Amiyuure Vrs Nyab & 2 Others [2022] GHADC 309 (19 September 2022)

JOSHUA ATULE AMIYUURE … ……… PLAINTIFF VERSUS 1 DANIEL NYABA ROBERT 3 FRANCISCA AVADE ADITA …….. DEFENDANTS AKANLUTE Y TIME: 9 : 58 A M CORAM: HIS WMR. MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT ORSHIP THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON MONDAY, THE 19TH DAY OF SEPTEMBER, 2022. SUIT No. UE/BG/DC/A1/36/2019 PLAINTIFF ABSENT BUT REPRESENTED BY DANIEL ADOMBIRE 1ST AND 3RD DEFFENDANTS PRESENT 2ND DEFENDANT ABSENT ISSAHAKU TAHIRU LAWAL, ESQ. FOR THE PLAINTIFF PRESENT MOHAMMED TIAMIYU, ESQ. FOR AFOKO AMOAK, ESQ. FOR THE DEFENDANTS PRESENT Page 1 of 22 JUDGMENT Introduction 1. Before I proceed to determine this case on its merit, I would like to put on record the duty imposes on this court to deliver judgment within a certain period after a close of each case. Order 28 Rule 2 of the District Court Rules 2009 (C. I. 59) provides that: “It is the duty of the Court to deliver judgment as soon as possible after the close of each case before it, and in any event not later than four weeks after the close of the case.” By this provision, the court is mandated or required to deliver its judgement within four weeks after close of the case. It is indisputable fact that procurement of proceedings at the District court delays. Every lawyer practicing at the District court may be familiar with the fact that one of the main challenges facing the District Court is procurement of proceedings timeously. If the court is expected to wait for recorders to type the proceedings or for lawyers to obtain the proceedings to file submissions before the court delivers its judgment, the court may be in breach of Order 28 Rule 2 of CI 59 as stated above. It must also be noted that failure or inability of lawyers to file written submission or addresses due to one reason or the other, (for example not procuring court proceedings on time, ill-health among others), should not prevent the court from delivering its judgment within four weeks after close of the case. Submissions, though useful in assisting the court, do not form part of the evidence. The court is to rely on evidence. In the case of Mrs Vicentia Mensah Vrs. Numo Adjei Kwanko II (Civil Appeal No. H1/185/2013) (dated 12th March, 2015) or [2015]DLCA4779, the Court of Appeal, where His Lordship Marful-Sau J. A (as he then was) presiding stated at page 4 of the Judgment; Page 2 of 22 “I do not think that the mere fact that the Court did not receive written addresses of counsel for the appellant rendered that judgment of the court irregular. ... Written addresses even though sanctioned by the rules of court to do not form part of the evidence adduced at the trial. The trial court is to determine the case based on the evidence adduced at the trial and not the written addresses of counsel. Much as written addresses are helpful to the court, it cannot be argued or made to appear that a Judge cannot or may not render a judgment in the absence of an address by counsel in a case. ...” (See also Amerley V. Otinkorang (1965) GLR 658) The lawyers for the parties in the instant case were given the opportunity to file their written submissions but could not do so. The court will therefore proceed to deliver its judgment as scheduled in absence of the written submissions of Counsel. 2. By a Writ of Summons and Particulars of Claim filed on 30th January, 2019, the Plaintiff claims against the Defendants as follows: - a. A declaration of title to all that piece of land known as unnumbered plot containing an approximate area of 0.27 acre situate at Sokobisi Residential Area in Bolgatanga of the Bolgatanga Municipal Assembly lying about 750 feet South - West of survey pillar No. SGU 1/98/15 and bounded to the North – West by Lessor’s land measuring on that side 120 feet more less and on that South West by lessor’s land measuring 200 feet more less. Page 3 of 22 b. Perpetual injunction restraining the defendants, their agents, assigns privies and all those claiming through them from interfering with plaintiff quit enjoyment and use of he said land. c. Cost including solicitor’s fees. 3. Also, on the 14th day of March, 2019, the Defendants filed their defence and the 3rd Defendant counterclaims against the Plaintiff as follows: a. Declaration of title to all that piece or parcel of land on unnumbered plot situate at the Sokabisi Residential area of Bolgatanga in the Bolgatanga Municipality in the Upper East Region of the Republic of Ghana containing an approximate area of 0.28 acre lying about 13,337.9 from the North Western Edge of Survey pillar SGUE 1001/12/2 AND ABOUT 13314.5 TO THE NORTH WESTERN EDGE OF SURVEY PILLAR and bounded on the North West by a proposal road measuring on that side 118- 8 more or less on