Smith and Another Vrs Appiah [2022] GHAHC 34 (27 October 2022)

IN THE HIGH COURT HELD IN CAPE COAST ON THURSDAY, THE 27TH DAY OF OCTOBER, 2022, BEFORE HER LADYSHIP MALIKE AWO WOANYAH DEY (HIGH COURT JUDGE) SUIT NO: E1/49/2021 1. CHARLES SMITH --------------------------- PLAINTIFF 2. SAMUEL SMITH JNR VS CHARLES AUGUSTUS APPIAH --------------------------- DEFENDANT PLAINTIFFs PRESENT DEFENDANT PRESENT THOMAS HUGHES FOR THE PLAINTIFF ROLAND A. K. HAMILTON FOR DEFENDANT JUDGMENT On 19th February 2021, the plaintiffs herein issued a writ out of the registry of this Court claiming the following reliefs against the defendant; 1. Declaration of title to all that piece or parcel of land known as nos. 144 and 145 situate in the Adisadel Village layout in the Cape Coast Municipality in the Eguafo District of the Central Region of Ghana as particularly described in the writ of summons and statement of claim and covering an approximate area of 0.58 acres. 2. Recovery of Possession 3. Perpetual Injunction restraining the defendant, his agents, or any persons claiming through him from entering or causing anything to be brought on the land or building on the land in dispute pending the final determination of the suit 4. General Damages for Trespass 5. Costs, including legal fees Per the statement of claim, the plaintiffs acquired a piece of land from the Fikessim Ebiradze family on 18th September 1973, and a document evidencing their acquisition was executed in their favour by their grantors. Thereafter, the lease was registered at the Lands Commission, Cape Coast, as LSC 417/74 with File No. 34049/786. After the acquisition, the plaintiffs were put in possession in 1974 and have been on it since that year without any adverse claim from anyone. According to them, the land was bare as the whole area was virgin at the time of the purchase, and they have been clearing the land from time to time as and when the need arose. They also secured the land by placing corner pillars to clearly demarcate their boundaries which are visible to anyone who came on the land. Additionally, they allege that they built a four-bedroom house foundation on it and are in the process of constructing the building. The plaintiffs also placed a container on the land where they stored building materials for their project and put a caretaker named George Andoh, who lives on an adjoining land. They also acquired building permits for their building. They averred that in December 2020, the defendant trespassed onto about 50% of the land and began digging trenches to construct a building. The plaintiffs confronted the defendant about the encroachment and warned him to desist from it, but he failed to cease the trespass on that portion of the land. The plaintiffs reported the matter to the police, but all warnings failed to stop the defendant from his acts of trespass. Wherefore the plaintiffs brought this action against him for the reliefs stated above. The defendant was served by substituted service, and after that, his lawyer entered conditional appearance, and that appearance, having lapsed, his counsel filed his statement of defence on 18th June 2021. In his statement of defence, the defendant denied every allegation of the plaintiffs and claimed that he purchased a 0.11 acre of land at North Ola in Cape Coast together with Miss Sheila Flora Anyanwu sometime in July 2013, and the land is the allodial property of the Ketsi Anona family of Cape Coast headed by Ebusuapanyin Baisie Cooke. The defendant also averred that the land is entirely different from the plaintiff's and shall pray to the Court for a composite plan to be drawn. According to him, the land has never been encumbered by any persons, including the plaintiffs, and it had been in possession of the said family for the past 50 years. After his purchase, he placed corner pillars on the land and constructed a fence wall around his plot, which is still on the land. He also claimed that at the time he was building the wall, there were no corner pillars on the land, as claimed by the plaintiffs. He also averred that he caused the land to be graded and had no adverse claim to the land. According to him, the plaintiffs have, rather immediately before instituting this action, caused a foundation to be built on the land and also placed a container on a portion of his land. He averred further that he had started developing a building on his land and had not trespassed onto the plaintiff's land. Thereafter, the plaintiffs approached him and informed him that they had purchased portions of the defendant's land and would produce documents to that effect, but they kept postponing the time until he built his wall. He finally averred that the disputed land was not for the plaintiffs. On 21st July 2021, the Court adopted the sole issue filed by counsel for the plaintiff on 26th June 2021. The sole issue adopted is Whether or not the defendant has trespassed unto the plaintiff's land and any other issue as the Court deems fit. BURDEN OF PROOF Before proceeding with the evaluation of the evidence viz a viz the applicable principles of law, it is pertinent to state what was required of the plaintiff and the defendant regarding the burden imposed on them by law. On the general burden of proof, the Supreme Court held in Bank of West Africa vs Ackun [1963] 1 GLR 176 SC that the onus of proof in civil cases depends upon