Beatrice Afortu Dey v Justice Boakye (alias Borga)

The Plaintiff claims she acquired the disputed land from one David Odai in the year 2000 and was put in vacant possession of same. Her grantor also acquired same from Nii Afotey Odai IV. She further claims she constructed a three course foundation on the land and placed a septic tank on same. According to her she often stays out of the jurisdiction for longer periods and in one of her stays one Eric Odai, a brother of her grantor trespassed unto the dispute land but was stopped. She claims she placed a caretaker on the land and in 2021 she constructed a wall on the land to further effectuate her possession of the dispute land. It is her case that in 2022 the Defendant trespassed unto the land and started building day and night. All effort to abate the trespass failed. According to the Plaintiff the Defendant claims the land was granted to him by the Kwei Dornu Family by virtue of a judgment in Suit no. 500/97 delivered on the 27th of June 2017. The Plaintiff further asserted that granted the land is owned by the Defendant’s grantor Eric Odai the Defendant’s defence is caught up by the Limitation Act and acquiescence because the Plaintiff had been in possession for more than twelve years. As a result the present was instituted against the Defendant for the following reliefs;

“a. Declaration of title to land to all that land situate, lying and being at Baatsonaa Nungua. Accra and bounded on the North East by proposed road measuring 140 feet more or less, on the South East by Assignor’s land measuring 100 feet more or less, on the South West by Assignor’s land measuring 140 feet more or less on the North West by the Assignor’s land measuring 100 feet more or less containing an approximate Area of 0.52 acre more or less which plot is more particularly delineated on the site plan.

b. Recovery of possession

c. Damages for trespass

d. Perpetual in junction restraining the Defendant, his agents, assigns, privies, workmen, servants and howsoever described from interfering, dealing with or having anything to do in any manner whatsoever with the land the subject matter of this suit.

e. Cost including legal fees;

f. Any further orders the Honourable Court may deem fit.

The Defendant denied all the claims made by the Plaintiff supra. He said his grantor, Eric Odai is the owner of the land having acquired same from Nii Afotey Odai IV on the 21st of February 1991. He said the search he conducted before the acquisition showed that the land was owned by his grantor. After the acquisition he registered same. At the time of the acquisition Eric Odai had fenced three sides of the land leaving the entrance. He claimed he took possession without any interference. According to the Defendant whilst in peaceful possession the Kwei Dornu family came and asserted title to same based on the judgment delivered in their favour. This compelled him to reacquire the land from the said family. According to him the Plaintiff has been using the military to interfere with his development of the land. He maintained that David Odai has no legitimate claim to the disputed land and therefore claimed that her action should be dismissed.

THE ISSUES

The issues settled for determination were

“a. Whether or not Plaintiff purchased the land in dispute from David Odai of Nungua in year 2000 and immediately took possession of same by raising a three course foundation on one part of the two plots of land and erected a septic tank and under took farming on the 2nd plot of the land.

b. Whether or not Plaintiff enjoyed quiet and undisturbed possession of same until more than 12 years thereafter one Eric Odai encroached on the land claiming ownership of same.

c. Whether or not the land in dispute is the property of Kwei Dormi family represented by Mary Akorkor Tetteh, Bather Fofo Anang and Lydia Ago Anang of kwei Dormi.

d. Whether or not Plaintiff purchased unencumbered land from David Odai and the alleged owners sat on their right to allow Plaintiff to develop same for more than twelve years without questioning Plaintiffs presence on the land.

e. Whether or not Defendant is estopped by statute of limitation from claiming same.

f. Whether or not Defendant has trespassed on Plaintiff's land.

g. Whether or not Defendant demolished Plaintiff raised structure on the land and destroyed her perimeter fence wall.

h. Whether or not Plaintiff is entitled to her claim.

i. Any other issues that may arise from the pleadings.”

Issues “h” has been held to be superfluous by the Supreme Court in the case of

DALEX FINANCE & LEASING CO. LTD VRS EBENEZER DENZEL AMANOR &

2 ORS [2012] 171 GMJ 256 . At page 304 the apex court admonished that

“We take this opportunity to deprecate the emerging wrong practice where in setting down issues for trial in a civil case “whether or not the plaintiff is entitled to her claim” is put down as an issue for trial. The whole trial is aimed at determining whether or not the plaintiff is entitled to the reliefs claimed so how can that be a distinct issue?.”

