Nkansah Vrs Osei Yaw And Another (A1/913/2011) [2022] GHACC 318 (5 October 2022)

IN THE CIRCUIT COURT HELD IN KUMASI ON WENESDAY THE 5TH DAY OF OCTOBER, 2022 BEFORE HER HONOUR PRISCILLA DAPAAH MIREKU (MRS.), CIRCUIT COURT JUDGE. SUIT NO. A1/913/2011 CHARLES BOACHIE NKANSAH VRS: OSEI YAW AND ANOTHER ---------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------- The subject matter under dispute before this Honourable Court is a parcel of land described by the Plaintiff as Plot No. 78A Block H New Kyekyere Kronom New site. The Plaintiff initially instituted this action against the First Defendant on the 18th day of February, 2011 per the reliefs endorsed on the writ of summons. The Defendant entered appearance and subsequently filed his defence. According to the Defendant, the land he reentered was Plot number 77A and not 78A and thus the Plaintiff is not entitled to his claim. The Second Defendant, Charismatic Bible Center was later joined to the suit and the plaintiff amended his writ of summons. Per the Plaintiff’s amended Writ of Summons, he prays for the following reliefs; (a) A Declaration that Plot No 78A Block ‘H’ new Kyekyere Kronom New Site, Kumasi is the property of the plaintiff having acquired the said plot of land legally from one Mr. Oduro Kwarteng who was granted same by the New Kyekyere Stool Land. (b) An Order of perpetual injunction restraining the Defendants by themselves, their privies, agents, assigns or any other person(s) claiming through them from entering upon the said plot of land or having any dealing whatsoever with the land. (c) Damages for unlawful harassment and destruction of the foundation of Plaintiff’s three bedroom foundation on the said plot of land. (d) An Order that the Defendant remove any offending structure on Plaintiff’s land or Plaintiff remove same and charge the Defendant with the incurred cost. (e) Any further Order(s) as the Honourable Court may deem fit. The 1st Defendant did not counterclaim for any relief but the 2nd Defendant counterclaimed as follows; i. An Order of this Honourable Court declaring the 2nd Defendant as the owner of Plot 77A Block H New Kyekyere Kronom New Site. ii. An Order of perpetual injunction restraining the plaintiff herein, his assigns, agents, privies, workmen etc. or anybody claiming title through him from further interfering with the said land in dispute. iii. A further Order cancelling any lease document obtained by the Plaintiff from lands Commission. Even though there were a number of amendments, the issues filed on 3rd September, 2014 and additional issues filed of 8th September, 2014 were adopted as issues set down for trial and they are as follows; 1. Whether or not the Plaintiff legally acquired then Plot No. 78A Block ‘H’ New Kyekyire from new Kyekyere Stool. 2. Whether or not Plot Number 78A is the same as Plot Number 77A as claimed by the Defendants. 3. Whether or not paragraph 2 occurred because of renumbering of the plots. 4. Whether or not the Plaintiff was in possession of Plot Number 78A and had constructed a building foundation on the said plot. 5. Whether or not the Plaintiff has re-acquired the plots from the occupants of Tafo Stool. 6. Whether or not the defendants are entitled to their Counter-Claim. 7. Whether or not 3rd Defendant has been on the land since 2010. 8. Whether or not the Plaintiff ever caused destruction to the 2nd Defendant property on the plot. 9. Whether or not there was an order of re-entry from the High Court in respect of the land in dispute in favour of the 1st defendant. It is the case of the Plaintiff that he first acquired the disputed plot of land in 2007 from one Mr. Oduro Kwarteng which same was allocated to the said Oduro Kwarteng by the Kyekyere Stool. That he there after constructed a three bedroom foundation on same. That in 2010, the 1st Defendant trespassed on his land and claimed he had a judgment to re-enter the said land. That investigation into the matter revealed that, the defendant had caused a re-designation/re-zoning of the plots within the block that had the 78A. That the newly renamed Plot 77A when superimposed on the site plan fell/tallied with 78A which was the original plot number. The plaintiff further avers that the first defendant caused his arrest several times so he went to the Asantehene to report same but he was directed to the Tafo stool since he was informed the subject matter falls under the Tafohene’s custodial rights. According to the plaintiff when he went to the Tafohene, he claimed custody of the new Kyekyere land and after listening to his story issued him with an allocation paper and a site plan. That the defendants will not stop their illegal harassment and trespassory acts unless compelled by this honourable court. It is the First Defendant’s case that he got judgment from the High Court and re-entered the plots of land affected by the said judgment which the subject matter is inclusive. The 1st Defendant