Joseph Vrs Issah [2022] GHADC 70 (11 October 2022)

IN THE DISTRICT COURT HELD AT DAMBAI BEFORE HIS WORSHIP ALHASSAN DRAMANI ON TUESDAY, 11TH OCTOBER, 2022 DONKOR YAW JOSEPH PLAINTIFF SUIT NO. A1/03/2022 Suing Per His Lawful Attorney (Doris Appiah) VRS HARUNA ISSAH DEFENDANT PARTIES PRESENT The Plaintiff per his Lawful Attorney issued a Writ of Summons claiming the following JUDGEMENT reliefs: a. Declaration of tittle to all that piece of land situate lying and being at Dambai New Junction and bounded on the North by Lessor’s property measuring 70 feet more or less, on the South by proposed Road measuring 70 feet more or less on the North by Lessor’s property measuring 100feet more or less and on the West by Lessor’s land measuring 100 feet more or less. b. An order for recovery of possession of a portion of the Plaintiff’s land that has been trespassed upon by the defendant. c. An order to demolish defendant’s structures on the disputed land. d. An order ejecting defendant from plaintiff’s land e. An order of perpetual injunction to restrain the Defendant, his agents, privies, servants, workmen or whosoever from interfering in any manner whatsoever with the Plaintiff’s ownership and enjoyment of the land. f. Adequate compensation for trespass on plaintiff’s land. g. Costs. The Defendant denied the Plaintiff‘s claims THE CASE OF THE PLAINTIFF The case of the Plaintiff as can be discern from his pleadings and witness statement was that he acquired a parcel of land at Dambai New junction from Nana Kwaku Beyennnor II Chief of Dambai in the year 2014. Plaintiff said the land measured “100 × 70’’ and bounded on the North by Lessor’s property measuring 70 feet more or less, on the South by proposed Road measuring 70 feet more or less on the East by Lessor’s property measuring 100feet more or less and on the West by Lessor’s land measuring 100 feet more or less. According to plaintiff the defendant trespassed onto his property and constructed a toilet and bath thereon. Plaintiff said he made a complaint to the defendant but the defendant denied the allegation so an officer from the town and country planning department was invited to settle the dispute and after taking his measurement the Town Planning Officer confirmed that the defendant had indeed trespassed on plaintiff’s land. Plaintiff said the defendant being dissatisfied instituted an action against plaintiff in this Court in 2021 claiming the disputed subject matter. Plaintiff stated that this court differently constituted visited the locus together with the parties and the Town Planning Officer, and after the hearing, the defendant then the plaintiff therein had his case dismissed. The plaintiff’s Attorney tendered in evidence four exhibits, i.e. Power of Attorney, land purchase receipt, the defendant’s writ in suit no. A1/05/2021, judgment and a locus report and same marked as exhibits “A” “B” “C” “D” and “E” respectively without any objection from the defendant. The Plaintiff called one witnesses as PW1. According to PW1 Raphael Adika he is the Town planning Officer for the Krachi East District. PW1 stated that about one and half years ago he was called by the Chief of Dambai to visit the plaintiff’s house and take measurements of her land and report the findings to him because there was misunderstanding between plaintiff and defendant over the land. PW1 said he went there and took the measurement and it came to light that the defendant had encroached on the plaintiff’s land by thirty (30) feet and put up structures including toilet and bath. PW1 added that he also realised that one of the four Conner pillars of the plaintiff had been uprooted. PW1 further stated that he was later informed that the plaintiff had instituted action against the plaintiff in this court. PW1 concluded that in 2021 he was again invited by this Court and he visited the land in the company of the Court’s officials and the parties in this case. He said he again took measurement of the disputed land and it confirmed his earlier findings that the defendant had trespassed on plaintiff's land by 30 feet. Thereafter, the Plaintiff closed his case. THE CASE OF THE DEFENDANT The case of the Defendant per his pleadings and witness statement was that so many years ago his late father acquired a piece of land at Dambai lake side popularly known as Zamaramaline and put up a house thereon. Defendant said in or about 2007 the Krachi East District Assembly demolished all the houses in the Zamaramaline area including his father’s house to make way for the extension of the Dambai market. Defendant further stated that his father was compensated with a plot of land at the Dambai New junction and they subsequently built a house on it. Defendant said he was on the land for about six years before the plaintiff came to occupy a plot of land on the Eastern part of his land. According to defendant a dispute subsequently arose between him and the plaintiff over a portion of the land he had constructed his toilet and bath on, and the Town Planning Officer was invited to take measurements of the disputed land. Defendant testified that the planning officer indicated that defendant’s Western boundary owner had entered into defendant’s land and so the officer advised the said person to shift backwards but the person refused to do so. The defendant denied trespassing on the plaintiff’s land. The defendant in