Issues “b” “d” and “e” are closely related and shall be discussed together to make this judgment less verbose. It would also be convenient to discuss issues “f” and “g” together for the same reason. The remaining issues shall be discussed separately. The said issues would be compressed to read as follows;

1. Whether or not the Plaintiff’s grantor owns the disputed land

2. If the Defendant’s grantor own the disputed land, whether the Defendant’s claim to the disputed land is caught by the Limitation Act.

3. Whether the Defendant’s grantor owned the disputed land.

BURDEN OF PROOF

As in all civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made or denied, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead such credible and admissible evidence such that on the totality of the evidence on record, the court would find that party's version of the rival accounts more probable than its non-existence. This is a land suit hence the Plaintiff ought to the win on the strength of his own case and not on the weakness of the Defendant’s case. The Defence only becomes necessary when the Plaintiff adduces sufficient evidence on the allegations she has made in her pleadings.

EVIDENCE LED BY THE PLAINTIFF IN SUPPORT OF ISSUE 1

The Plaintiff testified through her Attorney is Emmanuel Roger Amudzi. He testified as follows

“6. I know the land in dispute. It belongs to the Plaintiff she acquired if from one David Odai of Nungua who derived his title from Nii Afotey Odai lV Dsasetse and the then acting Nungua Manste. The land was assigned to Plaintiff on the 10th day of October 2000. Please see attached deed of Assignment marked as exhibits "B" and "B1".

7. It is my case that even though Plaintiff was granted an indenture in 2000 she paid for the land earlier on 3rd September, 2000. Please see attach handwritten receipt from Plaintiffs grantor marked as exhibit "C".

8. My Lord I will say that I part of the transaction between Plaintiff and the grantor. I always accompanied Plaintiff to the grantors house during negotiation and the purchase of the land.”

EVALUATION OF THE EVIDENCE

The Plaintiff’s claim that her grantor acquired the disputed land remained a bare assertion. There is no document confirming the said grant of the disputed land from Nii Afotey Odai lV Dsasetse and the then acting Nungua Manste to the said David Odai. The Exhibit “B” and B1 tendered by the Plaintiff which is a Deed of Assignment of the disputed land to the Plaintiff is questionable because the signature of David Odai on same is different from the signature of that same person on Exhibit “C”. That aside that document recites in paragraph 3 that the disputed land had been assigned to Eric Odai who happens to be the Defendant’s grantor. This document clearly contradicts the Plaintiff’s claim and as I said it does not look genuine.

The position of the law is that where one’s title is derivative that person is obligated to prove that his grantor had title to the land in dispute. In this case the Plaintiff could not lead sufficient evidence to show that indeed David Odai had title to the disputed land. That bare assertion of that fact cannot amount to prove in law as decided by the Supreme Court in the case of T. K. SERBEH V MENSAH [2005-2006] SCGLR 341 at 360 where Date-bah JSC (as he then was) stated the position that;

“ For, however credible a witness may be, his bare affirmation on oath or the repetition of his averment in the witness box cannot constitute proof. This is trite law see Majorlagbe v Larbi [1959] GLR 190 especially at page

192. This proposition is applicable to even matters whose proof does not require corroboration as a matter of law.”

In my view the Plaintiff failed to prove that her grantor owned the disputed land.

In spite of the fact that the Plaintiff failed to prove his root of title, if he is able to show that he has been in adverse possession of the disputed land she could be entitled to her reliefs. On this issue her Attorney gave this piece of evidence captured in paragraphs 9 to 22 of his witness statement.

“9. I will say Plaintiff bought two plots of land from her grantor. Plaintiff took immediate possession of the land in dispute by constructing a three course foundation for a storey building on one of the plots and also constructed a septic tank on same. The other plot was used for farming purposes by a neighbour known as George. He planted pepper on same.

