IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (LAND DIVISION),
TEMA - A.D 2019
GRACE CHAPEL CHURCH - (Plaintiff)
MADAM GLORIA DOVLO - (Defendant)
DATE: 17 TH JANUARY, 2019
SUIT NO: E1 /20/2012
JUDGES: ALEXANDER OSEI TUTU J. SITTING AS A JUSTICE OF THE HIGH COURT
GRACE OPOKUAA ADDAI FOR YAW ASARE DARKO FOR THE PLAINTIFF
GLORIA KANKO ARTHUR FOR RICHARD APOKAVIE FOR THE DEFENDANT
The Plaintiff commenced this action on 15th May 2012 seeking the following reliefs which were endorsed on its writ of summons:
A Declaration that the bare land measuring an approximate area of 25× 70 feet lying appurtenant to or adjacent of Plaintiff’s property known as Plot No. 13/CS/14, Sakumono, Tema, is a ‘buffer zone’ and a reservation area solely reserved for the benefit, protection, safety and convenience of Plaintiff’s and adjoining properties and not for use as a building plot by anybody
An order of Perpetual injunction to restrain the Defendant, by itself, agents, assigns, servants or otherwise from in any way developing, dealing with or interfering with the disputed land and with the Plaintiff’s rights and interest in the same way, or of similar acts of obstructing Plaintiff’s property afore-mentioned.
It appears from the record that on the 12th day of June 2012, this Court differently constituted granted an application filed by the Plaintiff to restrain the Defendant from developing, dealing with or in any manner interfering with the subject-matter land till the determination of the matter. On 9th January 2015, the Defendant entered an appearance and proceeded to file a defence. However, the Defendant amended her Statement of Defence and Counterclaim on 4th November 2016, pursuant to an order granted on 1st November 2016. It is interesting how the Defendant had the courage to add a Counterclaim to her defence. But the Akans say: “If a blind man says he will throw a stone at you, he probably has his foot on one”. The Rwandans say: “No one shows her buttocks unless they are big”.
In the Counterclaim, the Defendant called on the Court for an order to restrain the Church, its leaders, elders, agents and assigns from interfering with her right to develop the property, unfettered from any interference from the Plaintiff. She further sought for an order directed at the Plaintiff to pay damages to the Defendant being cost of construction on her property.
The issues filed by the Plaintiff in his application for direction are:
I. Whether or not the Plaintiff is the beneficial owner entitled to possession of property situate at Community 13, Tema and described as Plot No. 13/CS/14, Sakumono, Tema?
II. Whether or not Plaintiff is also entitled to the benefit, and/or enjoyment of the disputed land as a reservation area and a buffer and protection zone between the Plaintiff’s property and the adjoining property which is a gas filling station?
III. Whether or not the Defendant has any title to, or rights or interests in the said disputed plot of land?
IV. Whether or not the Defendant’s development of the said dispute is illegal, wrongful, unauthorized and repugnant to law?
V. Whether or not the activities of the Defendant on the said disputed land reservation area constitutes a nuisance?
VI. Whether or not the Plaintiff is entitled to its claims?
VII. Whether or not the Defendant is entitled to her counterclaim?
VIII. Any other issue (s) arising out the pleadings?
After the applications for directions had been taken, the parties were directed by the Court to file their witness statements which they dutifully complied with, so they testified on the basis of their witness statements filed during the trial. The Court caused a composite plan to be drawn. The surveyor appeared in Court after preparing same to answer questions the two lawyers had for him in respect of his report.
The Case of the Plaintiff
The Plaintiff’s story was articulated by an associate pastor of the Church by name Pastor Alfred Nortey. He told the Court that the Plaintiff’s Church acquired Plot No. 13/CS/14 under a grant from the Tema Development Company (TDC) vide offer of a lease dated 31st March 2003 for a term of 50 years (See Exhibit ‘A’). After acceptance of the offer by the Church, T.D.C. granted the right of entry dated 9th April 2003. The Plaintiff took possession of the property and is in the process of constructing a church auditorium on the land. The Plaintiff has since been paying all ground rent, bills and other outgoings on the land.