the North –East by numbered plot measuring on that side 101.6’ more or less on the South East by unnumbered plot measuring on that side 116.8’ more or less and on the South West by a proposed road measuring on that side 105.8’ more or less which piece of land is more particularly delineated on the cadastral plan dated 04/10/2017 prepared on a scale of 1:2500. b. Recovery of possession of as the said land. c. Damages for Trespass. Page 4 of 22 d. An order to the plaintiff to remove all blocks, sand containers put on 3rd defendant’s land at his own cost and to restore 3rd defendant pillar and etc dug out on defendants land. e. Costs inclusive of Solicitors fee of GH₵15,000.00 Plaintiff’s case 4. The Plaintiff avers that somewhere in 2015 he bought an unnumbered plot of land from the 2nd defendant through the 1st defendant. The plaintiff further avers that at all material time he dealt directly with the 1st defendant who acted as he agent of the 2nd defendant. A Deed of Assignment was prepared between the plaintiff and the 2nd defendant on 8th September 2015 but was not yet executed due to an omission on the part of the 2nd defendant. The plaintiff aver that he had been in possession and exercise control and ownership over that unnumbered parcel of land until the 3rd defendant started making adverse claims to the said land in the latter part of 2017. The plaintiff says that the 3rd defendant reported the matter to the police and plaintiff was arrested and detained by the police in Bolgatanga. The plaintiff further avers that the defendants by their conduct have evinced an intention not to allow the plaintiff develop his legally acquired land unless restrained by this Honourable Court. The plaintiff concluded that the Defendants conduct is illegal, unlawful and unconscionable. Defendants’ case 5. 1st and 2nd Defendants say that one Adombila Nsor approached them through their agent for land saying that he wanted to buy the land for a certain woman. 1st and 2nd Defendants agreed to sell the land as requested and accordingly showed him in the presence of witnesses the land that was available for sale. 1st and 2nd Defendants Page 5 of 22 say there were two plots available for sale and Defendants agreed to sell the plot on the upper portion of the land to the said Adombila Nsor reserving the plot on the portion close to the road for their own family use. 1st and 2nd defendants say they are not bound by any unexecuted and selfserving document. Defendants say there was a huge acacia tree on the land reserved for Defendant family use. Defendants say they later sold the said land to the 3rd Defendant and no mistake was made by the 1st and 2nd Defendants. 3rd defendant says after purchase of the land in November 2016, she proceeded to mould blocks in 2017 on it and had been in undisturbed possession until sometime in December 2018 when 1st defendant notice on going activity on the plot and called 3rd defendant to confirm if she was working on her plot. 3rd Defendant says on receiving the report that trespassers were on the land, she immediately visited the land only to find that blocks were moulded and place in the middle of the plot, sand had been deposited at various parts and what looked like a foundation had been dug towards the acacia tree. 3rd Defendant further says plaintiff had removed her pillar and built a structure meant for stores on which structure a “Stop Work Order” from the Municipal Assembly had been placed at her instance. 3rd defendant says she made a report to the Police on the damage to her land and blocks against the plaintiff and the above mentioned Nsor Adombila. Defendant says the Plaintiff and his agent were being processed for court when she received a summons issued at the instance of Plaintiff from his Honorable Court to appear in court. Defendants say the Plaintiff is not entitled to his claim or any at all. Issues 6. The issues for determination in this case are as follows: a. Whether or not the land sold to the Plaintiff in 2015 is the same as the one sold to the 3rd Defendant in 2016. Page 6 of 22 b. Whether or not Plaintiff or 3rd Defendant is the owner of the land in dispute. c. Whether or not the 3rd Defendant is entitled to her counterclaim. The fundamental principles governing the law of evidence in Ghana 7. Section 10 of the Evidence Act, 1975 (NRCD 323) provides as follows: (1) For the purposes 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. