Arhin Vrs Ahenmah [2022] GHADC 153 (17 October 2022)

1 IN THE DISTRICT COURT AGONA SWEDRU - A. D. 2022 BEFORE HIS HONOUR ISAAC APEATU Civil Suit No A1/04/2022 17th October, 2022 EBENEZER ARHIN …… Plaintiff VERSUS EKUA AHENMAH ODIIFO NOAH …… Defendants JUDGMENT This is an action mainly for specific performance of a contract of sale of a piece of land situate at Gomoa Osamkrom. The identity of the land in dispute is not in doubt. It is not in doubt that the land belongs to the 1st Defendant. It is also accepted that the 2nd Defendant is the caretaker of the lands on behalf of the 1st defendant. It is the Plaintiff’s claim that he purchased two plots of land from the 1st defendant through the 2nd defendant. That after the purchase of the land, he began to develop one of the plots by commencing a building of a house on it. That even though the 2nd defendant demarcated a specific plot of land adjacent the developed land for him and on which he made payment, the 1st defendant has refused to acknowledge that and has refused to execute a deed of transfer on his behalf. Moreover, the 1st defendant has permitted someone to deposit sand and blocks on the undeveloped land in clear usurpation of his right to possession of the land. Tried as he did, the 1st defendant would not budge. Unable to get the 1st defendant to put him in possession of the land, the Plaintiff filed a writ of summons on the 13th day of August, 2021 against the Defendants seeking the reliefs endorsed thereon. In the course of the trial, the Plaintiff sought the leave of the court to amend his writ of summons and the accompanying claim. By order of this court, the Plaintiff was granted leave to amend the writ of summons on the 29th day of December, 2021. In his amended particulars of claim filed on the 9th day of November 2021, the Plaintiff prayed for the following reliefs: 1. Declaration that 1st Defendant has divested her interest in the plot of land described in paragraph 9 of the statement of claim in favour of the Plaintiff. 2. An order directed at the 1st Defendant to regularize Plaintiff’s interest in the plot of land in issue by preparing an indenture to that effect. 3. An order for specific performance. 4. An order of perpetual injunction to restrain the 1st Defendant and persons claiming through her from disturbing Plaintiff’s quiet enjoyment of the land in issue. 5. Further order of perpetual injunction to restrain the 1st Defendant and persons claiming through her from entering and/or having anything whatsoever to do with the subject matter of the suit. 6. Costs. The amended writ together with an amended Statement of Claim was served on the Defendants. In the sixteen paragraphs contained in the Statement of Claim referred to above, the Plaintiff averred to the effect that he is a farmer and a resident of Gomoa Brofoyedur. That the 1st Defendant resides at Gomoa Achiase whilst the 2nd Defendant is an agent of 1st Defendant. The case of the Plaintiff is that when he needed a plot of land for development, he conferred with his father who directed him to 1st Defendant. Plaintiff averred that he was led to 2nd Defendant, a known agent of 1st Defendant. That in his interaction with 2nd Defendant, he affirmed that he has been the agent of 1st Defendant’s grandmother and mother in dealings with the land. Plaintiff averred that 2nd Defendant at the behest of 1st Defendant, demarcated two (2) plots of land for him. That on 2nd March 2020, he (Plaintiff) made payment of GH¢7,000 for two plots of land and GH¢1,000 as Trema through 2nd Defendant. Plaintiff averred that to the best of his information, knowledge and belief, 1st Defendant received the money. That he caused a surveyor to pick the plot so earmarked for him. That the surveyor prepared the site plan for the approval of the Regional Head of the Survey & Mapping Division of the Lands Commission with the full description of the land given. Plaintiff averred further that he took immediate possession of his land, cleared same and has developed a residential property on one plot, reserving the other half for future development. Plaintiff averred that 1st Defendant has since held on to the indenture witnessing the grant with the excuse that she is waiting for her children who would attest to the grant. Plaintiff averred that to his surprise, 1st Defendant has lately mounted a challenge that the portion Plaintiff is working on is not what she directed 2nd Defendant to earmark for Plaintiff. Plaintiff averred that he has noticed that a yet to be identified developer has placed building materials on the other plot of his land, ostensibly to develop same to his detriment. Plaintiff contends that having made payment of such valuable consideration, it does not lie in the month of 1st Defendant that she has not alienated the plots so described. The Defendants who had already filed a statement in defence of the claims in response to the statement filed by the Plaintiff, amended their defence after the Plaintiff had served on them his amended processes as stated above. In a twenty-eight-paragraphed defence, the Defendants denied almost all the averments contained in the Plaintiff’s statement of claim. 1st Defendant averred that she informed the 2nd Defendant who works on her land to advertise for buyers for her land for the family. That she informed and showed the lands available for lease to the 2nd Defendant. 1st Defendant averred that the 2nd Defendant emphatically informed her that it was the father of the Plaintiff who wanted land for a lease and that the Plaintiff was not known to her as her Lessee. 1st Defendant averred that she was surprised when the Plaintiff owned up as the one who leased the land but not his father. 1st Defendant averred that she had not finalized the sale of the land to the Plaintiff when he started to put up his building on the land. 1st Defendant averred that a purchaser of land cannot unilaterally go in for a surveyor to pick up a land in the absence of the vendor. She averred that she sells her land by certain dimension that is 100x80, 100x70, 80x80 and 80x70. That the Plaintiff does not have any interest in the land in dispute that was settled at the Police Station. That no documents have been signed for the Plaintiff when he purports to own the parcel of land in dispute and the one with the uncompleted house. That she has not executed any indenture for the Plaintiff and that she has those who demarcates and draw up her indenture for her before she signs. 