: It forms part as I have not given her the document.

Q: In exhibit B (1) your site plan attached to your witness statement you stated the size of your land is 8.32 acres is that right.

A: Yes, that is so.

Q: And the name on that document is Mr. William Kofi Adufah is that correct.

A: Yes, it is correct.

Q: And in your site plan presented before the A1 Surveyor for the composite plan the site plan measured 8.20 acres.

A: Yes, that is so.

…

Q: Solomon Kwame Adufah you agree with me that in your statement of Case in support of your application for injunction describe the subject matter land as measuring 5 acres. A: I have already said it is a typographical error.

Q: So are you saying that the 5 acres you stated in your statement of claim is also a typographical error.

A: Yes, it is a typing mistake.

 

Q: I put it to you. That your subject matter land measures 5 acres.

A: It I s not true.

Q: Do you agree with me that your size of your land before this court has three (3) measurements being 5 acres, 8.30 acres and 8.20 acres.

A: It is 8.3 acres.

Q: On 23rd March 2023 you filed for Letters of Administration before the Circuit Court Kyebi

A: It is true.

…

Q: I put it to you. That the preparation of the site plan attached to your witness statement measuring 8.32 acres was an afterthought and calculated to over reach the defendants.

A: That is not so.

Q: Are you aware the site plan measuring 8.32 acres which you have attached to your witness statement was not dated and signed by the surveyor who prepared it.

A: Because of the expeditious time of the court that is why the surveyor gave us this document and so we later came for the dated and signed one.

Q: Are you aware that the site plan measuring 8.32 acres bears the name of William Kofi Adufah.

A: Yes

Q: Do you know as a fact that the said William Kofi Adufah your father died on 30th

March 1997.

A: That is so.

Q: Do you also know that you prepared another site plan measuring 8.20 acres which has the names of Mr. Maxwell Ofosu Adufah and 7 others.

A: Yes, that is so, I recall the last time I was asked this question and I told the court that we are siblings hence their names appear on the said site plan.

 

Q: So, what date did you prepare the site plan bearing 8.20 acres. A: When we get the signed site plan the date would appear on it. Q; Have you administered the Estate of the said William Adufah. A: No.

Q: You claim the Ntorme trees forms the boundary point between your land and that of the defendant is that correct.

A: Yes

1ST DEFENDANT: is Maxwell Augustine Larbi a retired teacher but currently a trader. He relied on his witness statement filed on 22/11/2023 with one attachment marked Exhibit 1 being an indenture as his evidence in chief. He admitted that he knew the plaintiffs very well as they all grew together at Odumase Akim.

Excerpts of cross-examination of 1st defendant by counsel for plaintiffs

…

Q: Mr. Augustine Maxwell Larbi, I believe you know the plaintiffs very well. A: Yes, I know the plaintiffs very well.

Q: From your witness statement you all grew together at Odumase Akim. A: Yes

Q: You are aware that the plaintiffs’ father, in his life time bought a land in 1968.

A: For that I cannot tell.

Q: You also stated that you bought your land in the year 2018 is that not so.

A: Yes, that is so.

 

Q: I can say that plaintiffs were on their land many, many years before you came to acquire land also in the area.

A: Yes

Q: The land you bought shares a common boundary with the plaintiffs’ family land.

A: Yes, on one part.

Q: So, this means that your land you acquired is different from plaintiffs’ family land’

A: Yes, that is so.

Q: You will agree with me that the problem between the plaintiffs and the defendants is just boundary problem.

A: That is so.

Q: When you bought your land, at the time you bought your land you saw that plaintiffs had Ntorme (boundary) trees around their land as well as along the common boundary between the plaintiffs and defendant land.

A: The land I bought at the time, it was pillars that was used as boundary from my purchaser and so I had nothing to do with Ntorme trees as boundaries.

Q: I put it to you. The plaintiffs had Ntorme trees marking their boundaries before you came to buy your land.

A: There are several Ntorme trees on the land, but they do not serve as boundary between us. It was pillars that was the boundaries used in selling the land to me.

Q: After buying your land you erected corner pillars to demarcate your land.

A: The pillars were already planted as boundaries by the one who sold the land to me.

 

Q: I suggest to you that from your evidence at the time you bought your land boundary or corner pillars were already there separating the land you bought from that of your boundary owners.

A: Yes, that is so.

Q: I suggest to you that each of the two boundary owners knew exactly the boundaries separating their respective lands.

A: Yes, that is so.

…

Q: It is a fact that the chief of the town and some elders arbitrated upon this boundary problem between the plaintiffs and defendants.

A: It is true, my, my brother represented me before the Odikro as at that time I was indisposed. It was not arbitration it is a deliberation.

Q: The parties paid arbitration fees before the elders started to hear the case.

A: I was not present so I cannot tell what exactly happened.

Q: You delegated your brother to represent you before the chiefs is that so.

A: I delegated him to go and listen to the information the chief has for me but not to

arbitrate on the matter.

Q: I put it to you. You are not being truthful in your answer.

A: I am speaking the truth.

Q: Who is your brother you sent to represent you. A: My elderly brother.

 

Q: What is his name. A: Mr. Odame.

