George Narteh Owodo v Nii Awuah Amanfro II

1.0 INTRODUCTION:

The case of the Plaintiff as captured by his statement of claim is that he acquired the disputed land sometime in the year 2013 but was provided with a site plan on the 13th May, 2014 by the Osabu Ayiku Wulomo namely Nuumo Adjei Kwanko II (deceased), head and lawful representative of Kle Musum Quarter/Tsie We Family of Teshie.

1.1 The Plaintiff states that by an indenture dated 20th day of February, 2015, Nuumo Adjei Kwanko II, the Osabu and Ayiku Wulomo and the head and lawful representative of the Kle Musum Quarter/Tsie We family with the consent and concurrence of the principal members granted a lease to the Plaintiff for a period of fifty (50) years.

1.2 That the Plaintiff immediately took possession of the land by erecting corner pillars and also deposited aggregate of sand, stones and cement blocks on the land.

1.3 That after the Plaintiff had erected the corner pillars and placed trips of stones, sand and cement blocks on the land, he erected a short wall around the land and engaged a caretaker on the land to take care of the land in dispute.

1.4 And that the Plaintiff was informed by his caretaker that some land guards attacked him on the land and demolished his wall and hurriedly constructed another wall around the land.

1.5 That the Plaintiff because of his busy schedules was not frequenting the land but was informed by his caretaker that the Defendant comes around to claim ownership of the land but at all material time the Defendant was hesitant in meeting the Plaintiff to discuss the ownership of the land.

1.6 It is the case of the Plaintiff that the Defendant has no legal basis of claiming ownership of the land the subject-matter of the instant suit but rather exhibiting a clear intention to continue with claiming ownership by the registration they have covering the land.

1.7 SCHEDULE:

All that piece or parcel of land situated at Otinshie in the AMA District containing an approximate area of 0.45 acres or 0.18 hectare more or less bounded on the A1 to A2 by a proposed road measuring 157.6’ feet more or less on the A2 to A3 by lessor’s land measuring 40.3 feet more or less on the A3 to A4 by lessor’s land measuring 90.2 feet more or less on the A4 to A5 by lessor’s land measuring 167.7 feet more or less on the A5 to A1 by lessor’s land measuring

112.6 feet more or less as the same is more particularly delineated on the plan attached hereto and thereon shewn edged pink.

1.8 Based on these facts the Plaintiff claims against the Defendant as follows:

a. Declaration of title to all that piece or parcel of land as described in the above schedule as depicted in the statement of claim.

b. Recovery of possession of the said piece or parcel of land.

c. An order of perpetual injunction restraining the Defendant, personnel, workmen, servants, agents, assigns, however descried from their acts of trespass on the land in dispute whether entering same or in any way interfering with the Plaintiff’s quiet use and enjoyment of the land, the subject-matter of this suit.

d. General damages for trespass.

e. Cost on a full indemnity basis including legal costs.

1.9 It is salient to note that notwithstanding the service of all the processes in this case as well as hearing notices on the Defendant, he failed to attend court to contest the Plaintiff’s claim for which reason the court had no option than to proceed under Order 36 of CI. 47.

2.0 The case of the Plaintiff was prosecuted by his Attorney, one Ebenezer Adjetey Sowah. See Exhibit “A”, a copy of the Power of Attorney. It is the testimony of the Plaintiff’s Attorney that the Plaintiff acquired the subject-matter land sometime in the year 2013 but was provided with a site plan on the 13th May, 2014 by the Osabu Ayiku Wulomo namely Nuumo Adjei Kwanko II (deceased), head and lawful representative of Kle Musum Quarter/Tsie We Family of Teshie.

2.1 And that by an indenture dated 20th day of February, 2015, Nuumo Adjei Kwanko II, the Osabu and Ayiku Wulomo and the head and lawful representative of the Kle Musum Quarter/Tsie We family with the consent and concurrence of the principal members granted a lease to the Plaintiff for a period of fifty (50) years. See Exhibit “B”, a copy of the Indenture issued to the Plaintiff.

2.2 The Plaintiff immediately entered into possession of the land by erecting corner pillars and also deposited trips of sand, stones and cement blocks on the land.

2.3 That after the Plaintiff had erected the corner pillars and placed the stones, sand and locks on the land, he erected a short wall around the land, and engaged a caretaker to take care of the land.

2.4 That the Plaintiff was later informed by his caretaker that some land guards had attacked him on the land and demolished his wall and hurriedly constructed another wall around the land.

2.5 That the Plaintiff because of his busy schedules was not frequenting the land but was informed by his caretaker that the Defendant comes around to claim ownership of the land but at all material time hesitant in meeting the Plaintiff to discuss the ownership of the land.

2.6 That the Plaintiff told him that on one occasion when he visited the land he met the Defendant’s agent who informed him that the land was sold to the Defendant by one Mr. and Mrs. Ruddolf Darko but all his search to locate any Mr. & Mrs. Ruddolf Darko proved futile.