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 of NRCD 323 also provides that: (1) 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 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Section 12 of NRCD 323 (Proof by a Preponderance of the Probabilities) Page 7 of 22 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the 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 nonexistence. Also in Majolagbe v Larbi & others (1959) GLR 190-195, it was held at page 192 that: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” See also Klutse v. Nelson [1965] GLR 537 and Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, @ page 177. Legal Analysis, evaluation of evidence and discussion of issues 8. The court will proceed to determine the issues of whether or not the land sold to the Plaintiff in 2015 is the same as the one sold to the 3rd Defendant in 2016 and whether or not Plaintiff or 3rd Defendant is the owner of the land in dispute. It is trite law that it is the duty of a Plaintiff to prove his case for he who alleges must prove. In Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, It was held at page 177 that: Page 8 of 22 “It is trite law that it is the duty of a Plaintiff to prove his case for he who alleges must prove. In other words, it is the party who raises an issue essential to the success of his case who assumes the burden of proving such issue. This burden of proof is statutorily defined in sections 10 (1) and (2) 11(1) and (4) and 12(1) and (2) of the Evidence Act, 1975 (NRCD 323) and explained in the case of Adwubeng v. Domfeh [199697] S. C. G. L. R. 660. It must be noted that specific pleading of an issue of fact by a plaintiff in the civil case requires a specific denial of that issue of fact by the defendant in his statement of defence in order to cast a duty on the plaintiff to adduce credible and sufficient evidence of that issue of fact in order to succeed in his claim. That is the rationale behind the enactment of section 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). Thus section 11(4) and 12(2) of NRCD 323 has provided in clear and uncertain terms that the standard of proof in the civil case is proof by a preponderance of the probabilities Adwubeng v Domfe (supra). But a bare assertion of the plaintiff in his evidence of the issue of fact he had asserted in his pleadings will not be sufficient to discharge his burden of proof of that assertion if he wants to succeed in his claim. He must go further to produce other evidence of facts and circumstances from which the court can be satisfied that what he has asserted is true. Such other evidence of such facts may include documentary evidence of the issue(s) asserted.” 9. It is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and Page 9 of 22 his averment is denied, he does not prove it by merely going into the Witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” 10. Plaintiff testified himself and called two witnesses (PW1-Eunice Amiyuure and PW2-Daniel Adombila). From their evidence, Plaintiff needed a plot of land to buy so he informed his sister, PW1. PW1 also approached PW2 who assisted her in purchasing the land for Plaintiff from the 2nd Defendant acting by 1st Defendant. But in actual fact the one who financed the purchase of the land is the Plaintiff. They testified that after the land was bought a surveyor was engaged to prepare a site plan the said site plan is dated 8th September, 2015 which is part of Exhibit A tented in evidence by the Plaintiff. 11. The 1st and 3rd Defendants testified themselves and called two witnesses Aduko Bukari-DW1 and AKOLGO Adbga (aka Alhaji Mumuni). DW2 testified that one of his brother’s sons, Robert Akanlutey approached him to help to sell his father’s land. PW2 says he then contacted DW1 (Aduko Bukari) to assist him and Bukari says he does not know how to sell land; he led him to 1st Defendant (Daniel Nyaba), and the 1st Defendant agreed to help sell the land. 1st Defendant admitted that DW1 and him are agents who sold the land on behalf of the real owner. They testified that when the land was sold to Adombila, Plaintiff Representative, a surveyor was taken to the land and demarcation was done. They claim they land sold to the Plaintiff acting by his Representative in 2015 is different from the one sold to the 3rd Defendant in 2016. On 15th day of August, 2021, DW2 under cross examination of the Lawyer for Plaintiff testified as follows: Page 10 of 22 Q. Do you also know one Akanlutey Robert? A. Yes, I know him. Q. What is your relationship with Akanlutey Robert? A. That is one of my senior bothers son. Q. Where is Francis Wallence Akanlutey now? A. He is dead. Q. Can you tell the court the year in which he died? A. In the year 2010. Q. You see, the disputed plot originally belong to Francis Wallance Akanlutey? A. Yes. Q. So you were the one who authorized the sale of one of the plots to the plaintiff? A. It was his son Robert who came to inform me that he want to sell one of plot of his father’ s land to the plaintiff. Q. Were you involved personally in the sale of the plot? A. After he informed me