Q: I put it to you. At the end of deliberations for the day the parties again paid some fees to the panel.

A: Truly I was not present and cannot tell if my representative paid anything. But what I know is that when elders meet to deliberate on a matter, they demand fee from

both sides, when my brother came, he did not disclose to me whether he paid some fee or not.

Q: Are you saying when your brother returned, he never reported to you what happened before the Odikro.

A: As I said at the time I was unwell and had a surgery. It was after about a month on one of his visits that he told me when I recover, I should produce the document covering the land before the Odikro in respect of the issue.

Q: I put it to you. The Odikro and his elders together with the plaintiffs and your representative went to inspect the disputed boundary.

A: Yes, I was told.

Q: I put it to you. The Odikro and his elders made a finding of fact that indeed you had trespassed unto the plaintiffs land.

…

A: That is not so. I have not trespassed.

 

Q: I put it to you. The Odikro and his panel asked you to push your wall backwards and you did so but not to the right extent.

A: I do not recall.

Q: I put it to you. You did so.

A: It is not true.

Q: I put it to you. After building the 2nd wall you later on came behind the wall to build

a manhole on plaintiffs’ land.

A: It is not true.

…

Q: Mr. Larbi you stated in paragraph 13 of your witness statement that the place where you have constructed the manhole is the place you originally reserved for Mr. Atippoe to give him access to his land. I put it to you this statement is false.

A: I am speaking the truth. Town and Country Planning made it known to me that when you wall a house you should leave 4 feet and the one close by would also leave 4 feet making it 8 feet to serve as an access road for the said Mr. Atippoe.

Q: Are you aware that it was the plaintiff who sold part of his land to Mr. Atippoe. A: Yes, I know.

Q: And do you also know that you are not the person who grants access road to another person.

A: What I know is I left the 4 feet as it was directed by Town and Country Planning to serve as an access road. Furthermore, in all the 4 boundaries, I left the 4 feet. It

was the construction of the road that took the 4 feet on one side of the boundary. For the other 3 sides the 4 feet is still available.

 

Q: By your paragraph 14 of your witness statement, you stated that you share a common boundary with the plaintiffs is that so.

A: Yes.

Q: It is this portion where you share a common boundary is where this present dispute has arisen.

A: Yes, that is so.

Q: Are you aware that the house you have constructed your building itself part of it is within the plaintiffs land.

A: I do not know; it is only today I am hearing it.

…

Q: I put it to you. The wall you built earlier on you yourself moved it backwards with the intervention of the elders of the town.

A: That is not so.

Q: I put it to you. The place you have built your manhole lies outside the wall separating you and the plaintiffs land.

A: That is so, but where I left the 4 feet outside my wall for Mr. Atippoe the place happens to be swampy. So, Mr. Atippoe stopped using that route. So, I decided to put up my manhole there since that portion still belongs to me.

…

DW1 is Richmond Onomeh. He relied on his witness statement filed on 22/11/2023 as his evidence in chief. Dw1 evidence was not quiet useful. Dw1 even denied aspects of

 

defendants’ testimony which 1st defendant had confirmed/admitted to under cross- examination that the manhole he has built lies behind his wall though lying within 4feet space he left behind his wall.

Excerpts of cross -examination of dw1 by counsel for plaintiffs.

…

Q: The plaintiffs are saying that after the defendants have built their wall, they have come behind the wall to construct their septic tank/manhole behind the wall.

A: It is not true.

Q: Are you sure that the defendants have not built their septic tank behind the wall of their house, that is the wall which separates their house and that of plaintiffs.

A: A manhole has been dug but it in the defendants land.

1ST COURT WITNESS is Nii Quashie Quartey a surveyor by profession. He told the court that on the 4th January 2024, his team went to the field to conduct the survey. Out of the survey work a composite plan was prepared. Attached to the report is the composite plan tendered and marked as exhibit CW1.

Excerpts of cross-examination–of 1st court witness by counsel for plaintiffs

…

Q: If you take the blue shading which represent plaintiffs site plan, this runs through the

defendants’ story building.

A: That is so, it is partial.

Q: In the same way the red marks showing plaintiffs land runs almost at the edge of

defendants’ story building.

 

A: That is so.

Q: Would I be right in saying that part of defendants’ story building is within the blue line and so it falls into plaintiffs’ land.

A: Partially, it falls within as per the site plan of the plaintiff.

Q: The defendants manhole is the small area shaded black in pencil.

A: That is so and is on the composite plan.

Q: This falls outside the defendants’ story building.

A: That is so.

Q: Would I be right in saying that the defendant manhole falls within the plaintiffs site plan marked by blue and the plaintiff land on the ground shown by red.

A: You are correct

Q: May I be right to say that therefore the manhole is an encroachment on the plaintiffs land.

A: It falls within the plaintiff site plan and also what is shown on the ground.

Q: There is an area which is shaded hash/black within the green boundary this is the common area in dispute.

A: Yes.

Q: The defendants land marked green practically lies to the north of the plaintiffs’ land

as shown by both the blue and red markings.

A: Yes.

Q: That is the area marked D1, D2, D3, D4, D5.

A: Yes, it has in the North of plaintiffs’ land and site plan.

