F. K. A. Company Limited v Nii Boafo Daanyi-Nse I, Eric Narh and Broadcasting Taxi Rank Association

1.0 INTRODUCTION:

The facts of this case are that the Plaintiff is a Real Estate Developer registered under the laws of Ghana. The 1st Defendant is the Dzasetse of Weija in the Greater Accra Region. The 2nd Defendant is the chairman of the Broadcasting Taxi Rank Association situate at Weija. The 3rd Defendant is a Taxi Association operating in Weija at an area popularly known as GBC or Broadcasting.

1.1 The Plaintiff is the owner of the large tract of land measuring 95.194 acres it obtained per a customary grant from Nii Anto Nyame II (The 1st Defendant’s predecessor) and the Weija Stool and has an indenture to evidence same. That the 1st Defendant as predecessor to Nii Anto Nyame is very much aware of the Plaintiff’s interest in the said land.

1.2 The facts further indicate that the Plaintiff has obtained a number of judgments against the 1st Defendant for trespassing unto parts of its large tract of land which include the following cases:

a. THE REPUBLIC V. NII DAA NYINAA-NSE AND 4 ORS., EX-PARTE F. K.

A. CO. LIMITED.

b. F. K. A. CO. LIMITED V. 1. SONITRA & 4ORS.

c. NII BOAFO DANYINA-NSE V. F. K. A. CO. LIMITED & ANOR.

d. THE REPUBLIC V. NII DAANYINASE & 6 ORS. EX-PARTE F. K. A. CO. LIMITED

e. THE REPUBLIC V. NII DAA NYINAA-NSE & 4 ORS, EX-PARTE F. K. A. CO. LIMITED.

f. THE REPUBLIC V. 1. FRED AGYEI & 5ORS. EX-PARTE F. K. A. CO. LIMITED.

According to the Plaintiff, the 1st Defendant has placed 2nd and 3rd Defendants on part of the Plaintiff’s land who run a taxi rank on the said land and pay rent to the 1st Defendant for the use of the Plaintiff land.

1.3 The Plaintiff continues that the subject matter of the suit contains an approximate area of 0.16 acre or 0.07 hectare more or less bounded on the North by sub- lessor’s land measuring 102.34 feet more or less on the East by sub-lessor’s road measuring 68.85 feet more or less on the South by a proposed road measuring 100.19 feet more or less on the West by sub-lessor’s land measuring 71.3 feet more or less which piece or parcel of land is more particularly delineated on the plan.

1.4 Based on these facts, the Plaintiff seeks jointly and severally against the Defendants as follows:

(a) Declaration that the Defendants’ acts on the Plaintiff’s land amounts to

trespass.

(b) An order of ejectment and recovery of possession of the Plaintiff’s land as described per paragraph 11 of the statement of claim.

(c) An order of demolition of all unauthorized and offending structures placed on the Plaintiff’s land by the Defendants at cost to the Defendants.

(d) Perpetual injunction restraining the Defendants, their agents, assigns, privies, successors, workmen and all claiming through them from interfering or dealing with the Plaintiff’s land, the subject matter of this suit in any manner detrimental to the Plaintiff’s interest.

(e) General damages

(f) Cost of this litigation

(g) Lawyer’s fees.

1.5 In contesting the claim of the Plaintiff, the 1st Defendant caused his solicitors to enter an appearance and also filed a defence on his behalf. Per his statement of defence the 1st Defendant pleaded as follows:

“1. Save as hereinafter expressly admitted, the 1st Defendant denies each and every material allegation of fact contained in the statement of claim as if the same were set out in extenso and denied seriatim.

2. The 1st Defendant denies paragraph 1 of the statement of claim and will put the Plaintiff to strict proof.

3. The 1st Defendant admits paragraphs 2, 3 and 6 of the statement of claim.

4. The 1st Defendant admits paragraph 5 of the Statement of defence.

5. The 1st Defendant admits paragraphs 6 and 7 of the statement of claim.

6. The 1st Defendant denies paragraph 8 of the statement of claim and say that the Plaintiff’s land does not extend to where the 2nd and 3rd Defendants are running their taxi rank.

7. The 1st Defendant denies paragraph 9 of the statement of claim and

says that the taxi rank is not located on the Plaintiff’s land.

8. The 1st Defendant says that the said taxi rank falls outside the

95.194 acres granted to the Plaintiff by Nii Anto Nyame II.

9. The 1st Defendant further says that the Plaintiff’s own judgment

plan shows that the taxi rank falls outside the said plan.

10. The 1st Defendant says that the said taxi rank is by the Weija- Winneba road and lies in front of a piece or parcel of land belonging to the Weija Stool.

11. The 1st Defendant further says that a search conducted at the Lands Commission shows that the taxi rank falls in portions of the land acquired by the Government for the Weija-Winneba road. Another search has revealed that the land between the taxi rank and the Plaintiff’s land is not affected by any known transaction.

12. The 1st Defendant denies paragraph 10 of the statement of claim and says that he does not collect rent from the within named 2nd and 3rd Defendants.

13. The 1st Defendant denies paragraph 11 of the statement of claim and says that the Plaintiff is laying claim to a land which falls clearly outside the area alienated to him.

