IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (LAND COURT)
ACCRA - A.D 2018
MR. EBENEZER LARYEA AKITA - (Plaintiff)
OKOE Q. ASAMANI - (Defendant)
DATE: 21 ST DECEMBER, 2018
SUIT NO: FAL/435/13
JUDGES: ALEXANDER OSEI TUTU J. SITTING AS A JUSTICE OF THE HIGH COURT
LAWYERS: NASHIRU YUSSIF ESQ. FOR THE PLAINTIFF PRESENT
On 5th March 2013, the Plaintiff commenced this action against the Defendant seeking:
a) Declaration of title to a piece and parcel of land onto which the Defendant has trespassed and which is part of a larger track of land situate and lying and being at North of Amanfro village and forming part of Amanfro lands and lying west of adjourning the road leading from the village of Odumase to its junction with road from Obeyie to Abehinase (near Amasaman a village at mile post 14 on the Accra-Nsawam road, Accra) and bounded on the North by Nii Oto-Din’s property and on the North-West and south west by an ancient foot-part separating it from Wakester Farm’s property and which land is more particularly delineated on the site plan attached to the indenture
b) Recovery of possession
c) Damages for trespass
d) Perpetual Injunction to restrain the defendant, his agents, assigns, workers and whoever from doing anything with the said land the subject matter of this suit.
e) An order directed at the Defendant to take steps to reverse the fraudulent ‘surrender’ he planted at the Lands Commission.
f) An order directed at the Lands Commission to expunge from their records the said fraudulent surrender planted by the Defendant.
h) Any other relief that the court may deem fit.
Getting the Defendant served with the writ of summons and the statement of claim was an uphill task. All the three occasions the Bailiff went to his house at Pokuase to effect service on him were unsuccessful. For that reason, the Plaintiff resorted to substituted service as provided by Order 7 of the High Court Civil Procedure Rules, 2004 (C.I. 47). The Defendant did not enter any appearance and the matter could not have been left in an everlasting abeyance. The suit had to progress so the Plaintiff proceeded to apply for an interlocutory judgment on 24th April 2017. According to an Igbo Proverb, ‘If one fails to lick his lips, the harmattan will do it for him’. Therefore, the application for interlocutory Judgment was granted on 26th April 2017. Because the claim of the plaintiff was for a declaratory relief, he was required to prove his claim. He eventually got the opportunity to mount the witness box on 13th December 2018 after filing a witness statement to testify against the Defendant.The Chinese say: ‘Everyone pushes a falling fence’.
The law is that a court cannot grant a declaratory relief in the absence of evidence given under oath. Acquaye J.A. in the case of Hydraform Estates v. Moi Ashong  49 G.M.J. 144 at p. 161, C.A. held: “The law is that in an action for declaration of title when there is a default of appearance the plaintiff can obtain an interlocutory judgment in default of appearance, enter the witness box and give evidence of his title before he can obtain final judgment for declaration of title.”
The Court of Appeal per Appau J.A. (as he then was) in Ayiku IV v. A.G. & Anor.  5 G.M.J. 148 at page 172, similarly decided: “The trial court could not have entered default judgment in favour of the appellant in respect of the declaratory reliefs sought by the appellant in the action based on an ex parte application without calling evidence to establishing the claim or reliefs. The rules of the High Court; either the repealed L.N. 140A of 1954 or the current C.I. 47 of 2004, do not permit that“. Also, in Conca Engineering Gh. Ltd. v. Moses [1984-86] 2 GLR 319, it was held: “… if a party defaulted in entering appearance, the action might proceed as if such party had appeared. That was another way of stating that the case should take its normal course. And in our adversary system, the plaintiff who sought a declaration of title, had to establish that by clear and acceptable evidence whether or not the defendant against whom he sought the relief was present or absent. Since the plaintiff admittedly led no evidence of title in the 1968 suit, the circuit judge at that trial had no jurisdiction either under Order 13, r. 8 or r. 12 to adjudge title in the plaintiffs’ favour.” See the case of Rev. Rocher d-graft Sefa & Others v. Bank of Ghana, Civil Appeal No. J4/51/2015, SC (Unreported), per Gbadegbe JSC and Republic v. High Court, Ex parte Osafo  2 SCGLR 966.