Q: Would you agree with me that the dispute between the plaintiffs and the defendants is just a boundary dispute and not one claiming the other parties land.

 

A: Yes, that is why parties are in court.

…

Q: So, in totality, would you agree with me that by the composite plan the defendants has encroached on plaintiffs land.

A: I do not agree with you because there is an overlap and I do not know which party has encroached in the others land.

Q: I put it to you. The position of the manhole is completely outside the defendants story building.

A: It is not completely it in just outside.

Q: You have shown the wall of the defendants in broke lines. A: That is true.

Q: Should you examine these wall or line to point D5 you realise the wall extends unto the plaintiffs land as shown by both the blue and red line.

A: A: That is so.

…

Excerpts of cross-examination–of 1st court witness by counsel for defendants

…

Q: Take a look at the site plan attached to defendants survey instructions and mention to the court the approximate area it covering.

A: O.65 acres.

Q: And that site plan was prepared on what date. A: 6th April 2023.

Q: That site plan was also signed by the regional director of Survey and mapping division.

A: Yes.

 

Q: What is the size of the land as shown by the defendants on the ground per your composite plan marked green.

A: 0.65 acres.

…

Q: The manhole also falls within the defendants lands as shown on the ground and his site plan is that correct.

A: On the ground yes but on the site plan no, the site plan goes through the manhole. The site plan is marked yellow and goes through the manhole.

Q: So may I be correct to say that the defendants were able to identify their land with precisions.

A: No. Because there is an overlap with the site plan and what was shown on the ground. Although they are of the same acreage.

…

Q: So, you agree with me that the defendants’ manhole falls within the area as shown to you by the defendants on the ground.

A: Yes

Q: I seek your opinion do you know as an expert that in developing our land you are mandated to reserve 10 feet around your land.

A: At 8 feet not 10 feet.

Q: So would you agree with me that the defendants in constructing his fence wall along the area of dispute reserved more than 8 feet of his land.

 

A: At some places yes, at some places no as the wall was touching the building at some places.

Q: I put it to you. That the area of dispute falls within the 8feet that the defendants is mandated to reserve.

A: Yes, about that.

LAW:

In civil matters, the law requires two key burdens to be fulfilled: the burden of persuasion and the burden of producing evidence. These burdens are defined in Sections 10 – 12, 14 of the Evidence Decree, 1975 (NRCD 323).

Section 10 – 12, 14 of NRCD 323 defines the Burden of Persuasion as:

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.

(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.

 

(3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt.

(4) In other circumstances 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 the 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 Allocation of burden of persuasion

Except as otherwise provided by law, unless 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 that person is asserting.”

The law relating to standard of proof in civil matters without exception is proof by preponderance of probabilities having regard to sections 10, 11 and 12 of Evidence Act, 1975 (NRCD 323). Section 11 states among other things that, for the purposes of the Act the burden of producing evidence mean the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. Section 12 instructs that unless otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities which means the 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. See: ADWWUBENG v DOMFEH (1996-97) SCGLR 660. See also: AVADZINU vrs. NYOONA (2010) 27 GMJ 132CA. The Supreme Court in the case entitled DON ACKAH VRS PERGAH TRANSPORT LTD (CIVIL APPEAL NO.

J4/51/2009) 21st April 2020, [2010] SCGLR 728 at 736 held as follows:

“It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail.

The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or Tribunal of fact such as a Jury” It is trite learning that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.”

In AMIDU ALHASSAN AMIDU & ANOR VS MUTIU ALAWIYE & 6 ORS (2020) 155

GMJ 120, the Supreme Court per Pwamang JSC at page 159 stated the principle on the allocation of persuasion as follow:

“The settled position of the law is that it is the party who stands to lose on an issue if no evidence is led on it that bears the burden of proof as far as that issue is concerned. This principle is stated in Section 14 and 17 of NRCD 323...”

Again Brobbey JA (as he then was) in the case of DUAH V YORKWA [1993-94] 1 GLR 217 at page 224 stated thus:

"In our jurisprudence, if two parties go to court to seek redress to a dispute, it is the plaintiff who initiates the litigation and literally drags the defendant into court. If both parties decide to lead no evidence, the order which will be given will necessarily go against the plaintiff. Therefore it is the plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him. This is clearly amplified in section 11 (1) of NRCD 323 which provides that: “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.”

However, the burden of proof is not static. Thus in the suit JOHN DRAMANI MAHAMA VRS ELECTORAL COMMISSION & NANA ADDO DANKWA AKUFO-

ADDO [2021] 171 G.M.J 473@ 530 the supreme court, per Anin Yeboah JSC (as he then was) as follows;

“The burden of persuasion rests with the person who substantially asserts the affirmative of the issue on the pleadings and this is the principle of law that has been unremittingly followed by our Courts for decades”.

The expression burden of persuasion can therefore be interpreted to mean the quality, quantum, amount, degree or extent of evidence the litigant is obliged to adduce in order to satisfy the requirement of proving a situation or a fact. See: AGO SAI & OTHERS v KPOBI TETTEH TSURU III [2010] SCGLR 762 at 779. See also: Fred Obikyere in his Book, Legal Resource Book: The Law as Decided by The Superior Courts In Ghana pages 150,151, 164.