stating his case called two witnesses as DW1 and DW2. DW1, who is a brother of defendant corroborated the evidence of the defendant emphasizing that the disputed plot of land was given to their father after their house which was originally at Dambai lake side was demolished by the District Assembly to make way for the construction of the Dambai market in 2007. The evidence of DW2 was exactly as stated by DW1. The defendant and his witnesses tendered no exhibit. Thereafter, the Defendant announced the closure of his case. The legal issues to be determined by this court are: i. Whether the defendant trespassed on plaintiff’s land. ii. Whether or not the plaintiff is entitled to a declaration of title to the disputed parcel of land. It is trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case. Sections 10-17 of our Evidence Act, 1975 (NRCD 323), state the position of the law with regard to the burden of proof. Since the Defendant have denied that he has trespassed on plaintiff’s land or where he built his toilet and bath does not form part of plaintiff’s land, the burden of proof rest on the Plaintiff to show that where the Defendant erected his building forms part of the Plaintiff’s land. In the case of In Re: Ashalley Botwe lands; Adjetey Agbosu and others Vrs. Kotey and Others (2003-04) SCGLR 420, Brobbey JSC interpreted section 11(1) of the Evidence Decree, 1975 (N. R. C. D 323) at pages 464 to 465 and held that: “A litigant who is a defendant in a civil case does not need to prove anything, the Plaintiff who took the Defendant to Court has to prove what he claims he is entitled to from the Defendant. At the same time, if the Court has to make a determination of a fact or of an issue, and the determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the Court such facts or evidence that will induce the determination to be made in his favour….”. In Dzaisu and Others V Ghana Breweries Limited [2007-2008] 1 SCGLR 539 at page 545, the Supreme Court per Sophia Adenyira stated as follows: “It is basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim” In his pleadings and witness statement the defendant denied trespassing on plaintiff’s land. However when he came under cross examination by plaintiff’s Attorney on 24/08/2022 the defendant openly admitted the fact that he has encroached on or trespassed on the plaintiff’s land. The following was what transpired: Q. Do you remember that you had previously sued the plaintiff in this very court claiming ownership of the disputed land? A. Yes Q. Do you remember what you told this court during the trial of that case? A. No. Q. Do you know that every plot at Dambai New Town junction has a unique number? A. Yes. Q. Do you know that the plaintiff’s plot number is 148 whilst yours is 147? A. Yes I know Q. Do you remember that in your suit against the plaintiff last year the court in the company of the Town planning officer visited the disputed land. A. Yes. Q. Do you remember also that after the Town planner measured the disputed land you admitted that you encroached on plaintiff’s land? A. Yes that is true. But the Town planner also said the other persons close to mine had also encroached on my plot and that those who mounted the pillars did not mount them properly. Q. Do you again remember that in the above stated suit in which you were the plaintiff you told this court that it was a certain Konkomba man who encroached on your plot and when you approached him he threatened you with a cutlass. A. That is true. The Town planner advised me to move my toilet and bath ahead towards the Konkomba man’s plot but by then I had already dug the manhole and casted the concrete and so I could not have moved, that was why I insisted on being on the disputed land. Q. Do you remember that after the disputed land in the previews matter was visited and after the measurements were taken you admitted that you indeed encroached on the plaintiff’s land and asked for the way forward? A. That is true I made such admission and agreed to move to the other side. But I also told the plaintiff that if the other person occupying that portion refused to give me access I will return to the disputed land because I have invested money on the land by building a toilet and bath facilities on it. As can be glean from the above encounter, defendant was ad idem with plaintiff that he has indeed encroached or trespassed on plaintiff’s land. The law is quite settled that where parties are at ad idem on an issue, there is no need to call further proof. In Kusi and Kusi V Bonsu [2010] SCGLR 60 at page 65 the Supreme Court held in holding three as follows: “Where no issue was joined as between parties on a specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of that fact or issue” Also part of plaintiff’s exhibit E a locus report read as follows: “….. the court ask the plaintiff if he can tell the size of his land and he said it is 100m×80m. The court asked the planner to take measurement of the land (that is the distance between the pillars and the following were the measurement, Eastern is 105m, Western is 105m, Southern is 76m but plaintiff left about 6meters between his house and the house at the West. Measurement was then taken from the spot the pillar was erected towards the Eastern part which was supposed to be 80m but before getting to the window of his last room near the bath room and toilet the