further claims the land he entered was Plot number 77A not 78A and thus, the plaintiff’s writ is incompetent. The 2nd Defendant also avers that they acquired the subject matter from the 1st Defendant after he has shown them a judgment he had obtained at the High Court in his favour. That they started developing the land and the Plaintiff showed up and made adverse claim to the land even though his plot number was different. That they put up a structure on the land and the plaintiff caused his agents to destroy same. That they re- developed the land and whiles doing same the plaintiff went to court and took an injunction on plot number 78A. According to the 2nd Defendant, the Plaintiff was made to pay for the destruction he had caused to the building and applied to be joined to the suit when the Plaintiff insisted his plot number 78A was their plot number 77A. The 2nd Defendant further alleges that the Plaintiff’s suit is premise on fraud. In civil actions, the burden of proof is by the preponderance of probabilities and Section 12 of the Evidence Act 1975 (NRCD 323) provides that, (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. In Re Wa Na; Issah Bukari (substituted by Mahama Bukari & Anor v. Mahama Byong & Others [2013-2014], the Supreme Court stated that, The Evidence Act, 1975 (NRCD 323), has prescribed the applicable procedure in every proceedings including inquiries, investigations and hearings, etc thus a person was obliged under section 11 of NRCD 323 to introduce sufficient evidence to avoid a ruling against him on an issue. It is important for the person who is making a claim denied by his opponent to lead sufficient evidence to prove his case by the preponderance of probabilities. In the case of Zambrama v. Segbezi [1991] 2 GLR 221 @ 246 the Court of Appeal held that, A person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden from which the fact or facts he asserted can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden. As aforementioned, this is a land litigation and in Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891, the court was of the view that, “to succeed in an action for declaration of title to land, injunction and recovery of possession the plaintiff must establish by positive evidence the identity and limits of the land claimed.” Also in the case of Mondial Veneer (GH) LTD v. Amuah Gyeby XV [2011] 1 SCGLR 466, it was held that, there is the “need for person having burden of persuasion to prove root of title, mode of acquisition and acts of possession exercised over disputed property.” The Plaintiff in proving his case testified on his behalf and called two other witnesses. The Plaintiff sort to tender copies of the site plan and allocation note of one Oduro Kwarteng which the site plan was rejected and the allocation note was accepted and marked Exhibit ‘A’. Exhibit ‘A’ was issued by the New Kyekyere Stool Land signed by one Kingsley Appiah-Antwi and Kwame Obiri Yeboah and thumb printed by Obaapanin Yaa Manu. The said Oduro Kwarteng also signed same as the allotee. The plaintiff also tendered a statutory declaration made by the aforementioned Oduro Kwateng in his favour declaring that he has transferred his interest in Plot No. 78A Block H, New Kyekyere to the plaintiff. The plaintiff had testified that he later re- acquired the land from the Tafo stool Land and tendered Exhibit ‘C’ which is allegedly an allocation paper for the subject matter and the site plan attached to same was marked Exhibit ‘C1’. The plaintiff also tendered Exhibit ‘D’ a receipt to prove his claim that he was asked to register the land at the Tafo stool land. The plaintiff also tendered evidence to show he started registering the land at the Land commission after he acquired a lease from the Tafo stool endorsed by the Asantehene and the said lease was marked as Exhibit ‘L’. The plaintiff further tendered Exhibit ‘M’ which is the alleged judgment on which the 1st Defendant allegedly entered the land. The title of the said suit indicates the developers of the plots of land the suit was instituted against and neither Plot 78A Bock H nor Plot 77A Block H was mentioned. The plot numbers rather include Plot 77 Block H. The Plaintiff tendered a site plan in the name of Oduro Kwarteng and on the said site plan Plot no. 77 is distinct from plot no. 78A. The plaintiff called one Owusu Gyabeng (PW1) to testify on his behalf but after giving his evidence, he failed to avail himself for cross examination. Thus his evidence is merely considered as hearsay evidence. The Plaintiff also called Nana Agyen Frimpong Derkyi (PW2) to testify on his behalf. According to PW2, there is no New Kyekyere Stool and the subject matter falls under the Tafo Stool. The 1st Defendant did not come to court to prove his claim after he filed his defence. The 2nd Defendant called Emmanuel Ofori (DW1) and Mary Afriyie (DW2) to testify on their behalf. DW1 testified that the 2nd defendant acquired