It therefore means that in assessing the balance of probabilities, all the evidence of both the plaintiff and defendant must be considered and the party in whose favour it tilts is the person whose case is more probable of rival version and is deserving of a favourable verdict. See: TAKORADI FLOOR MILLS VRS SAMIRA FARIS (2005-2006) SCGLR 682 @ 900

 

In the case of 2000 LTD V. OTOO (J4/04/2017) [2018] UNREPORTED SC, (17 October

2018), Appau JSC, as he then was, held that: “… the standard of proof required that for the appellant to succeed on his counterclaim, he must lead satisfactory evidence, either by himself or otherwise which, on the balance of the probabilities, makes his case more probable than not…”

It is not sufficient for a party to merely mount the witness box and repeat averments. Bare assertions will not suffice See: KLAH VRS PHOENIX INSURANCE CO. LIMITED [2012] SCGLR 1139. See also: NDK FINANCIAL SERVICES V. AHAMANG ENTERPRISE LTD & ORS (J8/65/2019) [2021] UNREPORTED.

The court would discuss issue 1 and issue 2 together

ISSUE 1: Whether or not the reserved 4 feet land to be used as road by Mr. Attipoe to access his poultry farm falls within the 1st defendant’s land

ISSUE 2: Whether or not the man-hole constructed by the 1st defendant falls within 4 feet reserved land.

It is the defendants’ case that the plaintiffs’ site plan which is exhibit B1 was not signed by license surveyor and Regional Director of Surveyors, which is a statutory requirement. Thus is contrary to section 3(1) of L.I. 1444, the survey (supervision and Approval of plans) Regulations, 1989 which makes it mandatory for plans of any parcel of land attached to any instrument for the registration of such instrument to be approved by the Director of survey or any official authorized in that behalf. The signature on the face of the exhibit B1 is the signature of the lands commission officer, Bismark Ntiri Atobrash who signed the search results. The site plan attached to exhibit 1 did not meet the requirements of the law.

Section 208 of Lands Acts, 2020 [Act 1036] provides:

 

(1) The plan attached to an instrument submitted for registration shall be accurately drawn and the scale chosen shall be as specific by the Lands Commission at the time of preparation and shall show clearly all details and specifications required by the relevant enactment.

(2) Every plan shall have a title which shall include the scale, the designation of the parcels of land shown in the plan, the region, district, city, town or village in which the land is situated.

(3) The plan shall be prepared by an official surveyor or a licensed surveyor.

(4) Where the plan is prepared by

(a) an official surveyor, the plan shall be approved by the Director of the Survey and Mapping Division; and

(b) a licensed surveyor, the plan shall be certified by the license surveyor and approved by the Director of the Survey and Mapping Division .

The plan attached as exhibit B1 was not signed by either official surveyor or licensed surveyor. Secondly. The plan was not approved by Director of Surveys and Mapping Division or authorized agent. These requirements are statutory and mandatory requirements that must be complied with by the plaintiffs but they failed. In the case of BOYEFIO v NTHC PROPERTIES LTD [1997-98]1 GLR 768, “laid down the test that when a statue has specifically laid down procedure for doing it things, it is only that procedure that must be followed.”

The plaintiffs have failed to follow the laid procedure set out by Act 1036 which requires the site plan attached to exhibit B1 and the one submitted to the A1 SURVEYOR to be certified by a licensed or official surveyor and approved by the Director of Survey and Mapping Division. Also that the plaintiffs could not clearly state their land size as they kept changing the acreage. In their statement of claim they stated 5 acres, subsequently they again stated 8.32 acres and 8.20 acres respectively during the cause of the trial. The Exhibit B1 submitted stated 8.20 acres.

The defendants submitted another site plan measuring 8.20 acres to the A1 Surveyor for the preparation of the composite plan. That site plan bears the name of the plaintiffs and 6 other siblings which was neither signed by the license Surveyor nor Regional Director of Surveys.

The plaintiffs came to this Court without knowing the size of their land. They rather choose to produce three different sizes of the same land to this court measuring 5 acres, 8.32 acres and 8.20 acres. The evidence of the plaintiffs is full of fabrications, incredible and cannot be relied upon by this Honourable Court.

The plaintiffs: The plaintiffs tendered exhibit B which is an indenture between the plaintiffs’ father and his grantor, containing the description of the land without its size. There is no evidence on the face of exhibit B about the size of the plaintiffs’ land. Exhibit B is a stamped document.

Exhibit B which is an indenture between the plaintiffs’ father and his grantor was executed in 1968 by one Abusuapanyin Yaw Torgbor of Kyebi Apapam through customary sale in which the “guaha” custom was performed. The land is bounded on one side by the properties of one Asiamah, Kwabena Mensah and the Cocoa Marketing Hall; on one side by Yaw Tawiah of Kyebi Apapam and on one side by Yaw Amponsah and Kwaku Anim and on another side by the Kwabena Asa and the Odikro of Odumase Akim.

Significantly, these facts appear on the face of the executed document given to William Adufa marked Exhibit B and It included a search report from the Lands Commission and a Site Plan that was used for the search which was marked Exhibit B1.