2.7 That there are judgments that clearly state that it is only the Osabu and Ayiku wulomo who doubles as the head and lawful representative of Tsie We/Kle Musum that has the right and capacity to alienate lands belonging to the Tsie We/Kle Musum Quarter of Teshie.

2.8 That the Kle Musum Quarter lands has been registered at the Deed Registry with Land Registry No. 1332/1965. See Exhibit “C”, a copy of the Title Deed.

2.9 That the Tsie We family has a Land title Certificate covering a portion of his land, which said title was registered in the year 1999 with Land Title Registration No. GA 14112 Vol. 2 Folio 213 issued by the Lands Commission. See Exhibit “D”, a copy of the said Land Title Certificate.

3.0 It is the evidence of the Plaintiff that it is also a fact which has judicial blessings that Kle Musum Quarter land had already been vested in Tsie We as absolute owners and that any talk of Tsie We is synonymous with Kle Musum Quarter family land. See Exhibit “E” series, copies of the said Judgments, i.e.

i. KORANTENG II & ORS. V. KLU [1992] 2GLR 93 AT 100, 107, 108.

ii. KORANTENG II & ORS. V. KLU [1993-94] GLR 280.

3.1 It is the evidence of the Plaintiff that the land in dispute is situate, lying and being at Otinshie which lands falls within the larger tract of land belonging to the Tsie We/Kle Musum Quarter lands of Teshie.

3.2 According to the Plaintiff, at some point in time, some members of Kle Musum Quarter, held themselves out as owners of Otinshie lands and started alienating Otinshie lands.

3.3 And that since the Defendant has chosen not to defend this action, it is an indication that he does not own the land in dispute for which reason the Defendant has no legal basis of claiming ownership of the land subject-matter of this instant suit.

3.4 APPLICABLE LAW:

The burden of persuasion lies on the party making a claim, see [2008 SEBASTIAN DZASU AND 92 ORS. V. GHANA BREWERIES LTD. 16 MLRG] 128 and OWUSU V. TABIRI [1987-88] GLR 287.

3.5 In TAKORADI FLOUR MILLS V. SAMIR FARMS [2005-06] SCGLR 882, it was held:

“It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12 (2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant, must be considered as the party in whose favour the balance tilts is the person whose case is the most probable of the rival versions and is deserving of a favourable verdict…”

See also BANK OF WEST AFRICA LIMITED V. ACKON [1963] GLR 176 holding 2, FOSUA AND ADU POKU V. ADU POKU MENSAH [2009] SCGLR 310 at 312, YAA KWESI V. ARHIM DAVIS [2007-2008] SCGLR 580 and section II (1), (4) and 12, of the Evidence Act, 1975 (NRCD 323).

3.6 The above evidential configuration however is discharged the moment the plaintiff is able to adduce sufficient evidence to elicit a ruling on title in his favour, in the absence of counterbalance evidence from the Defendant. On “Allocation of Burden of Persuasion”, section 14 of NRCD 323 also provides:

“Except as otherwise provided by law, unless

and until it is shifted a party has the burden of persuasion as to each fact the existence or non- existence of which is essential to the claim or defence he is asserting.”

3.7 Section 17 (1) and (2) of NRCD 323 also provides:

“(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof.

(2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to the fact.”

3.7 The burden of persuasion was on the plaintiff per section 14 of NRCD 323. He had the initial burden of producing evidence per section 17 (2) and 11 (1) of NRCD 323. The quality or degree of the evidence required is stipulated in section 10 (1) and (2) and section 12 (1) and (2) of NRCD 323.

3.9 In the case under consideration the parties are fight over a parcel of land. An action for declaration of title to land, recover of possessing of land and perpetual injunction, among others, as the instant suit, is first and foremost a civil action, and carries with it the same evidential burden as every civil case. The Plaintiff was required by section 11(1) of the Evidence Act, 1975, of NRCD 323 to adduce admissible and credible evidence in support of the reliefs sought. In OWUSU V. TABIRI & ANOR. [197-88] 1GLR 287, holding 7, it was held:

“It was the principle of law that he who asserts must prove and must win his case on the strength of his own case and not on the weakness of the defence…”

4.0 The Plaintiff’s burden of proof was discharged if he led evidence to persuade the tribunal of fact that what he asserts is more probable than not. This therefore means that notwithstanding the failure/refusal of the Defendant to contest the instant action, the Plaintiff is still obliged to prove that he is still entitled to the reliefs he is seeking against the Defendant.

4.1 In discharging the burden placed on him by law, the Plaintiff tendered in evidence an indenture evidencing his acquisition of the subject-matter land. See Exhibit “B”, a copy of the Indenture.

4.2 Aside this he also tendered judgments and other documents depicting that his grantor has title to the subject-matter land for which reason he has the capacity to alienate the land to him. See Exhibits “C”, an Indenture and “D”, Land Title Certificate.

4.3 In the circumstance, I hold that the Plaintiff was able to prove his claim for which reason I accordingly enter judgment for him per the reliefs endorsed on his writ of summons save relief (D), General Damages for trespass since the Plaintiff failed to prove same.

I award cost of GhS5,000.00 against the Defendant in favour of the Plaintiff.