10. The land in question is described in exhibit "B" and "B1".

11. My Lord the Plaintiff travels frequently and on return from one of her trips she discovered that one Eric Odai the younger brother of Plaintiff’s grantor David Odai had encroached on the land and had damaged a larger portion of Plaintiff’s foundation.

12. Subsequently Plaintiff managed to ward off encroachers and placed a container on the land and put one Alhaji there as the caretaker of the land. He was there from somewhere in 2009 and left about a year or two ago. Unfortunately he abandoned the land when Defendants entered on the land.

13. My Lord, in June 2021 Plaintiff put up a perimeter fence wall around the land in dispute. Ironically Defendant entered the land to construct two houses. They put up the building mainly at night they removed the kiosk on the land I will say Defendant has trespassed on Plaintiff’s land and has put up structures on same.

14. My Lord I will say that Defendant assertion that Eric Odai is his grantor is not true and if indeed it was true, I will say he slept on his right and was caught up by the statute of limitation laches and acquiescence for watching Plaintiff develop the land since 2000 without challenging her presence on the land. Throughout the period Plaintiff was in possession of the land the said grantor did not challenge her presence on the land.

15. I will say further that at the time Defendant was allegedly granted the land she had been in possession of same for more than 19 years. She was first in time to acquire the land and at the time of sale of the land to Defendant she was in possession of same already.

16. My Lord Plaintiff entered unencumbered land but Defendant entered a semi developed land of Plaintiff.

17. I will say Defendant is being economical with the truth when he said the perimeter fence wall she built to protect her land was built by his grantor.

18. I will say Plaintiff has never ever caused the military to harass Defendant, it is rather Defendant who has been using land guards to harass Plaintiff's workers.

19. I will affirm that Defendant demolished her 3-course foundation on the land and has instead put up structures on it.

20. I will say that Defendant has trespassed on Plaintiffs land and continues to trespass on Plaintiff's land which she bought from David Odai about 22years ago and he will continue to trespass on the said land unless he is halted by the Honourable Court I therefore pray to the Honourable Court to grant all my reliefs endorsed on the writ on summons.”

From the evidence it could seen that the Plaintiff has been dispossessed of the disputed land before this action was commenced. Indeed the Defendant has constructed two buildings on the disputed land before this action was instituted. Hence the Limitation Act cannot be invoked by the Plaintiff.

I would now proceed to discuss the last issue which is whether or not the Defendant’s grantor owned the disputed land.

EVIDENCE LED BY THE DEFENDANT

“3. Sometime in 2019, I was looking for a parcel of land to buy and my attention was drawn to the land in dispute which was put up for sale by Eric Odai, who is now deceased. I made enquiries from land owners in the area where the land is situated and I was told the land belongs to Eric Odai. I also conducted a search on the land at the Lands Commission and it confirms that the land belongs to Mr Eric Odai. A copy of a search result in respect of the land in dispute which confirms the ownership of Mr. Eric Odai is attached hereto and marked as Exhibit "1".

4. I got to know that Eric Odai acquired the land in dispute from Nii Afotey Odai IV through a deed of lease dated 21st February, 1991 and stamped as No. AR/NU/485/95. Mr Eric Odai proceeded and registered the land in his name at Lands Commission.

5. Being satisfied after my investigations, I went ahead and bought the land from Eric Odai and he gave me a deed of assignment dated 27th July, 2019. A copy of the deed of assignment is attached hereto and marked Exhibit "2".

6. Mr. Eric Odai handed over the land to me after I paid for it. There was nothing on the land. Three sides of the land were already fenced by Mr. Eric Odai and he was in possession of the land before he handed it to me.

7. As I was not ready to develop the land immediately, I asked a neighbour to be watching over it for me. I was also inspecting the land from time to time and weeded it whenever it got bushy. I possessed the land peacefully and did not have any interference with anyone whosoever.

8. Then at the early part of 2021 some members of Kwei Domu family of Accra came to challenge me over the land saying it belongs to them and that a judgment

had been given in their favour over a tract of land including the land in dispute in 2017. On the basis of the judgment, I atoned tenancy to the family by making some payments towards the land. After that they gave me a deed of lease in respect of the land dated 10th July, 2021. A copy of the lease is attached hereto and marked Exhibit "3".