 

The 1st plaintiff testified further that the boundaries of their family land were marked by perennial boundary trees called Ntome which have survived till now. The Ntome trees along the common boundary with the defendants’ land were however removed by the defendants when they caused a grader to level their land. He said one big Ntome tree which has grown very tall and well established remains standing on the border edge. He tendered a photograph of the Ntome tree in evidence marked as exhibit C. The 1st plaintiff tendered in evidence photographs of the 1st defendant’s building, the fence wall and the manhole which have generated this law suit. They were marked exhibits C1, C2, C3 and C4.

The transaction was not originally in writing but a confirmatory document of sale was later given to the purchaser, William Kofi Adufa by the nephew of the vendor Yaw Torgbor, called Kwaku Sona on 28th September, 1970 after the death of the deceased. See Exhibit ‘B’, the document is over 54 years and by its age, it is classified as an ancient document, which actually by law proves itself. See holding 3 of the case of KESSIE VRS NAMIH [198] GLR 444 HC per Roger Korsah J.

The land is bounded on one side by the properties of Asiamah, Kwabena Mensah and Cocoa Marketing Board Hall; on one side by the properties of Yaw Tawiah and Kwaku Anim and lastly by the property of Asah Kwabena.

The boundaries of the land were marked by Ntome trees. The plaintiffs’ family have been on the land for several years since 1968 without any person challenging the plaintiffs on their land. The defendants acquired their land only in the year 2018, that is just under 7 years now and it is the activities of the defendants by constructing a wall the boundary of which they unilaterally fixed without consulting the plaintiffs who have been on their land for over 50 years. This is wrong under customary law. See: OPPONG KOFI AND OTHERS VRS ATTIKUSU III [2011] 1SCGLR 176.

 

Also, in VANDERPUIJE VRS ADAM [1961] 1GLR 733, the Court held that: “…Where a person is in possession of land and another person later acquires the adjoining land, the boundary of the land of the person already in possession becomes the common boundary between the two. A person cannot unilaterally fix a common boundary between his land and that of an adjoining landowner. Such a boundary does not bind the latter. The boundary which the defendant fixed in the absence of the plaintiffs cannot be accepted as a common boundary between the two; the defendant must accept the boundary as it existed before he went unto the land, unless he can get the plaintiff to agree to a new boundary..”.

In this present case it is in evidence that the defendants removed the boundary trees with a grader when they levelled the land to begin their constructional activities.

What constitutes positive identification of land in dispute has been stated in a plethora of cases, such as KWABENA VRS ATUAHENE [1981] GLR 136 where the court of Appeal speaking, through Apaloo CJ held that:

“…The onus of proof required by law as regards the identity of law would be discharged by meeting these conditions:-

a. The plaintiff had to establish positively the identity of the land to which he Claimed title with the subject matter of the suit.

b. The plaintiff has to establish all his boundaries.

c. Where there was no properly orientated plan drawn to scale, which made compass bearing vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title…”

The rationale behind this was earlier on highlighted by Ollenu JSC in ANANE VRS DONKOR [1965] GLR 188 AT PAGE 192 as follows:-

 

“…Where a Court grants declaration of title to land or makes an order for injunction in respect of land the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty or if the injunction is violated, the person in contempt can be punished…”

However, in MIEH VRS ASUBONTENG [1963] 2 GLR 37 the Court held that: “…A declaration of title made in respect of an area of land that has not been surveyed is not invalid if it can accurately be identified by description…”

IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU V KOTEY AND OTHERS [2003-2004] SCGLR 420, to the Supreme Court, speaking through Wood JSC (as she then was) held at page 437 that:-

“…I think the Court erred in applying the principle enunciated in Anane vrs Donkor; Kwarteng vrs Donkor (consolidated) [1965] 1 GLR 188 SC to the facts of this case. Undoubtedly, the general principles enunciated therein namely that a claim for declaration of title or an order for injunction must always fall, if the plaintiff fails to identify positively the identity of the land claimed with the land the subject matter of his suit, is sound law, but applicable only in appropriate cases. I would therefore not advocate for a slavish application of this principle even where the identity or the boundaries of the land claimed is undisputed. In land claims where the identity or the boundaries of the subject matter as pleaded is admitted by an opponent, the elementary principles which come into play is that which was expounded in Foli vrs Ayirebi [1966] GLR 627 SC, namely that where the averments were not denied no issue was joined and no evidence need to be led on them…”

See also AGBOSU AND OTHERS VRS KOTEY AND OTHER [2003-2004] 1 GLR 685.

 

In EBUSUAAPANYIN KWEKU ASSAFUA AND OTHERS VRS THE REGIONAL LANDS COMMISSION SECRETARIAT, CIVIL APPEAL NO. J4/17/2023,LANDS COMMISSION SECRETARIAT, CIVIL APPEAL NO. J4/17/2023,

DELIVERED ON 12TH MARCH 2014 the Supreme Court upheld the Court of Appeal decision to the effect that in the absence of verifiable scientific plans, such physical plans, such physical features as trees, hills, rivers, lakes and rocks etc, have been accepted and used to indicate boundary features between two adjoining lands.