The case of the Plaintiff
The Plaintiff is a retired architect. He claimed to have acquired the subject matter land by way of a lease on 16th August 1979 from the allodial owners of the land represented by Nii Awuah Amanfro. He attached a copy of the 99-year lease executed in his favour as Exhibit ‘A’ to his witness statement. In tracing his grantor’s title, the Plaintiff stated that the land was originally acquired in its virgin state by the late Nii Kwei-dze Mensah about 200 years prior to the execution of the lease. The land passed on to Nii Awua Amanfro by way of inheritance before he granted same to the Plaintiff. After the acquisition, the Plaintiff remained in undisturbed possession until he realized that the Defendant had trespassed onto the land. In the view of the Plaintiff, the Defendant’s acts of trespass ‘were suggestive of his fraudulent and wrongful transaction on the land’. The Japanese wise sayings that ‘If a nail sticks up, it will be hammered down’ may hold some truth. The Plaintiff in an attempt to hammer down the Defendant’s unwarranted behaviour that had stuck out like a nail, initiated a search to be conducted on the land at the Lands Commission Secretariat, where it came to light that the Defendant had planted a surrender of the lease in respect of the land and attributed same to the Plaintiff. To substantiate his assertion, the Plaintiff tendered Exhibit ‘B’ in evidence. It was due to the above reason that the Plaintiff came to this Court for its intervention to reverse the surrender.
What is required of the Plaintiff?
This matter being a land suit, the Plaintiff is expected to lead evidence in proof of his title. In the case of Agyekum v. Amoah, Civil Appeal No. J4/59/2014, dated 13th April 2016 (Unreported), it was held that in civil trials, the standard of proof is that of a balance of probabilities. See sections 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323) and the case of Sarkodie v. FKA Co. Ltd.  SCGLR 65, S.C. at holding 1.The Plaintiff alleged in his statement of claim that the Defendant trespassed and planted a surrender, so he was required to prove that by evidence as well. I regret to say that after examining the evidence of the Plaintiff, I was not too enthused and I do not think that he deserves the reliefs he is seeking from the Court. Our elders say, ‘A canoe cannot be paddled on a dry land’.
Uncertainty in the land claimed by the Plaintiff
There was an ambiguity in the land being claimed by the Plaintiff. His writ did not disclose the actual acreage of the land. In his evidence, he attached an indenture (lease) executed by his grantor in his favour. The said lease comprises of two different parcels of land, made up of 28.24 acres and 12.78 acres respectively totaling 41.02 acres. A careful perusal of the land sought by the Plaintiff as described on the endorsement on the writ of summons tends to correspond with only the 28.24 acre-land. According to Steve Maraboli (a life changing speaker and best seller author of ‘Life, the truth and being free’), ‘a lack of clarity could put the brakes on any journey to success’. Since the Plaintiff failed to include the description of the 12.78 acre-land, I am not sure I can make a declaration in respect of that land in his favour. It is fundamental and he should have properly fixed it. According to one Ejimbe Bernard of llorin, Nigeria, ‘when the shadow of a tree is bent, you straighten up the tree not the shadow’. In the case of Tetteh & Anor. v. Hayford  44 GMJ 11, the Supreme Court held that: “Failure to prove the identity of the land would be fatal to a claim for declaration of title.”
The apex Court further held in the case of Anane & Others v. Donkor & Another (Consolidated) (1965) GLR 188 at holding 1 thus: “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 the subject-matter of his suit.” The Court of Appeal adopted the principle and expatiated the rationale behind the rule in the case of Bedu & Others v. Agbi & Others (1972) 2 GLR 238 as follows: “The onus was on the plaintiffs to establish the exact boundaries of the land in dispute so that any judgment in their favour would be related to a defined area … ”. Finally, in the case of Akoto II & Others v. Kavege & Others (1984-86) 2 GLR 365, the Court of Appeal held: ‘The failure to prove boundaries even of one side was fatal”. See also the cases of Bissah v.
Gyampoh III (1964) GLR 381, SC at holding 1, Kpakpo Brown v. Bosomtwi and Co. Ltd. (2001-02) SCGLR 876 and Aryeh and Akakpo v. Ayaa Iddrisu (2010) SCGLR 891. Should the Court even venture to grant the claim of the Plaintiff in this case, the big question would be whether it is for only the portion of the land which boundaries he described on the writ or it would be for the entire land described in the indenture encompassing the 12.78 acres he left out of the writ? According to a Bantu Proverb, ‘you cannot paddle two canoes at the same time’.