about sale of the land I went to meet Bukari and Bukari told me he does not have any idea about how to sell a land but rather directed me to one of his bothers Daniel Nyaaba and it was Daniel Nyaaba who sold the land to the plaintiff. Q. Did you receive money from the plaintiff for the purchase of the plot? A. Yes I received money from Daniel Nyaaba after the sale of the land. Q. Did you issue a receipt for receiving the money after the land was sold? Page 11 of 22 A. No I have not issued a receipt. But it was later on that Daniel Nyaaba and Adombila who prepared a document or receipt and they thumb printed. Q. You see, I am putting it to you that this document that was prepared that Daniel and Adombila thumb printed and signed was about a particular plot that was sold to the plaintiff? A. Yes, my lord it was a particular plot of land. Q. Can you remember the year in which you sold the plot to the plaintiff? A. 2015. Q. In your evidence before this court you said you sold another plot to the third defendant herein? A. Yes there were two plots so after the first one was sold Robert ordered the 2nd one be sold. Q. Do you remember the year? A. 2016. Q. When you sold the plot to 3rd defendant you gave a document to her to show that you sold a plot of land to her? A. Yes. Q. Where is the document you gave to the 3rd defendant? A. It is with her. 12. Also, the 1st Defendant under cross examination of the lawyer for Plaintiff, on 15th July, 2022 testified as follows Q. Can you tell this court in which year you sold the first plot? A. 2015. Q. Whom did you sell this land to? Page 12 of 22 A. I sold it to Adombire Daniel. Q. How much? A. 11,000.00 Q. When the money was paid to you, did you issue any receipt to Daniel Adombire? A. Yes, I issued a receipt. Q. Can you tell this court who is Bukari in connection with the land in dispute? A. Mumuni gave the land to Bukari and I to sell for him. It was I and Bukari who sold the land to Daniel Adombire. Q. It means that Bukari is not the land owner? A. Bukari and I are agents. Q. At the time of the sale of the land to Adombire, did you disclose to him the real owner of the land? A. Yes, he did. Q. Daniel Adombire before the purchase of the plot went to the land with you and his surveyor. A. Yes. Q. The surveyor demarcated the land that was supposed to be sold to Daniel Adombire in presence of the two of you? A. Yes it was two plots, one for Daniel and one for another guy Q. The surveyor demarcated the land sold to Daniel and the site plan was drawn up? Page 13 of 22 A. It was true that the land was demarcated and site plan was prepared. Q. An assignment was prepared showing that you were selling a particular plot of land to Daniel Adombire? A. Yes there was a document prepared. Q. And that document was prepared to you and you thumb printed as witness? A. I only thumb printed as at the time he made payment as a witness to Mumuni. Q. When you see the document you thumb printed when Adombire was paying the money, would you recognize it? A. Yes, I would be able to recognize it, if it is shown to me. Q. Take a look at this document? A. That is the document I thumb printed. Q. I am putting it to you that you were certain about the plot sold to Daniel Nyaaba and that was why you thumb printed? A. I only thumb printed when the money was paid. Q. I am putting to you that having sold the plot to Daniel Adonbire and realized that he has not yet built on the land you subsequently sold the same plot to the 3rd defendant. A. They were two plots. I sold the first one to Daniel Adombire in 2015 and sold the second plot to 3rd defendant in 2016. Q. I am further putting it to you that you decided to sell the land to 3rd defendant and pushed Daniel to the other plot? Page 14 of 22 A. I was not alone; it was the owner of the land who told me what to do. Q. As usual when the land is being sold to the 3rd defendant in 2016, did you thumbprint any document? A. Yes I thumb printed when she paid the money as a witness. Q. You are just here to support the 3rd defendant to take over the land you had already sold to Daniel Adombire because the 3rd defendant was paying more than what Daniel Adombire paid. I put it to you. A. The payment in 2016 was different from that of 2015. So that was the land we gave to the 3rd defendant. 