1st Defendant averred that the land in dispute belongs to a family member who has been on the land and has not leased that land to the Plaintiff. That the land leased to the Plaintiff is the land behind the one plot he has put up the house. 1st Defendant averred that the Plaintiff reported her to the Police on the subject matter and that she was mentally tortured as she is afraid of the Police Station. That her BP rose and had to be bed ridden for some days. That the behaviour of the Plaintiff had made people to believe that she is a litigant. That what the parties agreed to at the Police Station was to the effect that the 1st Defendant was to refund the price of the land in dispute to the Plaintiff. That she refunded the money and had it deposited at the Police Station for onward transfer to the Plaintiff to collect and knew that the Plaintiff has collected the money. That to her surprise, she has been served with a writ of summons by the Plaintiff. That the money for the land has been deposited at the Police Station for the Plaintiff to collect. 1st Defendant averred that the land she leased to the Plaintiff are the one on which is sited the uncompleted building and the plot of land behind it. 1st Defendant averred that the dimensions of the land are not measured the way it has been described by the Plaintiff. That as a trader who sells at the market, she had to forgo work for two days as a result of the Police case which made her lose about GH¢200.00. The Plaintiff then counterclaimed for the following reliefs: a. Perpetual injunction against the Plaintiff, his privies, assigns not to have anything to do with the plots of land. b. Performance of the agreement reached at the Police Station to the effect that the price of one of the plots is to be refunded by 1st Defendant to the Plaintiff. c. Cost for reporting a civil contract to the Police Station that has made 1st Defendant stressful and mentally drained. d. Costs including legal cost for prosecuting the case. In a reply to the Amended Statement of Defence filed by the Plaintiff on the 20th day of April, 2022, the Plaintiff averred that when he needed land, he informed his father who made initial contacts with the known agent of 1st Defendant. Plaintiff averred that 2nd Defendant led him to the plot and demarcated the two plots in issue for hm. Plaintiff averred that he engaged a surveyor who picked the area demarcated for him and for which he had paid valuable consideration through 1st Defendant’s agent, the 2nd Defendant. Plaintiff averred that the 2nd Defendant was at all material times the agent of 1st Defendant. Plaintiff claimed that he paid valuable consideration to 1st Defendant through 2nd Defendant and that the 1st Defendant cannot renege on the lease. At the close of the exchange of written statements, the issues which the Court tabled for determination in this matter are: 1. Whether or not the disputed land belongs to 1st Defendant. 2. Whether or not the 2nd Defendant is the agent of the 1st Defendant tasked to sell the land. 3. Whether or not the Plaintiff purchased two plots of land from the 2nd Defendant and made payment for it through the 2nd Defendant. 4. Whether or not the Plaintiff purchased the land he has put up his uncompleted building on and the leftward adjacent land. 5. Whether or not the Plaintiff is entitled to an order for the 1st Defendant to regularize the sale of the land (described above) to the Plaintiff. 6. Whether or not the Plaintiff is entitled to judgment on his claims. 7. Whether or not the 1st Defendant is entitled to the reliefs on her counterclaim. I have settled above the relevant issues which I hope will bring some quietus to this dispute. I shall determine on which of the parties the burden lie to prove their case. This is not a classic case for declaration of title to land. As I stated above, it is for specific performance of a contract of sale of land. However, the issues revolve themselves around declaration of ownership rights over the land in dispute. As such, the Plaintiff has the onerous burden to discharge. He has the burden of proof in this matter. Generally, the rule is that where a party to a civil suit raises issues that are vital to the success of his claim, he assumes the onus of proof, whether it is the plaintiff who asserts a fact or the defendant who makes a counterclaim. In the case of Bank of West Africa Ltd. v. Ackun [1963] 1 GLR 176-182 the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. See Faibi v State Hotels Corp. [1968] GLR 471-480; Poku v. Poku [2007-2008] SCGLR 996 at 1022 per Georgina Wood, CJ. The Evidence Act of Ghana, 1975 (NRCD 323) states among others that the onus of producing evidence of a particular fact in civil cases is on the party against whom a finding of fact would be made in the absence of further proof: see Section 17(a) and (b) of NRCD 323. Section 17(a) and (b) of NRCD 323 therefore reads: 17. Allocation of burden of producing evidence Except as otherwise provided by law, (a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. Still on the Evidence Act, it bears stating the basic principle of law laid down therein that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under sections 10 (1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). Having established that the burden of producing evidence is on the plaintiff, what is this burden? The burden of producing evidence has been defined in Section 11 (1) of the NRCD 323 as follows; “11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. Following from the above, when the burden to produce evidence is cast upon a Plaintiff, he must prove his case and win on the strength of the case presented and not on the weakness of the defendant’s case. This principle was first established by the case of