According to the Plaintiff’s representative, the Church is entitled to the benefit and/or enjoyment of a reservation area and a buffer zone measuring an approximate area of 25 feet x 70 feet appurtenant to and lying adjacent of the aforementioned plot of land which has been specially reserved by TDC as a buffer and protection zone between the Plaintiff’s property and the adjoining property. The buffer zone/reservation serves as a right of way onto the Plaintiff’s property. The Plaintiff’s case was that without an assurance from TDC that it could use the buffer zone at all times, there was no way it would have acquired their land. The Plaintiff relied on a site plan which suggests that the buffer zone is significantly less than a plot and has been reserved for the safety and convenience of the Plaintiff. For that reason, it could not be allocated as a building plot to anybody.
The Plaintiff discovered recently that the Defendant has illegally entered and trespassed unto a portion of the buffer zone. It further observed that the Defendant has started building operations on the land. In the Plaintiff’s view, the Defendant has no title and or rights/interests in the buffer zone as his development is illegal and wrongful. The Plaintiff finds this act as being inconsistent with the planned use of the said portion of land. It considers the Defendant’s activity on the land as a violation of the Plaintiff’s benefits, rights and interests in same and may expose its members to serious harm, injury and loss in the event of any accident on the adjoining property. The Plaintiff further alleges that the Defendant’s activities on the land amount to nuisance.
The Case of the Defendant
The Defendant is an officer at the Ghana Immigration Service and acquired Plot No. RP/13/R/32 at Community 13, Tema. T.D.C. prepared documents covering the land for her in year 2013. She tendered in evidence various documents ranging from an offer of lease dated 12th April 2013, a right of entry, site plan and receipts for payment of ground rent and regularization. The Defendant denies that her land is a buffer and reservation zone as the Plaintiff claimed. According to her, she personally applied for the land from TDC and was lawfully granted same.
She contended that there is no buffer zone between her land and the Plaintiff’s land and that if she had encroached on a buffer zone, the Task Force of TDC would have stopped her. It is the view of the Defendant that the Plaintiff is struggling for space for a compound to serve as a parking space. The Defendant denied being a nuisance. Rather, she alleged that it is the Plaintiff that has been causing nuisance with its church activities.
The Defendant told the Court that the Plaintiff demolished her wall so the matter ended at the Police Station. The Defendant was thus stopped by the Plaintiff and her agents from constructing her house. This led to the destruction of some of her building materials, while some of the materials were also stolen. An injunction order obtained by the Plaintiff from the Court in 2011 has disabled her from completing her two-storey building she was putting up and this has immensely affected her financially due to the high rises of good. The Defendant concluded her evidence by denying the Plaintiff’s claims, while praying the Court to grant her counterclaim.
The Defendant had the courage to subpoena TDC. Our elders say: “It is a stronger person who can abuse your mother in your presence”. William Koso, the Chief Surveyor of TDC appeared in Court to testify on behalf of the Plaintiff. Indeed TDC being the grantor of the two parties, could not be left out of the showdown. Arthur Hays Sulzberger advised, “Any coalition has its troubles as every married man knows” offers some deep thought.
Whether or not the Plaintiff is the beneficial owner entitled to possession of property situate at Community 13, Tema and described as Plot No. 13/CS/14, Sakumono, Tema?
There is no dispute about the fact that the Plaintiff owns Plot No. 13/CS/14. It tendered its land documents comprising the offer letter, site plan and right of entry in evidence. However, the Defendant has not made any claim to the Plaintiff’s land described as Plot No. 13/CS/14. A Bamoun proverb says: “The goat eat the grass where it is tied”. There is therefore no issue joined on the said plot as we are only ‘barking up the wrong tree’. The Courts exist to address only live issues.
In the case of Fatal v. Wolley [2013-2014] 2 SCGLR 1070, Wood CJ (As she then was ) decided at holding 2 thus: “It is sound learning that courts are not tied down to only issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on ground that it is not included in the agreed issues”. See also the cases of Mrs. Vicentia Mensah & Another v. Numo Adjei Kwanko II  DLSC 2601 and William Ashitey Armah v. Hydrafoam Estate (Gh.) Ltd.  DLSC 3000.
Whether or not Plaintiff is also entitled to the benefit, and/or enjoyment of the disputed land as a reservation area and a buffer and protection zone between the Plaintiff’s property and the adjoining property which is a gas filling station?
