HAYFORD VRS PAINTSIL (A9/01/2022) [2022] GHADC 430 (15 March 2022)

IN THE DISTRICT COURT HELD AT ASHAIMAN ON WEDNESDAY THE 15TH DAY OF MARCH, 2023 BEFORE HIS WORSHIP DERICK PARDEN ESHUN (ESQ): THE DISTRICT MAGISTRATE BETWEEN: SUIT NO. A9/01/2022 NANA HAYFORD PLAINTIFF AND PETER PAINTSIL DEFENDANT JUDGMENT The plaintiff on the 6th day of August, 2021 filed a writ of summons against the defendant for the following reliefs: a. Declaration of title to a parcel of land of size (70 x 100) feet being situate and lying at Santeo-Kpone. b. An order directed at the defendant to pay cash the sum of Gh₵5,000.00 being money plaintiff spent on putting up a fence wall around the said land at Santeo-Kpone. c. General damages for trespass. d. An order for perpetual injunction restraining the defendant, his agents, assigns, privies etc from entering the land, the subject matter of this suit. e. Costs including legal cost. The records show that the defendant was served with all the court processes through substituted service but he failed to appear in court and decided to stay away from the proceedings. Order 25 r 1(2)(a) of the District Court (Civil Procedure) Rules, 2009 (CI 59) enacts: “ Where an action is called for trial and a party fails to attend, the trial magistrate may where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim”. In the instant case even though there was proof of service of the court processes on defendant she decided to stay away from the proceedings. A principle of law is when a party is given opportunity to defend himself of allegations made against him but he deliberately declines the invitation to do so, the court will proceed with the hearing or trial to conclusion and make deductions, draw conclusions or make findings on the basis of the evidence adduced at the trial; see IN RE WEST COAST DYEING INDUSTRY LIMITED: ADAMS V TANDOH [1984-86] 2GLR 561. Therefore on the strength of the above provision and authority, trial commenced for the plaintiff to establish his case. As I proceed to consider the facts and issues raised in this case, it is appropriate for me to state that it is trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; See SECTIONS 10- 17 OF OUR EVIDENCE ACT, 1975 (NRCD 323). In ABABIO V AKWASI (III) [1994-95] GBR, PART (II), 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. Reference is also made to the cases of TAKORADI FLOOR MILLS V SAMIR FARIS [2005-06] SCGLR, 882 and RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS V KOTEY & ORS [2003-04] SCGLR, 420 which further elucidate the burden of proof as statutorily provided. The rule is that in a trial of a case like the instant one, a party wins on the preponderance of probabilities. See Section 12(2) of the Evidence Act, 1975 (NRCD 323). See also ADWUBENG VRS DOMFEH (1996-97) SCGLR 660. THE CASE FOR THE PLAINTIFF The plaintiff testified but did not call any witness in support of his case. The plaintiff avers that he purchased the subject matter of this action from Salem Investment Limited. Plaintiff avers that upon payment of the consideration a deed of assignment (Exhibit “A”) dated the 1st day of February, 2018 was executed in his favour by his grantor. He continued that he took possession of the land whereupon he constructed a fence wall around the land. According to him he spent a total sum of Gh₵5,000.00 in the construction of the fence wall. Plaintiff avers that he caused his building contractors to commence development of the land by putting up a house thereon. He testified that he has been in quiet and peaceful enjoyment of the land until the 2nd day of August, 2021 when the defendant trespassed onto the land with some land guards and pulled down the fence wall he had constructed. Plaintiff avers that he reported the case to the Police whereupon the defendant was arrested. The defendant laid adverse claim to the land, said plaintiff. He avers that at the instance of the police a search was conducted at the Lands Commission and the search revealed that the land is registered in his name as the owner. He instituted the present action and claims per the indorsement on his writ of summons. ISSUES FOR DETERMINATION At the close of the case by the plaintiff the following issues arose for determination by the court. ❖ Whether or not plaintiff has title to the land particularly described in the schedule of the deed of assignment (Exhibit “A”)? ❖ Whether or not the plaintiff is entitled to recovery of the sum of Five Thousand Ghana Cedis (Gh₵5,000.00) being the expenses he incurred in the construction of the fence wall? ❖ Whether or not the plaintiff is entitled to general damages for trespass onto his land by the defendant? ❖ Any other issue arising from the pleadings or evidence. NOW THE ISSUES IN SERIATIM ISSUE ONE: Whether or not plaintiff has title to the land particularly described in the schedule of the deed of assignment (Exhibit “A”)? Title is the means by which a person establishes his right to land. A person’s title indicates by what means he claims to be owner of land. Title to land may take the form of possession or the form of a document or series of documents. In Ghana, possession by itself gives a good title to land against the whole world except someone having a better legal right of possession. 