Kodilinye v Odu (1935) 2 WACA 336 but has been commented on and shaped in succeeding cases. In the case of Asare v Appau II [1984-86] 1 GLR 599, CA, it was stated that: “…the common run of land suits in the courts had, as the plaintiff, a person who claimed title to land, suing as the defendant, a person in possession of the land. Such a defendant needed not, and usually did not, seek any relief in the proceedings, being content with things as they were. In that event, the plaintiff must rely on the strength of his own case, i.e. prove his title and not rely on the weakness of his opponent’s, i.e. lack of title in the defendant, so that if the plaintiff failed to prove that he was entitled to have a declaration made of his title to the land, the action ought to be dismissed, leaving the defendant in possession of the land." See Banga v Djanie [1989-90] 1 GLR 510, CA Notwithstanding that the burden to produce evidence has been laid on the Plaintiff, this burden to produce evidence is not static but could shift from party to party at various stages of the trial depending on the issue asserted. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 thus: “14 Except as otherwise provided by law, unless it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. This position of the law on evidence is confirmed in the case of In Re Ashalley Botwe Lands, Adjetey Agbosu and others v Kotey and others [2003-2004] SCGLR 420 at page 425 where the Supreme Court per Brobbey JSC held that under the provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and/or denied. And unless the burden shifts, the Plaintiff bears the burden of proof on all matters raised by the Claim and the standard of proof is on the balance or preponderance of probabilities. However, where a Plaintiff was able to lead cogent evidence to establish title or proof of purchase of the disputed land without any further evidence, that piece of evidence raises a rebuttable presumption in his favour which ought to be dislodged by superior evidence. And that onus to dislodge the presumption is on the party against whom a ruling will be made if no evidence is led, in this case the Defendants herein. Having settled the matter of whom the burden to prove lies, I wish to run through highlights of the evidence led by both parties in proof of their respective claims. As procedure demanded, the Plaintiff bore the burden to lead evidence to prove the claims he made on a preponderance of probabilities. Plaintiff led evidence in proof of the averments he made. He testified on his own behalf but did not call any witnesses in support of his case. The nub of the Plaintiff’s case from the evidence he gave is to the effect that he knows the 2nd Defendant as an accredited agent of 1st Defendant. That when he needed a plot of land, he conferred with his father who directed him to the 2nd Defendant. His father directed him to follow up on discussions he had had with 2nd Defendant. That in his interaction with 2nd Defendant, he (2nd Defendant) affirmed to him (Plaintiff) that he has been the agent of 1st Defendant’s mother and 1st Defendant herself in dealing with the land. That at the behest of 1st Defendant, the 2nd Defendant led him to the land and demarcated two plots for him. That on 2nd March, 2020, he made payment of Seven Thousand, Seven Hundred Ghana Cedis (GH¢ 7,700) representing the cost of two plots of land and Trema (of GH¢700) through 2nd Defendant. That to the best of his information, knowledge and belief, the 1st Defendant received the said amount. It is the further case of the Plaintiff that he caused a Surveyor to pick the plot 2nd Defendant earmarked for him which was forwarded to the survey and mapping Department of the Lands Commission for approval. That meanwhile, the 1st Defendant has since held on to the indenture witnessing the grant with the excuse that she was waiting for her children who would attest to the grant. He attached a copy of the indenture which was marked as Exhibit A. After the Plaintiff had closed his case, the Defendants were called to open their case. 1st Defendant who appears to have conducted the defence of the claims against them testified on her own behalf and on behalf of the 2nd Defendant who she described as her caretaker. They however did not call any witnesses in support of their case. The nub of the Defendants’ case as given by the 1st Defendant is that she informed the 2nd Defendant who works on her land to advertise for buyers for her land for the family. That she informed and showed the lands available for lease to the 2nd Defendant. 1st Defendant stated that the 2nd Defendant emphatically informed her that it was the father of the Plaintiff who wanted land for a lease and that the Plaintiff was not known to her as her Lessee. That she was surprised when the Plaintiff showed up as the one who leased the land but not his father. It is the case of the 1st Defendant that she had not finalized the sale of the land to the Plaintiff when he started to put up his building on the land. That a purchaser of land cannot unilaterally go in for a surveyor to pick up a land in the absence of the vendor. That she sells her land by certain dimension that is 100x80, 100x70, 80x80 and 80x70. That the Plaintiff does not have any interest in the land in dispute that was settled at the Police Station. That no documents have been signed for the Plaintiff when he purports to own the parcel of the land in dispute and the one with the uncompleted house. That the regulation at the Lands Commission is that lands are leased but not sold. That she has not executed any indenture for the Plaintiff and that she has those who demarcates and draw up her indenture for her before she signs. It is the further case of the 1st Defendant that the land in dispute belongs to a family member who has been on the land and has not leased that land to the Plaintiff. That the land leased to the Plaintiff is the land behind the one plot he has put up the house. That the Plaintiff reported her to the Police on the subject matter and that she was mentally tortured as she is afraid of the Police Station. That her