On the 17^th day of April 2014, the Plaintiff personally commenced this action per her lawful attorney, before later engaging a lawyer. The reliefs sought from the Court are:

a)    A Declaration of title to all that piece of land approximately 0.74 acres at East Pantang known as Plot Numbers 64 & 66 Tetteh Tsuru Street, Plot Number 2, 1^st Link Road and Plot Number 1

b)    Recovery of possession of the said land

c)    Perpetual injunction against the Defendants

d)    General Damages for trespass and

(i) An order for the demolition on the structures on the land

(ii) An order for the Defendants to pay for the cost of the demolition.

In the Plaintiff’s Statement of Claim, she averred that the Defendants are all related to one Anthony Koranteng; the first Defendant is his wife, the second Defendant is his sister and the third is his brother in law. On 15^th November 2000, the Plaintiff’s grantor by name, Adu Kofi Djin granted the subject matter lands to the Plaintiff. The instrument evidencing the transaction was stamped and plotted as number N6718. The Plaintiff entered into possession of the land, put up pillars and had her documents first plotted in the records of the Land Commission. She subsequently registered the land and obtained Land Certificate Number GA 25010 dated 11^th September 2007. In October 2005, Anthony Koranteng went to the Madina Police Station to lodge a complaint that the Plaintiff’s land belongs to him. On 13^th October 2005, while the Plaintiff was fencing part of her land, she received a call form one Inspector Quarshie inviting her to the Madina Police Station to appear to answer the claim made over the land.

After giving her version to the Police, both parties were warned not to enter the land to work on it but should rather go to the Lands Commission to conduct a search. The search disclosed that the two parcels of land were not at the same area, so the parties were asked to go to the Survey Department. Each party paid GH₵500.00 for the surveyor to prepare a composite plan for them. Anthony however defied the police advice and without waiting for the surveyor’s report, went and started building on it. The Plaintiff notified the police about the conduct of Anthony. When he was invited by the Police, frantic efforts were made to reach him on phone to no avail until Inspector Quarshie was transferred to Tema. One Inspector Djokoto took over the docket. He also made several unsuccessful efforts to get Anthony. When the Plaintiff went back to the Survey Department, their report showed that the Plaintiff’s land was entirely different from that of Anthony with an interval of about 10,000 feet apart.

In the process of searching for Anthony, the Plaintiff and her grantor took other trespassers to Court in respect of her land and her grantor’s wider parcel of land in Suit No. BL 75/2007. The Plaintiff and her grantor obtained Judgment which confirmed their title to the land. Anthony Koranteng and his family being the Defendants have entered two of the Plaintiff’s plots of land and have built on them. Defendants are claiming ownership of the structures on the Plaintiff’s land at the Adenta Police Station and the Property Fraud, Police Headquarters. According to the Plaintiffs, Anthony, just like the Defendants has no valid claim to any part of the land in dispute. The Plaintiff alleged that the Defendants’ continuous activities on the land amounted to trespass and a challenge of the Plaintiff’s title. It was for this reason that she instituted the instant action for the Court to restrain the Defendants from persisting in their unlawful conduct. The Defendants filed a Statement of Defence containing a Counterclaim.

They denied the Plaintiff’s title and alleged that the Land Registration Certificate of the Plaintiff was obtained by fraud. They further averred that their grantor had rather been in possession of the land for more than fifty years. The Defendants claimed to have acquired the land in 1991, built their house on it and moved into it in 2001. Therefore, they contended that the Plaintiff is statutorily barred from acquiring the land. They denied the Plaintiff’s assertion that they are trespassers, but rather accused the Plaintiff as trespasser.

The counterclaim sought by the Defendants were:

a)    A Declaration that the Land Title Certificate No. GA 25010 was obtained by fraud.

b)    An order cancelling the said title registration and Land Certificate pursuant to the registration.

c)    General damages

d)    Legal Costs.

The issues adopted at the Direction stage on 4^th December 2014 were:

Whether or not the Plaintiff is entitled to his claim?

Whether or not the Plaintiff obtained Judgment in respect of the subject matter land?

Whether or not the Plaintiff’s action is statute-barred?

Whether or not the Defendant’s land is over 10,000 feet away from where the Defendant is building?

Whether or not the Defendant is entitled to his counterclaim?

The Defendants failed to comply with the Court’s order directing them to file their witness statements. I have no idea why they neglected or refused to file their witness statement. Or does it mean they were afraid to make their allegations on oath? Our elders say: “A straight foot should not be afraid of a crooked shoe.” The Plaintiff however complied with the Court’s directive to them to file witness statements. If the Defendants thought their failure to file their witness statement could frustrate the Court from granting audience to the Plaintiff, then they got it all wrong. According to an African proverb: “The frown on the face of a goat will not stop it from being taken to the market”. The Court thus proceeded under C.I. 87 and struck out the Statement of Defence. The Plaintiff’s attorney, being her father had the opportunity to mount the witness box on 31^st October 2018 to tender his witness statement in evidence. The Plaintiff’s grantor, Adu Kofi Djin who is a lawyer by profession also testified in support of her case. The records indicate that the Defendants stopped attending Court. A party has himself to blame for failing to attend Court. In the case of Republic v. Court of Appeal, Accra Ex Parte East Dadekotopon Development Trust, Civil Motion No J5/39/2015, dated 30- 07 -15, SC Unreported, it was held: “There could not be a breach of the rules of the audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him”.

