Adufua Vrs Ankomah [2022] GHADC 99 (13 July 2022)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ON WEDNESDAY THE 13TH DAY OF JULY, 2022. BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB ESQ (MAGISTRATE) FAUSTINA ABENA ADUFUA OF AKROBI PLAINTIFF SUIT NO. A1/02/22 VRS: PETER ANKOMAH OF AKROBI DEFENDANT JUDGMENT The plaintiff herein brought this action against the defendant seeking from the court and against the defendant: a. An order for the declaration of title to, and recovery of possession of all that building plot number 77, block ‘A’, lying, situate and being at a place commonly known and called Akrobi South and bounded by plots number 80, 87, 100 and a street respectively on Wenchi stool land; b. General damages for unlawful trespass; c. Perpetual injunction restraining the defendant, his agents, assigns, allies, privies, workmen etc. from entering or interfering with the plaintiff’s plot. The defendant herein pleaded not liable to the claims of the plaintiff. Upon a careful reading of the pleadings of the parties, the following legal issues were set down by the court for trial; 1. Whether or not the said plot number 77, block ‘A’, Akrobi South-Wenchi, is the property of the plaintiff herein; 2. Whether or not the defendant herein trespassed onto the said plot; 3. Whether or not the said trespass is unlawful; 4. Whether or not the plaintiff is entitled to any general damages for trespass; and 5. Whether or not an order will lie to perpetually injunct the defendant herein and all his assigns and privies from entering the plot in question. The plaintiff’s evidence in proof of her claims was her testimony and that of her two (2) witnesses she called. The plaintiff told the court she is Faustina Abena Adufua and that she is a farmer and lives at Akrobi in Wenchi. That she knows the defendant herein. That her (plaintiff) husband acquired the disputed plot for her and her children in the year 1995 from the Chief of Akrobi at the time, Nana Adomako II, through the Plot Committee the Chief set up. Plaintiff stated that the documentation was prepared in her name and handed over to her. Plaintiff said her husband later relocated to Sefwi and so later her (plaintiff) daughter built on the said plot in the year 2009 or so. Plaintiff stated that they later detected that the defendant herein had encroached onto a portion of the plot. That due to erosion they tried to dig a portion of their plot but the defendant who encroached on the said portion resisted it claiming that the said portion belong to him. They brought masons to do the work but the defendant threatened the masons. They then decided to come to court. When asked by the defendant between the two (2) of them (plaintiff and defendant) the one who acquired his plot first, plaintiff said they acquired their plot first. When told he (defendant) acquired his plot in 1992 and they (plaintiff) said they acquired theirs in 1995, plaintiff said they acquired their plot long before the Chief called them and prepared the papers for them. The first witness for the plaintiff (PW1) was One Yaw Appiah. He said he is a farmer and lives at Akrobi in Wenchi. That the plaintiff is his wife and also knows the defendant. PW1 told the court he acquired the plot in dispute for his wife (plaintiff) and her children in the year 1995 from the Chief of Akrobi called Nana Adomako II and the plot allocation committee. That the documents were prepares in the name of the plaintiff herein. The witness said he later relocated to Sefwi but upon his return he saw that one of his daughters put up a building on the plot. That the said building was cited in the middle of the plot. PW1 said that he detected that the defendant had encroached onto a portion of the plot. PW1 said he later got complaints from the plaintiff over the encroachment. The witness said that is what he knows. When asked if he (PW1) gave the plot to the plaintiff and her children, PW1 said yes. When asked by the defendant if he (PW1) showed plaintiff the exact boundaries of the said plot he gave to plaintiff, PW1 said yes he showed plaintiff but he was not around when they started building on the plot and because of that they put the building in the middle of the plot. The plaintiff’s second witness was one Owusua Linda, who said she is a teacher and lives at Akrobi in Wenchi. That she (PW2) knows the parties. PW2 stated that her father (PW1) acquired the disputed plot for her mother (plaintiff) and they the children in the year 1995 from the Chief of Akrobi at the time of one Nana Ankoma II and the plot allocation committee, with all the documents prepared in the plaintiff’s name. The witness (PW2) said sometime in the year 2009, she