BP rose and had to be bed ridden for some days. That the behaviour of the Plaintiff had made people to believe that she is a litigant. That what the parties agreed to at the Police Station was to the effect that the 1st Defendant was to refund the price of the land in dispute to the Plaintiff. That she refunded the money and had it deposited at the Police Station for onward transfer to the Plaintiff to collect and knew that the Plaintiff has collected the money. That the police has settled the matter to the demands of the Plaintiff. That to her surprise, she has been served with a writ of summons by the Plaintiff. That the money for the land has been deposited at the Police Station for the Plaintiff to collect. It is the case of the 1st Defendant that the land she leased to the Plaintiff are the one on which is sited the uncompleted building and the plot of land behind it. That the dimensions of the land are not measured the way it has been described by the Plaintiff. That as a trader who sells at the market, she had to forgo work for two days as a result of the Police case which made her lose about GH¢200.00. Having dispensed with the introductory, yet necessary part, I proceed to determine the relevant issues set out above which determination will, it is hoped, resolve the dispute in this case. I shall however determine the issues in no particular order. I have summed up the cases presented by each party above. However, to set a proper tone and lay a foundation for the determination of the issues, I shall restate briefly the cases of the parties. It is the Plaintiff’s case that he needed a plot of land to purchase. He conferred with his father. His father had a discussion with the 2nd Defendant. His father directed him to follow up on the discussions he had had with 2nd Defendant. That he met with the 2nd Defendant. 2nd Defendant, affirmed to him (Plaintiff) that he was the agent of 1st Defendant in dealing with her land. That at the behest of 1st Defendant, the 2nd Defendant led him to the land and demarcated two plots for him. That on 2nd March, 2020, he made payment of Seven Thousand, Seven Hundred Ghana Cedis (GH¢ 7,700) representing the cost of two plots of land and Trema (of GH¢700) through 2nd Defendant which was received by the 1st Defendant. That he prepared a site plan on the plot of land 2nd Defendant earmarked for him. However, when he presented an indenture to the 1st Defendant for execution, she refused with the excuse that she was waiting for her children who would attest to the grant. 1st Defendant on the other hand, denied the claim by the Plaintiff that he has purchased the land adjacent the one on which he is putting up his residential property. According to her, the land the 2nd Defendant earmarked for the Plaintiff is not what he now claims. That the 2nd Defendant earmarked the land behind where the Plaintiff is constructing his residential property but not the land lying to the left of the land he has commenced his building on. As was settled from the discourse above, there is no doubt that the land the subject of this dispute belongs to the 1st Defendant. The Plaintiff does not lay a claim to original ownership of it. There is also no doubt that the 2nd Defendant is a caretaker or an agent of the 1st Defendant. It is admitted by the 1st Defendant that she tasked the 2nd Defendant to advertise her land for sale. So the 2nd Defendant was at all material times the agent of the 1st Defendant to look for buyers for her land. There is also no denying the fact that the Plaintiff paid a consideration of GH¢7,700 to the 1st Defendant through the 2nd Defendant for the purchase of two plots of land. The point of diversion appears to be that while the Plaintiff claims that the 2nd Defendant showed and marked for him the land on which he has commenced the construction of his residential property together with one plot lying leftward adjacent to it, the Defendants deny that claim insisting that the land the 2nd Defendant earmarked for the Plaintiff and over which he made the payment is that behind the residential property. So, it is not the land on which the Plaintiff has commenced his construction that is the cause of this dispute. The dispute has always been on the land which lies to the left of the plot of land on which the Plaintiff has commenced building on. As I observed in this judgment above, it is the party who asserts that has the burden or obligation to prove. So even though both parties made claims regarding the disputed sale of the land, it is worth repeating the cardinal principle in our civil jurisprudence that the Plaintiff who made assertions to having purchased the piece of land adjacent his residential property who bore the burden to lead evidence in proof of those assertions. It was not the Defendants’ to disprove the allegations made by the Plaintiff against them. Having made the allegation that he purchased the two adjacent plots of land as opposed to the two opposite plots, it was the Plaintiff who retained the burden to prove such purchase against the Defendants. It is worthy of note that the 2nd Defendant was at all material times to the sale of the land an agent of the 1st Defendant. The Black’s Law Dictionary, 8th edition defines an agent as one who is authorized to act for or in place of another; a representative. In that vein, since the agent acts on the authority of the Principal, the principal is equally yoked in liability as the agent. The law is settled that where a principal gives his agent express authority to do a particular act which is wrongful in itself, or which necessarily results in a wrongful act, the principal is responsible, jointly and severally with the agent, to third persons for any loss or damage occasioned thereby. See Glynn v Houston (1841) 2 Man & G 337. In this case, as established above, the 1st Defendant admitted that she tasked the 2nd Defendant to advertise for the sale of her land to the general public. It was in keeping with that task that the 2nd Defendant engaged with the Plaintiff and sold the plots of land to him. Subsequently, 2nd Defendant was paid the amount of GH¢7,700 