the pleadings. The party who, in his pleadings, raises an issue essential to the success of his case assumes the burden of proof. The burden would shift to the other party when a prima facie case had been established. The test as to which party bore the burden of proof on any allegation is: Which party would fail if the allegation in question were struck out of the pleading? In Malm vs Lutherodt [1963] 1 GLR 1 SC, the Court said that “the defendant in an action for declaration of title assumes a legal burden of proof only when he counterclaims for declaration of title in his favour.” The defendant has not counterclaimed for any relief before this Court. The plaintiffs must discharge their burden of proving their claims on a balance of probabilities. Thus they must produce evidence on a balance of probabilities to convince the Court of each fact they alleged. I am fortified to say so because of sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. Section 12 states as follows; 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 the case of GIHOC Refrigeration and Household Products Ltd v. Hanna Assi [2005- 2006] SCGLR 458, it was stated that "Since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue." Also, in his book cited supra, the learned author SA Brobbey states; "On the balance, if the evidence establishes more than 50 per cent chance of the existence of the fact, the standard of proof can be said to have been achieved. The Bench Book for US District Court Judges explains the principle as follows; "the plaintiff has the burden of proving his [her] case by what is called the preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims are more likely to be true than not. To put it differently, if you were to put the plaintiff's and defendant's evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his [her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant.” Thus, in this case, the plaintiffs bear the burden of proof and must lead cogent and reliable evidence to tilt the scales of justice in their favour if they are to win the case. See also the cases of Jass Co Ltd and Another v. Appau and Another [2009] SCGLR 265 AT 270 -271 and AGO SAI AND OTHERS V. KPOBI TETTEH TSURU III [2010] SCGLR 762 at 779 EVALUATION OF THE EVIDENCE AND THE APPLICABLE PRINCIPLES OF LAW The sole issue for the determination of the Court is whether or not the defendant has indeed trespassed unto the plaintiffs' land. In order to succeed in this action, the plaintiffs must prove their root of title, boundaries, possession or right of possession since it is evident that the defendant has denied their averments. See the case of Francis Assumaning and 64 Ors v Divestiture Implementation and Anor [2008] 3 GMJ 35 SC. In the case of Ebusuapanyin Yaa Kwasi v Arhin Davies and Anor 2005, the Court held that “it is trite that this suit being essentially for a declaration of title the plaintiff was bound to establish his root of title.” Additionally, in the case of Agyei Osae and Others v Adjeifio and Others [2007-2008] SCGLR 499, the Supreme Court held that to succeed in an action for declaration of title, recovery of possession and an injunction, the plaintiff must establish by positive evidence the identity of his land which is the subject matter of the action else his action shall fail for lack of certainty. Some other authorities are Bissah v Gyampoh [1964] GLR 81, Jass Company Ltd v Appau [2009] 2GLR 365 and Nyikplorkpo v Agbodotor [1987-88] I GLR 17. In the case of Bedu and Ors v Agbi and Ors [1972] 2 GLR 226, the Court held that “The onus was on the plaintiffs to establish the exact boundaries of the land in dispute so that any judgment in their favour would be related to a defined area or at least they should have proved isolated acts of ownership over the disputed area.” Thus where a plaintiff fails to do that, a trial court would be right in holding that he had not discharged the onus of proof placed on him by the law and would not be entitled to judgment. Where the plaintiffs establish all these elements, they must then show that they have exercised overt acts of ownership over the land or that they have been in possession of the land since it was acquired. It ought to be noted that the task of the plaintiff becomes easier when he is in possession of the land or where it is clear that he has exercised acts of ownership over the land for a long time. See the case of Majolagbe v Larbi and Ors (1959) 1 WACA 253 at 516. On the other hand, their task of discharging the burden placed on them becomes an onerous one when the defendant is in physical possession of the land. In that vein, the plaintiff ought to show that he has been in constructive possession of the land or that the defendant has just recently trespassed on his land because they have been in physical possession since its acquisition. In discharging the burden imposed on them by law, the plaintiffs testified through the 2nd defendant and basically repeated all their averments in their statement of claim. Their Exhibit A, which is the deed of assignment and registered with the Lands Commission as LSC 417/74, clearly supports their assertion that they bought the land in 1973 from the Fikesim Ebiradze family upon the concurrence of the principal and senior members of that family. Additionally, their building permits No 7/2000 also proves that as far back as the year 