Adinyira JSC also in the case of Nana Ampofo Kyei Barfour v. Justmoh Construction Co. Ltd. & Others [2017] 113 G.M.J. 118 at pages 128-129 restated the principle in these words: “In the plethora of cases cited by counsel for the Plaintiff for example, Republic v. High Court (Fast Track Division) Accra; Ex parte State Housing Co. Ltd. (No. 2) (Koranten-Amoako Interested Party) [2009] SCGLR 185; Republic v. High Court (Human Rights Division) Accra, Ex parte Akita (Mancell-Egala & Attorney-General – Interested Parties) [2010] SCGLR 374 at page 379; where the Supreme Court held the principle of the audi alteram partem rule was inapplicable; it was clearly evident, on the face of the record that the party complaining of a breach of his/her right to be heard, was present in court on the day the case was adjourned for hearing or was served with hearing notice but chose not to be present either by himself or counsel to be heard on the due date.”

In counsel for the Plaintiff’s written address, he pointed out at page 3 that the first Defendant passed on during the hearing. In view of that, she cannot be affected by this judgment. Had she died after closing her case, the Court could still have given judgment affecting her. In the case of Mrs. Veronica Sarhene and Another v. Edward Nasser & Co Ltd. & Another [2017] 109 G.M.J. 39 at 86, Torkono J.A. held: “It is critical to note that under Order 36 Rule 6 of the High Court (Civil Procedure) Rules, 2004, CI 47, a court is not prevented from reading a judgment just because any of the parties may have died before the judgment is read.”

In this case, the first Defendant died without giving any evidence. She was also not substituted. The Court cannot therefore give judgment to affect her estate. I will according strike out her name from the suit as suggested by the Plaintiff’s counsel. Since the gravamen of the Plaintiff’s claim is for a declaratory relief, the absence of the Defendants in Court did not automatically result in the Plaintiff’s claims being granted. The Plaintiff had to succumb to the demands of mounting the witness box irrespective of how good his case may seem. A Nigerian proverb goes: “No matter how big a hen’s hut is, it must bow to enter”. Judicial decisions which establish the legal principle include the cases of Rev. Rocher de-graft Sefa & Others v. Bank of Ghana, Civil Appeal No. J4/51/2015, SC (Unreported) – Per Gbadegbe JSC. & Republic v. High Court, Ex parte Osafo [2011] 2 SCGLR 966.

Whether or not the Plaintiff obtained Judgment in respect of the subject matter land?

The Plaintiff proved this issue by tendering the Judgment of Justice K. Amissah-Koomson sitting at the High Court Accra, dated 23^rd May 2012 tendered and marked in evidence as Exhibit ‘F’. The suit is intituled: Adu Kofi Djin and Naa Dedei Aryee v. Nyamebekyere and Rev. Christopher Sowah Okpoti with suit number BL. 75/2007.

Although the land in dispute pending before this Court appears to be no different from the one determined in the above suit, the Defendants in the previous suit are different. I wonder whether the Judgment therein can affect them in any way. PW1 told the Court that Rev. Sowah put Koranteng on the land but it came to light that the Defendants claimed the land through a certain young man who had no capacity to sell land in the area. On the issue herein, I think the Plaintiff has been able to discharge the legal burden on her by the tendering of a certified true copy of the Court’s judgment. See holding 3 of the case of Golden Grace Ltd. v. Takoradi Flour Mills [2008-2009] 1 GLR 460.

Whether or not the Plaintiff’s action is statute-barred?

It appears the Defendant did not specifically plead the defence of limitation. What they pleaded at paragraph 10 of their Statement of Defence which looked like limitation of action was more in connection with their claim of long possession. The said paragraph 10 reads:

“(10) The Defendants say the land the subject matter of this dispute was granted to them since 1991 and have since built on them and living in same since 2001 and therefore the Plaintiff is statutorily barred from acquiring same”. (My Emphasis)

The underlying principle of limitation of an action to land is the principle of adverse possession to the knowledge of the true or paper owner. My understanding of the law is that, the issue of limitation is considered where at the time the Defendant exercised adverse possession, the Plaintiff was around and was very much aware or should reasonably have been aware but failed to contest the action in Court. In the case of Mrs. Vivian Aku-Brown Danquah v. Samuel Lanquaye Odartey, Civil App. No. J4/4/2016 dated 29^th July 2016, S.C. (Unreported), Pwamang JSC held: “A party who seeks to rely on the statute of limitation as a defence in an action to recover land must prove that he had been in adverse possession of the land subject- matter of the action and that such adverse possession has been continuous for more than twelve years to the knowledge of the true owner.” (My emphasis). See also the case of Mmra v Donkor [1992-93] Part 4 GBR 1632. Therefore, if the Defendants claimed to be on the land before the Plaintiff came on it, what they seemed to be saying is that had the Plaintiff being diligent, she would not have acquired the land knowing that another person was occupying it. Therefore, the Defendants were required to prove that they have long been in possession even before the Plaintiff acquired his land. And that would have shifted the burden on the Plaintiff to lead evidence to rebut the Defendants’ assertion that either it was not so or that he was a bona fide purchaser for value without notice. However, by their failure to file witness statement and appear in Court to give evidence to that effect, the issue would be struck out for want of proof. It is said by our ancestors that: “A disobedient fowl only obeys in a pot of soup”.