being purchase price of the land from the Plaintiff. And as borne out by the record, the 2nd Defendant then forwarded the money to the 1st Defendant. So, the 2nd Defendant having acted on the orders of the 1st Defendant, she (1st Defendant) would be liable to any third party for any wrongful act done in execution of the mandate of 2nd Defendant as an agent in the sale of the land on behalf of the 1st Defendant. Having established the nexus between the 1st and 2nd Defendants in respect of the sale of the land, it is important to settle certain pertinent issues before proceeding to the meat of the judgment. The Plaintiff has claimed that the 1st Defendant has refused to execute the indenture after he paid the consideration for the purchase of the land. It bears stating that the fact that the 1st Defendant did not execute the indenture would have had no adverse effect on the claim by the Plaintiff that he purchased the land. That is to say that if the Plaintiff was able to lead satisfactory evidence to prove that he negotiated with the 2nd Defendant for the two adjacent plots of land i.e. the one he has built on and the plot of land lying to the left of that land, and subsequently paid consideration for same, I think with a certainty that the Plaintiff would be entitled to an order of specific performance of the agreement between himself and the 2nd Defendant. This is because having established that the 2nd Defendant was an agent of the 1st Defendant, any act of the 2nd Defendant which was wrongful, was binding on the 1st Defendant as his principal. However, that was always subject to proof by the Plaintiff that it was the two adjacent lands which he contracted to purchase. Since the Plaintiff claims that he negotiated with the 2nd Defendant who sold to him the two adjacent plots of land to him, one of which he has put up a building on, what did he (plaintiff) do in proof of acquisition of the adjacent land he claims to have purchased with the occupied one? Having made the assertion that he acquired the disputed land from the 1st Defendant and that was the land over which he made the payment, it was expected of the Plaintiff to establish that assertion with some form of documentary or other credible evidence. It was expected of the Plaintiff to have shown proof of acquisition by purchase of the two adjacent plots of land he claims and not what the 1st Defendant claims. However, I have not been impressed with the quality of evidence produced by the Plaintiff in proof of his claim to have purchased the preferred two adjacent plots of land. I observe that the Plaintiff failed to tender any documentary evidence of value to prove acquisition of the land he has put up his residential property on and the leftward adjacent lying land. He failed to tender any properly executed Deed of transfer of those lands such as an indenture which would have served as a prima facie evidence of purchase to the land. Indeed, it bears conceding that the Plaintiff had tendered in evidence an indenture which he claims he prepared and presented to the 1st Defendant for execution but which she refused to execute. [I shall come to comment on this briefly]. But it bears mentioning that the indenture which had been marked as Exhibit A, is bare and has not been executed. There are no signatures nor thumb prints in it. But attached to the indenture i.e. Exhibit A, was a site plan showing a piece of land measuring approximately 0.402 of an acre. It is these two plots of land delimited on the site plan which the plaintiff claims to have purchased. However, the mere representation of the preferred two plots of land on the site plan does not prove that those were the lands shown to him by the 2nd Defendant and over which he made the payment of GH¢7,700. The mere mapping of the two plots on the site plan is not conclusive proof that those lands were the lands he purchased from 2nd Defendant. But the place of site plans and like documents have been settled in a number of cases long ago as having no value to transfer title to land. It has been held in a long line of cases that building plans, building permits, receipts and site plans are not documents of title. That they do not confer title to land on an individual. A site plan is only a detailed architectural drawing that exhibits the dimensions, contours, landscapes and significant features of a piece of land. It does not on its own transfer title to land. See the case of Kotey v Koletey [2005-06] SCGLR 368. So, without more, the site plan cannot stand as an instrument affecting land and in this case, cannot prove that the 2nd Defendant truly demarcated the adjacent lands for the Plaintiff. The site plan does not carry the potency to prove that. Again, the Plaintiff could have shown proof of purchase of the two adjacent plots by leading some evidence to show acts of occupation and possession of the other disputed plot of land soon after purchase of it. I think that notwithstanding that the Plaintiff failed to show acquisition of the two adjacent lands by documentary evidence, he (Plaintiff) could still have established title to those two plots of land by other corroborative means other than by documentary proof. As I stated above, it is the party who alleges who has the burden of proof. So in this case, the Plaintiff having alleged that he purchased the two adjacent plots of land but not the opposites, he bore the burden of proof on that issue. In such situations where a party claims specific performance of a contract of sale of land, the courts look to find whether the alleged purchaser of the land has performed acts of possession on the land which acts of possession would tilt the scales in his/her favour. Such acts of occupation and possession of the land establishes a prima facie case in favour of the alleged purchaser (Plaintiff in this case) which would have required the Defendants to lead some evidence in rebuttal. Without doubt, there are important legal ramifications consequent upon proof of possession, control and user of land in dispute. Possession is said to be the original form in which ownership manifests itself and is