2000, long before the plaintiff purchased the land in 2013, they had been given a building permit and had even renewed same in 2015 (see Exhibit c ) and 2020 which was also tendered as Exhibit C1. This documentary evidence confirms their assertion that they are the legal owners of the land they claimed they purchased. They have been able to show the size of their land in detail and show that they have been in physical possession of the land since 1973. There was no challenge to their evidence under cross-examination regarding their evidence on oath. Thus this Court deems their evidence as cogent and reliable. There is no allegation that their document is a forgery or that they had fraudulently registered the said document. I, therefore, accept all the documentary evidence tendered before this Court as the truth. See also section 151 of the Evidence Act 1975 NRCD 323 Their witness PW1, Johnny Russel, also testified that when the defendant encroached on the land, he had moved the container off the land and destroyed the roofing. When he confronted him, he admitted the destruction. The defendant told him that the land had been sold to him. Thus he reported the case to the police, and the police asked for their documents, but the defendant did not turn up to produce his document. It is on record that counsel for the defendant did not appear to cross-examine the witnesses though he knew of the adjourned dates. Thus the witnesses of the plaintiff were discharged. Therefore there is no evidence on the record to controvert their assertions on oath. Nevertheless, the defendant also testified and produced his documents which show that he also purchased a piece of land from the Ketsi Anona family of Cape Coast headed by Ebusuapanyi Baisie Cooke and with the concurrence of the principal elders of that family in the year 2013. He produced Exhibit 1 as proof of that acquisition. However, under cross-examination at page 17 of the Record dated 4th April 2022, he answered questions thus; Q: You also said you did due diligence before you purchased the land what due diligence did you do? A: An official search with the Lands Commission Cape Coast Q: Did you attach a copy of the search to prove what you are saying in your witness statement? A: No, my Lord Q: I am putting it to you that if you had conducted a search at the Lands Commission, you would have found a portion of the land in dispute was registered in the plaintiffs’ name? A: Yes, my Lord. The search result where the names appear is dated 1973, so the Ebusuapanyin who sold the land to me mentioned that the plaintiff purchased the land from the wrong family and the matter has been in Court, and they won the Court and that the documents were yet to be presented to the Lands Commission for their names to appear in the official records. Because of my trustworthiness for him, i.e. he has bought lands and registered same successfully. Q; If I understand you, you knew before buying the land that a portion of the land was registered in the plaintiff's name, but because of what the Ebusuapanyin told you, you went ahead to buy it from him. A: Yes, my Lord Q: Did you find out from the plaintiffs whether what the Ebusuapanyin told you was true before buying the land? A: No, because efforts to obtain their contact proved futile, and the Ebusuapanyin Cooke made contact with the plaintiff's surveyor, who did not provide any information after several attempts. Q: Your evidence that the Ebusuapanyin said they had judgment against the plaintiffs’ grantor; what is the title of that judgment A; I do not have any details. This discourse clearly shows that the defendant knew at the time he was purchasing the land from the said family that the land had been registered in the names of the plaintiffs, but because his grantor told him that the plaintiffs had purchased the land from the wrong family, he went ahead to pay for it. It also shows that the assertion by the plaintiffs that the defendant had encroached on their land is the truth. Thus when the defendant told the Court in his statement of defence that the land he purchased was different from the land of the plaintiffs, he could not have been telling the truth. In the case of Kusi and Kusi v. Bonsu [2010]SCGLR 60, it was held that any intending purchaser of property is put on his inquiry to make such investigations as to title as would enable him to rely on the plea of bona fide purchaser for value without notice. If he failed to make such enquiries, he acted at his peril if subsequent events disclosed that there was a valid challenge to the title he acquired. See Basare v Sakyi and Another [1987-88] 1GLR 167. Boateng v Dwinfour [1979] GLR 360 Having conducted the search and also establishing the registration of the land in the names of the plaintiffs, the defendant as a reasonable man would have done, should have backed off, or if he genuinely believed what his grantor told him, he should have taken a further step to procure the alleged judgment which gave his grantors title if indeed there was any such judgment. It is evident that there is no such judgment because had it been so, he would have pleaded same and produced it in Court to establish his claim. It ought to be noted that the judgments of courts in Ghana are public documents, and any citizen could approach the registry of any court upon payment of a fee to procure same irrespective