Who actually is the Plaintiff’s grantor?
On both the statement of claim and the Plaintiff’s witness statement at paragraphs 3 & 4 respectively, he unequivocally described his grantor as Nii Awuah Amanfro. Per the said pleadings and the witness statement, Nii Awuah Amanfro was the accredited inheritor of the late Nii Kwei-dza Mensah, the one who originally acquired the land about 200 years ago. The case of the Plaintiff is that the said Nii Awuah-Amanfro was the one who executed the lease for him. He stated at paragraphs 3 & 4 of his witness statement as follows:
“(3) That I acquired land, the subject matter of this suit via a ninety-nine (99) year lease dated the 16th day of August 1979 which was executed between me and the allodial owners of the land, duly represented by Nii Awuah-Amanfro on the 16th day of August, 1979. See Exhibit ‘A’.
(4) That the said Nii Awuah-Amanfro was the accredited inheritor of the late Nii-Kwei-dze Mensa (the original occupant and disputed owner (sic) of Amanfro land) who first cut the virgin forest of the lands some 200 years before the said lease was executed in favour of me”.
Counsel for the Plaintiff in his written address to the Court on 14th December 2018 submitted along the same lines. In recounting the facts of the Plaintiff’s case, he stated:
“The Plaintiff is called Mr. Ebenezer Laryea Akita …. He acquired land the subject matter of this suit via a ninety-nine year lease dated the 16th day of August 1979 which was executed between the allodial owners of the land, duly represented by Nii Awuah Amanfro on the 16th day of August 1979 and himself …”.
I regret to say that the above statements are completely misleading. In fact, the said Nii Awuah Amanfro never executed any lease for the Plaintiff during his lifetime as he and his counsel would want the Court to believe. It can be gleaned from the lease that as at 1979, Nii Awuah Amanfro was not alive. He had already joined his ancestors. Our elders say, ‘If a man closes his eyes to facts, he soon learns by accident’. When one carefully examines the lease, he would realize that it was executed by a different person who is even a female and not the said Nii Awuah-Amanfro. The person is called Adaku Awuah-Amanfro alias Okai-Nye. This is confirmed by the thumbprint of the grantor. In the recitals of the lease, she is described as the daughter of the said Nii Awuah-Amanfro. I will refer to the recitals of the lease here for its full effect. It is stated as follows: ‘WHEREAS the two pieces and parcels of land described are in the absolute ownership and occupation of the lessor she being the present accredited successor of her father, the late Nii Awuah-Amanfro, inheritor of the late Nii Kwei-dza Mansa …”. (My Emphasis).
It is clear from the above portion of the lease that the Plaintiff’s insistence that the lease was executed for him by Nii Awuah-Amanfro in 1979 is palpably false, unless he would want to tell the Court at this stage that the ghost of Nii Awuah-Amanfro possessed her daughter to execute the lease for him. It is interesting that the Plaintiff and his lawyer do not appear to know their own story. Perhaps, it may be as a result of the extension of the truth. The Irish say, ‘when the tongue slips, it speaks the truth’.
The Plaintiff’s possession
The Plaintiff claimed to have been in possession of the land, but when he got the opportunity to give evidence, he failed miserably to demonstrate how he has been in possession. Was his possession in the form of farming on the land? Was it in the form of a building he put up? If it was a building, could he not have tendered even a photograph of it? All he said about his possession was: “That I had been in undisturbed possession of the land’ and nothing more. A Greek Proverb goes: ‘Before you score, you must have a goal’. The law is that possession must not just be bare. It has to be proved. In the case of Vanghan Williams v. Oppong  84 GMJ 171, Adinyira JSC at page 175 decided: “. . . evidence of possession is essential in a claim for trespass and recovery of possession, there must however be clear and cogent evidence in support and not mere assertion” (My Emphasis).
The Defendant’s Trespass
Another observation made from the evidence is that the Plaintiff did not show which of the two parcels of land the Defendant trespassed onto. Indeed, he could not prove the alleged acts of trespass complained of, despite having included damages for trespass as part of the reliefs he was seeking from the Court. For ease of reference, I reproduce the relevant portion of the evidence led by the Plaintiff in relation to the Defendant’s alleged trespass.