To resolve the boundary issue in certain terms, the court ordered for a composite plan to be drawn by A1 Surveys based in Koforidua.

On the issue of proving boundary between two adjoining lands, the Supreme Court held

YAWSON (SUBSTITUTED BY TULASI AND ANOTHER VRS MENSAH [2011]

SCGLR 568 that: “…When a boundary dispute is in issue with an adjoining land, a Court of law is bound to ascertain the exact boundary between the parties. This could be done if the parties have met the Surveyor who was enjoined by the Order of the court to carry out the survey work. The action being essentially a boundary dispute, the trial judge was enjoined to locate the boundaries of the parties through proper admissible evidence on the record and give reasons for so believing one side against the other…”

It must be noted that plaintiffs’ original indenture did not have a site plan. The plaintiffs however caused a surveyor to prepare a site plan of their land prior to the Order for the Composite plan to be drawn. They used this for a Search at the Lands Commission to find out the true state of their land. The size of their land as shown on the site plan then was 8.32 acres and was dated 12-04-2023. This was what the Court ordered to be used for the plaintiffs together with their survey instructions. Inadvertently, the plaintiffs provided another site plan of their land with the size of their land given as 8.20 acres, (a little smaller in size than the 8.32 acres one). This 8.20 acres site plan was not signed or

 

dated. The explanation the plaintiffs gave was that they had prior to the Writ caused a surveyor to produce a plan of their land for them but the Surveyor delayed in completing the work at the time the case came to court, they were also faced with lack of money to pay for the survey work. They eventually got the signed one but they could not use that for the survey work as it was too late to do so.

Be that as it may, A1 Surveys undertook the survey work and presented its report to the court. The report showed the parties’ land as shown on the ground by them and as shown by their respective site plans. There was a common area in dispute between the parties which was shown, hatched, and marked by Points B1,P4, D5, B1, measuring 0.02 of an acre. The position of two Ntome trees of plaintiffs were shown at Points P5 and P6. The defendants’ story building project, the fence wall and the manhole were marked on the Composite plan. The position of the Telecom mast on the defendants’ land was also marked.

The lawyers of the parties had the opportunity to cross-examine the surveyor on the Survey report. Per the Composite plan, the site plan of the plaintiff (blue line) passes through the defendants’ building, whilst the red line showing plaintiffs land on the ground touches the defendants’ building. The defendants’ manhole lies behind this red line and also lies within the hatched area that is the common area in dispute (B1, P4, A1, D5, and B1). These show encroachment as a result of the overlapping on plaintiffs’ land.

The plaintiffs draw the Court’s attention to the fact that: (i) the plaintiffs purchased their land in 1968 and used Ntome trees to mark their boundaries with all their neighbours. The defendants however got their land by assignment only in the year 2018. (ii) The defendants are those undertaking construction of the story building, the fence wall and the manhole which have generated the dispute. It is the extension of the defendants’ wall

 

(A1 to P4) and the manhole which have actually disturbed the “status quo ante”. The plaintiffs urged the court to find as a fact therefore that the common area in dispute, i.e. the hatched area is the plaintiffs’ land measuring about 0.02 of an acre as shown by the Survey report. It is the defendants (the new comers) who have gone beyond the existing old boundary to encroach or trespass unto the plaintiffs’ land. Logically also the manhole is behind the defendants’ wall (A1 to P4) and we dare say that the land behind the defendants’ fence wall is part of the plaintiffs’ land. The defendants’ assertion that the land behind the wall is the land reservation they made to Attipoe stands unproven. Physically, and from all indications it is clear that the manhole is on plaintiffs’ land.

The defendants in their written submission opined that at all material time maintained that the land they acquired measured 0.65 acres and during the construction of his fence wall, the elders of the town and officers of Town and Country Planning of the District Office advised him to reserve 4 feet around his land to be used as common road and also to grant Mr. Attipoe access to his property, behind the 1st defendant property, and he duly heeded to the said directives from the Town and Country Planning Officers. He reserved the said 4 feet around his wall which Mr. Attipoe used to access his property but because the western side becomes swampy and water logged during the rainy season and aftermath, he abandoned the use of that end and rather resorted to the eastern portion to access his property. The 1st defendant constructed his manhole on the reserved 4 feet on the western side which was not in use and that necessitated the institution of this action.

Per the evidence of the Court Expert, A1 Surveyor: from the composite plan, land shown to Surveyor by plaintiffs on the ground 8.01 acres while they presented a site plan measuring 8.20 acres. This is a clear indication that the plaintiffs did not know the

 

boundary of their land and their actions are calculated attempt to overreach the defendants’ interest in their acquired land the plaintiffs were the same people who identified their land to surveyors who prepared their site plan attached to exhibit B1 measuring 8.32 acres and 8.20 acres presented to the A1 surveyor. The site plan submitted to the CW1 is different from the one the Court ordered to be attached (exhibit B1). This shows that the plaintiffs are not honest and candid to the court. They concealed this information to deceive this Honourable Court and such outsmarted evidence should not be countenanced by this court.

