KUKUDZEDZIE & ANOTHER VRS NUHU & ANOTHER (A1/29/2022) [2022] GHADC 426 (22 April 2022)

IN THE DISTRICT COURT HELD AT TAKORADI MARKET CIRCLE HELD ON MONDAY THE 22ND DAY OF APRIL, 2022. BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ; -------------------------------------------------------------------------------------------------------------- SUIT NO. A1/29/2022 1. CONSTANTINE KUDZEDZIE …. PLAINTIFFS 2. HENRY KING BAFFOE SUING AS EXECUTORS ON BEHALF OF THE ESTATE OF ANTHONY KWESI FRANS H/NO. 18,4 LIBERATION ROAD TAKORADI VRS: 1. KOJO NUHU. 2. AUGUSTINE. THE DEVELOPER … DEFENDANTS PLOT NOS. 11 AND 12, WHINDO. TAKORADI JUDGMENT ---------------------------------------------------------------------------------------------------------------- This suit emanated from a writ of summons filed by the plaintiffs herein on the 1st day of August 2022 against the defendants herein for the following reliefs: a. A declaration of title to plot Nos. 11 and 12 North Whindo Planning Scheme in the sekondi Takoradi District in the Western Region of the Republic of Ghana measuring about 0.45 acres. b. Damages for trespass on to plaintiffs’ land plot. Nos 11 and 12 North Whindo planning scheme. c. Recovery of possession of plot nos. 11 and 12 North Whindo planning scheme. d. Perpetual injunction restraining the defendants their agents, assigns, privies, servants, workmen and all person claiming through them from further development of the land in dispute or having anything to do with the land until the final determination of the suit. The writ of summons was initially issued against the 1st defendant and the Developer being the 2nd defendant. However, on the 7th day of November 2022, the plaintiffs made it known to the court that they have been able to get the name of the 2nd defendant as such the court granted leave for the writ of summons to be amended to reflect the name of the second defendant and same was done on the 5th day of December 2022. On the 27th day of January 2023, the court discontinued the case against the 1st defendant after the plaintiffs filed a notice of discontinuance against the 1st defendant who was in occupation of plot no. 11 after settling same with him. As such, this judgment is in relation with the 2nd defendant who the plaintiff alleges has trespass on their plot no. 12 situate and lying at whindo planning scheme. PLAINTIFF EVIDENCE AT TRIAL The 1st plaintiff who was speaking on behalf of himself and on behalf of the second plaintiff alleges, that they are the executors of the will of Anthony Kwesi Frans now deceased. the plaintiffs tendered a copy of the will and probate in evidence as exhibit B and B1 respectively. Plaintiffs indicated, the testator Anthony Kwesi Frans during his lifetime acquired the subject plot numbers 11 and 12 situate and lying at North Whindo planning scheme in the Sekondi Takoradi Metropolitan Assembly from the traditional Divisional stool as epitomized by Osahene Katakyi Busumakora III and a lease document was executed in his favour which same has been registered at the lands commission vide document no. WR 3028/08, Deed no. 5190 and LVB/WR176/09 the plaintiffs tendered the said lease document in evidence as exhibit A. Plaintiffs added, that per exhibit B, the testator bequeathed the subject matter plots thus plot nos. 11 and 12 to his children namely Andrea Frans, Angela Frans and Anthony Mensah Frans. They further indicated that the subject matter plots are bounded on the North East by a propose lane measuring 245 feet more or less on the south East by a propose road measuring 80 feet more or less on the south West by plot nos. 13 and 14 measuring 245 feet more or less on the North West by propose road measuring 80 feet more or less thus enclosing an approximate area of 0.45 of an Acre. Plaintiffs avers, sometime ago, the 1st defendant entered plot no. 11 without their consent but has since regularized his entry by acquiring the said plot from the deceased Estate represented by them. However, the 2nd defendant has also trespassed unto plot no 12 and is developing same without their consent. According to the plaintiffs, the 2nd defendant, has started developing the land by profiling the land, digging trenches, as well as building foundation on same. They attach as exhibits C to C8, pictures of the alleged development. Plaintiffs added, that all attempts to get the 2nd defendant to cease his trespassory act have proved futile and such acts are changing the nature of the land and the purpose for which the land was acquired and same is interference with the deceased Estate. They therefore pray for a declaration of title to plot no. 12, damages for trespass unto same, recovery of