Okyere Vrs Fatawu [2022] GHADC 251 (23 December 2022)

IN THE DISTRICT COURT 2, TAMALE HELD ON FRIDAY 23RD DECEMBER, 2022 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN NICHOLAS HENEAPONG OKYERE AND SALIFU A. FATAWU SUIT NO. A1/4/22 - - PLAINTIFF DEFENDANT JUDGMENT INTRODUCTION 1. This judgment relates to land. On 14th June, 2022 the plaintiff took out a writ of summons against the defendant for the following reliefs: a. A declaration of title to Plot Nos. 27 and 29 Janjori Kukuo Residential Area as the properties of the plaintiff. b. An order of perpetual injunction restraining the defendant, his privies, assigns or any other representative from developing the said plots. c. General damages for trespass. - 1 - d. Any other relief(s) as the justice of this case may require. 2. The defendant was duly served via substituted service and he entered appearance through a lawyer. However, neither the defendant nor his lawyer attended court or filed a response to plaintiff’s claim. On 19th December, 2022 the court set down this case for trial. PLAINTIFF’S CASE 3. Plaintiff in his evidence stated that sometime in 2016, he acquired plot nos. 27 and 29 Janjori Kukuo Residential Area, Tamale and paid GHS3,500.00 for each. He added that the grantors thereafter issued the allocation paper dated 6th February, 2016. He tendered a copy of the said allocation paper as Exhibit A. Plaintiff also had a cadastral plan issued by the Lands Commission, a copy was tendered and marked as Exhibit B. Subsequently, he deposited sand and planted corner pillars on the said plots. He stressed that he had enjoyed quiet possession of the said land until May 2022 when the defendant went onto the land and started developing it. He contends that the defendant had engaged the services of land guards who are armed to watch the land whiles development goes on day and night. Plaintiff then engaged the defendant to stop developing the said land, yet defendant would not cease his acts of trespass. Hence, he instituted this action for the aforementioned reliefs. ISSUE FOR TRIAL 4. Before I proceed with the issue for trial, I shall briefly comment on the failure of the defendant or his lawyer to attend court or filed any response. This obviously means that defendant is not interested in this case or has failed to take advantage of the opportunity granted him to be heard. The court is entitled to proceed against the defendant, see Ankumah v City Investment Co. Ltd. [2007-2008] 1 SCGLR 1064. - 2 - 5. However, the plaintiff is by law required to prove his claim on a preponderance of probabilities. I am, therefore, duty bound to determine whether the evidence that was led by the plaintiff satisfied the burden that was on the plaintiff in respect of his claim? BURDEN OF PROOF 6. In civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression ‘burden of persuasion’ and in section 14 that expression 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.’ See also ss. 11(4) and 12(1) and (2) of NRCD 323. 7. With regards to what is required of the plaintiff in land cases, the law is that the he must succeed on the strength of his own case and not on the weakness of the defendant’s case, see Odametey v Clocuh [1989-90] 1 GLR 14, SC. In Kodilinye v Odu [1935] 2 WACA 336, the court puts it simply that “in case of doubt, …the party who asserts must lose.” ANALYSIS OF THE ISSUE 8. It is settled and trite law that a person claiming title has to prove (i) his root of title, (ii) mode of acquisition, and (iii) various acts of possession over the disputed land, see Yehans International Ltd. v Martey Tsuru Family & Anor. [2018] DLSC 2488. Similarly, the plaintiff must positively describe/identify the land and its boundaries. In Anane v. Donkor [1965] GLR 188, the Supreme Court held at holding 1 of the - 3 - headnotes that, “…a claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land being the subject-matter of his suit.” The Supreme Court, however, in the case of Nortey v. African Institute of Journalism and Communication [2013- 2014] 1 SCGLR 703 held that such a description does not have to be mathematically certain or exact. A similar pronouncement was made by the Supreme Court in Okine & Another v. Amoah VI [2013-2014] 2 SCGLR 1358 and in addition the Supreme Court further stated that the principle enunciated in Anane v. Donkor [supra] should not be slavishly applied. See of the case of Edward Twumasi & Anor v Alimatu Sadia, Suit No. LD/0311/2017 dated 24th April, 2020, HC. 9. From the evidence, the plaintiff was able to prove that the plot nos. 27 and 29 were allocated to him on 6th February, 2016 by Yakubu Mahama, Chief of Janjori Kukuo and same was witnessed by the Alhaji Saaka Sullye, the Nantong Regent, see Exhibit A. He paid GHS7,000.00 for the said plots. He then put sand and corner pillars on same. Also, the demarcations of his land is found in the cadastral plan, see Exhibit B. In light of this, I have no hesitation in concluding, based on the authorities aforementioned, that the plaintiff has been able to prove title of his land on the preponderance of probabilities, see Yehans International Ltd. v Martey Tsuru Family & Anor. [2018] DLSC 2488. 