Excerpts of cross-examination–of 1st court witness by counsel for defendants

…

Q: Take a look at the site plan attached to defendants survey instructions and mention to the court the approximate area it covering.

A: O.65 acres.

Q: And that site plan was prepared on what date. A: 6th April 2023.

Q: That site plan was also signed by the regional director of Survey and mapping division.

A: Yes.

Q: What is the size of the land as shown by the defendants on the ground per your composite plan marked green.

A: 0.65 acres.

…

 

Q: The manhole also falls within the defendants lands as shown on the ground and his site plan is that correct.

A: On the ground yes but on the site plan no, the site plan goes through the manhole. The site plan is marked yellow and goes through the manhole.

Q: So may I be correct to say that the defendants were able to identify their land with precisions.

A: No. Because there is an overlap with the site plan and what was shown on the ground. Although they are of the same acreage.

…

Q: So, you agree with me that the defendants manhole falls within the area as shown to you by the defendants on the ground.

A: Yes

Q: I seek your opinion do you know as an expert that in developing our land you are mandated to reserve 10 feet around your land.

A: At 8 feet not 10 feet.

Q: So would you agree with me that the defendants in constructing his fence wall along the area of dispute reserved more than 8 feet of his land.

A: At some places yes, at some places no as the wall was touching the building at some places.

Q: I put it to you. That the area of dispute falls within the 8feet that the defendants is mandated to reserve.

A: Yes, about that.

 

BY COURT:

It is trite that previously in Ghana for creating property boundaries hedges and/or tress were commonly used to demarcate land boundaries. Such trees included the Teak tree, Baobab tree, Neem tree and "ntome" tree.

The plaintiffs quoted different land size during their testimony making it seem the boundary of their land is not known, however a careful review of Exhibit B which is the indenture clearly demarcates plaintiffs land. Rightly stated by the plaintiffs, Exhibit B is an ancient indenture dating to 1970s. during those times, ones land size was not exactitude as today with the benefit of technology. Land sizes were in approximations but the exact land on ground was determined by description of who one shared boundary with. In Exhibit B the land size is determined as follows:

“The land is bounded on one side by the properties of one Asiamah, Kwabena Mensah and the Cocoa Marketing Hall; on one side by Yaw Tawiah of Kyebi Apapam and on one side by Yaw Amponsah and Kwaku Anim and on another side by the Kwabena Asa and the Odikro of Odumase Akim.”

Then the land boundary/size was determined by the knowledge of knowing specifically who one shares boundary with as well as planting of trees such as the Ntome trees on the boundaries to indicate same. The plaintiffs in a bid to determine their original boundary included about 1.5 acres of his original land sold to the late Mr. Robert Lawyer Kwamiga Attipoe from Anyarko, and his wife. The present Mr. Attipoe is their son.

From the evidence on record and especially the testimony of the Court witness together with the composite plan tendered as exhibit CW1, it is evident that the issue between parties is a boundary dispute. From the evidence of Plaintiff which is corroborated by the defendants the Odikro and his elders together with the plaintiffs and defendants

 

representative went to inspect the disputed boundary. The Odikro and his panel directed the defendant to push his wall backwards which he complied with. At the said meeting the defendant was represented by his elder brother called Mr. Odame since defendant was indisposed.

Excerpts of cross-examination of the 1st defendant by counsel for plaintiff

…

Q: It is a fact that the chief of the town and some elders arbitrated upon this boundary problem between the plaintiffs and defendants.

A: It is true, my, my brother represented me before the Odikro as at that time I was indisposed. It was not arbitration it is a deliberation.

Q: The parties paid arbitration fees before the elders started to hear the case.

A: I was not present so I cannot tell what exactly happened.

Q: You delegated your brother to represent you before the chiefs is that so.

A: I delegated him to go and listen to the information the chief has for me but not to arbitrate on the matter.

Q: I put it to you. You are not being truthful in your answer.

A: I am speaking the truth.

Q: Who is your brother you sent to represent you. A: My elderly brother.

Q: What is his name.

A: Mr. Odame.

 

Q: I put it to you. At the end of deliberations for the day the parties again paid some fees to the panel.

A: Truly I was not present and cannot tell if my representative paid anything. But what I know is that when elders meet to deliberate on a matter, they demand fee from

both sides, when my brother came, he did not disclose to me whether he paid some fee or not.

Q: Are you saying when your brother returned, he never reported to you what happened before the Odikro.

A: As I said at the time I was unwell and had a surgery. It was after about a month on one of his visits that he told me when I recover, I should produce the document covering the land before the Odikro in respect of the issue.

The defendant under cross-examination sought to deny It was not arbitration but rather a deliberation thus not binding on him. The evidence led that the defendant after the said deliberation was compelled to follow the decision and shifted his wall backwards confirms otherwise that indeed there was some negotiation/arbitration conducted to resolve the boundary dispute between parties. The evidence of the Court witness was also very instrumental in assisting the court understand the overlap on the boundary. Though the defendants land both on the site plan and the ground, measures 0.65 acres however the defendant’s identification of the land on the ground to that of the site plan is not with precision; there is a deviation which goes into the disputed boundary area. Clearly in respect of the defendants land there is an overlap although they are both of the same acreage.