possession, and perpetual injunction against the 2nd defendant. The defendant after been served with the writ of summons and hearing notices failed to appear in court; Order 25 rule 2(a) of the C. I 59 states: “Where an action is called for trial and a party fail to attend, the trial magistrate may (a) Where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim if any and allow the plaintiff to prove the claim……” Similarly in the case of REPUBLIC. V CIRCUIT COURT JUDGE EX PARTE DZAKA (1984-86) 1GLR 741 at holding 1 the court held “……. situations where both parties were aware of or had been served with hearing notice and yet one party failed to appear at trial, in such a case, the party who failed to appear could be said to have deliberately abstained from taking advantage of an opportunity to be heard and no breach of the audi alteram partem rule could be said to have occurred……” Base on the above position of the law, the court called on the plaintiff to open his case. ISSUES FOR DETERMINATION 1. WHETHER OR NOT THE TESTATOR HAD A VALID TITLE TO THE LAND IN DISPUSTE IF YES? 2. WHETHER OR NOT THE DEFENDANTS HAVE TRESSPASSED UNTO THE SUBJECT MATTER LAND. IF YES 3. WHETHER OR NOT THE PLAINTIFF ARE ENTILED TO RECOVER POSSESSION OF SAME. APLLICATION OF THE LAW AND EVALUATION OF THE EVOIDENCE. The plaintiffs bear the burden of persuasion under section 14 of the evidence Act 1975 NRCD 323 and was required to lead credible and sufficient evidence to establish his case on the preponderance of probability as provided under section 12 of NRCD 323. The position of the law is that, in an action for declaration of title, the burden of proof is always put on the plaintiff to satisfy the court on the balance of probabilities. This being an action for declaration of title, the plaintiffs were required to lead credible and positive evidence to prove the identity of the land he claims, root of their title, mode of acquisition and various acts of possession exercised over the land in dispute. Thus, in the case of MUNDAIL VENEER GH LTD V AMUAH GYEBU XV (2011) 1SCGLR 466@ 475 Georgina wood JSC said as follows: “In land litigation, even where witnesses who were directly in volved in transaction under reference are produced in court as witnesses, the law requires the person asserting title and on whom the burden of persuasion falls, as in this instant case, to prove his root of title, mode of acquisition, and various acts of possession exercised over the subject matter land”. In this case the identity of the land is not in dispute. That been said the principle that comes to mind is that expounded in the case of FORI V AYIREBI (1966) GLR. The contention that, a party must prove the identity of a land in land disputes with certainty to enable the court decree title does not mean mathematical identity or precision. See the case of JASS CO LTD & ANOTHER V APPAU & ANOTHER. I must say the description of the land as depicted in Exhibit A, appears to be sufficient enough to absolve the plaintiff from the evidential duty of showing positively the dimensions, and indeed the identity of his land especially when he claims to be entitled to declaration of title and an injunction against the 2nd defendant. Also, in the case of CHANTEL V KOI (2011) 29 GMJ 20 CA, per Brown J. A, the court of appeal had this to say: There are essential steps of proof which h are sine qua non to his success they are a. Establishing am impeccable root of his grantor over a defined and identifiable area of land b. Proving on a balance of probability that the area he claims falls within the area. I will proceed to determine the issues starting from the first issue. WHETHER OR NOT THE TESTATOR HAD A VALID TITLE TO THE LAND IN DISPUSTE Before I procced to my first issue, I will like to address the question that comes to mind that is whether the plaintiffs have the capacity to bring an action against the estate of Anthony Kwesi Frans now deceased. The plaintiffs testified in court, that they are the executors of the estate of Anthony Kwesi Frans. They indicated that the subject matter plots belong to the testator and they however contended that the 2nd defendant has trespassed on the plot 12 situate and lying at North Whindo belonging to the testator and same bequeathed to his children per exhibit B. The plaintiffs tendered Exhibit B and B1 indicating their capacity as executors of the estate of the deceased. A cursory look at the will confirms that the plaintiffs herein are the executors of the estate of the deceased and probate obtained in respect of same on the 25th day of January 2018 at the High court. Although there is no dispute about the fact that the plaintiffs are the executors