14. The 1st Defendant says that a search conducted shows that the taxi rank falls within area acquired by the Government under a Certificate of title dated 27th October, 1961 for the Weija-Winneba Raod.

15. The 1st Defendant denies paragraph 12 of the statement of claim and says that no matter how aggrieved the Plaintiff is by the Defendants’ conduct he cannot abandon his own land and lay claim to a piece or parcel of land which does not belong to him.

16. The 1st Defendant says that the Plaintiff is not entitled to any of

his reliefs against him.”

1.6 Notwithstanding the fact that a number of issues were set down for trial, I shall take same under one broad issue. Thus: whether or not the land in dispute forms part of the Plaintiff’s land.

1.7 The case of the Plaintiff’s Company was prosecuted by its Managing director, one Frederick Kofi Asare. It is his testimony that the Plaintiff is a Real Estate Company registered under the laws of Ghana and the 1st Defendant is the Dzasetse of Weija in the Greater Accra Region. It is also his evidence that the 2nd Defendant is the Chairman of the Broadcasting Taxi Rank Association.

1.8 The 3rd Defendant is a Taxi Association operating in Weija at an area popularly known as GBC or Broadcasting. Per his testimony he stated that the Plaintiff Company is the owner of a large tract of land measuring 95.194 acres it obtained per a customary grant from Nii Anto Nyame II (1st Defendant’s predecessor) and the Weija Stool. See Exhibit “A”, a copy of the Indenture evidencing the transaction.

1.9 And that the 1st Defendant as the successor to Nii Anto Nyame II is very much aware of the Plaintiff’s interest in the said land. It is the evidence of the Plaintiff that they have obtained a number of Judgments against the 1st Defendant and his grantees for trespassing unto parts of its large tract which include the following:

i. F.K.A COMPANY LIMITED V. EFFAH SARKODIE. (SUPREME COURT).

ii. F.K.A COMPANY LIMITED V. ADJEI BOADI

iii. NII BOAFO DAANYI-NSE I V. 1. F.K.A COMPANY LIMITED & ANOR.

iv. F.K.A COMPANY LIMITED V. SONITRA & ORS.

v. REPUBLIC VRS. NII BOAFO DAANYI-NSE I & 6 ORS, EX-PARTE

F.K.A COMPANY LIMITED.

vi. STEPHEN S. BRENYA V. FREDERICK KOFI ASARE & ANOR.

vii. F.K.A COMPANY LIMITED V. EFFAH SARKODIE (HIGH COURT),

which copies of judgments he tendered as Exhibit B, B1,B2, B3, B4, B5 and B6 series.

2.0 And that the 1st Defendant has placed the 2nd and 3rd Defendants on part of their land on which the 2nd and 3rd Defendants run a taxi rank from the said land. The 2nd and 3rd Defendants pay rent to the 1st Defendant for the use of the Plaintiff’s land as a taxi rank, hence the instant action.

2.1 In contesting the Plaintiff’s claim the 1st Defendant testified that he is the Dzasetse and acting Weija Mantse, a Divisional Stool under the Ngleshie Alata Paramount Stool of James Town, Accra and that he knows the Plaintiff herein due to the fact that he once litigated with him over some Weija lands which does not include the present land in dispute.

2.2 It is also his testimony that it is not true that the Plaintiff is the owner of the land in dispute, where the 2nd and 3rd Defendants operate a taxi rank. He continued that even though his predecessor alienated 95.194 acre land to the Plaintiff the said land does not extend to where the 2nd and 3rd Defendants are running their taxi rank, and falls outside the area alienated to him.

2.3 And that the area where the 2nd and 3rd Defendants’ taxi rank falls is measured

0.26 acre or 0.10 hectare. See Exhibit 1, a copy of the Site Plan.

2.4 It is also his evidence that on the Northern part of the Plaintiff’s land is another land, which belongs to the Weija Stool, and covers an area of 1.653 acres or 0.669 hectare but the Plaintiff has also forcibly entered same. See Exhibit 2, a copy of the Site Plan.

2.5 That per the Plaintiff’s own judgment plan, the taxi rank which the Plaintiff is laying claim to, falls outside the said plan. The 1st Defendant also stated that per a search he conducted in the name of his stool at the Lands Commission, the taxi rank falls in portions of the land acquired by the Government for the Weija- Winneba road. That another search has revealed that the land between the taxi rank and the Plaintiff’s land is not affected by any known transaction. See Exhibit 3, a copy of the Search Report.

2.6 And that he has not personally collected any rent from the 2nd and 3rd Defendants since he was not the person who alienated the land to them. That another search conducted also revealed that the taxi rank falls within an area acquired by the Government under a Certificate of title dated 27th October, 1961 for the Weija- Winneba Road. See Exhibit 4, a copy of the Search Report.

It is salient to note that the 2nd and 3rd Defendants did not contest the Plaintiff’s

action.