planner had 100m.” The evidence on record is that plaintiff herein is the Eastern boundary owner of the defendant. From the locus report above it suggest that when measurements were taken on the Eastern part it showed that the defendant’s boundary with the plaintiff which was supposed to measure 80 meters was more than 100meters. Obviously from the above the defendant had exceeded his boundary or entered into plaintiff’s land by over 20 meters. Part of the judgment in suit no. A1/05/2021 which both parties have referred to during the hearing of the instant case, reads as follow: “…The locus visits by the court revealed no trespass. Defendant has not trespassed. The document filed by plaintiff, that is his site plan indicate the size of his land to be one hundred feet by eighty feet (100× 80). In other words. North to south is hundred feet and East to West is eighty feet. However, the measurement using the plaintiff’s site plan indicated or revealed that the North to South was 76ft instead of 100ft. His side to the defendant instead of 80ft was 105ft (West to East). He left portion on the Western side of his land, undeveloped, he left about 19ft (6meters) between him and the Western neighbours, plaintiff’s pillar indicated 147 whilst defendant’s was 148. From the above the court concluded that the defendant did not trespass onto plaintiff’s land………….” It is important to note that in the above stated judgment the plaintiff herein was the defendant therein and the defendant herein was the plaintiff therein. It is quite obvious from the above that the plaintiff did not trespassed on defendant’s land but the other way round. Defendant in his pleading stated that he was on the disputed land for six years before the plaintiff came on the land and that when the plaintiff first came on the land he was the one who gave the plaintiff a cutlass to clear the land. Below was what defendant said at paragraph 8 of his statement of defence. “We were given the said plot which is before this court by the government of the Republic of Ghana as a compensation when they demolished our house at lakeside for construction of the market of which I have the papers. Beside we built on that piece of land six years before the woman and her husband (plaintiff) came and it was me who gave them the cutlass to clear the site. And all the pillars were there before they started any construction work.” In the case of Lartey V Hausa [1961] GLR 773 Ollenu J (as he then was) stated as follows: “Possession however long cannot ripen into ownership. From the evidence on record I find that the defendant herein Haruna Issah has trespassed on plaintiff’s land. After examining the entire evidence on record I further find that the disputed subject matter on which defendant erected his toilet and bath forms part of plaintiff’s land. This finding is grounded on the measurements carried out by the Town Planning Officer when the disputed land was visited during the hearing of the suit brought by the defendant against the plaintiff. The evidence of the two defence witnesses did not help the defendant’s case. The two defence witnesses seem not to understand the nature of the dispute between the parties. All they came to tell the court was that the disputed land belongs to their grandfather/father. They however do not know its size nor the boundaries. They did not also know that the defendant had already litigated with the plaintiff over the disputed land and lost. From the entire evidence on record, the crux of defendant’s case as I understand it, is that, another person who appears to be more stronger than the defendant is in possession of a portion of defendant’s land and as far as the person refuses to yield vacant possession to him, he will continue to occupy the disputed land even though he admits it belongs to the plaintiff. This position in the opinion of this court is not only weird but crude. We live in a civilized society govern by rules and regulations and such conduct must not be countenance. If the defendant strongly believe that another man or neighbour is wrongly occupying his land he reserve the right to institute the necessary legal action against such a person to claim back his land instead of continuously fighting the plaintiff who, in my view, the defendant considers a soft target. For the foregoing reasons, I enter judgment for the plaintiff as follows: a. Declaration of title to all that piece of land situate lying and being at Dambai New Junction and bounded on the North by Lessor’s property measuring 70 feet more or less, on the South by proposed Road measuring 70 feet more or less on the East by Lessor’s property measuring 100feet more or less and on the West by Lessor’s land measuring 100 feet more or less. b. Declaration that defendant has trespassed on plaintiff’s land by thirty (30) feet. c. Recovery of possession of the portion of the above stated land trespassed on by defendant particularly the portion the defendant erected his toilet and bath and any other structure on. d. Damages of GH¢1,000.00 against the defendant for trespass. e. Perpetual injunction restraining the defendant, his agents, assigns, privies, workmen from interfering with the plaintiff’s land. f. Costs of GH¢1,000.00 is awarded against the defendant in favour of the plaintiff. ……………………………….. H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 11TH OCTOBER, 2022.