BAFFOE VRS UNKNOWN DEVELOPER (A1/5/2023) [2022] GHADC 409 (10 November 2022)

IN THE DISTRICT COURT HELD AT SEKONDI ON FRIDAY THE 10TH DAY OF NOVEMBER, 2022. BEFORE HER WORSHIP; NANA ABENA ASOH OWUSU- OMENYO (ESQ) THE MAGISTRATE. SUIT NO. A1/5/2023 CHARLOTTE BAFFOE SUING FOR HERSELF AND ON BEHALF OF HER CHILDREN VS. UNKNOWN DEVELOPER PARTIES: Plaintiff Present Defendant Absent BY COURT: The Plaintiff claims against the Defendant the following reliefs: JUDGMENT 1. Declaration of title to Plot No.9 measuring about 0.28 acres lying and situate at Essipon. 2. An interim Injunction restraining the developer, assigns, workmen and all other persons working in his interest from interfering with the said land. 3. An order for perpetual injunction restraining assigns, workmen and all other persons working in his interest from interfering with the said land. The Plaintiff who sues in her personal capacity and on behalf of her children are the owners of plot number 9 lying and situate at Essipon within the jurisdiction of this court. The said land was bought by the Plaintiff and her children somewhere in the year 1996 from one Ebusuapanyin Bosom Kwesi and the said land was fully paid for. That until 16th August, 2022, no one had ever challenged the title of the Plaintiff to the land. That on said date, the Plaintiff visited the land and met some individuals working. Upon confronting them, they informed her that they worked for the Defendant (unknown developer). They however refused to identify him neither did they stop working on the land. This is the basis upon which the Plaintiff has mounted the instant action. When the Plaintiff first filed the writ of summons, she attached to it an ex-parte application for interim injunction, to which she exhibited a receipt covering the purchase of the land “exhibit A’ and an indenture also covering the said land “exhibit B”. Considering the facts, this Court granted the order for interim injunction for a period of ten (10) days. The said injunction was indeed posted on the land evidenced by an affidavit of posting dated 25th August, 2022. The Plaintiff proceeded to attempt service of the writ of summons and claim on the Defendant (unkown Developer) and however failed as he could not be traced. The Plaintiff prayed the Court for an order of substituted service to enable her serve the processes by substitution and same was granted and service by substitution was effected on 14th September, 2022. The Defendant still refused to show up although his workmen according to the Plaintiff were on the land working and had notice of all the processes posted on the land. After various hearing notices were served, this Court went ahead to adjourn for trial. It is important that I emphasize the fact that, several notices were served on the Defendant through substituted service. These notices certainly came to the attention of the Defendant as according to the Plaintiff, he had workers on the land at all times. In the case of Ankumah v. City Investment Co. Ltd 2007-2008 1 SCGLR 1064 the supreme court held that; “a court is entitled to give a default judgment to, if a party fails to appear after notice of the proceeding has been given to him. For then it would be justifiable to assume that he does not wish to be heard.” On 1st November, 2022, the Plaintiff mounted the witness box and tendered her witness statement which she prayed to be adopted as her Evidence-in-Chief. The said witness statement was thus adopted as her Evidence-in-Chief. Although the Defendant did not appear in court, the Plaintiff was obliged by law to prove her case and the standard of proof did not change only because the Defendant did not show up. In the case of Amidu & Ano. Alawiye (J4/54/2018) “the Plaintiff who sued for declaration of title to land was required by law to prove their claim on the strength of their case and not the weakness in the defendant’s case or in the instance the non- existence of a defense.” In adducing her evidence, the Plaintiff told this Court that she had bought the said property with her children in 1996 and had enjoyed uninterrupted enjoyment of the land until somewhere August this year. She tendered an indenture covering the said land as exhibit and receipts covering her yearly stool land rates payments as ‘exhibit B’ series. She sought to rely on these as proof of her title and ownership to the said land. At the end of the trial the issues that fell for determination by this court were: 1. Whether or not the Plaintiff is the true owner of the land in dispite? 2. Whether or not the Plaintiff is entitled to her declaratory relief? 3. Whether or not the Plaintiff is entitled to her prayer for a perpetual injunction against the Defendant (unkown developer)? Land matters are regulated by the same standards of proof as all civil causes. In Ghana, Section 11(4) and Section 12(1) are the relevant provisions on the burden of proof in civil matters, per Sir Dennis Adjei in the third edition of his book Land Law, Practice and Conveyancing in Ghana @ page 144. Section 11(4) of the evidence Act states that, “the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” Section 12(1) of the same Act states that, “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” This position was clearly stated in the case of ADUBENG V. DOMFEH 1996-1997 SCGLR @ 660 &670, where the supreme court stated that, “the standard of proof in all civil actions is proof by a preponderance of probabilities- no exceptions are made. ISSUE ONE (1) Whether or not the Plaintiff is the true owner of the land in dispute? I find myself perusing the evidence that the Plaintiff has adduced in court. Indeed, the Plaintiff has an indenture covering the said land as well as receipts of her payments to the stool that sold the said land to her. I have no reason to doubt the credibility of the Plaintiff neither do I doubt the authenticity of the indenture and the receipts that she tendered into evidence. I am therefore very clear in my mind that the Plaintiff is indeed the owner of the piece of land which is the subject matter of this suit. ISSUES TWO (2) and THREE (3) The second and third issues resolves in the first issue; in that the Plaintiff being the legal owner of the said land is entitled to be declared the true legal and beneficial owner of the land and therefore is entitled to a perpetual injunction against any person who encumbers the said land. FINAL ORDERS I HEREBY DECREE AS FOLLOWS: 1. That the Plaintiff is hereby declared the true owner of Plot Number 9 measuring about 0.28 acres lying and situate at Essipon. 2. That the Plaintiff is hereby granted a perpetual injunction restraining the developer, his assigns, workmen and any other person working in his interest on the said land. 3. That the Plaintiff is to bear her own cost. H/W NANA ABENA ASOH OWUSU-OMENYO (ESQ) DISTRICT MAGISTRATE COURT “A” SEKONDI 5