constructed a house on the said plot for them to move in. That because she did not know the boundaries of the plot, the house was cited in the middle of the plot. PW2 said after her (PW2) father (PW1) returned from Sefwi and showed them the boundaries they saw that the defendant had trespassed onto the said plot. That they called the Town and country Planning and they came and measured the plots and site plan duly prepared for the plaintiff. That all efforts to get the defendant to leave failed so they decided to come to court. When asked which of them (plaintiff and defendant) built first on the land, PW2 said the plaintiff was the first to build on her (plaintiff) plot. When told if they did not put up their fence wall before he (defendant) developed his plot, PW2 said defendant built his house before they put the barriers to check the erosion and that what they put there are not walls. In his evidence in-chief, the defendant told the court he is Nana Ankomah Peter and that he is a farmer and lives at Akrobi in Wenchi. Defendant told the court he acquired his plot in the year 1992. That was before the plaintiff acquired her plot. That prior to the acquisition by the plaintiff, the plot was acquired by one Madam Adwubi. Defendant said he constructed his bath house and directed his waste water to dug out which the plaintiff protested against and the matter went to the Environmental Office of the Wenchi Assembly. That his plot size is 100 feet x 100 feet but because he could not develop all people encroached on portions. Defendant contended that the VRA has erected their poles on the boundary between him (defendant) and the plaintiff. That the plaintiff has built her house and also constructed a fence wall round same without any confrontation. That the plaintiff is therefore not entitled to the reliefs sought. When told that her (plaintiff) husband (PW1) acquired the disputed plot for her with all the documents from Nana Adomako Ababio, defendant said he does not dispute that but that the plaintiff wants to take his (defendant) plot which he will not accept. When asked if he was present when the Department of Town and Country Planning Officers demarcated the plot for her (plaintiff), defendant said he was not present but that he saw that they planted pillars. The first witness for the defendant told the court he is Paul Kwesi Gyasi and that he knows the parties. That he was a witness to the defendant’s acquisition of his plot in the year 1992. That he (D. W.1) assisted the Land Allocation Committee at the time to allocate the land for the defendant. That the defendant acquired his land before the plaintiff. The witness said he knows the boundaries of their lands and that the claim by the plaintiff is false. Defendant’s second and final witness (D. W.2) was one Afia Gladys who said she knows the plaintiff and that she is a neighbor. D. W.2 said her (D. W.2) husband (defendant) purchased the plot in the year 1992 from the Akrobi Plot Allocation Committee. That she was a witness when the plot was demarcated for the defendant. That the plaintiff’s plot formerly belonged to one Madam Adwubi who was the one they share boundary with. That the plaintiff was the first to build and fence her house. The witness (D. W.2) stated that the portion in contention does not belong to the plaintiff as she claims. This court upon a careful examination of the evidence vis-à-vis the issues before the court, ordered the parties to submit their site plans and other relevant documents covering their plots to the Physical Planning Officer in charge of the Wenchi Municipal Assembly. The Planning Officer went with the parties to the locus in quo and thereafter appeared before the court as a court witness to present her report and to be cross-examined by the parties. The witness told the court she is Honorata Nsomah Akanzinge with the Physical Planning Department of the Wenchi Municipal Assembly. The witness said pursuant to the orders of this court she went to the locus with the parties and other representatives from their department. That she took the site plans of the parties and other documents to the site. The witness said after the inspection she prepares a report which she has dully filed in court. When asked by the plaintiff why she (C. W) measured her plot and got 80x80 when on her (plaintiff) site plan it is 100x100, the answered that she used the site plan she gave to them and which site plan is an extract from the scheme or layout. When asked by defendant if they measured all the four (4) sides of the plot when they went to the site, the witness said they did not measure all the four(4) sides and that she does not remember the defendant asking them