At paragraphs 2 & 5 of his witness statement, the Plaintiff stated:
“(2) The Defendant is a trespasser and resident in Accra.
(5) That I had been in undisturbed possession of the land until I realized the Defendant has committed certain acts of trespass on the land which were suggestive of fraudulent and wrongful transactions on the land and so I decided to conduct a search at the lands Commission Secretariat”.
What are these ‘certain acts of trespass’ committed by the Defendant? Only the Plaintiff knows. I am not sure that merely claiming that the Defendant has trespassed onto his land amounts to proof in law. Appau JSC held in the case of Emmanuel Osei Amoako v. Standford Edward Osei (substituted by Bridget Osei Lartey); Civil App. No. J4/3/2016 dated 1st June 2016, S.C. (Unreported) as follows: “Judgments must be based on established facts not mere rhetoric or narrations without any supporting evidence that can sustain the claim”. Similarly, in the case of Eric Asante v. The Republic  109 G.M.J. 1, Dotse JSC at page 8 decided: “It must be noted with all emphasis that where a party in a trial refers to matters that are capable of independent proof in a positive manner and those matters are denied, the party does not establish the truth of those matters by stating them in the witness box and failing to proffer the other evidence which in the circumstances of the case should be available. Where the circumstances of the case are such that there can be no corroborative evidence, that will be a different matter”. See also the case of Jacqueline Asabre & Anor. v. Johnson Aboagye Asim  109 G.M.J. 206 at 235.
I have my doubts whether the surrender at the Lands Commission Secretariat alone can constitute trespass. There must be some kind of a positive and direct act on the land to constitute trespass. A Tanzanian Proverb says: ‘A water pot cannot stand on its own without support’. In the case of Ebusuapanyin Akuma Mensah v. Nana Atta Komfo II  39 GMJ at page 80, the Court of Appeal, per Barbara Ackah-Yensu J.A. held: “As with all forms of trespass, there must be directness; the plaintiff must prove direct invasion of the defendant on his land for a claim of trespass to succeed…”
The order to direct the Lands Commission
The Plaintiff wants the Lands Commission to be ordered to expunge from their records the said fraudulent surrender planted by the Defendant. This relief claimed by the Plaintiff is premised on the fact that the Defendant perpetuated fraud in view of the said surrender. The Plaintiff expressly proceeded to plead fraud in his statement of claim. It is generally known that where the Plaintiff is relying on fraud, he has to lead evidence to prove it. According to the Nigerians, ‘if a man wants to grow a long tooth, he should have the lips to cover it’. Since fraud is a crime, it is expected to be proved beyond reasonable doubt even when it rears its ugly head in a civil suit. In the case of John Kwadwo Bobie v. 21st Century Construction & Ors; Civil Appeal No. J4/5/2014, dated 9th March, 2016, SC (Unreported), Pwamang JSC held: “The well-known rule of evidence is that when fraud is alleged, even in civil proceedings, it must be proved beyond reasonable doubt. s. 13 (1) of the Evidence Act, 1975 (NRCD 323)”. See also the case of Janet Tagoe v. Alfred Nii Tetteh  98 G.M.J. 125, per Torkono J.A.
In this case, the Plaintiff did not lead any credible evidence on the fraud during the trial to enable the Court make an order. He should have taken his time to conduct the case. Our elders say, ‘no matter how fast you walk, you cannot overtake your shadow’. I am unable to fathom why the Lands Commission was not made a defendant in this suit when the Plaintiff wants the Court to make direct orders affecting them. I do not think it is fair to contest the matter at their blind side and eventually compel them by an order. The Russians say: ‘If you do not have time to do it right, you must have time to do it over again.”
The Search Report
I have carefully examined the search conducted by the Plaintiff which he tendered in evidence as Exhibit ‘B’. There is no indication that the search is in respect of the subject matter land. There is no site plan connecting the search to the land in dispute to enable us know the exact land the search relates. The search report is not even legible for the Court to help. Our elders say: ‘There is no need using an umbrella if your shoes are leaking’. To say the least, the search report tendered as Exhibit ‘B’ appears self-serving and dubious. I say so because whereas the Plaintiff’s indenture claimed that the lease was executed in his favour on 16th August 1979 as stated at paragraph 3 of the Plaintiff’s witness statement (which fact counsel for the Plaintiff reiterated in his written address), the search report suggests that the lease executed by Adaku A. Amanfro to Ebenezer L. Akita is dated 1st August 1980.