the subject matter from the 1st defendant on or around 2010. That they started developing same and the plaintiff went to the 1st Defendant praying same to be given to him in exchange of his three plots of land somewhere but they rejected same. That the plaintiff cause damage to constructions they made on the land and they currently have a two bedroom on the subject matter occupied by some people. That, the subject matter is the property of the 2nd Defendant. DW2 tendered certain documents in court to prove their claim and they include; Statutory Declaration dated 21-6-2010 as Exhibit ‘1’, Allocation Note of Plot 78A as Exhibit ‘2’, Allocation Note of 77A as Exhibit ‘3’, another allocation note of 77A as Exhibit ‘4’, indenture as exhibit ‘5’, building rent application form as Exhibit ‘6’, rate payment receipt as exhibit ‘7’ and two other exhibits. Before I go into the merit of the case, I will like to deal with the issue of capacity of the 2nd Defendant raised by plaintiff’s counsel in his address. Counsel for the plaintiff is his address raised the issue of the capacity of the 2nd Defendant and avers that the 2nd Defendant did not lead evidence to prove that they were legally registered under the laws of Ghana as same has been denied by the Plaintiff and challenged under cross examination. Thus counsel submits that the 2nd defendant’s inability to prove its existence as a legal entity means that it does not exist legally and therefore cannot owe a property. Capacity can be raised at any time but when the plaintiff aver in his pleadings that it was a registered entity under the laws of Ghana, same was not challenged and thus it did not form part of the issues to be dealt with. There is also no evidence to the contrary that the 2nd defendant is not a legal entity. The court therefore finds that the 2nd defendant is a legal entity and can sue or be sued. Before any of the issues set down will be dealt with, it is important that we deal with the issue of whether or not Plot Number 78A is the same as Plot Number 77A as claimed by the Defendants. The Plaintiff describes the subject matter as Plot Number 78A whiles the Defendants describe same as Plot No. 77A all of Block H. The Plaintiff further alleges that his investigation shows that the 1st Defendant re-zoned the place thus Plot Number 78A is the same as Plot No. 77A. At paragraph 15 of the plaintiff’s amended statement of claim dated 10th January, 2014, the plaintiff claims that when plot 77A is super imposed on the site plan it falls or tally with 78A. This was denied by the defendant and the onus was on the plaintiff to prove same especially when he alleges that he lives on a plot next to the subject matter which is allegedly plot 78A currently but was initially Plot 79A. The issue of whether Plot number 77A is same as Plot number 78A will have been best determined by the surveyor division of the lands commission but this is an inherited case in which no such order was made. The plaintiff alleges that he went into possession of the subject matter by constructing a three bedroom foundation on same but the 1st defendant destroyed same and rather constructed their structure on same. The plaintiff did not support this assertion with any proof as same has been denied by the defendant. However the plaintiff tendered documents from the Tafo Stool Land and the Land Commission to show that the land in dispute is currently plot no. 77A. When the plaintiff instituted this action, the 2nd defendant were not party to the suit but they applied to be joined because they were of the view that the subject matter was their Plot no. 77A which was before this Honourable Court. Thus this Honourable Court is of the view that Plot no. 78A stated by the plaintiff is the same Plot no. 77A of the defendant. The next issue for consideration is whether or not the Plaintiff legally acquired then Plot No. 78A Block ‘H’ New Kyekyere from New Kyekyere Stool. The plaintiff alleges that he acquired Plot No. 78A from one Oduro Kwarteng who in turn acquired same from the New Kyekyere Stool and tendered an allocation note to prove same. The defendant’s witness also tendered their allocation paper to also prove their claim. Plot numbers 78A and 77A have been found by this court to be one and same. From the evidence before the court the plaintiff acquired the subject matter from Oduro Kwarteng in 2007 who also acquired same from the New Kyekyere Stool Land. The defendant’s allocation paper also suggests that the New Kyekyere Stool Land in 2010 through the 1st defendant. Once the New Kyekyere land had transferred the subject matter to the plaintiff, they could not have transferred same to the defendant. The 2nd defendant claims the 1st defendant re-entered the land by a court’s judgment but the said judgment does not state plot number 77A or 78A as part of the plots involved. Thus as at the time the plaintiff instituted the action, he had legally acquired the subject