of the will as the 2nd defendant failed to appear in court to testify, exhibit B and B1 tendered in evidence confirms that the plaintiffs are the executors of the deceased Anthony Kweku Frans as such they are the rightful people to bring an action against the Estate of the deceased. Section 1(1) of the Administration of Estate Act, 1961 (Act 63) stipulates that "The movable and immovable property of the deceased person shall devolve on his personal representatives with effect from his death." The plaintiffs, being the executors of the Will, have the capacity to bring an action against the 2nd defendant regarding the estate of the testator In the case of AWUKU V TETTEH (2011) 1SCGLR 366 holding 1 the court held: “In an action for declaration of title to land, the onus was heavily on the plaintiff to prove his case. He must indeed show clear title. He could not rely on the weakness of the defendants’ case…….” On proof of the testators root of title and mode of acquisition, the plaintiffs evidence is that the testator acquired the land the subject matter lands from the Traditional Divisional Stool as epitomised by Osahene Katakyi Busumakora III and a formal lease was executed on their behalf in 2008. A cursory look at the lease document in evidence as exhibit A, reveals that indeed the land was leased to the testator in the year 2008 by the Osahene Katakyi Busumakora III the Takoradi Manhene and the occupant of the Takoradi Divisional stool. The said Exhibit A has properly been executed by the said Omanhene and his witnesses as well as the testator and his witnesses and same has been proofed. In addition, in other to proof the testator’s title to the subject matter plots, the plaintiffs tendered in evidence exhibit B where they alleged the subject matter plot belongs to the testator, who bequeathed same to his children in the said Will. Clause 7 of the said will reads “my plot nos. 11 and 12, north whindo planning scheme doc No. WR3020/08, DEED NO. 5190, I give and devise to my children equally and absolutely. A Will is characterized as an expression of an intention regarding the distribution of one's self-acquired property upon death. It can only pertain to property acquired by the testator during their lifetime, either at the time of death or post-mortem. As such the testator herein having bequeathed the subject matter properties to his children in clause 7 of exhibit B, he is presumed to have self-acquired it or have title to same before bequeathing same to his children. From the evidence of the plaintiff, suggest that the testator traced his root of title from the Takoradi Divisional Stool. The exhibit A, shows an indenture properly executed by the Omanhene and his elders, in favour of the plaintiffs’ testator dated 2008. The defendant failed to appear in court to dispute the title of the plaintiff’s testator as such in the absence of any contrary evidence, the court finds that plaintiffs have been able to establish a prima facie case that they were granted the subject matter lands by the Takoradi Divisional stool their grantors as such they have clear title in respect of same. The plaintiffs per their exhibit A, proceeded to the lands commission to register same. There is proof of registration of the subject matter lands in the same exhibit A, which is registered vide Deeds no.5190 with serial no. 219/2009. The question that comes to mind is does registration confer title? The supreme court in the case of AMUZU V OKLIKAH (1997-98) GLR 89 SC, where their Lordships after extensively reviewing authorities on the point took a progressive stand inter alia that registration did not create an absolute title since the land registry act, did not abolish the equitable doctrines of notice and fraud and neither did it confer on a registered instrument a state guarantee title. See also the case of AMPONSAH II VS YEBOAH & ASIBEY (20149 GMJ N137 at page 154. The 2nd defendant never impugned fraud or notice on the plaintiff’s testator to the effect that, he knew or had notice of his encumbrance on the subject matter land but fraudulently went ahead and registered same. There is nothing like that since the defendant himself failed to appear in court to testify. In the case of THE REGISTERED TRUSTEES OF THE CATHOLIC CHURCH ACHIMOTA ACCRA V BUILDAF & 2 OTHERS (2015) DLSC 3234, per Benin JSC decided “that is the law that only the owner of land can give away title to a third person”. It is simple logic that if the plaintiff grantor’s title has been found reliable, the plaintiff can rely on it. In other words, the plaintiff title has foundation to rest. In view of the above, the court finds that the plaintiff acquired good title from the