Christian M.K. Kpatsi, Prince Amoah Ampofo, Gabriel Kwesi Acheampong & Reindorf Nii Okai v Abass & 3 Others

By a writ filed on 31st October, 2024, the Plaintiffs in this matter seek the following reliefs:

a. A declaration of title to all that parcel or piece of land been lying and situate at Aburi behind Little Acre Hotel and bounded on one side by the property of Oko Djanie and measured on that side by a total distance of 103.3 feet more or less, on the second side by the property of Abusuapanyin Okyere Opera and measured on that side a total distance of 248.3 feet more or less, on the third side by the property of one Ben-Bright Edem Fiakpu and measured on that side a total distance of 107.85 feet more or less, on the fourth side by a proposed road and measured on that side a total distance of 254.5 feet more or less, and containing an approximate area of 0.60 acres more or less.

b. Recovery of possession of all that parcel or piece of land as described in relief (a).

c. Perpetual injunction restraining the defendant, his agents, privies, kin, workmen and personal representatives or assigns from dealing with the land described.

d. Damages for trespass.

e. Special damages of GHC 1,120 being the cost of 16 pieces of boundary pillars destroyed by the Defendant.

f. Costs, including legal fees.

g. Any other order or orders the Honourable court shall deem fit.

The suit was initially brought against the 1st Defendant but pursuant to an order for joinder granted by the court, the 2nd, 3rd and 4th Defendants were subsequently joined to the suit. Orders to serve the Defendants by substituted service were also granted to the Plaintiffs on 5th November, 2024 and 5th March, 2025. Even though the defendants were served with copies of the Plaintiffs’ writ and other processes, they did not file any processes nor did they appear before this court to defend the suit.

Plaintiff’s case

The 1st Plaintiff is a lawyer, the 2nd and 4th Plaintiffs are accountants, and the 3rd Plaintiff, a medical doctor. The defendants’ occupations are unknown but they reside at Gyankama- Aburi. According to the Plaintiffs, sometime in 2023, Plaintiffs bought building plots from one Abusuapanyin Okyere Opare after they had done their due diligence. They then put Kwabena and Ohene Barnes, relatives of their grantor, in occupation of the land to cultivate maize and cassava. Plaintiffs also mounted their respective boundary pillars demarcating their respective plots. On 28th October, the Defendants and his men invaded the land in dispute and graded it, destroying crops on the land.

Issues

1. Whether the Plaintiffs are entitled to a declaration of title to the land in dispute.

2. Whether the Plaintiffs are entitled to an order of perpetual injunction restraining the defendant, his agents, privies, kin, workmen and personal representatives or assigns from dealing with the land described.

3. Whether the Plaintiffs are entitled to damages for trespass.

4. Whether the Plaintiffs are entitled to special damages of GHC 1,120 being the cost of 16 pieces of boundary pillars destroyed by the defendant.

5. Whether the Plaintiffs are entitled to costs, including legal fees.

Evidentiary burden

The principle is that he who alleges must prove. Section 14 of the Evidence Act, 1975 (Act 323) provides that:

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.

The Supreme Court in the oft cited case of Serwah v Kesse (1960) GLR 227 stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. They laid down the tests for who bears the burden as follows:

“The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted in Stroud, Judicial Dictionary (3rd. ed.) p. 1996.”

The Plaintiffs are therefore under an obligation to prove the facts that will enable the court conclude that they are the owners of the land as they assert, and are accordingly entitled to the reliefs they seek. This being a civil matter, the Plaintiffs are required to prove their case upon a preponderance of probabilities in accordance with section 12 of the Evidence Act 1975 (NRCD 323).

Whether the Plaintiffs are entitled to a declaration of title to the land in dispute.

In the case of Adjei Vrs Hosunu & Another [2023] GHAHC 250 (13 February 2023), Owoahene-Acheampong, J. stated the position of the law in an action for declaration of title to land thus:

“in land litigation where claims have been made for declaration of title and an order for perpetual injunction, the claimant is enjoined by law to effectively satisfy three key or major requirements, namely;

i. Acquisition

ii. Identity and

iii. Possession,

in order to be entitled to his/her claim.

The Plaintiffs must therefore have adduced sufficient evidence to establish the identity of the land, that they acquired the said land, and that they have been in possession of the land.