10. Let me now address the relief for general damages for trespass. Trespass to land, as a tort, is actionable per se. This means that once the act of trespass has been proven against the defendant, the plaintiff does not have to prove by evidence that he has suffered damages. The law presumes injury to the plaintiff to be a natural consequence of the defendant’s act of trespass and therefore a claim for general damages will arise as of right by inference of the law. See the case of Klah v Phoenix - 4 - Insurance Limited [2012] 2 SCGLR 1139 and Esi Yeboah v Mfantseman Municipal Assembly, Suit No. A2/6/2021 dated 13th October, 2022, HC. To assess the extent of damages, the court is required to consider the circumstances of the case and in particular the acreage of the land on which the trespass was committed, the period of wrongful occupation of the land by the defendant and the damage caused, see the case of Laryea Oforiwaa [1984-1986] 2 GLR 410 and Ayisi v Asibey III & Ors. [1964] GLR 695. Lastly in Mensah v Peniana [1972] 1 GLR 337, CA the court held that proof of possession by a plaintiff is sufficient to maintain an action for trespass against a defendant who cannot prove a better title. 11. From the evidence, plaintiff led evidence to the effect that the defendant was rapidly developing the land. However, plaintiff did not lead sufficient evidence as to the extent of the trespass or occupation of the land by the defendant for this court to assess the magnitude of damages. I shall, therefore, award nominal amount of GHS3,000.00 12. Before I conclude, the Supreme Court in the case Kofi Manu v Akosu Agyeiwaa & 3 Ors. [2013] DLSC 2572 held that, “…this court will not ordinarily grant any relief which a party has not formally asked for. The only instance when a relief has been, so to speak, granted without being specifically asked for is in an instance when that relief emerges or is apparent from the evidence on record.” The court does so in order to do substantial justice to the parties, see Hanna Assi (No. 2) v GIHOC Refrigeration and Household Products Ltd. (No.2) [2007-2008] 1 SCGLR 16. From the evidence, the plaintiff did not plead for recovery of possession. However, it is apparent from the evidence that plaintiff want to recover possession of his land. In order to do substantial justice, I will, therefore, grant the relief of recovery of possession so as to afford the plaintiff in realising the other reliefs, particularly the declaration of title so granted. - 5 - - 6 - CONCLUSION 13. I hereby enter judgment in favour of the plaintiff for the following reliefs: a. I declare title in favour of the plaintiff in respect of Plot Nos. 27 and 29 Janjori Kukuo Residential Area, Tamale. b. The defendant, his assigns, workmen or any other representative are perpetually restrained from developing or trespassing or laying any claim to Plot Nos. 27 and 29 Janjori Kukuo Residential Area, Tamale. c. The plaintiff is at liberty to recover possession of the said plots from the defendant. d. General damages for trespass assessed at GHS3,000.00. e. Costs of GHS2,000.00 is assessed in favour of the plaintiff. H/W D. ANNAN ESQ. [MAGISTRATE] SHEIK-ARIF ABDULLAH ESQ. FOR THE PLAINTIFF HALID ABDUL-RAUF ESQ. FOR THE DEFENDANT Reference 1. ss. 11(4) and 12(1) and (2) of NRCD 323 2. Ankumah v City Investment Co. Ltd. [2007-2008] 1 SCGLR 1064 3. Faibi v State Hotels Corporation [1968] GLR 471 4. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 5. Odametey v Clocuh [1989-90] 1 GLR 14, SC. 6. Kodilinye v Odu [1935] 2 WACA 336 7. Nortey v. African Institute of Journalism and Communication [2013-2014] 1 SCGLR 703 - 7 - 8. Okine & Another v. Amoah VI [2013-2014] 2 SCGLR 1358 9. Edward Twumasi & Anor v Alimatu Sadia, Suit No. LD/0311/2017 dated 24th April, 2020, HC 10. Klah v Phoenix Insurance Limited [2012] 2 SCGLR 1139 11. Esi Yeboah v Mfantseman Municipal Assembly, Suit No. A2/6/2021 dated 13th October, 2022, HC 12. Laryea Oforiwaa [1984-1986] 2 GLR 410 13. Ayisi v Asibey III & Ors. [1964] GLR 695 14. Mensah v Peniana [1972] 1 GLR 337, CA 15. Kofi Manu v Akosu Agyeiwaa & 3 Ors. [2013] DLSC 2572 16. Hanna Assi (No. 2) v GIHOC Refrigeration and Household Products Ltd. (No.2) [2007- 2008] 1 SCGLR 16 - 8 -