13. On 25th July, 2022 the Defendants’ first witness (DW1) during cross examination of the lawyer for Plaintiff also testified as follows: Q. When you were going to sell the land to the plaintiff. Did you mention the owner of the land to him? A. Yes, we did. The original owner of the land is from the Tindonsobligo. Mumuni approached me the and said the owner of the land was sick and was based in Accra and therefore asked him Mumuni to sell one of his land for him to treat himself. Thereafter, the owner said his sickness is still worrying him, so Mumuni should sell the remaining land. Q. Who did you mention to Adombire as the owner of the land? A. We mention Mumuni because I don’t know the original owner. Page 15 of 22 Q. You indicated that you negotiated and agreed at 11,000.00 did you issue a receipt? A. Yes we gave him a receipt. Q. Do you know the name of the one who sold the land to plaintiff? A. It was Adombire who came with the agent and he endorsed that the land has been sold. Q. You agree that after Adombire paid for the plot he brought surveyor to demarcate the land? A. Yes my lord. Q. And the surveyor demarcated the land and prepared a site plan is that not so? A. The place already has a site plan so we gave it to Adombire to separate it from the other land. 14. From the evidence of 1st Defendant, DW1 and DW2. The Court finds as fact as follows: The land in dispute originally belonged to the late Francis Wallance Akanlutey. The sale of the plot was authorized by his son, Robert Akanlutey, 2nd Defendant. Robert Akanlutey approached DW2 to help sell the land. DW2 also approached DW1 who led DW2 to the 1st Defendant. 1st Defendant together with DW1 and DW2 acting as agents for Robert Akanlutey sold the land to the Plaintiff or his Representative Daniel Adombila. When the land was sold to the Plaintiff, a surveyor was taken to the site where the boundary were shown in the presence of 1st Defendant and a site plan was prepared in the name of the Plaintiff. The said site plan is dated 8th September 2015 which is part of Exhibit A, the draft Deed of Assignment prepared in favour of the Page 16 of 22 Plaintiff. 15. Moreover, the defendants claims the land sold to Plaintiff in 2015 is different from the one sold to the 3rd Defendant in 2016. But a careful examination of the description of the land being claimed by the Plaintiff and 3rd defendant as well as their pleadings and evidence on record will reveal or show that they are claiming the same piece or parcel of land. The Court therefore finds as a fact that Plaintiff and the 3rd Defendant are claiming the same piece of land. There is no evidence before the court that the Plaintiff and 3rd Defendant have registered their title to the land in dispute and the fact that the land in dispute was sold to the Plaintiff or the 3rd Defendant in not in issue. One of the maxims of equity is that where the equities are equal the first in time prevails. So, the one who bought the land first should be declared the owner. Thus, having found that the Plaintiff and 3rd Defendant are claiming the same land, the Nemo dat principle will be applied. It is established principles of law that you cannot give what you do not have (nemo dat quod non habet). Thus, a person who has no title to a thing cannot pass title to another person. In other words an owner of land can only convey what he owns. 16. In the case of Bishopsgate Motor Finance Corporation Ltd. V. Transport Brakes Ltd. [1949] 1 KB 322 or 1 All E. R. 37, at 46, Lord Justice Denning (as he then was) said: "… No one can give a better title than he himself possesses …” The Supreme court also held on the nemo dat quod non habet maxim in the unreported consolidated suit No. 81/92 and L. 20/92 dated 16th March 2011 entitled Mrs. Christiana Edith Agyakwa Aboa v Major Keelson (Rtd) and Okyeame Yima & Anr v Major Keelson as follows: Page 17 of 22 “It can thus be safely concluded that, the principle nemo dat quod non habet applies whenever an owner of land who had previously divested himself of title in the land previously owned by him to another person, attempts by a subsequent transaction to convey title to the new person in respect of the same land cannot be valid. This is because an owner of land can only convey what he owns, and having already divested himself of title, the new occupant of the Begoro Stool Nana Antwi Awuah III cannot revoke what his predecessor had done.” In addition, in the case of Seidu Mohammed V. Saanbaye Kangberee [2012] 2 SCGLR 1182, the court noted as follows: “This principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance…” 17. It is very clear from the evidence on record that 1st Defendant, DW1 and DW2 were directly or indirectly authorized by the 2nd Defendant to sell his late father’s land for him. Hence, the 2nd Defendant having authorized 1st Defendant, DW1 and DW2 to sell the land in dispute to Plaintiff or his Representative in 2015 had nothing to sell or convey to the 3rd Defendant in 2016. In other words, the 2nd Defendant acting through 1st Defendant, DW1 and DW2 having already divested himself of title in 2015, he cannot grant the said land to the 3rd Defendant in 2016. The purported sell of the land in dispute to 3rd Defendant in 2016 is therefore null and void and of no effect. 