one of the cardinal means of proving ownership. If the Plaintiff could show possession and user of the land, that fact of possession and occupation would have endowed on him several incidental rights. For instance, both at common law and under sections 35 and 48(1) and (2) of the Evidence Act, 1975 (N. R. C. D. 323) legal title would have been vested in the Plaintiff by his possession of the other portion of the land. Thus, by his acts of possession including building on the land or putting tenants thereon or other open acts of possession, the law would have made a presumption of ownership in his favour. It is important to note that The Evidence Act, 1975 (NRCD 323) states in section 48 (1) and (2) thus: (1) The things which a person possesses are presumed to be owned by him. (2) A person who exercises acts of ownership over property is presumed to be the owner of it.” The import of the above provision is that the clear and unquestioned exercise of rights of possession and ownership over the adjacent lands especially the one in issue, would have raised a rebuttable presumption of ownership in favour of the Plaintiff. As was held in the case of Akyea-Djamson v Duagbor [1989-90] 1 GLR 223, a person in possession (of land) has “nine-tenths of the law” in his favour in regard to ownership with the outstanding one-tenth reposed in any person aspiring to oust him, to make out his claim as to his entitlement to be declared an owner. And by the provisions of sections 10-14 and 20 of NRCD 323, the person against whom such a rebuttable presumption operated or who sought to oust the possessor had the burden of leading evidence to dislodge it. From a careful evaluation of the evidence led by the Plaintiff, there is not much to take from it to prove possession or user of the two adjacent lands he claims he purchased. Under the circumstances of this case, I think that it was possible for the Plaintiff to have shown acts of possession of the land after the alleged purchase. Plaintiff could have shown in his evidence what he did on the land after he purchased it. If he built on the other adjacent land, as he has on the other plot of land, he could have shown proof of the building on that portion of the land. I think that the time interval between the alleged purchase and the breakdown of communication is very short as for the Plaintiff to be able to put up a building on that portion too. However, if he could not have built on both portions of land, the question is, did he fix any pillars on the land after the 2nd Defendant demarcated that portion for him and he paid for it? If he did, why did he not show proof of it in the evidence to prove that the 2nd Defendant was aware and always knew where he had demarcated for him? I think that the Plaintiff could have shown pillars or other marks he left on the land after the earmarking for him by the 2nd Defendant. This he failed to do. On the other hand, if there is any evidence that he gave the land out to tenants who acknowledged his title, it could have been shown as a positive act of possession over the disputed lands. Clearly, proof of his dealing with the land in dispute soon after it was delimited for him for instance, by letting it out to tenants or licensees, would in no small way, have been a boost to the case of the Plaintiff. I say so because, as was stated in the case of Fori v Ayirebi [1966] GLR 627 at 647, SC, there cannot be a more open, positive or effective exercise of acts of possession of land than by placing a purchaser, tenant or a licensee on it. Despite the avenues open to the Plaintiff to establish that he acquired the two adjacent portions of land and not the opposite ends, he failed to utilize any of them. Without any documentary proof of purchase of the disputed adjacent lands or evidence of possession, one of the remaining modes by which the Plaintiff could have proved that he purchased the two adjacent lands was by way of calling any witness with whom he was at the time the 2nd Defendant earmarked the two adjacent lands for him. I think that this would have been the easier of the two options so far elaborated. The testimony of the witness who professes to have been present when the 2nd Defendant marked out the two adjacent lands, but not the one behind, for the Plaintiff would have carried much weight and would have done the case of the Plaintiff a lot of good. However, Plaintiff failed to lead any evidence to establish possession and user of the land. He also failed to call any such witnesses described above. Plaintiff could yet have subpoenaed the 2nd Defendant in an attempt to get him to admit to the Plaintiff’s version of the case. If the 2nd Defendant had admitted that he demarcated the disputed plot of land together with the one Plaintiff has built on to him, I think it would have all but certain, settled the case in the Plaintiff’s favour. I acknowledge that it would have been difficult to get the 2nd Defendant to admit to certain facts which would have inured to the benefit of the Plaintiff such as that he demarcated the land lying to the left of where the plaintiff has put up his residential property and that the Plaintiff paid the consideration for that piece of land. However, I think that that would have been worth the try. But he failed to attempt this venture too. He stuck to his individual testimony. The time-honoured principle of law is that witnesses are to be weighed and not counted. From the principle, it does not depend on the number of witnesses a party calls to have a ruling being made in his/her favour. Moreover, it has been held that nothing proscribed a judicial tribunal from deciding an issue on the evidence of one witness or on the oath of one person against that of another. See the case of Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 882, where the Supreme Court after reviewing cases such as Republic v Asafu-Adjaye (No. 2) (1968) GLR 567, CA and J. Saba & Co Ltd v. Williams (1969) CC 52, concluded as follows: “Witnesses are weighed but not counted. Therefore, a tribunal of fact can decide an issue on the evidence of only one party. A bare assertion on oath