9. I gathered some building materials and started developing the land in 2021.

In the course of the construction works, one W.O. came unto the land and caused the Baatsona police to arrest my workers saying that the land belongs to the Plaintiff.

10. We went to the police station and the matter was investigated, search was also made which confirmed that the land belongs to Mr. Eric Odai. So the police dismissed the W.O.’s complaint and I continued with the construction works.

11. Later in January 2022, some military men came unto the land and beat my workers claiming that the land belongs to the Plaintiff. Then they got some men who started constructing a wall at the last side of the land which Mr. Eric Odai left opened.

12. I lodged a complaint at the Baatsonaa police station. The police repeated their earlier findings to the military men and asked the Plaintiffs agents to stop the work since the land does not belong to her.

13. The military men stopped disturbing me and I continued with the construction and the building had reached the lentil level. On 6th March, 2022 the

Plaintiff lodged a complaint at the police regional headquarters that the land in dispute belongs to her. Later she filed this suit. Pictures of the structure showing its stage at the time the suit was filed are attached hereto and marked Exhibit "4", "4A" and "4B".

14. I have been in peaceful possession of the land from the time I acquired it. The land does not belong to the Plaintiff. She is using military men to intimidate me and had trespassed on the land in 2022 by attempting to build a fence wall at a section of the land.

15. It is clear that Plaintiff's alleged grantor, David Odai, was not the lawful owner of the land in dispute. The land in dispute had already been granted to Eric Odai by Nii Afotey Odai IV on 21st February, 1991 and he registered it at Lands Commission. So the same Nii Afotey Odai IV could not have been granted the same land to Plaintiffs grantor on the same date as shown on Plaintiffs indenture dated 10th October, 2000 stamped No. LVDGAST28862017, Exhibit "B".

Also Eric Odai did not give the land to Plaintiffs grantor on 30th May, 1995 as stated on Plaintiff's Exhibit "B".

16. Eric Odai was in possession of the land and he handed over a vacant land to me in 2019. I did not clear any structure on the land before starting my works and my workers did not work in the night, or used land guards as Plaintiff contended.

I am the lawful owner of the land in dispute and have been in quiet possession until Plaintiff started laying claim to it from the year 2021.

I say that the Plaintiff is not entitled to the reliefs she claims from the court.

EVALUATION OF THE EVIDENCE LED BY DEFENDANT

The Defendant’s claim that the land was granted to his grantor by Nii Afotey Odai IV is confirmed by the Search Report procured from the Lands Commission. A lease dated 21st February 1991 executed in favour of the Defendant’s grantor is noted in the records of the Lands Commission. This search report is marked Exhibit 1. Exhibit 2 is the lease agreement between the Defendant’s grantor and the Defendant. In the recital his grantor averred the fact that Nii Afotey Odai IV on 21st February, 1991 granted the disputed land to the him which he registered and stamped as AR/NU/485/95 at Lands Commission. The Defendant called Samuel Nii Asamani Darku the stool secretary to the Akononko Divisional Council, Nungua. He confirmed the grant made to the Defendant’s grantor and indicated the Nungua Stool has not made any grant of the disputed land to the said David Odai.Once the Stool Secretary to that Divisional Council under whose jurisdiction the disputed land has confirmed the grant made to the Defendant’s grantor I am bound by law to find for the Defendant. Where parties claim to have gotten their grants from the same grantor, the evidence of the grantor supporting one party should induce the court to find for that party. In the case of Ogbarmey-Tetteh v Ogbarmey-Tetteh [1993-94] 1 GLR 353 @ 416 wherein the law was stated thus:

“… where rival parties claimed property as having been granted to each by the same grantor, the evidence of the grantor in favour of one of the parties should incline a court to believe the case of the party whose favour the grantor gave evidence unless destroyed by the other party.”

In the premise I hold that the disputed land was granted to the Defendants grantor on the 21st of February 1991 by Nii Afotey Odai IV. Based on the findings made supra I dismiss the entire reliefs claimed by the Plaintiff. I award costs of Ghc 30,000.00 against the Plaintiff.