EMMANUEL ANNANG OKPOTI VRS BROTHER MARLEY (C2/102/2020) [2022] GHACC 347 (29 November 2022)

IN THE CIRCUIT COURT 9 HELD IN ACCRA ON THE 29TH DAY OF NOVEMBER 2022 BEFORE H/H SAMUEL BRIGHT ACQUAH CIRCUIT COURT JUDGE. ========================================================== SUIT NO C2/102/2020 1) EMMANUEL ANNANG OKPOTI - PLAINTIFFS 2) LYDIA AKUA YEBOAH VRS BROTHER MARLEY - DEFENDANTS COUNSEL FOR PLAINTIFF VINCENT GARR FINAL JUDGEMENT PLAINTIFFS RELIEFS WHEREFORE plaintiffs claim against the defendants as follows; (a) Declaration of title of the plaintiffs land as described in paragraph 4 of the statement of claim (b) Recovery of possession. (c) Damages of trespass (d) Perpetual injunction to restrain the defendants, their agents assigns privies etc. from further dealings with plaintiff’s lands. (e) Cost. The writ of summons and statement of claim when served on the defendant, he delayed in responding, which he eventually did, denied some of the averments made by the plaintiffs but made no counterclaim. The court therefore ordered parties in the dispute to file their respective witness statement, that of the plaintiffs were filed but the defendant never filed anything. Several hearing notices were served on the defendant just to compel his appearance for the court to go on with hearing, but defendant never showed up. Several interlocutory motions were filed by both parties. From the plaintiff’s side; motion for interlocutory judgement, motion on notice to dismiss statement of defense filed by defendant etc. and the defendant also filed motions like; motion on notice to set aside interlocutory judgement and writ of summons served on defendant, motion on notice for conditional appearance, motion on notice for abridgement of time, entry of conditional appearance , motion on notice to set aside interlocutory judgement in default of appearance and for leave to file a defense. However, plaintiff is always in court but defendant after his last application, that is, motion to set aside interlocutory judgement in default of appearance and to file defense was granted, never appeared in court again. Plaintiff filed their witness statements as ordered by the court but defendant never filed his. This behavior compelled the plaintiffs to file a motion on notice to dismiss statement of defense and for the plaintiffs to proceed with the proceedings, served on defendant but no show. This was granted and the plaintiff was called in the witness box to prove his title, and the following is his story: It is the case of the plaintiffs that she the 2nd plaintiff LYDIA AKUA YEBOAH with the 1st plaintiff is the administrator of the estate of the Late JORBU ADJELEY, whose estate is in contention. (EXHIBIT A – letters of administration). That the land in dispute is the bona fide property of the late JORBU ADJELEY who happened to be her mother, situated at La, near the Trade Fair (Schedule stated). The land in dispute according to the plaintiffs is the property of her late mother by a perfect gift from NII LARYEA AKRONG AKUTSO TSE who consulted his elders at the time before the gift was perfected, letter confirming the gift in evidence. The search results from Lands Commission also confirmed same and is in evidence as well. 2nd defendant also went ahead and transferred the land in his name, which a certificate was issued to that effect – NO. GA/47943 Volume II Folio 27T also in evidence. That her late mother deposited cement blocks, heaps of sand and gravels on the disputed land. That after the demise of her late mother she also deposited cement blocks, heaps of sand and stones on it to continue the project. However, the defendant encroached unto the disputed land by placing a container on same. The second plaintiff also avers that, after seeing the defendant’s encroachment he informed his lawyers to write to the defendant to restrain him from further encroachment but he failed. I also obtained building permit from LADMA which is also in evidence. I am hereby to start work on the land but defendant still has his structure thereon. I therefore want full judgement from the court, even though judgement in default of appearance has been obtained. I humbly pray. The issue to be settled is, whether or not plaintiff has a good title to the disputed land. Even though the defendant was not in court, but for plaintiffs to get final judgement they ought to adduce sufficient evidence to convince the court to rule in their favor. “He who alleges must prove”. EVIDENCE DECREE, (1975) NRCD 323 BURDEN OF PROOF Sect 10(1) – For the purpose of this decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. 11(1) For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him in the issue. 