2.7 The standard of proof in Land suits and indeed in all civil suits, is proof by proof by preponderance of probabilities. See sections 11 (4) and 12 of the Evidence Act 1975 (Act 323). This standard represents a deviation from the former higher standard of proof beyond reasonable doubt. The present state of the law, with regard to the standard of proof required of a party in title cases, therefore involves a consideration or evaluation of the relative merits of the rival claims of the parties based on the preponderance of the probabilities. To the extent that the parties aver, by their pleadings, positive facts in support of their rival claims, they bear the burden to adduce credible, admissible and sufficient evidence to establish those facts and to convince the court that the existence of those facts are more probable than their non-existence.

See SERWAH V. KESS [1960] GLR 227 at 229; ODAMETEY V. CLOUCH [1989- 1990] 1 GLR 14 Supreme Court and ODONKOR V. AMARTE [1992-1993] GLR 57, where the proper purview of the burden of proof was exhaustively examined and put its truer perspective by Hayfron-Benjamin JSC.

2.8 In the case of IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU AND ORS. V. KOTEY AND OTHERS [2003-2004] SCGLR 420, Justice Brobbey JSC, explaining the relevant provisions of the Evidence Act at page 464 and 465 stated as follows:

“The effect of sections 11 (1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: a litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a factor or an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…”

2.9 It is in the light of these statutory provisions and judicial pronouncements on the burden of proof and persuasion as enshrined in sections 11, 12 and 14 of the Evidence Act, 1975 (Act 323), and placed on the parties, that the issues and facts of this case will be measured.

3.0 The Plaintiff traces his root of title to the Weija Stool. He tendered Exhibit A, an Indenture evidencing the acquisition of the land claimed by the Plaintiff. Per Exhibit A, the Plaintiff acquired 95.194 acres of land from the Weija Stool.

3.1 During cross examination the 1st Defendant admitted that the grant of the 95.194 acres of land to the Plaintiff by the Weija Stool save that the disputed land does

not include the land in dispute. These were the answers the 1st Defendant offered when he was cross examined on the issue.

“Q: You are aware that your predecessor has leased portions of Weija lands to the Plaintiff.

A: When I was installed as the acting chief, I got to know about my predecessor had granted portions of the land to the Plaintiff, however the Plaintiff is laying claim to lands which were not granted to him. [Emphasis supplied].

Q: And you are aware that the land the subject-matter of this suit was granted to the Plaintiff.

A: That is not correct. I conducted a search myself which revealed that the State had acquired the land for Ghana Water since 1930. [Emphasis supplied].

Q: You are also aware that your family granted a land in the extent of 95.194 acres to the Plaintiff.

A: It was not my family but rather the stool. [Emphasis supplied]. However, the 1st Defendant contends that the land in dispute does not form part of the land claimed by the Plaintiff.

3.2 The law is that once the issue of identity of the land is in dispute, issues relating to the identity of the land becomes material and must be proved. In the case of NYIKPLORKPO V. AGBEDOTOR [1987-1988] 1 GLR 165 at 171, the court

considered the requirements essential to success in an action for declaration of title, injunction and recovery of possession thus:

“The principle is that to successful maintain an action for declaration of title to land, the appellants had to prove with certainty the boundaries of the land claimed…and the documentary proof establishing his title, the plaintiff must establish by positive evidence the identity and limits of the land he claims.”

3.3 This court differently constituted ordered for a composite plan to be drawn to enable the court to determine whether the disputed land forms part of the Plaintiff’s land.

3.4 In producing a composite plan, the Survey Department of the Lands Commission provided expert evidence to the court. The court is not bound by such expert evidence; even though it often provide immense assistance to the court.

3.5 In FENUKU V. JOHN-TEYE [2001-2002] SCGLR 985 at 990 holding b it was

held:

“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 is only a guide to arrive at the conclusion.”

The expert witness CW1, tendered a copy of the composite plan as Exhibit CE1.

3.6 However, the 1st Defendant during cross examination put the issue to rest when he testified as follows:

“Q: And you are aware that the land subject matter of this suit was granted to the Plaintiff.

A: That is not correct. I conducted a search myself which revealed that the State had acquired the land for Ghana Water since 1930.

Q: You are also aware that your family granted a land in the extent of 95.194 acres to the Plaintiff.

A: It was not my family but rather the stool.

Q: And that this land has suffered several litigations for which some ended at the Supreme Court. Not so?

A:  Yes I am aware, (emphasis supplied).

Q: And the Plaintiff was victorious.

A: That was what the Supreme Court said. However the land in dispute per my search as I stated supra was acquired by the Government for Ghana Water Company, (emphasis supplied).

Q: You would agree with me that the Lands Commission challenged the Plaintiff that a portion of the land including the land in dispute which he had blessings from the Supreme Court is a land belonging to the Government and same was dismissed.

A: That was what we heard but per our records that portion is a State land which the Government acquired for Government farm. (Emphasis supplied).

3.7 This clearly denotes that the Plaintiff is the owner of the disputed land per the decision of the Supreme Court as admitted by the 1st Defendant.

3.8 In the circumstance, I hereby enter judgment for the Plaintiff per all his reliefs save relief (C). I award the Plaintiff GhS50,000.00 as General Damages against the Defendants.

Cost of GhS30,000.00 against the Defendants.