by a single witness might in the proper circumstances of a case be enough to form the basis of a judicial adjudication. The essential thing is that the witness is credible by the standards set in section 80(2) of the Evidence Decree 1975. Therefore, when a party has named certain persons in his evidence-in-chief, the fact that he did not call all, or any of them, even though they were available, per se, would not prove fatal to the case of the party. The adjudicator has the whole of the oral evidence of the party and the documents tendered in evidence, if any, to consider for his decision” See also Nana Dwamena Mensah v. Christian Akwetey, Suit no. OCC/17/17, High Court (Commercial Division), Kumasi dated 12th April, 2018. The above principle of law notwithstanding, it is also true that what evidence is required to prove an averment can only depend on the nature of the averment and the circumstances of the particular case. So, in the case of Zabrama v Segbedzi [1991] 2 GLR 221, the court held that where the nature of the averment made by a party and the circumstances of the case were such that the Plaintiff could only prove his case by his individual testimony on oath, the court could not summarily dismiss the claim on that ground but must still examine the circumstances of the case and all the evidence and come to a just conclusion that the merits of the case demand. In that context, the circumstances of each case determines the type, caliber and number of witnesses needed to establish proof. In this case, while not stating that the Plaintiff should have called or not called a number or caliber of witnesses, since it was his choice to make, it was the quality of the evidence given by the Plaintiff in proof of his claims, which I have not been satisfied with. I think that the circumstances of this case, as given above, did not admit of proof of the averments made by the Plaintiff by his bare testimony. At least some other form of credible corroborative evidence should have been led in support of the assertions made by the Plaintiff especially where the 1st Defendant denied them. I think that it was very possible for the Plaintiff to have led the kind of evidence which the circumstances of this case warranted to establish his claims. I must state that the courts do not countenance half-hearted proof where such proof could have been obtained. So, in the case of Faibi v State Hotels Corporation [supra], the court noted that: “Where a party would not produce evidence which evidence is available and within his peculiar knowledge, it could be inferred in law that that evidence is against him”. I am of the opinion that that inference can be made against the Plaintiff in this case. Be that as it may, the Plaintiff failed to establish his averment that he purchased the two adjacent plots of land from the 2nd Defendant and it was over those two adjacent plots of land that he paid the sum of GH¢7,700. The Defendants filed a counterclaim for certain reliefs as stated above for perpetual injunction to restrain the Plaintiff from having anything to do with the plots of land, performance of an agreement reached at the police station and costs. I ought therefore to evaluate the evidence led in proof of the reliefs endorsed thereon. The principle of law is that a counterclaim is a different action in which the Defendant counter-claimant is the Plaintiff and the Plaintiff in the action becomes a Defendant. In the case of GIHOC Refrigeration and Household Products Ltd. v Jean Hanna Assi (2006) 3 MLRG, the Supreme Court per Date-Bah JSC held that a counterclaim is substantially a cross action and not merely a defence to the Plaintiff’s claim. It is said to be a cross-claim which could be raised in the very action brought against the Defendant. From the line of authorities therefore, it is settled that a counterclaim is in law a separate and independent action which is tried together with the original claim of the plaintiff. It follows that if in the course of an action in which there is a counterclaim and the plaintiff’s claim is struck out, dismissed, discontinued or stayed, the defendant can proceed to prosecute his counterclaim as it is independent of the original claim even though a counterclaim has no separate suit number different from the original suit. See John Atta Wusu v. Mr. Fosuhene, Civil Appeal No. J4/36/2009, 19th May, 2010; Gbedema v. Awoonor-Wiliams [1970] CC 12; Winterfield v. Bradnum 3 QBD 324; Amon v. Bobbett [1889] 22 QBD 543. And where a Defendant seek reliefs in a counterclaim, he/she bore the burden of proof and persuasion to prove conclusively, on a balance of probabilities that he/she is entitled to the reliefs claimed. I thus continue this judgment with a determination of the issues related to the Defendants’ counterclaim. Were the Defendants able to prove their counterclaim? 1st Defendants’ case has well been documented in this judgment. However, the nub of it is that she is the owner of the land in dispute. That she tasked the 2nd Defendant whom she described as her brother to advertise for the sale of the land. That the 2nd Defendant informed her that one pensioner wanted to buy four plots of the land. However, she received GH¢7,700 covering just two plots because the pensioner could not afford the four plots. She maintained that she refused to sign the indenture when it was presented to her by the Plaintiff because she does not know him. She maintained that she sold the land behind the plot the plaintiff has put up his building and denied that the land she sold to the Plaintiff was the one adjacent it. I have already stated and ruled on the claim by the Plaintiff that he purchased the two adjacent plots of land. As I stated above, it was not the Defendants’ to prove any of the assertions made by the Plaintiff. It was the Plaintiff’s to prove. However, where the 1st Defendant made an assertion capable of proof, it was required of her to lead evidence to persuade the court that the existence of what she asserts is more probable than its non- existence. The Evidence Act encapsulates the foregoing principle in its Section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting. On her claim to restrain the Plaintiff from having anything to do with the plots of land, I do not think that the 1st Defendant is entitled to it. 1st defendant admitted during cross- examination that she has refused to sign the indenture i.e. Exhibit A even for the one plot of land on which the Plaintiff has put up his building. Her reason for refusing to execute the deed appears to be trifling. She claims that 2nd Defendant told her that it was a pensioner who wanted the land for purchase. That she did not know the Plaintiff until he brought Exhibit A to her to sign. She claims that she told the Plaintiff that she did not know him. That Plaintiff then told her that his father had purchased the land for him. It appears that even after the Plaintiff informed her that his father had negotiated and purchased the land on his behalf, the 1st Defendant is adamant that unless the Plaintiff brought the family members of his late father, she was not going to sign the document for him. It bears noting that the father of the Plaintiff is dead. There is no disputing the fact that the Plaintiff is his son. I wonder how the personality of the purchaser of the land seems that important for the 1st Defendant to insist that she intended to sell her land to the pensioner but not the Plaintiff. Curiously, she admits that she has received the money the consideration for the land. Having received the money from the 2nd Defendant, did the 1st Defendant bother to find out the one who paid it? If it was the Plaintiff who paid it as he claims, why would she refuse to execute the deed for him? I do not think that the 1st Defendant is entitled to deny knowledge of the Plaintiff when the 2nd Defendant negotiated with his father on his behalf and he actually paid the consideration for the land. On the preponderance of probabilities, I make the following findings of fact from the evidence on record adduced by the parties: 1. That the land in dispute being at Gomoa Osamkrom was originally owned by the 1st Defendant. The 2nd Defendant is her agent and caretaker whom she tasked to find purchasers for the land. 2. That the 2nd Defendant negotiated with the Plaintiff and demarcated two plots of land for him. The Plaintiff has commenced a construction of a house on one of the plots. However, even though he claimed that the 2nd Defendant demarcated the leftward adjacent land for him, the 1st Defendant denied it maintaining that it was the land that lay behind the occupied one which was measured for the Plaintiff. 3. That the Plaintiff failed to lead any evidence show that he possessed or controlled that portion of the disputed plot of land after he purchased it. He also failed to provide any documentary or other proof that the 2nd Defendant demarcated that portion of land for him but not the land lying behind where he is putting up his building. 4. I find that the Plaintiff therefore has no interest in the plot of land lying to the left of his plot of land where he has put up his building as he failed to show that he purchased it. On the totality of the evidence on record, the Plaintiff failed to prove his claims against the Defendants. The Plaintiff’s claims are hereby dismissed in their entirety. He is not entitled to a specific performance of the sale agreement entered into with the 2nd Defendant over the land adjacent to the plot he is putting up his residential property. As the evidence failed to substantiate his claims, it is taken that he negotiated with the 2nd Defendant to purchase the land opposite/behind his residential property. The reliefs on the Defendants’ counterclaim are dismissed. Once the Plaintiff negotiated for the purchase of two plots of land and has duly paid money as consideration for the two plots of land, the Defendants cannot purport to deny that fact and pray that he be restrained from having anything to do with the plots of land. As I have held above, the Plaintiff only failed to prove purchase of the two adjacent plots. However, the evidence suggest that he is already putting up a residential property on one of the plots. He claimed that the land behind the plot with the residential property is waterlogged etc. and decided against purchasing it. That decision has failed. However, the Defendants admit that he had negotiated for and paid for the land on which he is putting up his building as well as the one behind it. If that is admitted by the 1st Defendant, why put in a claim for injunction against the Plaintiff to restrain him from the land? I find that he has purchased the two plots and cannot be removed from it. Having held as I have above, it is ordered that the 1st defendant regularize the sale to the Plaintiff of the two plots of land i.e. on the land on which the Plaintiff has commenced his building and the one plot lying behind it. As has been the procedure, the Plaintiff shall prepare a Deed of indenture and present it to the 1st Defendant who shall within 30 days of receipt of the indenture, cause the document to be executed. I do not think that there was any proven binding agreement at the police station between the parties for the Plaintiff to receive a refund of the money he paid for the purchase of the one plot of land. The fact that there was a proposal in an attempted settlement is not binding on any of the parties. What happened at the police station was an attempt to settle the differences between the parties. It was not an arbitration. The Plaintiff cannot therefore be held bound by any proposal or commitment made thereat. The claim by the 1st Defendant for cost for stress associated with the alleged report made by the Plaintiff at the police station is also dismissed as unproven. Considering the relatively short length of time this case has had to take to complete and the fact that notwithstanding that the Plaintiff failed to prove his claims, he had genuine claims on the writ of summons which called for determination, I shall be considerate in assessing cost. I therefore assess cost at GH¢2,000 against the Plaintiff in favour of the Defendants. HIS HONOUR ISAAC APEATU DISTRICT MAGISTRATE