matter. The third issue for consideration in my opinion is whether or not the Plaintiff was in possession of Plot Number 78A and had constructed a building foundation on the said plot. It is trite that he who asserts must prove especially when the said assertion has been denied by his opponent. The plaintiff per paragraph 5 of the said amended statement of claim avers that he constructed a three bedroom foundation on the said plot in 2008 and same was denied by the defendants. Mounting a witness box to repeat ones averment will not be beneficial to the deponent. It is important that sufficient evidence is led to prove ones claim so that a reasonable mind may find the existence of that fact more probable. The plaintiff did not lead a single evidence to prove his case. With the issue of whether or not the Plaintiff has re-acquired the plots from the occupants of Tafo Stool, the plaintiff has tendered evidence to prove that he has acquired Plot 77A Block H from the Tafo Stool and lease executed in his favour when the suit was pending before this honourable court. The said Plot 77A is the same Plot number the 2nd defendant is claiming . The instant suit was instituted in 2011 and the lease aforementioned was executed in 2015. Even though the plaintiff in his amended statement of claim has indicated that he had taken steps to register the land and properly acquire same from the Tafo stool, it is interesting to note that upon the various amendment of the writ of summons and statement of claim by the plaintiff, the description of the subject matter remained Plot 78A Block H New Kyekyere Kronom New Site. This court has however held that plot no. 78A is the same as plot no. 77A. also the evidence on record shows that the Plaintiff reacquired the subject matter from the Tafo Stool when he was taking steps to register same, he was informed the subject matter falls under the Tafo Stool. In considering whether or not there was an order of re-entry from the High Court in respect of the land in dispute in favour of the 1st defendant, as aforementioned both plot numbers in contention was not part of the said judgment. One cannot aver that plot no. 77 is the same as plot no. 78A and plot no. 77A without proof especially when plot number 77 can also be found on Exhibit ‘B’. The 2nd Defendant claims their title through the 1st defendant and relies heavily on the judgment aforementioned. As earlier stated, the said judgment does not mention plot no. 77A but rather Plot no. 77 an the defendant who is rely on same did not lead any evidence to prove that they are one and same. Also with the plaintiff challenging the New Kyekyere stool on their capacity to grant new Kyekyere land which allegedly falls under Tafo stool, the burden shifted to the defendants when the Plaintiff led evidence to prove that the land was for the Tafo Stool. A defendant counterclaiming for a relief has the same degree of burden as a plaintiff and he cannot rely on the weakness of the opponent likewise the plaintiff cannot rely on the weakness of the defendant. At the close of the submissions of this court, this honourable Court finds that the plaintiff initially acquired plot no. 78A from the New Kyekyere stool in the year 2007 while the 2nd defendant acquired Plot no. 77A in the year 2010. That the plaintiff’s sit plan marked Exhibit ‘B’ shows that, there is was plot numbers 77, 78 and 78A at the time the plaintiff acquired the land from Oduro Kwarteng. At the end of the hearing, this court finds that the subject matter was legally acquired by the Plaintiff and it is more probable that the subject matter is the bona fide property of the Plaintiff. the plaintiff is praying for the following reliefs; a. A Declaration that Plot No 78A Block ‘H’ new Kyekyere Kronom New Site, Kumasi is the property of the plaintiff having acquired the said plot of land legally from one Mr. Oduro Kwarteng who was granted same by the New Kyekyere Stool Land. (f) An order of perpetual injunction restraining the Defendants by themselves, their privies, agents, assigns or any other person(s) claiming through them from entering upon the said plot of land or having any dealing whatsoever with the land. (g) Damages for unlawful harassment and destruction of the foundation of Plaintiff’s three bedroom foundation on the said plot of land. (h) An order that the Defendant remove any offending structure on Plaintiff’s land or Plaintiff remove same and charge the Defendant with the incurred cost. (i) Any further order(s) as the Honourable Court may deem fit. Judgment is entered for the plaintiff in respect of all his reliefs except his relief for damages for harassment and destruction of the foundation of Plaintiff’s three bedroom foundation on the said plot of land as he failed to prove same. The 2nd defendant failed to prove his case and thus his counterclaim is accordingly dismissed. SGD. H/H PRISCILLA DAPAAH MIREKU (MRS.) CIRCUIT COURT 2, ADUM KUMASI 12