The Plaintiff claimed in its pleadings and evidence that it acquired its Plot No. 13/CS/14 by reason of assurances it received from the T.D.C. that the disputed area would at all times remain a buffer zone/reservation area (See paragraphs 7 & 8 respectively). The evidence led by the Plaintiff on the above fact was unsupported by the evidence adduced, if not contrary to the assertion. TDC which is the parties’ grantor is no doubt the one to decide the use of land at the area including the disputed land. The Plaintiff does not appear to disagree with me on that fact based on the evidence adduced at the trial. It could not fight its grantor. An African proverb says: “No matter how sharp a knife is, it can never cut its handle”.
At page 5 of the Proceedings when the Plaintiff’s representative was under cross examination, this was what ensued:
“Q: I am putting it to you that TDC never gave you any assurance before your acquisition and during the construction by the Defendant as you want the Court to believe.
A: Yes, my Lord.
Q: So you would agree with me that Exhibits ‘A’ and ‘A1’ do not confirm any assurance of a buffer zone.
A; Yes, my Lord.
Q: You know TDC is the body that designs that whole area; you know that?
A: Yes my Lord.
Q: TDC determines the use of the land; is that correct?
A: Yes, my Lord.
Q: TDC determines the size of the land?
A: Yes my Lord.
Q: So you would agree with me that if TDC confirms that Defendant can build on the land, then TDC has the right to do so?
A: Yes, my Lord.
Q: I am putting it to you that TDC has given the Defendant the right to occupy that land and put up a building there?
A: Yes my Lord”.
The Plaintiff having conceded that TDC is the proper entity to determine the person who is legitimately entitled to the use of the land in contention, the evidence of TDC’s official that the Company did not give any assurance to the Plaintiff should settle the matter. The officer from TDC stated that it is the Defendant who they recognized as their grantee of the land. He answered to questions posed to him by the Defendant’s Counsel at page 17 of the Proceedings as followed:
“Q: You know the area in dispute, is that correct?
A: Yes, my Lord
Q: You know that TDC granted a lease to the Grace Chapel Church, are you aware of that?
A: Yes my Lord.
Q: Look at Exhibits ‘A’ & A1’; that is the offer letter and the site plan of the Plaintiff
A: Yes, my Lord.
Q: Plaintiff is saying that TDC in allocating the land in Exhibits ‘A’ & ‘A1’ to them, you assured them that the land which was given to the Defendant will be a buffer zone for them, what do you say to that?
A: My Lord, we never said that. We also never communicated this to them because that land has never been a buffer area”.
The TDC’s officer was blunt. He told the Court that the Company never gave any assurance to the Plaintiff as it would want the Court to believe. The law is that where parties have a common grantor, his evidence, if credible should manifestly influence the Court in arriving at which of the two contesting grantees is the lawful grantee. In the case of Benyak Co. Ltd. v. Paytell Ltd. & Ors. [2013-2014] 2 SCGLR 976, the apex Court held at holding 2 as follows: “Where rival parties claim property as having been granted to each by the same grantor, the evidence of the grantor in favour of one of the parties should incline a court to believe the case of the party in whose favour the grantor gave evidence unless destroyed by the other party”. See the case of Ogbarmey-Tetteh v. Ogbarmey-Tetteh [1993-94] 1 GLR 353, S.C.
The Court has some few issues with the grant made by the Plaintiff’s grantor to the Defendant which would be considered later in this judgment. But it does not however derogate from the fact that the Plaintiff could not prove that the buffer zone was meant for its use and enjoyment. According to an Albanian proverb, “A dry bone is never licked”. Had the land been a buffer zone at all, it would have made no sense for the Plaintiff to sue to claim that it has the enjoyment and use of same.
Whether or not the Defendant has any title to, or rights or interests in the said disputed plot of land?
The Defendant tried to demonstrate to the Court that the disputed land has lawfully been allocated to her. She tendered various documents including a right of entry, a site plan and receipts for payment of ground rents. At paragraphs 3 to 5 of the Defendant’s witness statement, she stated as follows:
“(3) I acquired a plot numbered RP/13//R/32 at Community 13, Tema and in 2013 Tema Development Corporation (TDC) prepared the documents.
(4) That I acquired the land in 2007 but the formal documentation was completed in 2013.