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; See the case of WUTA- OFEI V DANQUAH [1961] G. L. R 487. Such a person generally exercises dominion over the land such as by placing a lessee, tenant, a licensee or an agent on it. The presumption of title raised by possession and ownership has statutory blessing by virtue of Section 48 of the Evidence Act, 1975 (Act 323). Section 48 of the Evidence Act is in the following terms: 48(1) “The things which a person possesses are presumed to be owned by that person. 48(2) a person who exercises acts of ownership over property is presumed to be the owner of it”. In the instant case the plaintiff tended in evidence a deed of assignment dated the 1st day of February, 2018 which was executed in his favour by his grantor (Exhibit A) in respect of the disputed land. The authenticity of exhibit “A” was not challenged in anyway. The plaintiff in his testimony contended that he took possession of the land whereupon he constructed a fence wall around the land. Plaintiff avers that he later caused his building contractors to commence development of the land by putting up a house thereon. He testifies that he has been in quiet and peaceful enjoyment of the land until the 2nd day of August, 2021 when the defendant trespassed onto the land with some land guards and pulled down the fence wall he had constructed. I have no reason to doubt the credibility of the testimony of plaintiff. Again, the plaintiff avers that when the defendant trespassed onto the land he reported the matter to the police and at the instance of the police a search was conducted at the Lands Commission and the search revealed that the land is registered in his name as the owner. Even though the search report was not tendered in evidence, I have no reason to doubt the veracity of this piece of evidence. On the evidence I am satisfied and find that the plaintiff has been able to establish title to the land in issue on the balance of probabilities. ISSUE TWO: Whether or not the plaintiff is entitled to recovery of the sum of Five Thousand Ghana Cedis (Gh₵5,000.00) being the expenses he incurred in the construction of the fence wall? The plaintiff in his evidence in the main contends that when he took possession of the land he caused his workmen to construct a fence wall around the land to ward off encroachers. According to him he spent a total sum of Gh₵5,000.00 in the construction of the fence wall. The plaintiff was duty bound to lead sufficient evidence to prove this averment. In the instant matter the plaintiff mounted the witness box and merely repeated his averments on oath without providing sufficient proof. The plaintiff under the circumstance should have tended in evidence some documents like receipts of building materials purchased in the construction of the fence wall. He failed to establish for instance how much the contractor charged him for the work done. I find that the averment of the plaintiff is a bare and unproved averment. In the circumstance I find that the plaintiff has failed to establish that he indeed incurred a total sum of Gh₵5000.00 in the construction of the said fence wall. ISSUE THREE: Whether or not the plaintiff is entitled to general damages for trespass onto his land by the defendant? The plaintiff testifies that he has been in quiet and peaceful enjoyment of the land until the 2nd day of August, 2021 when the defendant trespassed onto the land with some land guards and pulled down the fence wall he had constructed. Plaintiff avers that he reported the case to the Police whereupon the defendant was arrested. It was not controverted on the face of the record that the defendant herein was arrested when he trespassed onto the land. I am therefore satisfied and find that the defendant indeed trespassed onto the land in issue. It is trite that trespass to land is actionable per se. See the case of BALLMOOS VRS MENSAH (1984-86) 1 G. L. R 84. In essence the plaintiff is entitled to an award of damages. Plaintiff is hereby awarded the sum of Gh₵5000.00 as general damages for trespass onto his parcel of land. With respect to the fourth issue for determination, I have carefully scrutinized the pleadings and critically examined the evidence on the record and I am satisfied that there is no other issue for determination. Having considered the case as a whole I am satisfied that the plaintiff has been able to establish his case on the balance of probabilities in respect of reliefs “a” and “c”. The probabilities preponderate in favour of the plaintiff on reliefs “a” and “c” supra. I have no option but to enter judgment for the plaintiff on reliefs “a” and “c” accordingly. Plaintiff however failed to prove relief “b” and accordingly same is dismissed. Upon the resolution of the issues set down for determination before this honourable court, the court makes the following orders: ✓ Title of the land particularly described on the plaintiff’s writ of summons is hereby decreed in him. ✓ The defendant, his agents, assigns, privies, workmen etc are perpetually restrained from having anything to do with the land in issue which is inconsistent to the title of the plaintiff. ✓ An award of Gh₵5000.00 as general damages against the defendant for trespass onto the land of plaintiff. ✓ Plaintiff’s costs assessed at Gh₵5000.00. SGD …………………………………………….. (DERICK PARDEN ESHUN ESQ.) 7