to measure all the four (4) sides. When asked by defendant if there is a lane in the area, the witness said there is a lane in front of defendant’s plot but to the side defendant share boundary with the plot of the plaintiff and that there is no lane between them. This court upon a very dutiful evaluation of all the evidence adduced by the parties observed that the plaintiff herein having sought from the court a declaration of title to plot number 77, Block ‘A’, situate and being at Akrobi-South, has clearly established her root of title to the said plot when she led sufficient evidence to show that her husband (PW1) acquired the said plot for her (plaintiff) and her children in the year 1995 form the Chief of Akrobi, Nana Ankomah II, through the plot allocation committee. This assertion by the plaintiff was corroborated by her husband who testified before the court as first witness for the plaintiff (PW1). He stated that he acquired the said disputed plot for the plaintiff as his wife and her children and thereafter left for Sefwi. In deed this was also supported by the second witness of the plaintiff (PW2) who is the daughter of both plaintiff and PW1. She was Owusua Linda, who told the court upon the acquisition of the plot by PW1 for plaintiff, all the necessary documentation was prepared in the name of the plaintiff herein. PW2 also stated that somewhere in the year 2009, she then put up a house on the said plot number 77 and the family moved in to live there. It must be noted here that the defendant herein never denied or disputed the fact as canvassed by the plaintiff that the said plot number 77 is the property of the plaintiff herein. That is to say no evidence has been led by the defendant to the contrary that the said disputed plot number 77 is not for the plaintiff herein. Again it has been confirmed by the court witness (C. W) from the Physical Planning Department of the Wenchi Municipal Assembly as per her report which was filed and marked as CWR1, that the said disputed plot number 77 belongs to the plaintiff herein without any doubt. This said court witness stated that this fact was established after the parties herein both submitted their respective documents on their plots to the witness as ordered by this court. The witness captured in the report (C. W. R.1) that “Madam Faustina’s plot had details: plot number 77, block ‘A’, Akrobi-South”. Then the same report stated also that, “Mr. Peter Ankomah plot had details: plot number 80, Block ‘A’. The said report (C. W. R.1) went on to state that both plot fall within Statutory Planned Area of the Wenchi Municipal Assembly. Akrobi-South planning scheme and their plan therefore conform to the scheme. So clearly, the fact established is that the plaintiff herein’s ownership of the said plot number 77 is not in doubt as the report has not been disputed. Secondly, it is important to observe from the evidence that the parties both have their building plots situate and lying within the same Akrobi-South Planning Scheme with plaintiff’s plot being number 77 whiles the defendant’s plot number is number 80 and these two plots share boundary. That having established the parties undisputed ownership of the said two distinct plots 77 and 80, what was identify rather as the main issue between the parties was the issue of their boundary line and relative to where the defendant herein said was the end of his plot number 80 and the disagreement by the plaintiff also is to the claim by the defendant. Thus the plaintiff herein then took the view that the defendant trespassed onto a portion of her plot number 77. This was then what the court identified as the issue between the parties. Thus disagreement over the boundary was what the parties argued for and against before this court. The court then ordered that the parties submit their documents on their respective plots to the Physical Planning Officer of the Wenchi Municipal Assembly and they went to the locus in quo with the parties and a report submitted to the court. Again, it is instructive to state that the report submitted by the court witness (C. W) confirmed the fact as already identified by the court that this dispute is that of a boundary dispute and the question as to which party has trespassed has also been answered by the report submitted by the witness (C. W) to the court. The said report i.e. exhibit CWR1 noted that the parties herein share boundary with their plots being 77 for the plaintiff and plot number 80 for the defendant. The report (C. W. R.1) stated that “Mr. Peter Ankomah had temporary structure which encroached into Madam Faustina’s parcel”. This extract form exhibit “C. W. R.1” obviously shows that the portion