18. The next issue to consider is whether or not the 3rd Defendant is entitled to her counterclaim. It is a well-established principle of law that a defendant who files Page 18 of 22 a counterclaim has the same burden of proof as a plaintiff. In the case of Nortey (No.2) V. African Institute of Journalism and Communication & Others (No.2) [2013-2014] 1 SCGLR 703, the principle was stated thus, “Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she has to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323, the Evidence Act (1975)”. 19. In the instant case the 3rd Defendant counterclaimed against the Plaintiff for the land in dispute. She therefore has a burden of proof to discharge. On 25th May 2022, 3rd Defendant under cross examination of the lawyer for Plaintiff testified as follows: Q. You said a receipt was given to you, after paying for the plot where is that receipt A. It is in my car. Q. How much did you pay for the plot? A. Gh₵12,500.oo Q. I am putting it to you that you had no such receipt otherwise it would have been attached to your witness statement? A. I have a receipt. 17. Also on 4th July, 2022 during cross of 3rd Defendant by counsel for Plaintiff, she testified as follows: Q. What evidence do you have that shows you have documents to the land in dispute? Page 19 of 22 A. I have the Deed of Assignment. Q. I am putting it to you that you don’t have any document in relation to the land in dispute? A. I have it on the file. Q. I am further putting it to you that if you had such document you would have attached it to your file? A. It is attached to my file. Q. I am putting it to you that the land you purportedly bought from Daniel Nyaaba was the same land that was earlier sold to the plaintiff? A. That is not true. The plots were two. One was sold to plaintiff and one to me. The land defendant sold to plaintiff is defendant different from mine. Q. When the land was being sold to the plaintiff were you there? A. I was not there. Q. I am putting it to you that because you were not there you cannot tell which land was sold to the plaintiff? A. Daniel Nyaaba told me that the plots were two. He showed a site plan to me which shows the two plots. Q. And because the land was already sold to the plaintiff, that is why they did not prepare a new document for you? A. I have my document concerning the land in dispute. Page 20 of 22 20. From the above evidence, the 3rd Defendant claims she has documents covering the land in dispute but none of those documents was tendered in evidence in support of her claim. The 3rd Defendant denied that the land sold to the Plaintiff is the same as the one sold to her. She however admitted that she was not present when the land was sold to the Plaintiff. If you are not present before a plot was sold to someone, how can you categorically point out that particular land? So, having examined the evidence of the 3rd Defendant on record, this court is of the considered opinion that the 3rd Defendant has failed to establish the existence of facts contained in her counterclaim by the preponderance of the probabilities. The 3rd Defendant’s counterclaim is accordingly dismissed. Conclusion 21. Having examined the whole evidence adduced by the Plaintiff and the Defendants on record and from the foregoing authorities as well as the analysis, the court holds as follows. a. Plaintiff action succeeds. Thus, plaintiff has established the existence of the facts contained in his claim by preponderance of the probabilities and he is declared the owner of all that piece of land known as unnumbered plot containing an approximate area of 0.27 acre situate at Sokobisi Residential Area in Bolgatanga which description is particularly endorsed on the Writ of summons. b. The defendants, their agents, assigns, privies and all those claiming through them are perpetually restrained from interfering with plaintiff’s ownership, quit enjoyment and use of he said land. Page 21 of 22 c. The 3rd Defendant failed to prove her counterclaim to the satisfaction of this court. Thus, she failed to establish the existence of the facts contained in her claim by preponderance of the probabilities. Accordingly, 3rd Defendant’s counterclaim is dismissed. d. It is further ordered that 2nd Defendant (Robert Akanlutey) who authorised the sale of his late father’s plot to the Plaintiff or the lawful Administrator of the estate of the late Francis Wallace Akanlutey should execute a proper Lease or a Deed of Assignment in favour of the Plaintiff within three months from the date of this judgment. e. Cost of GH¢1,000.00 each is awarded against the Defendants in favour of the Plaintiff which amount to total cost of GH¢3,000.00. …………………………………… HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) Page 22 of 22