Addae Vrs Owiredu and Another [2022] GHAHC 1 (27 October 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE LAND DIVISION HELD IN ACCRA ON THURSDAY, THE 27TH DAY OF OCTOBER, 2022 BEFORE HIS LORDSHIP ALEX OWUSU-OFORI (J) SUIT NO.: LD/0719/2021 GEORGINA DARKOWAA ADDAE - PLAINTIFF VRS 1. GEORGE QUAKYE OWIREDU - DEFENDANTS 2. ANTHONY ANNAN All of House Number 11 New Bortianor Mile 11-Accra PARTIES: PLAINTIFF PRESENT DEFENDANTS ABSENT =============================================================== GEORGINA DARKOWAA ADDAE V. GEORGE QUAKYE OWIREDU & ANOR. Page 1 of 7 J U D G M E N T 1.0 The Plaintiff on the 5th day of August, 2021 caused a writ of summons to be issued against the Defendants herein for the following reliefs: i) A declaration of title to all that piece or parcel of land situate lying and being at Donkunah New Bortianor, Accra in the Greater Accra Region of Ghana containing an approximate area of 0.34 acres or 0.14 hectares more or less and bounded on the North East by a proposed road measuring 69.3 feet more or less on the south East by the lessor’s land measuring 203.8 feet more or less on the South West by a proposed road measuring 71.0 feet more or less and on the North West by the lessor’s land measuring 219.8 feet more or less. ii) An order for recovery of possession of the land described in relief (i) above encroached upon by the Defendants iii) An order of the Honourable court perpetually restraining the Defendants, their agents, assigns, workmen, etc. from ever interfering with the Plaintiff’s quite enjoyment of the land described in relief (i) above. iv) Damages for trespass. v) Cost including lawyer’s fees. vi) Any other reliefs that the Honourable court may deem fit. GEORGINA DARKOWAA ADDAE V. GEORGE QUAKYE OWIREDU & ANOR. Page 2 of 7 2.0 All processes were served on the Defendants by substituted service as personal service on them proved futile, and after Hearing Notice on the same mode of service, this court on the 10th day of December, 2021, entered Judgment in default of appearance against the Defendants. 3.0 Among the reliefs sought for by the Plaintiff being a declaration of title to the land, the court was compelled to adjourn the suit to a date for the Plaintiff to prove her title to the land in dispute. 4.0 On 31st January, 2022 prior to a Hearing Notice served on the Defendants by substituted service, which as usual they failed to respond to, the Plaintiff was called upon by the court to mount the witness box to testify to prove her title to the disputed land. 5.0 She told the court that she acquired the land as described in the schedule on or about July, 2018. 6.0 That by an indenture dated 10th July, 2018 she purchased the land which is the subject matter of dispute from Nii Akotey IV, Dzasetse Acting Bortianor Mantse and Lawful representative of the Bortianor stool. A copy of the indenture was attached and marked as Exhibit “GDA1” 7.0 That immediately after the acquisition of the land, she entered into possession and erected a wall to divide her land from the adjoining land and erected a gate at the entrance of the land. 8.0 It is her case that the wall was broken down after three (3) weeks of its erection by unknown men. She was asked by one Nii Atokweifio to pay GEORGINA DARKOWAA ADDAE V. GEORGE QUAKYE OWIREDU & ANOR. Page 3 of 7 an amount of Four Thousand Ghana Cedis (GH¢4,000.00) to the youth of the area. She constructed a second wall which was again broken down. 9.0 She reported the matter to the police who caused Nii Atokweifio to rebuild the wall and she subsequently constructed a single room on the land and placed a caretaker on the land without any let or hindrance until the Defendants recently trespassed on the land. 10.0 That the Defendants forcefully entered the land by breaking down the fence wall and commenced building on the land. All warning given them had completely been disregard. 11.0 It was her case that Defendants have persisted in their acts of trespass and are developing the land at a faster pace under the protection of “land guards” Exhibit “GDA2” was attached showing the ongoing project being undertaken by the Defendants. 12.0 That an application for interlocutory injunction was granted by the court on the land restraining both parties which was attached as Exhibit “GDA3” but irrespective of the court’s order the Defendants again entered the land and destroyed the remaining portion of the fence wall and out house on the land and have started digging another foundation on the land. The activities on the land by the Defendants was attached as Exhibit “GDA4”. GEORGINA DARKOWAA ADDAE V. GEORGE QUAKYE OWIREDU & ANOR. Page 4 of 7 13.0 Plaintiff contends that she is the rightful owner of the land and she has been deprived the use and enjoyment of the said land; and prayed the court for the reliefs endorsed on her claim. 14.0 The Defendants when they were served with the processes from court never bothered to show up to state their side of the story. 15.0 Undoubtedly it is the Plaintiff herein who has initiated the instant proceedings against the Defendants herein seeking a declaration of title to the disputed land, recovery of possession, an order of perpetual injunction and other ancillary reliefs as specified in the writ of summons and the accompanying statement of claim. She therefore assumes the burden to prove her title to the land in dispute, for it is provided in Section 11 of the Evidence Act 1975 (NRCD 323) that (i) for the purposes 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 the party. 16.0 Again, it is stated in Section 14 of NRCD 323 that: “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”. “Allocation of burden of producing evidence except 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. GEORGINA DARKOWAA ADDAE V. GEORGE QUAKYE OWIREDU & ANOR. Page 5 of 7 (b)the burden of producing evidence of a particular fact initially on the party with the burden of persuasion as to that fact.” 17.0 The overall effect of sections 11, 14 and 17 of NRCD 323 is that, the Plaintiff must adduce sufficient evidence to support her claim against the Defendants in order for her to succeed. 18.0 Brobbey JA (as he then was) in the case of DUAH VS YORKWA [1993- 94] I GLR 217 AT 224 summarizes the above statutory provisions in the following terms: “In our jurisprudence, if two parties goes to court to seek redress to a dispute, it is the Plaintiff who initiates the litigation and literally drags the Defendants into court. If both parties decide to lead no Evidence, the order which will be given will necessarily go against the Plaintiff. Therefore; it is the Plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him. This is clearly amplified in Section 11 (i) of NRCD 323 which provides that Section 11 (i) for the purposes of this Decree the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” 19.0 I humbly submit that from the totality of the evidence placed before the court which stands unchallenged, specifically the Exhibits attached to the witness statement which the court ordered the Plaintiff to file and GEORGINA DARKOWAA ADDAE V. GEORGE QUAKYE OWIREDU & ANOR. Page 6 of 7 same served on the Defendants by substituted service, the court has no reason or ground to hold to the contrary. 20.0 In the Supreme Court case of NYAMAH VS AMPONSAH [2009] SCGLR 361 AT 365 the court speaking through Baffoe Bonnie JSC held that “It is the duty of the court to make pronouncement on the relief that a party seeks. An omission by a trial Judge to determine a relief sought by a party must be explained with reasons. In all, the court is to ensure that the issues that were set down to deal with will aid the court in making justifiable decision on the reliefs sought”. 21.0 The Plaintiff has led credible evidence and I proceed to grant the Plaintiff all the reliefs sought for in her claim. 22.0 Damages of GH¢50,000.00 is awarded in favour of the Plaintiff for wrongful trespass against the Defendants with cost of GH¢20,000.00. (SGD) ALEX OWUSU-OFORI (J) COUNSEL: OPOKU AMPONSAH FOR THE PLAINTIFF PRESENT GEORGINA DARKOWAA ADDAE V. GEORGE QUAKYE OWIREDU & ANOR. Page 7 of 7