(5) I was given an offer of lease from TDC dated 12th April 2013, a right of entry, site plan and receipts for payment of ground rent and regularization …”
From the above, the Defendant is alleging that she acquired her land in 2007, but her documents were completed in 2013. I evaluated the Defendant’s documents and found them to have been issued from the year 2013. It was only her site plan which was dated 2nd December, 2012. Even with that, the suit had already commenced by that date. When the Defendant was questioned by counsel for the Plaintiff about her inability to produce any document indicating that she started processing her documents from 2007, she claimed she had receipt but left it out, because she did not make a follow up on them.
I find the Defendant’s reason for leaving out her receipt dated 2007 untenable. She had ‘her head in the clouds’, otherwise, she would have produced the receipt to demonstrate her dealing with TDC in respect of the land prior to the commencement of the suit. In the case of Bousiako Co. Ltd v. Cocoa Marketing Board (1982-83) 2 GLR 824, it was held at page 839 that if a party had in his possession certain documents to establish his case, but fails to produce them, then the proper inference to be drawn is that the document never existed or if it did, it did not contain all the averments mentioned or testified about.
It is not enough for a party who has the legal burden to just make an assertion without doing more to prove it. Granted that the Defendant was even on the land before 2012, she was there illegally. An Afghan proverb says: “A palm tree growing in a shade will not bear ripe fruit”. But from the facts and evidence available, the Court is of the view that the Defendant started processing her land at TDC from December 2012 and not in 2007.
Since the present suit was commenced in May 2012, there is no dispute about the fact that the Defendant had no title to the land at the time she was sued. She just began the construction of her building on the land without any title. She claimed she had started processing it. The Indians advise: “Don’t bargain for a fish which is still in water”. When counsel for the Plaintiff enquired from the Defendant at page 11 of the Proceeding whether she had documents on the land as at 2012, she could not deny.
“Q: So at the time you had gone on the land and was feverishly building, you did not have a building permit?
A: No, my Lord.
Q: Did TDC give you the right of entry to enter the land as at May 2012?
A: No, my Lord. But it was in process and the site plan was ready in 2012”.
With this observation, I am compelled to remind the Defendant that the Courts usually frown on land documents that are processed during the pendency of a suit. Section 12 (2) of the PNDCL 152 imposes a duty of full and complete disclosure on any person seeking to process his land to inform the Land Registrar of any pending litigation affecting the land so that the Land registrar would suspend the process till the determination of the matter by the Court. See the case of the Registered Trustees of the Catholic Church, Achimota Accra v. Buildaf & 2 Others  91 GMJ 36-37, per Benin JSC.
In appropriate cases, where land registration are processed during the pendency of a suit, the courts order for its cancellation. See the cases of Numo Nortey Adjeifio (substituted by Nii Adjei
Sankuma) & 2 Ors. v. Tesa  48 G.M.J. 65 at pages 101-102 & Roland Kofi Dwamena v. Richard Nortey Otoo & The Regional Lands Officer  113 G.M.J. 46 at pages 61 - 62. Our elders say, “It is only when there is a stampede that a person with big buttocks realizes that she carries a load”.
It is obvious from the facts of this case that the Defendant obtained her documents from TDC in 2013 purposely to defend the Plaintiff’s action and pursue her counterclaim. Her case even stinks in my nostrils when I consider the fact that at the time she obtained her documents from the TDC, there was an order of interlocutory injunction retraining her from dealing with the subject matter land until the determination of the matter. A Swedish proverb says: “Those who wish to sing always find a song”. I realized that when the Defendant succeeded in obtaining the land documents from TDC, she decided to reshape her defence so she sought for an amendment and I am not surprised she amended her Statement of Defence in 2016. An Arab proverb says: “A borrowed cloak does not keep one warm”. The Defendant’s documents from TDC tendered in this Court as the basis of her title are self-serving and I am not sure that I can rely on them.