of whether that person is or was a party to the suit. Thus the testimony of the defendant that he could not get in touch with his grantor for the said judgment is simply unacceptable to this Court and must be taken with a pinch of salt. Aside from the confirmation by the defendant himself that he bought land registered in the plaintiffs’ names, there is another piece of evidence that lends credence to the plaintiffs' assertion. That piece of evidence is the composite plan (Exhibit CE1) drawn by the Court appointed surveyor. Since the defendant's defence was that his land differed from the plaintiffs', the Court thought it prudent to order a composite plan. Indeed that was the only way to determine whether the land depicted on the documents produced by the plaintiffs was the same land on the ground and whether the land purchased by the defendant was different from the land sold to the plaintiffs. Exhibit CE1 shows that the plaintiffs’ land shown on the ground is edged green and falls within their site plan edged blue. The land depicted on the plaintiffs' site plan is even bigger than what they have shown on the ground. Significantly, a larger portion of the defendant's land shown on the ground edged red falls entirely within the plaintiffs' land on the ground and their site plan. Surprisingly, only a tiny portion of the land depicted on the defendant's site plan, edged yellow, falls within the plaintiffs' land both on the ground and in their site plan. Consequently, I hold that the disputed land belongs to the plaintiff. They have therefore discharged the burden imposed on them by the law. There is also ample evidence that the defendant has built on land belonging to the plaintiffs, as depicted in exhibit CE1. (Marked cyan). It is also clear that the plaintiffs have a building on the land shown on the ground and depicted on their site plan with the colour Magenta, which means they are in possession of the land. Evidently, the defendant has encroached on the plaintiffs’ land on the ground and their site plan. Therefore, this Court finds as a fact that the defendant has trespassed unto the plaintiffs' land. Exhibit CE1 confirms the plaintiffs' assertion that the defendant has encroached on about 50% of their land. In the case of Majolagbe v Larbi & Ors [- (1959)GLR 190-195 it was held that the law as to trespass is that if a person proves merely that he is in possession of land, that is sufficient to enable him to maintain trespass against anyone who cannot show a better title. See also England vs Palmer 1955) 14 WACA 659 Seraphim vs Amua Sekyi [1962] 1GLR 328 In this case, not only have the plaintiffs proved that they are the owners of the land, but they have established their exclusive possession of same at the time the defendant encroached on it. That encroachment of the defendant entitles them to damages in law. In Odonkor and Ors v Amartei [1992]1GLR 577, the Court held that in actions for trespass to land damages were at large. Thus there was no need to plead or prove special damages. However, it ought to be noted that the fact that damages are at large in cases of trespass to land does not mean that damages are to be awarded arbitrarily. The guiding principles in awarding damages for trespass were stated in holding 6 of the case of Laryea v Oforiwaah [1984- 86] 2GLR 410 as follows “ In awarding damages for trespass to land, regard should be had to the acreage of the land on which the trespass was committed, the period of wrongful occupation and the damage caused. In this case, the plaintiffs did not lead evidence of the acreage of land trespassed upon by the defendant. However, they testified that the trespass covered about 50 per cent of their land. Per Exhibit CE1, it is clear that the encroachment by the defendant covers a large portion of the plaintiff's land, as shown on the ground. Thus it is not surprising that the plaintiffs have fixed the extent of the encroachment at about 50% of the land, which is almost half of their land as shown on the ground. This Court, therefore, has a fair idea of the level of encroachment and the unchallengeable evidence of PW1 that the container placed on the land by the plaintiffs was moved to another place with the roofing taken off by the defendant. The plaintiffs are therefore entitled to general damages for the trespass caused by the defendant. On the totality of the evidence on the record, it is the opinion of the Court that the plaintiffs have discharged the burden of proof, and I, therefore, enter judgment in their favour as follows; 1. Declaration of title to all that piece or parcel of land known as nos. 144 and 145 situate in the Adisadel Village layout in the Cape Coast Municipality in the Eguafo District of the Central Region of Ghana as particularly described in the writ of summons and statement of claim and covering an approximate area of 0.58 acres. 2. Recovery of Possession of the said land. 3. Perpetual Injunction restraining the defendant, his agent(s) or any person(s) claiming through him from entering or causing anything to be brought on the land or building on the land in dispute. 4. General Damages of 20000.00 for trespass Taking the length of the trial into consideration, and the industry of counsel into account, I deem it fit to award costs of GHC10000.00 in favour of the plaintiffs. MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST