Mansah and Another Vrs Kum and Others [2022] GHACC -1 (29 August 2022)

IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON MONDAY THE 29TH DAY OF AUGUST 2022, BEFORE HIS HONOUR JOHNATHAN DESMOND NUNOO, CIRCUIT COURT JUDGE. SUIT NO. A1/14/2020 EKUA MANSAH & ANOR PLAINTIFF VRS. MADAM EFUA KUM & 11 ORS. DEFENDANT JUDGMENT The plaintiff is claiming per her writ of summons the following reliefs: a. Declaration of title and repossession of the property as described in paragraph 12 (Sic) of the statement of claim herein. b. Refund of the rent collected from the tenants by the alleged owners. c. Ejection of the tenant and squatters from the property. d. General against each of the tenant for loss of income e. Cost for prosecuting the case. f. general damages for use of the property by tenants and squatters’ The relevant portions of the statement of claim for the purposes of this judgment are that: 3. The Defendants are squatters, tenants and relatives of the Plaintiff. 4. Plaintiff will state that in the year 1960 she paid for a piece of land at Nkubem at Agona Swedru. 5. That receipts were given to the Plaintiff for the purchase of the land. 6. The Plaintiff will state that a house has been put up on the parcel of land and she has been in control ever since the house was put up. 7. The plaintiff will state that her late father supervised the construction of the house put up by Plaintiff. 8. Plaintiff will further state that she has been in control of the house till the father passed away. 9. The Plaintiff will state that after the demise of her father the relatives have refused to leave the house. 10. The Plaintiff will state that the Defendants have neglected and refused to maintain the property and Plaintiff wants to renovate and do extension on it. 11. That letters written to them to vacate the house has gone unheeded. 12. Plaintiff will further state that ever since she fell ill the house has been rented out to some tenants and squatters, who have taken advantage of Plaintiff incapacity to deny her access to her property. 13. The Plaintiff will state that the house is sited on a piece of land lying and being at the left hand side of the Ninta-Nkubem Division in the vicinity of Agona Swedru and bounded on the North and South by Nana Yeboah II Vendors property, on the East by Madam Adjoa Eyiriwah’s property of land and on the West by the Urban Council proposed road and Nana Yeboah II Vendors property of land measuring 80 feet as per the receipt given to her. The evidence in chief of Philip Kwesi Okine a.k.a Uncle Kwesi Kwatta attorney of the Plaintiff is that the Plaintiff is a teacher staying at Komenda in the Central Region of Ghana and she is also known as Mercy Kinphul and Mercy Kwofie. According to him the Defendants are squatters, tenants and relatives of the Plaintiff. He submitted that in the year 1960 Plaintiff paid for a piece of land at Nkubem at Agona Swedru and that receipts were given to the plaintiff for the purchase of the land. He tendered the Receipts for Purchase of marked as exhibit B series. Plaintiff submitted further that she has put up house on the parcel of land and she has been in control ever since the house was put up. It is her case that the late father Kofi Tandoh purported to bequeath the house to Plaintiff. (Exhibit C). The Plaintiff’s claim that her late father supervised the construction of the house put up by Plaintiff and that she has been paying the Property Rate (Property Rate Receipts attached and marked as Exhibit D series). According to the Plaintiff she has been in control of the house till the father passed away that after the demise of Plaintiff’s father the relatives have refused to leave the house. Plaintiff stated that the Defendants have neglected and refused to maintain the property and Plaintiff wants to renovate and do extension on it. According to the Plaintiff all letters written to them to vacate the house has gone unheeded that ever since she fell ill the house has been rented out to some tenants and squatters, who have taken advantage of Plaintiff incapacity to deny her access to her property. The Defendants did not file any appearance or defence to the claims though they were served with the writ of summons and statement of claim. At the end of the proceedings the following issues were set down for determination by the court. Whether or not According to him the Defendants are squatters, tenants and relatives of the Plaintiff. Whether or not the plaintiff purchased the land on which the building is situated. Whether or not the plaintiff put up the building on the parcel of land Whether or not the plaintiff has been in control ever since the house was put up. Whether or not the plaintiff’s late father Kofi Tandoh purported to bequeath the house to Plaintiff. Whether or not the Plaintiff’s late father supervised the construction of the house put up by Plaintiff Whether or not the plaintiff has been paying the Property Rate. All the issues will be taken together. The plaintiffs obtained default judgment against them and the plaintiff was ordered to establish her title to the property. The defendants did not participate in the proceedings so the court was left without any option than to evaluate the plaintiff’s evidence in accordance with the relevant laws. The general principle of law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. This position is buttressed by various provisions of the evidence Act 1975 (NRCD 323). Section 14 of the Act provides that “Except as otherwise provided by law, unless and until 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 he is asserting” The burden of providing evidence as well as burden of persuasion is on both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities” see Section 12 (1) of the Act. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. The position of the Defendant has been appropriately described by Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS. VRS. KOTEY & ORS. [2003 – 2004] SCGLR 420. In his supporting opinion Brobbey JSC stated of a Defendant at a trial in Holding 5 as follows: “The effect of Sections 11(1) and 14 and similar Sections in the Evidence Decree 1975 may be described as follows: 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 that 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. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose…” Having regard to the proceedings thus far and the averments made by the Plaintiff that she in 1960 paid for a piece of Land at Nkubem at Agona Swedru and that her late father supervised a construction of a house put up on the said piece of Land, which house and piece of land the Plaintiff describes as lying at the left hand site of the Ninta - Nkubem Division in the vicinity of the Agona Swedru and bounded on the north and south by Nana Yeboah II vendors property, on the East by Madam Adjoa Eyiriwah's property of Land and on the West by the Urban Council proposed road and Nana Yeboah II vendors property of land measuring 80 feet as per the receipt given to her. The Plaintiff further avers that she has been in control of the said house and piece of Land till her father passed away and that the Defendants are relatives, tenants and squatters who have refused to vacate the house and piece of Land to enable her renovate and carry out extension despite several written notices given or issued to them which have gone unheeded as a result of her ill health which the Defendants have taken advantage of to deny her access to her property. Possession is of great importance in Land. In Saaka V. Dahali, Court of Appeal, 25th July, 1985, the principle governing possession was stated as "It is trite learning that a person in a possession of Land, however that possession was acquired has a title to that land which is good against the whole world except the true Owner or a person claiming through the true owner". What this principle means therefore is that long possession per se does not avail the possessor against a Claimant, if the claimant is the true owner or can show that he or she derives title from the true owner. Possession may be lawful or wrongful. Where a person wrong fully takes possession of land belonging to another, that person becomes a Squatter on the land of the true owner of that land. The true Owner has an immediate right of action against the Squatter to recover possession of the Land. If the owner does not take any action within the limitation period to recover possession, his right of action is barred and his title to the land extinguished as per section 10 of the limitation Decree (NRCD 54). From the evidence of the Plaintiff, the Defendants can be classified as Licensees and or Squatters who have enjoyed possession for admittedly many years. However, as the Court of Appeal held in Mensah V. Blow (1967) GLR 424, CA "A licensee under customary law does not by virtue of long use per se acquire an interest in the property which would entitle him to deprive the Licensor or his successors of their ownership subject to the provisions of the Limitation Decree 1975(NRCD 54). Title to land connotes the means by which a person establishes his right to land. A person’s title indicates by what means he claims to be the owner of the Land. A good title to Land is always documentary. Section 64 of the Land Act, 2020 (Act 1036) defines a good title "as - 1. Good title is derived from a. an enactment b. a grant, vesting order or conveyance from the state; c. a final Judgment of a Court of competent Jurisdiction or d. a grant, an acquisition under customary low, conveyance assignment or Mortgage which is at least thirty years old and establishes that a person entitled to convey an interest in the Land. When a person's title to land is challenged, what a Court is called upon to decide is which of the contending parties have a better title to the Land. In testing whether one title is superior to the other, there are some important factors to consider. The first is possession. The second factor to consider by the Court is documentary title. The third title is that based on oral grant at customary law. In Wuta- Ofei V. Danquah 1961, GLR 487 at 491, the Court was of the opinion that "A person who is relying on possession as his title must show that he is in physical possession or has a right to possession as having erected a building on it or planted crops on it or done something on it symbolic of ownership and generally exercising dominion over the Land such as by placing a lessee (tenant), a licensee or an agent on it". Again, In Majolagbe V. Larbi 1959 GLR 190 at 191, the Court held that: "the Plaintiff's proof of his mere possession of Land is sufficient for him to maintain trespass against anyone who cannot show a better title". The Court of Appeal also held in Mensah V. Peniana (1972) GLR 337 that, "Proof of possession by a Plaintiff is sufficient to maintain an action for trespass against a Defendant who cannot prove a better title. Therefore, a claim of absolute ownership by a Defendant does not automatically put the Plaintiff to proof of his title. He must however, fail if the Defendant is able to establish his title to ownership or that he went on the Land with the permission of the real owner. In Payin II V. Anquandah (1947 ) 12 W. A. C. A 284 at P 286, a case for declaration of title to Land by a stool, Sir John Verity C. J said " In this country where Land may be in the occupation of persons who are not the owners but who for generations may have had rights of occupation as licensees or customary tenants or under other conditions known to local custom, the reversion nevertheless, being in the 0wner, it is essential that the nature and origin of tenure of the Occupiers should be determined. Mere occupation even for long periods is not in itself sufficient to establish ownership". An owner of Land is a person who can show that he and those through whom he claims title have possessed the Land for so long that there can be no reasonable probability of the existence of superior adverse claim. The burden or Onus of proof in an action for declaration of title to Land lies heavily on the Plaintiff to establish his title. Webber C. J in Codjoe V. Kwatchey (1935) W. A. C. A 371 at P 374 stated that "The Onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The Plaintiff in this case must rely on the strength of his own case and not on the weakness of the Defendant's Case". If this Onus is not discharged the weakness of the Defendant's case will not help him and the proper judgment is for the Defendant". It is therefore settled law that the Onus is on the Plaintiff. So if the Plaintiff proves: 1. acquisition and 2. the nature of the tenure of the Defendant, then he has discharged the heavy burden of proof which lies on him. It suffices to add that where the Defendant's occupation cannot be traced to customary tenure, then the Defendant is a Squatter. Taking, therefore the evidence as a whole adduced and applying the law to it and attaching the due weight to both oral and documentary evidence admissible, I have come to the conclusion that all the issues are to be answered affirmatively and I find as a fact that the Plaintiff has established her claims per the law especially as her evidence stood unchallenged and uncontroverted. As stated above the Defendants by their actions and inactions have failed to file any motion to set aside the default judgments and even seek leave to file late appearance or defence. In short they did not show any interest in this matter which means they have presumptuously admitted the Plaintiff’s claims. Accordingly, the Plaintiff succeeds in her action against the Defendants and reliefs a, b and c are accordingly granted. 1st defendant to refund all the monies she received from the tenants from 2015 together with interest till date of final payment. General damages of GH₡5000.00 awarded against 1st defendant. Cost of GH₡6000.00 against the 1st defendant. Frank Sagoe for the Plaintiff. (SGD) ESQ. H/H. JONATHAN D. NUNOO CIRCUIT JUDGE 12