In the case of Adisa Boya v. Zenabu Mohammed (Substituted by Adama Mohammed) & Mujeeb; Civil Appeal No. J4/44/2017, 14th February 2018, S.C. (Unreported), the Supreme Court when confronted with a controversial grant failed to rely on it. Gbadegbe JSC speaking for the Court held: “The grant to the plaintiff was made in circumstances that have the attribute of a fraudulent act done by the grantors and the plaintiff collusively for the purpose of overreaching the defendant’s grant but that is something that cannot be condoned by a court of law; for which reason we agree unhesitatingly with the Court of Appeal that it cannot have the sanction of law, and is accordingly nullified”. In the circumstance, the Court cannot grant its blessings to the Defendant’s title in the land in dispute.
Whether or not the Defendant’s development of the said dispute is illegal, wrongful, unauthorized and repugnant to law?
The Court has declined the Defendant’s claim to the land in dispute, but since the Plaintiff has also been unable to prove its interest in it; it cannot as a stranger seek a declaration against the Defendant that its activities on the land are illegal and wrongful. The Plaintiff is a busy body so far as the land in dispute is concerned.
The land rather belongs to T.D.C. A Yiddish proverb goes, “You cannot chew with somebody’s else teeth”. At page 6 of the Proceedings, counsel for the Defendant asked the Plaintiff’s representative under cross examination:
“Q: You will agree with me that you are not claiming ownership of the buffer zone; is that correct?
A: Yes, my Lord”
It can be inferred from the evidence on record that the proper person to take the Defendant on in respect of the so called buffer zone is TDC and not the Plaintiff. TDC does not seem ready to do that, otherwise they would not have appeared in Court to testify for the Defendant. I now understand better why the Igbos say: “The one who knows the dog may put his hands in its mouth”.
Whether or not the activities of the Defendant on the said disputed land reservation area constitutes a nuisance?
It is unfortunate that the Plaintiff alleged nuisance but could not prove the act amounting to the tort. It appears that the nuisance the Plaintiff is alleging has to do with the Defendant’s construction on the land. I am yet to come across a law which makes the construction of a building on a land she claims ownership of a nuisance. According to the Igbos, “Wind can never be caught by trap”.
I doubt whether the plaintiff even has capacity to bring an action for nuisance. Kofi Kumado in his book, Introduction to the Law of Torts in Ghana, on the question, who can sue in nuisance at page 102 answered: “The law is that one who has proprietary or other interest in the land may sue”. It is not only Professor Kumado who shares this view. Professor Stephen Offei, the former Dean of Law at the Kwame Nkrumah University of Science and Technology, in his book, “The Law of Torts in Ghana Text, Cases & Materials” also wrote at page 379 thus: “The traditional rule is that the claimant in an action for nuisance must have an interest in the land which is affected in order to be able to sue”.
At page 394, the learned authors of Winfield and Jolowicz on Torts, Thirteenth Edition authoritatively stated: “It is clear that to give a cause of action for private nuisance, the matter complained of must affect the property of the plaintiff”. On the same question on, who can sue in nuisance; Professor Harry Street in his book, “The Law of Torts” proffered an answer at page 227 thus: “A plaintiff can only sue in nuisance if he has an interest in the land affected”.
Since the Plaintiff has been found not to have any interest in the land in contention, its claim for nuisance appears to lack legal basis and I treat it as such.
Whether or not the Plaintiff is entitled to its claims?
The Plaintiff could not prove its interest or rights in the disputed land. The Plaintiff alleged that the assurance it received from TDC’s that the disputed land is a buffer zone/reserved area influenced the acquisition of its land. In view of the fact that TDC itself denied the assertion, the Plaintiff’s case rested on no foundation.
The cross examination of the Plaintiff’s representative is very revealing and I will like to reproduce some relevant portions here for its full effect:
“Q: Exhibit ‘A’ shows the terms on which TDC gave your land, it that correct?
A: Yes, my Lord.
Q: What you just told us about the buffer zone, is that contained in Exhibit ‘A’?
A: No, my Lord.
Q: How did TDC tell you what you are telling us now about the buffer zone?
A: When we saw the development on the land, we came to TDC office to complain and they told us that it was a buffer zone so they do not think somebody can put up a house there.
Q: Can you tell us who in particular told you that at TDC Office?
A: My Lord, I can recall a name Richard.
Q: What year was this?
A: My Lord, 2015”.
If the Plaintiff was told that the disputed land is a buffer zone in 2015, then it means that when it commenced this action in May 2012, it had no basis or justification to do so, because TDC had by then not given any such assurance to it. The Plaintiff could not tender any letter of assurance from TDC. It could also not show any such assurance in the offer letter. The Plaintiff’s representative earlier insisted that the assurance from TDC was contained in Exhibit ‘A’.
