ACHIAA VRS AMOAKO (A1/26/2023) [2024] GHADC 328 (16 August 2024)

IN THE DISTRICT COURT HELD AT AGOGO HELD BY HER WORSHIP ON 16TH DAY OF AUGUST, 2024 THE DISTRICT MAGISTRATE IN THE MATTER OF: COMFORT ACHIAA…………………………………………………..………..... PLAINTIFF SUIT NO: A1/26/2023 OF KOWIREMU- AGOGO VRS JUSTICE AMOAKO……..…………………………………………………….. DEFENDANT OF KOWIREMU-AGOGO PARTIES UNREPRESENTED JUDGEMENT 1. The plaintiff mounted the instant action against the defendant for declaration of title to a portion of plot number 13 block ‘B’ situate at Kowerimu-Agogo Asante Akim North. 2. Recovery of possession. 3. An order for Perpetual against the defendant, his workmen, assigns and any person claiming title through him. It is the plaintiff’s case that she is a trader and lives in Agogo just as the defendant. She said in the year 1991 she purchased the subject plot 13 block ‘B’ measuring 100 x 100 from one Opanin Yaw Aburam and has built a six bedrooms on same. According to the plaintiff the defendant’s land lies adjacent to her. She added that the Municipal Assembly has constructed a gutter as a drainage to contain the water during during heavy rains. She averred that the defendant about three months ago attempted to mount a metal container behind her building. She said she resisted and reported the issue to the municipal Assembly and they informed the defendant to abate the nuisance, but to no avail. Plaintiff’s argument is that the defendant’s act is trespassory and wants the court to stop him. The plaintiff tendered the following documents in support of her case. An electricity of Ghana new service estimate and marked as exhibit A; a site plan in her name as exhibit ‘B’; a declaration of transfer of ownership as exhibit ‘C’; grant of plot for building as exhibit ‘D’ copies of receipts as exhibit ‘E’; property rate for 2005 as exhibit ‘F’ and a demand notice for the 2008 financial year as exhibit ‘G’ respectively. On the part of the defendant, he described himself as a carpenter who lives at Kowiremu. He said the plot of land he occupies was acquired by his grandmother by name Adwoa Adamu. He gave the number as plot 14 block 11. The defendant relied on a site plan and planning permit to erect a metal container at the site claim in support of his case. The defendant confirmed the assertion made by plaintiff with regard to the construction of the gutter by the municipal Assembly. He intimated that the portion he intends to mount his metal container forms part of his land. His witness confirmed his case. The issue is whether or not the plaintiff’s claims must avail her. This is a civil matter and the onus is on the plaintiff to prove her case convincingly for a ruling in her favour as set out in sections 10 and 11(1) & (4) of the EVIDNECE ACT, 1975 (NRCD 323). S 10 (1) Provides for the burden of persuasion “ For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court” (2) “ The burden of persuasion may require a party to raise a resoanble doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond reasonable doubt”. S. 11 (1) also provides for burden of producing evidence: “ For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) “ In other circumstance 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.” In effect the plaintiff as required by the act is obliged to lead evidence satisfactorily to persuade the court to believe her case to rule in her favour. In the instant case the plaintiff in making her case relied on a site plan for building plot 13 A Block ‘E’ in her name as Madam Comfort Akyaa. The plaintiff plot depicts its dimension as 100 by 100 feet as she claim and endorsed in her writ of summons. The defendant’s contention is that the gutter constructed by the Assembly took a portion of their land for which they even demanded compensation from the Assembly but to no avail. Thus, the plaintiff is of the view that the portion in contention is a government land, hence, the reason why the government took the land for the construction of a gutter. But this assertion was refuted by the physical planning development and officers from the Assembly. They confirmed the defendant’s averment that the gutter forms part of the defendant’s land. That said, the physical planning officers accompanied the court to the locus. And per their master plan, the plaintiff’s land measured 80x100 feet. Whilst the defendant’s measured 70 X 100 feet. The plaintiff insisted that her plot is 100 X 100 feet. Now the planning Officers measured her plot from the very point she herself showed the officers and her 100 X 100 ended just behind the plaintiff’s building. Whereas the defendant’s land measured and ended at the very point plaintiff claimed the defendant had trespassed to. Again, we measured the purported encroached area and it was 13 feet in between the two parties land. So it was clear from the measurement the defendant was developing a portion of his own land and not the plaintiff’s. Thus, he had not trespassed on the plaintiff’s land as she sought to suggest. Thus, I find as a fact that the plaintiff’s claim lacked merit. I therefore dismiss same as frivolous. However, I order the parties to bear their own cost since they are neighbors SGD H/W CYNTHIA NUEKIE BLAGOGEE DISTRICT MAGISTRATE 4