Before I proceed to analyse the evidence adduced by the Plaintiffs, I wish to respectfully reiterate the law on what constitutes proof as expounded by Justice Ollenu in the case of Khoury and Another v. Richter and restated in his decision in the Majolagbe v Larbi [1959] GLR 190 case on the 8th December, 1958 as follows:

Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”

By way of evidence, the 1st Plaintiff testified on behalf of the all the Plaintiffs. Their grantor, Abusuapanyin Okyere Opare, also testified on their behalf. The 1st Plaintiff’s testimony was that in early 2023, he and the other Plaintiffs decided to undertake a joint building project. They approached their grantor who is the head of the Obutwe section of the Aduana Clan of Aburi. Their grantor instructed two of his men to take them to the land in dispute to confirm whether it was suitable for their purposes. Plaintiffs were happy with the land and so conducted a search at the Lands Commission, Koforidua to ascertain who owned the land. The search report confirmed their grantor’s ownership of the land. A copy of the said search report was tendered into evidence as Exhibit A. In September, 2023, Plaintiffs made payment and purchased the land. The document tendered, however, shows that the application for a search to be conducted in respect of the land was filed on 2nd October, 2023 and the report issued on 10th October, 2023. The evidence therefore does not support the Plaintiffs’ claim that they did their due diligence before purchasing the land in dispute in September, 2023. Moreover, even though the assertion that the Plaintiffs paid for the land is capable of proof in some positive way such as by producing a receipt for payment, no such evidence has been adduced. I doubt very much that a lawyer, two accountants, and a medical doctor would pay for land without obtaining some proof of payment but unfortunately, there is no such evidence before me.

It is also the testimony of the 1st Plaintiff that he and the other Plaintiffs subsequently mounted 16 pillars on the land demarcating their respective plots. They also put two relatives of their grantor on the land to cultivate it. The Plaintiffs remained in quiet and peaceful possession of the land until 28th October when the Plaintiff and his men invaded the land and destroyed the 16 pillars as well as the crops on the land. Two pictures of the graded land were tendered into evidence and labelled Exhibit B and Exhibit B1 respectively. Each pillar cost GHS70, so the total cost of the destroyed pillars came to GHS 1,120. Once again, even though the cost of a pillar is capable of proof in some positive way, no evidence was adduced. Finally, the 1st Plaintiff testified also that the 3rd and 4th Defendants have visited the land and the 4th Defendant informed the caretakers that they had been contracted to develop the land. This is portion of the 1st Plaintiff’s testimony is clearly hearsay evidence within the meaning of section 116 of the Evidence Act, 1975 (NRCD 323) and is therefore inadmissible. The 1st Plaintiff has not demonstrated the existence of any of the exceptions under which the evidence would be deemed admissible.

The testimony of Abusuapanyin Okyere Opare (PW1) was that the Obutwe family of the Aduana Clan are allodial owners of a vast stretch of land situate at Aburi and the land in dispute is a portion of that vast stretch of land. In 1984, the then head of family, the late Opanyin Obeng Kwasi gifted about 46.83 acres of the said land to him. In 2016, Abusuapanyin Kofi Yeboah, the Abusuapanyin of the Obutwe family at that time, executed

a deed of conveyance in his favour and same was duly registered at the Lands Commission with Deed No. EA 704/2016. A copy of the registered deed was tendered in to evidence and marked Exhibit C. Sometime in September, 2023, the Plaintiffs expressed interest in the land in dispute and conducted a search to confirm his ownership. PW1 testified that the Plaintiffs subsequently made payment to the family and they executed an indenture in their favour. PW1 testified also that the Plaintiffs subsequently took possession of the land and placed Ohene Barnes on the land as caretaker. In November 2024, Ohene Barnes called the Plaintiff’s grantor to inform him that defendants had invaded the land and graded same in preparation for construction. Even though PW1’s assertions that Plaintiffs subsequently made payment to the family and they executed an indenture in their favour are capable of proof in some positive way, no evidence such as copies of a receipt for the said payment or a copy of the said indenture were produced. Further, it is the Plaintiffs’ case that the land is the personal property of PW1 acquired by way of a gift and yet the witness testified that payment was made to the family for them to execute an indenture for the Plaintiffs. No explanation was offered to clarify that inconsistency, and I cannot make any assumptions without running the risk of substituting the Plaintiffs’ case with one of my own imagining.

Having considered all the evidence adduced by the Plaintiffs, I find, respectfully, that the Plaintiffs have not led sufficient evidence to support their claim that they acquired the land in dispute. I am bound by the authority of Majolagbe v Larbi cited supra which is clear that merely repeating one’s averments on oath or having a witness repeat those averments with nothing more when those averments are capable of some positive proof does not suffice. That the Plaintiffs’ grantor himself was in court to testify in support of their case unfortunately does not compensate for the lack of evidence. The Supreme Court in Mondial Veneer (Ghana) Ltd v Gyebi xv [2011] 1 SCGLR 466 stated the position of the law as follows:

“In land litigation, even where living witnesses directly involved in the transaction had been produced in Court as witnesses, the law would require the person asserting title and on whom bear the burden of persuasion, as the Defendant’s company in the instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It was only where the party had succeeded in establishing those facts, on the balance of probabilities that the party would be entitled to the claim.” (Emphasis supplied).

Accordingly, by reason of the failure of the Plaintiffs to adduce sufficient evidence to prove their assertions, I hold, on the authority of the Mondial Veneer case, that the Plaintiffs are not entitled to a declaration of title in respect of the land in dispute. Consequently, all their other claims fail as well.

I make no order as to costs.