After being asked to show it to the Court, he made a U-turn and claimed at page 3 of the Proceedings supra that one Richard gave it a verbal assurance. An institution like TDC is not likely to deal with members of the public verbally. This is how the cross examination went.
“Q: I am putting it to you that nobody at TDC informed you that the land on which the Defendant was building was a buffer zone?
A: My Lord, someone told me.
Q: I am putting it to you that nobody at TDC informed you that the land on which the Defendant was building was a buffer zone?
A: My Lord, I do not agree with you.
Q: You said in your evidence in chief that you acquired your land solely on the assurance from TDC that the land on which the Defendant was building was a buffer zone; is that correct?
A: Yes, my Lord.
Q: So this assurance you are talking about before you acquired your land, how did TDC communicate this assurance to you?
A: My Lord, they wrote to us.
Q: Is that assurance contained in Exhibit ‘A’?
A: Yes, my Lord”
It is interesting how the representative of the Plaintiff claimed that the assurance given them by TDC was documented and was found in Exhibit ‘A’, but later changed his story to say that the assurance given them was only verbal. The witness had attempted to outsmart the Court, but was unsuccessful. An Ampharic proverb says, “To lie about a far country is easy”. The Plaintiff’s representative was unlucky in this case because the facts were not far to be verified. Mark Twain once said: “It is better to close your mouth than to open it and remove all doubt”. The Supreme Court per Benin JSC decided in the case of Ofori Agyekum v. Madam Akua Bio (Dec’d) substituted by Agartha Amoah  98 G.M.J. 1 that: “When a party resorts to plain falsehood it is indicative that he has a bad case.”
Further, the alleged assurance has been found to be oral as it is not stated anywhere in the documents of the Plaintiff. Granted it was given any verbal assurance at all, the Courts hardly sacrifice the express provisions in a document for an oral statement in view of the parole evidence rule.
In the case of A.R. Duodu-Sakyiama v. TDC  DLSC 2826, the Supreme Court per Pwamang JSC explained the rule thus: “It is a common law rule which states that when two parties have made a contract and have expressed it in a writing to which they have both assented as an expression of their intentions, oral evidence is not admissible to add to, vary or contradict the written agreement. .. The policy behind the parole evidence rule is that human memory is slippery and oral testimony, which is usually given sometime after a transaction, is not as reliable as documentary proof. What is more, the spoken word was viewed with skepticism. For these reasons the rule was invented to ensure certainty and finality of transactions which is in the public interest. But it was long ago conceded that there are instances where the strict application of the rule can result in injustice and lead to the enforcement of contracts that the parties really did not make or exclude oral terms that were intended by the parties to be binding”.
Further, in the case of Ackah v. Pergah Transport Ltd.  31 M.L.R.G. 28, Adinyira JSC held at page 46 as follows: “It is trite that when a transaction has been reduced into writing by agreement of the parties, extrinsic evidence was in general not admissible to vary the terms.” The parole evidence rule under the common law has received statutory backing under section 177 of the Evidence Act 1975 (NRCD 323).
Gbadegbe JSC in the case Koanda v. Tenassa Pharmaceutical & Trading Co. Ltd. [2013-2014] 2 SCGLR 1104 held at pages 1109 & 1111: “… Where there are available documents that speak to the transaction, they are preferable to the oral testimony tendered to the court by the rival parties …. Evidence extrinsic to a document can only be resorted to when there is some ambiguity”
It must be emphasized that though there are exceptions to the rule, the Plaintiff in this case did not canvass any such exception like an ambiguity in the exhibits it tendered necessitating for an oral evidence.
That aside, the Plaintiff could not even tell the Court the reliefs it wants from the Court, except to say that it wants fairness. This was after recognizing that their claim was frivolous, as its grantor had found a new partner in respect of the land. The Plaintiff’s hope of satisfying itself by using the land when it had not been granted to it was dashed. An unknown writer had said, “Dating a married man who still loves his wife is like driving a government car, it will never be yours”.
At page 7 of the Proceedings, when he was subjected to cross examination by counsel for the
Defendant, this is what he said:
“Q: So Grace Chapel, what do you want from the Court?
