Francis Kwabena Abban v Francisca Frimpong and Franklin Frimpong

Plaintiff’s claim against the Defendants is for:

a) DECLARATION OF TITLE TO ALL THAT PIECE OR PARCEL OF LAND situate,

lying and being at ABEHENEASE-ACCRA, containing an approximate area of 0.38 Acre

0.15 Hectare and bounded on the North-West by a proposed road measuring 81.6 feet more or less on the South-East by a proposed road measuring 84.2 feet more or less on the North East by the lessor's land measuring 196.1 feet more or less and on the South-West by lessor's land measuring 197.9 feet more or less.

b) RECOVERY OF POSSESSION of all that piece or parcel of land situate, lying and being at ABEHENEASE-ACCRA, containing an approximate area of 0.38 Acre 0.15 Hectare and bounded on the North-West by a proposed road measuring 81.6 feet more or less on theSouth-East by a proposed road measuring 84.2 feet more or less on the North-East by the lessor's land measuring 196.1 feet more or less and on the South-West by lessor's land measuring 197.9 feet more or less.

c) Damages for trespass against Defendants.

d) General Damages.

e) An Order for Perpetual injunction against Defendants, their assigns, affiliates, successors, subjects and workmen or anyone claiming through them from alienating or in any way dealing with the land in dispute.

f) Cost.

In his pleadings Plaintiff stated that he is a Ghanaian resident in Pokuase, claims that he is the bonafide owner of land at Abehenease-Accra, which he acquired from the Ama Asor Family of Abehenease. He initially purchased the land from Mr. Isaac Neequaye, who represented himself as a principal member of the Ama Asor family, for Gh¢ 14,000.00. The plaintiff paid the price with a Toyota Corolla car valued at Gh¢ 7,000.00 and cash of Gh¢ 5,650.00 to Neequaye. The plaintiff returned the documents to Neequaye, who then led him to Mr. Ebenezer Tetteh Laryea, who execute a deed of lease in his favor after paying the balance of Gh¢ 1,350 to him and a receipt issued to him. The plaintiff then set out to register his title in the land and by 2011 had put in an application for first registration of title.While registering his title, the plaintiff went to the land in 2012 to work but was taken away by land guards. The matter was reported to the Amasaman Police Station. The plaintiff learned that the defendants, with the support of Nii Gyeshie Ashong, (alias Paa Nii) (alias Nii Kwetia Kwashie L. chief of Abehenease), were behind the unlawful act on the

 plaintiff's land.

Three days after the incident, the chief died, and his brother George Ashong claimed that his late brother gave the land to the defendants. The police investigator in charge of the case at the Amasaman police station asked all parties to stop work for investigation to continue. While waiting for the conclusion of the investigation, the plaintiff saw the defendants building a wall on the land and reported the conduct to the police, but they continued to work. The plaintiff realized that the Amasaman Police was not handling the case.

Plaintiff instituted this suit against the Defendants on 15th December, 2023 whereupon Defendants could not be served personally with the writ of summons and statement of claim.

This compelled counsel for Plaintiff to move his motion for an order for substituted service which was granted on 24th January, 2024.

As it is a normal practice, counsel for Plaintiff failed to file a motion for judgment in default of appearance or defence as stipulated by the rules of court and instead counsel for plaintiff applied for directions when no defence had been filed and no issues joined for trial.

This court erroneously granted the application for directions and adopted the issues therein as triable issues.

It is on record that there was an affidavit of posting on the 5th of July, 2024 of an order for substituted service of a hearing notice and court notes but the Defendants failed to appear in court.

It is found on record that on 10th September, 2024, Plaintiff served Defendants with a hearing notice, witness statement s and pretrial check list by substituted service.

On the 4th of December, 2024, there is an affidavit of posting of a hearing notice served on the Defendants.

In the absence of the Defendants in court on the 19th of December, 2024, Plaintiff mounted the witness box and testified that he lives at Pokuase in the Greater Accra Region of Ghana and he is an electrical contractor.

According to Plaintiff, Defendants are a couple and they have trespassed onto his land being all that piece or parcel of land situate, lying and being at ABEHENEASE - ACCRA, containing an approximate area of 0.38 Acre 0.15 Hectare and bounded on the North-West by a proposed road measuring 81.6 feet more or less on the South-East by a proposed road measuring 84.2 feet more or less on the North-East by the lessor’s land measuring 196.1 feet more or less and on the South-West by lessor's land measuring 197.9 feet more or less.

Plaintiff testified that sometime in the year 2010, he purchased the disputed land from one Mr. Isaac Neequaye who represented himself to him as a principal member of the Ama Asor family at a price of GH¢ 14,000.00.