in dispute between the parties herein belongs to the plaintiff herein and which said portion has been encroached by the defendant. Finally, it is important to state that the dispute between the parties herein clearly has more to do with boundary than a claim over a whole plot as already noted in this judgment above. Indeed the evidence adduced before this court has sufficiently established the plaintiff’s ownership of the plot number 77, Block ‘A’ Akrobi-South; and the defendant’s ownership of plot number 80, Block ‘A’, Akrobi-South. That being the case therefore the issue as noted already was the boundary line between these two (2) plots and relative to where the defendant herein is said to have placed his structure. And once that had more to do with the ends of the respective plots of the parties this court needed a more technical and physical measurements of the two plots as mapped onto in their site plan. That also was done. So from the evidence, I found the following as facts; 1. That the parties each acquired their plots which are at Block ‘A’ of Akrobi-South here in Wenchi. 2. That the plaintiff’s plot is number 77, Block A, and the defendant’s plot is number 80 Block ‘A’, Akrobi-South. 3. That the two plots share a common boundary to one side with no lane between them. 4. That the area or portion in dispute which is to one side of their plot is part of the plaintiff’s plot number 77. 5. That the defendant’s presence on the said portion in dispute constitutes an encroachment on the said portion. In civil trials the party who in his/her pleadings or writ of summons raises issues that are essential to the success of their claim assumes the onus of proof. See Faibi Vs State Hotels Corporation [1968]GLR, 176. Again, the law is trite that in an action for declaration of title to the land, the burden rest on the plaintiff. This position was restated in the case of Ago Sai & Others Vs Kpobi Tetteh Tsuru III [2010] SCGLR 762 at 779. The Supreme Court held inter alia that “in an action for declaration of title to land, the burden of proof of persuasion remained on the plaintiff’s prove conclusively, that on a balance of probabilities, he was entitled to his claim of title”. On the standard of proof required of the plaintiff or averring party, the Evidence Act, 1975 (NRCD 323) has used the expression “burden of persuasion” and in section 14 that has been defined as relating to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. The Act 323 provides further that the burden of persuasion requires a prove by the preponderance of probabilities which is defined in section 12 (2) to mean “the degree of certainty of belief in the mind of the court by which the court is convinced that the existence of the fact is more probable than its non-existence”. Having therefore evaluated all the evidence of the parties herein and also having stated the law above on the burden put on the averring party, (plaintiff herein), it is imperative to state that the plaintiff herein has led sufficient and satisfactory evidence to establish the claims relating to her ownership of the disputed plot or portion of land stated in her particulars of claim as contained in her writ of summons. Indeed, it has been shown that the parties herein are neighbours as their respective plots identified in the evidence before this court, share boundary. This state of affairs is what led the defendant to go beyond his limit onto a portion of the plaintiff’s plot number 77. It is therefore the conclusion of this court that the plaintiff has proved her claim relative to her ownership of the disputed plot and judgment is entered for the plaintiff. The reasons for the above conclusion include; 1. That the plaintiff and defendant are neighbours as their plots share a common boundary at Akrobi, a suburb of Wenchi. 2. That the plaintiff’s plot is number 77 whiles the defendant’s plot is number 80 both of Block ‘A’ Akrobi South, Wenchi. 3. That they have both developed their respective plots with structures on same. 4. That the defendant herein from the evidence encroached on a portion of the plaintiff’s plot number 77 which said portion the evidence shows is part of the plaintiff’s plot number 77. 5. That the plaintiff proved her claim on the preponderance of all the evidence and as required by law. 1. It is accordingly declared by this court that the said plot number 77, Block ‘A’, Akrobi South, Wenchi is the property of the plaintiff. This said plot includes the portion in dispute. 2. An amount of Gh₵1,000.00 is awarded in favour of the plaintiff herein as general damages. 3. Cost of Gh₵500.00 for the plaintiff and against the defendant. …………SGD…………. ISSAH ABDUL-WAHAB (MAGISTRATE) 11