A: My Lord, we want fairness”.
Before I draw the curtain down on the Plaintiff’s claim, let me comment on some aspect of the evidence. I realized that counsel for the Plaintiff at page 10 when cross examining the Defendant sought to say that the Composite Plan prepared suggested that the Defendant had trespassed unto the Plaintiff’s land. This is how counsel went about with the question:
“Q: In the Survey Report you had trespassed unto the Plaintiff’s plot by 3.4 feet you would not have disputed this fact in your witness statement?
A: I have not trespassed unto the Plaintiff’s land”.
It seems to me that the Defendant answered correctly. In fact, she was not supposed to waste time in addressing that issue. I have carefully looked at the claims of the Plaintiff and they do not include trespass. Nowhere in the pleadings did the Plaintiff allege trespass by the Defendant. Parties are not allowed to change their case during the trial.
In the case of Hammond vs. Odoi (1982-83) GLR 1215, at page 1235, Crabbe JSC stated as follows; “Pleadings are the nucleus around which the case – the whole case-revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial court can only consider the evidence of the parties in the light of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case”. See the cases of Great Commission Church International v. Acolatse  75 G. M. J. 39 at page 45, C. A.; JNJ Mining Services Ltd. v. Tom Mcdonagh  95 G.M.J. 17 at pages30-31 & Opanin Nantwi Ababio & Another v. Pastor Nana Adusei  DLSC 259.
What can unshackle a party from his pleadings is an amendment. The Plaintiff did not amend its pleadings to include a trespass and I am afraid, the claim of trespass is not borne out of the pleadings and I will not hesitate to disregard it. It is evident from the above analysis that the Plaintiff’s case is bad and it falls flat on its face.
Whether or not the Defendant is entitled to her counterclaim?
It is common knowledge that a counterclaim is an independent action and requires the same proof like the Plaintiff’s claim. In the case of Nortey v. African Institute of Journalism & Communication (2014) 77 GMJ 1, the Supreme Court per Akamba JSC held at page 40 as follows: “Without any doubt a defendant who files a counterclaim assumes the same burden as the plaintiff in the substantive action if he/she is to succeed. This is because a counter-claim is a distinct and separate claim on its own which must also be proved according to the same standard of proved prescribed by Sectors 11 and 14 of NRCD 323 the Evidence Act (1975)” See also the cases of Messrs Van Kirksey & Associates v. Adjeso & Others [2013-2015] 1 GLR 24 at holding 3 & Birimpong v. Bawuah [1994-95] GBR 837 at 843.
It needs pointing out here that the denial of the Plaintiff’s case does not automatically mean the Defendant’s counterclaim should be granted at all cost. This was the clear holding of the cases of Aryeh & Akapko v. Ayaa Iddrisu (2010) SCGLR 891 at holding 4 & Fuseini v. Moro [2010-2012] 2 GLR 434, C.A. at holding 2.
In the case of Hydrafoam Estates Ltd. v. Owusu (per lawful attorney) Okine [2013-2014] 2 SCGLR 1117, the apex Court per Anin Yeboah JSC held at holding 4 as follows: “Counsel for the defendant erred in arguing that since the plaintiffs had no title to the disputed land, the defendant’s counterclaim ought to have been upheld by the Court of Appeal. At common law, a defendant was not bound to counterclaim against a plaintiff. Where a defendant had put in a counterclaim, it must be proved to the satisfaction of the court, because a counterclaim was an independent action”.
Both the Plaintiff and the Defendant have failed to prove their cases. The Defendant cannot in the circumstance be granted damages. In the case of Roland Kofi Dwamena v. Richard Nortey Otoo & The Regional Lands Officer  113 G.M.J. the Court of Appeal per Ofoe J.A. held at pages 46 – 47 thus: “Also, the trial judge having dismissed the counterclaim of the 1st defendant asking for recovery of possession and injunction, he had no reason to make an award in general damages to the 1st defendant in the circumstances of this case. To this end, the sum of GH₵5,000.00 general damages awarded in favour of the 1st defendant is hereby set aside.”
Consequently, both the claims of the Plaintiff and the Counterclaim of the Defendant are dismissed.
There shall be no order as to costs.