11(4) In other circumstances the burden of producing evidence requires a party to produce evidence so that on all evidence a reasonable mind could conclude that the existence of the fact was more possible than its non-existence. 12(1) Except is otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. 12(2) Preponderance of probabilities means that the 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. ACKAH VRS REGAH TRANSPORT LTD AND OTHERS (2010) IGLR 728 @ 736 – PER SOPHIA ADINYIRA JSC – It is a basic principle of the law in evidence that a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality of credibility short of which his claim my fail. The method of producing evidence is varied and it includes testimonies of the party and material witnesses, admissible hearing, documentary and things (often described as real evidence), which the party might succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or the tribunal of fact such as jury. It is a trite law that matters that are capable of proof must be proved by producing sufficient evidence so that the existence of the fact is more reasonable than its non- existence. This is a requirement of the law in evidence under sects 10 and 11 of the Evidence Decree. NATIONAL DEMOCRATIC CONGRESS VRS ELECTORAL COMMISSON (2001- 2002) 2GLR 340 – AMPIAH JSC – --------------- Of course, generally the plaintiff who seeks the declaration or claim and who must succeed on the strength of his own case and not on the weakness of the defendant, must fail in such a situation. “A person who makes an averment or assertion which is denied by his opponent was under the burden to establish that his assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred” ZABRAMA VRS SEGBEFIA (1991) 2 GLR 221 SARFO VRS DOMFEH 77 (1977) 2 GLR 282 @ 295 “The standard of proof in a civil trial is by preponderance of probabilities. LEGAL ANALYSIS Plaintiffs in this matter filed a motion on notice to strike out defendants’ statement of defence and same was granted by the court. This means defendant has no leg to stand on as far as this matter is concerned. Also he was not in court to swear and tender in his evidence and subjected himself to a thorough Cross examination, hence the court cannot consider any portion of his statement of defence. However, the court after plaintiffs were given the green light to adduce evidence, thoroughly read through defendant’s statement of defence and used the facts, especially the defendants therein to conduct cross examination on the said plaintiffs after she ended her evidence in chief, but plaintiff was able to deal with the questions asked and that was enough to establish the title to the disputed land they are claiming ownership of same. Plaintiff was also able to lead admissible, cogent and sufficient evidence and that assisted the court to rule in his favour. Plaintiffs showed their root of title, (grantor being 2nd plaintiffs mother and also administrator of the estate of the deceased mother. They also exhibited the letter written to the defendant in the instant case to abate his tresspassory behavior by removing the container he put on the disputed land but failed to respond to it. They also showed evidence of blocks, sand and stones deposited on the disputed land by the late mother and 2nd plaintiff herself. The court in its mind was satisfied these plaintiffs were able to discharge the burden put on them by law. Defendants tactical behavior to frustrate both the plaintiffs and the court could not work to perfection, that is, filing the motion one after the other when time was due for the hearing, he was nowhere to be found, even his witness statement was not filed. When the burden of proof was perfectly discharged by plaintiffs and it shifted unto the defendant, he was nowhere available to also discharge same. Plaintiffs were therefore able to prove their case on their own strength notwithstanding the weak one from the defendant. The court therefore rules in favour of the plaintiffs and makes such orders. (a)Declares the title of the disputed land to the plaintiffs (b)Orders plaintiffs to recover the disputed land, (c) Perpetual injunction on the defendant; assigns privies etc. from the interfering with the disputed land in anyway or manner. (d)Defendant however is ordered to remove any foreign structure he placed on the disputed land at his own expense or if he refuses, the plaintiffs with the assistance from the Assemblyman in the area and the police to remove same from the disputed land at the cost of the defendant. (e) Cost of GHS 10,000 awarded against the defendant. (f) No order as to damages of trespass as same was not proved. DECISION TITLE GRANTED TO THE PLAINTIFFS. (SGD) H/H. SAMUEL BRIGHT ACQUAH CIRCUIT COURT JUDGE 7