Takoradi Divisional stool. The onus therefore shifts on the 2nd defendant to rebut the plaintiff evidence but he failed to appear in court to testify. Per the evidence and evaluation explained supra, the court finds that, the plaintiffs have been able to establish that their testator have a superior title to the land in dispute that is plot no. 12 situated and lying at North Whindo Planning Scheme in the Sekondi Takoradi Metropolitan Assembly. In respect of possession and occupation of the subject matter lands, although the plaintiffs failed to proof actual possession of the subject matter lands, they were able to proof a better title in respect of the subject matter lands. In the case of GILLARD V KORANG (2013-2014) 1SCGLR 221 at 234 the court held that: “Now in law, possession is nine-tenths of the law and a plaintiff in possession has a good title against the whole world except one with a better title it is the law that possession is prima facie evidence of the right of ownership and it being good against the whole world except the true owner he cannot be ousted of it. See SUMMEY V YOHUNO (1962) 1GLR 160 SC and BARKO V MUSTAPHA (1964) GLR 78 SC” See also LARTEY V HAUSA (1961) GLR 773 where Ollenu J (as he then was) held that possession cannot ripen into ownership no matter how long it has been held or had. Further section 48(2) of the Evidence Act, 1975 (NRCD 323) treats ownership or possession, of properties as a rebuttable presumption and provides: “a person who exercise acts of ownership over property is presumed to be the owner of it” The court finds that the plaintiff proved a better title, and in this respect possession does not arise. This will lead me to my second issue: WHETHER OR NOT THE 2ND DEFENDANT HAVE TRESSPASSED UNTO THE PLAINTIFFS LAND. According to the plaintiffs, the 2nd defendant has trespassed unto plot no. 12 without their consent, and has started profiling the land, digging trenches, and building a foundation on the subject matter land. The plaintiffs in support of their oral assertion, tendered Exhibit c to c8 which reveals a land that has been cleared and a foundation dug on same. The plaintiffs alleges that land is plot no 12 which belongs to their testator and trespassed unto by 2nd defendant. Indeed, the said exhibits reveals a foundation of the land which has been allegedly been constructed by the 2nd defendant herein and since there is no contrary evidence before the court, the court accepts as a fact that the 2nd defendant has indeed trespassed unto the subject matter land thus plot no.12 situate and lying at North Whindo thereby changing the nature of the said land. In the view of the foregoing, and in the absence of any contrary evidence, there is no reason to reject the evidence of the plaintiffs and the court hereby finds that defendants have indeed trespassed on the plaintiff land. The plaintiffs have been able to prove their case on the balance of probabilities as required by law to do. This will lead me to my last issue WHETHER OR NOT THE PLAINTIFFS ARE ENTILED TO RECOVER POSSESSION OF PLOT NO. 12 FROM THE 2ND DEFENDANT. As has been found supra that the defendants have trespassed unto the plaintiffs’ testator’s land, per the evidence evaluated supra, the court hereby order the plaintiffs to recover possession of the subject matter land thus plot no 12 situate and lying at North Whindo Planning scheme in the Sekondi Takoradi District, in the Western Region of the republic of Ghana measuring about 0.45 acre. The 2nd defendant is ordered by the court to move away from the subject matter land as delineated on the plaintiffs site plan. The 2nd defendant, their agents, assigns, privies and all those claiming from them are hereby injuncted from having anything to do with the subject matter land. In the recent case of KEN KWAME ASAMOAH V SIC SUIT NO. J4/55/2021 I hereby summarise my orders as follows: 1. Title to plot number 12 situate and lying at North Whindo planning Scheme Sekondi Takoradi District and measuring about 0.45 acre as delineated in plaintiffs site plan declared in favour of the plaintiffs. 2. Plaintiffs are to recover possession of the subject matter land from the 2nd defendant. 3. The 2nd Defendant is ordered to give vacate possession of the subject matter land to the Plaintiff forthwith 4. The 2nd defendant, their agents, assigns, privies and all those claiming through them are injuncted from having anything to do with the subject matter land. 5. Since the defendant did not appear in court to contest the suit, there will be no order as to cost. (SGD) H/W CATHERINE OBIRI ADDO ESQ: (MAGISTRATE) REPRESENTATION PLAINTIFF REPRESENTED BY ANDREW TAYLOR. DEFENDANT: ABSENT Ladd*. 11