 

Also the defendants are not the original owners of the land, indeed the grantors of the defendants never had any land dispute with the plaintiffs. The defendants upon purchase of the land in 2018 have built on a portion of the boundary land and this has been compounded by the defendants building the manhole outside his wall thus invariably the manhole is in plaintiffs land as the two share boundary on the side the manhole is built. This has instigated this present litigation. Indeed the plaintiffs have been in possession of the area in respect of this dispute since1968 until the defendants built in 2018 on the boundary thus erecting his wall outside his site plan.

Again from the evidence of court witness it came to light that it is required to leave 8 to 10 feet around ones development. The court witness confirms that the defendants at some places failed to leave the 8 to 10 feet that by law it is mandated to be reserved as the defendants wall was touching the building at some places.

It is hereby held that the manhole constructed behind defendants’ wall is a nuisance to the plaintiffs. The site plan of the plaintiff (blue line) passes through the defendants’ building, whilst the red line showing plaintiffs land on the ground touches the defendants’ building. The defendants’ manhole lies behind this red line and also lies within the hatched area that is the common area in dispute. These show encroachment as a result of the overlapping boundary. The defendants despite the refusal of the plaintiffs to sell that portion of the land to defendants, they started building a manhole to their new building behind their fence wall without the consent of the plaintiffs. The defendants are to remove the manhole behind the wall within 30days of this judgment, failure to comply the plaintiffs to remove the said manhole and the cost for the removal of the manhole served on the defendants to pay.

Issues 3 and 4 would be dealt with together

 

ISSUE 3 : Whether or not the subject matter land before this Honourable Court falls within the 1st defendant’s acquired land.

ISSUE 4: Whether the defendants have trespassed on the plaintiffs’ land.

In KWABENA VRS ATUAHENE [1981] GLR 136 CA per Apaloo CJ stated:

“…The onus of proof required by law as regards the identity of law would be discharged by meeting

these conditions:-

a. The plaintiff had to establish positively the identity of the land to which he Claimed title with the subject matter of the suit.

b. The plaintiff has to establish all his boundaries.

c. Where there was no properly orientated plan drawn to scale, which made compass bearing vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title…”

However in IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU V KOTEY AND

OTHERS [2003-2004] SCGLR 420 @ 437,SC per Wood JSC had this to say:- “…I think the Court erred in applying the principle enunciated in Anane vrs Donkor; Kwarteng vrs Donkor (consolidated) [1965] 1 GLR 188 SC to the facts of this case. Undoubtedly, the general principles enunciated therein namely that a claim for declaration of title or an order for injunction must always fall, if the plaintiff fails to identify positively the identity of the land claimed with the land the subject matter of his suit, is sound law, but applicable only in appropriate cases. I would therefore not advocate for a slavish application of this principle even where the identity or the boundaries of the land claimed is undisputed. In land claims where the identity or the boundaries of the subject matter as pleaded is admitted by an opponent, the elementary principles which come into play is that which was expounded in Foli vrs Ayirebi [1966] GLR 627 SC, namely that where the averments were not denied no issue was joined and no evidence need to be led on them…”

 

See also AGBOSU AND OTHERS VRS KOTEY AND OTHER [2003-2004] 1 GLR 685.

In EBUSUAAPANYIN KWEKU ASSAFUA AND OTHERS VRS THE REGIONAL LANDS COMMISSION SECRETARIAT, CIVIL APPEAL NO. J4/17/2023,

DELIVERED ON 12TH MARCH 2014 the Supreme Court upheld the Court of Appeal decision to the effect that in the absence of verifiable scientific plans, such physical plans, such physical features as trees, hills, rivers, lakes and rocks etc, have been accepted and used to indicate boundary features between two adjoining lands.

Though plaintiffs’ original indenture did not have a site plan attached the schedule stated therein specifically had described the land of the plaintiffs. Exhibit B the indenture of the plaintiffs is a dully stamped. The plaintiff indicated their boundary features in relation to adjoining lands.

A1 Surveys, the appointed surveyor undertook the survey work and presented its report to the court. The report showed the parties’ land as shown on the ground by them and as shown by their respective site plans. There was a common area in dispute between the parties which was shown, hatched, and marked by Points B1,P4, D5, B1, measuring 0.02 of an acre. The position of two Ntome trees of plaintiffs were shown at Points P5 and P6. The defendants’ story building project, the fence wall and the manhole were marked on the Composite plan. The position of the Telecom mast on the defendants’ land was also marked. It is worth noting alo that some of the Ntome trees had been destroyed upon the grading of the land.

The court hereby holds that from the totality of the evidence presented, it is evidently clear, on balance of probabilities that the plaintiffs’ version seems more probable than that of the defendants. The plaintiffs have successfully proven their case and are entitled to their reliefs. The defendants counterclaim fails.

In conclusion, the court states as follows per the reliefs prayed:

1. A Declaration of Title and ownership to all that piece and parcel of land as described in the statement of claim.

2. Perpetual injunction to restrain the defendants and their assigns, from interfering with the said land.

3. An order by the Honourable Court for the demolishing of any structure (manhole) put up on the said land by the defendants with punitive cost.

No order as to cost.