Is the Plaintiff entitled to his claim?
We have noticed several inconsistencies in the Plaintiff’s case. In the case of Obeng v. Bempomaa (1992-93) GBR 1027, it was held: "That inconsistencies, though individually colourless may cumulatively discredit the claim of the proponent of the evidence". The Court of Appeal decided in the case of Sanusi Alhaji v. Republic (2015) 85 GMJ 11 at page 50, “ In law, a witness such as PW1 whose evidence whether sworn or unsworn is contradictory and is not worthy of credit unless the reason for the contradiction is explained’. Also, in the case of Kai v. Kissiedu [2010-2012] 2 GLR 57, it was held that a document that contained inconsistency is ‘useless’. The Plaintiff in this case failed to lead credible evidence to bridge the inconsistency in his case. The failure of the Defendant to enter an appearance in the matter and even appear to deny the Plaintiff’s claim may be immaterial in the present circumstance. I am not unaware that the failure to deny an assertion in cross examination amounts to an admission of the fact alleged. However, before the principle can apply, the Plaintiff is first expected to establish his case by credible evidence. Without that, the Defendant who did not have the courtesy to appear in Court even once, cannot be ‘hanged’ by this Court. Our elders say, ‘no matter how hungry the gods may be, a lion can never be used for sacrifice’. The Court of Appeal per Ayebi J.A. in the case of Fordjour v. Kaakyire  85 GMJ 61 held at page 93 as follows: “It has to be noted that the court determines the merits of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without adducing evidence in support of that assertion is not evidence to require denial in cross examination by an opponent.”
I am glad that counsel for the Plaintiff appreciates that the Plaintiff has a duty to establish his case first. He rightly made the point at pages 3 & 4 of his written address when he referred to several cases including Zabrama v. Segbedzi  2 GLR 221 and Akufo-Addo v. Catherine  2 GLR 377 as follows: “It is almost pedantic to say that in a civil case the plaintiff has the duty to prove his case and that no weakness in the defendant’s case can avail him. In clear, unambiguous professional language we say the plaintiff has the burden of proof….”
I must add that the Plaintiff may only rely on the weakness in the Defendant’s case after he has been able to prove his own case. Counsel then continued, “In the light of these authorities, all that Plaintiff ought to do to obtain judgment in this case was to have adduced sufficient (evidence) to prove that the existence of the facts, the basis of his claim in this case, is more probable than its non-existence …” I doff my hat for the Plaintiff’s counsel for stating the rule correctly. But as Oliver Wendell Holmes once put it: ‘The young man may know the rule, but the old man knows the exceptions”. On the totality of the evidence before this Court, I find that the Plaintiff has not been able to lead credible and sufficient evidence to sustain his claim. He was in haste to fly, but little did he know that he had no wings. In fact, the Plaintiff has been punctual in Court for a period of over half a decade, consistently knocking at the door for an opportunity, but when he was given the chance, he woefully fumbled. It is quite depressing that his five year toil before this altar of justice would come to such a gloomy end, thereby rendering the Defendant somehow a hero instead of a villain. According to an African Proverb: ‘A meaningless silence is always better than meaningless words’.
This should be a great lesson to all Plaintiffs and their lawyers seeking title declarations reliefs in land cases to do well to examine the strength of their cases first before stepping into the chilling waters of hazardous litigation. I find some wisdom in the Irish proverb which says, ‘One does not have to speak unless he can improve his silence’. Even when one has a good case, he should endeavor to concentrate on the real issues and stay focused during the trial. Had the Plaintiff focused on the matter and prepared adequately, perhaps, the outcome of this suit would have been different.
Instead of concentrating on the real issue, the Plaintiff seemed not to have given the trial the maximum concentration and attention it deserves by diligently putting his acts together. For instance, he would have easily discovered from his own lease that the person he mentioned as his grantor who executed the lease for him in 1979 had already died at the time of the execution of the lease. On lack of giving maximum concentration towards a cause, Albert Einstein wrote, ‘any man who can drive safely while kissing a pretty lady is simply not giving the kiss the attention it deserves’. On that that note, I end this judgment by dismissing the entire claim of the Plaintiff.