He paid the price of the land with a Toyota Corolla car valued at GH¢7,000.00 and paid the sum of CH¢5,650.00 to the said Mr. Isaac Neequaye and the said Mr. Isaac Neequaye gave him an indenture in the year 2010 but when he applied for the Land Title Certificate with the said documents the registration failed and he returned the said documents to Mr. Isaac Neequaye.

Upon returning the said documents to Mr. Isaac Neequaye, he led him to Mr. Ebenezer Tetteh Laryea who was the then head of Ama Asor family of Abehenease who in turn executed a deed of lease in his favour dated 9th day of March, 2010.

Plaintiff tendered in evidence the said Deed of Lease which was marked as Exhibit A. According to Plaintiff he paid the balance of GH¢1,350 to him and a receipt was issued to him which receipt was admitted in evidence Exhibit B.

LEGAL ANALYSIS AND OPINION

In ACKAH v. PERGAH TRANSPORT LTD. & OTHERS [2010] SCGLR 728 @ 73 ADINYIRA JSC (as she then was) held:

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 law that matters that are capable of proof must be proved by providing 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. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).

In civil cases therefore, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proving those essentials. SEE FAIBI V. STATE HOTELS CORPORATION (1968) GLR 471 AND BANK OF WEST AFRICA LTD V. ACKUN (1963) 1 GLR 176. S.C. The same principle applies to the Defendant who makes a Counterclaim. Further, it is a general principle stemming from the decision of the West African Court of Appeal in the case of KUDILINYE v. ODU (1935) 2 WACA 336 @337, that in an action for declaration of title to land a Plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant's case.HONYENUGA JSC in GEORGE KWADWO ASANTE & ANOTHER V. ADAM ABENA AMPONSAH & ANOTHER [2022] 175 GMJ 75 @ PAGE 114 1 held:

"In an action for declaration of title, the onus is heavily on the plaintiff to prove his case. If the plaintiff failed to discharge the onus on him and also fails to make a case for the reliefs sought, then he could not rely on the weakness of the defendant's case to ask for relief. However, if the plaintiff made a case which would entitle him to relief if the defendant offered evidence, then if the case offered by the defendant disclosed any weakness which supported the plaintiffs claim then the plaintiff was entitled to rely on the weakness of the defendant's case to strengthen his case.

The EVIDENCE ACT, 1975 (N.R.C.D. 323) provides:

10. Burden of persuasion defined

(1) For the purposes of this Act, 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

(a) To raise a reasonable doubt concerning the existence or non- existence of a fact, or

(b) To establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.

11. Burden of producing evidence defined

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

(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.

12. Proof by a preponderance of the probabilities

(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.

The Supreme Court in ODAMETEY V. CLOCUH &ANOR [1989-90] 1GLR 14 SC

succinctly held in holding 1 as follows:

"The present position, was that if the Plaintiff in a civil suit failed to discharge the onus on him and thus completely failed to make a case for the claim for which he sought relief then he could not rely on the weakness in the defendant's case to ask for relief. If, however, he made a case which would entitle him to relief if the defendant offered no evidence, then if the case offered by the defendant when he did give evidence disclosed any weakness which tended to support to the Plaintiff's claim, then in such a situation the Plaintiff was entitled to rely on the weakness of the defendant's case to strengthen his case. That was amply supported by sections 11 and 12 of the Evidence Decree 1975 (NRCD 323".

It is on record that Plaintiff caused a writ of summons and statement of claim to be issued against the Defendants on 15-12-2023 and by an order for substituted service dated 24-01-2024 granted by this Honourable court, the Defendants were served with the writ of summons and statement of claim by substituted service on 06-02-2024.

Counsel for Plaintiff filed application for directions on 19-03-2024 and had same served by substituted service.

The issues set out in the application for directions were erroneously adopted for trial since no issues had been joined because neither did the Defendants enter appearance or file any defence.

Counsel for Plaintiff failed to invoke the jurisdiction of the court by coming under order 10 or order 13 of C.I 47, Defendants failed to appear in court despite hearing notices served on them by substituted service.

Plaintiff mounted the witness box on 19-12-24 which culminated in this judgment.

This court therefore makes a finding of fact based on the evidence on record that Plaintiff has proved his case on the preponderance of the probabilities.

Judgment is hereby entered in favour of Plaintiff against Defendants for the reliefs endorsed on his writ of summon. General damages of GH¢5,000.00 is entered for reliefs.

Cost of GH¢10,000.00 is awarded in favour of plaintiff against defendants.