Whether or not the Defendant’s land is over 10,000 feet away from where the Defendant is building?

The Plaintiff contended that his land is over 10,000 feet away from the land of the Defendants. It is the Plaintiff’s case that one surveyor by name, Kumasseh was tasked by the Survey Department to prepare a composite plan which her attorney tendered in evidence. I must say that the composite plan tendered by the Plaintiff was unclear and not decipherable. I will therefore not rely on it in this judgment. I must say that although expert witness plays vital role in determining complex issues, they are not always reliable. In the very recent case of Mfum Farms & Feedmill Ltd v.Madam Agnes Gyamfua – Deceased (Substituted by Mrs. Lovia Opoku Bandoh [2018] DLSC 2484 at page 9, Dotse JSC held: “We are not unaware of legal position stated in a good number of respected judicial decisions that, a court is not bound by the evidence relating to an expert such as the surveyor given in this case”. See also the cases of Sasu v. White Cross Insurance Co. Ltd. [1960] GLR 4, C.A., Darbah v. Ampah [1989-90] 1 GLR 598 at page 606, C.A. and Tetteh & Anor. v. Hayford (Substituted by) Larbi & Decker [2012] 1 SCGLR 417 at page 423. It is my view the Surveyor (Kumasseh) should have been called by the Plaintiff to appear in Court to give evidence, so that he could explain his work better and submit himself to the cross examination. Otherwise, it would be inappropriate for the Court to attach serious weight to his report. See the cases of Quarcoo v. Welbeck [2008-2009] 2 GLR 498 at 519, per Quaye JA: Kells & Anor. v. Adjei & Ors. [2001-2002] 1 GLR 617, S.C; [2001-2002] SCGLR 339 & Mansah v. Nimo [1961] GLR 511. It needs pointing out here that the report of the surveyor would have automatically become evidence of the Court, even in the absence of his formal appearance in Court to tender it, had he been a Court’s witness. See Order 26 of C.I. 47.

Since the surveyor was not a Court witness and did not also attend Court to testify, this Court would shy away from relying on the said composite plan, especially when it is not comprehensible. By taking that course, it would mean the Plaintiff did little to lead the requisite evidence to prove this issue on the balance of probabilities. It is not enough to make an allegation without doing more to prove it. In the case of Nortey v. African Institute of Journalism and Communication (2014) 77 GMJ 1, Akamba JSC held at page 30 thus: “This court pointed out in Ackah v. Pergah Transport Ltd (2010) SC GLR, (2011) 31 GMJ 174 the various methods of producing evidence which includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the tribunal or court” See also the cases of Emmanuel Osei Amoako v. Standford Edward Osei (substituted by Bridget Osei Lartey); Civil App. No. J4/3/2016 dated 1^st June 2016, S.C. (Unreported), per Appau JSC and Jacqueline Asabre & Anor. v. Johnson Aboagye Asim [2017] 109 G.M.J. 206 at 235. I must say that the composite plan, from the evidence was done for the Plaintiff and Anthony Koranteng and not the present Defendants. Therefore, if any composite plan was done at all, the second and third Defendants were not privies to it. Anthony Koranteng and his wife, the first Defendant are no more, according to the Plaintiff and his counsel. The remaining Defendants are not in this Court in their capacities as substitutes or personal representatives for their estates of Anthony Koranteng and his wife. As a result, it would make no sense to bind them with a composite plan they were not involved in its preparation and might have no idea of.

Whether or not the Plaintiff is entitled to his claim?

In land suits, the Plaintiff is supposed to lead evidence in proof of her root of title. The Supreme Court held in the case of Ogbarmey-Tetteh v. Ogbarmey–Tetteh (1993-94) 1 GLR 353 as follows: “…In an action for a declaration of title, a plaintiff who failed to establish the root of his title must fail because such default was fatal to his case” Less than a month ago, the Supreme Court speaking per Adinyira JSC in the case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 at page 8 held: “It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and iii) various acts of possession exercised over the land … This can be proved by either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must prove the title of his grantor. Awuku v. Tetteh [2011] 1 SCGLR 366. Further, to prove ownership through possession, the possession must be long, peaceful and uninterrupted…” The Plaintiff’s title was evidenced by a lease and a subsequent conveyance executed by his lessor tendered in evidence as Exhibits ‘B’ and ‘C’ respectively. I was not so much enthused with these two documents, because there was no recitals narrating how the Plaintiff’s lessor came by the land. In the above Supreme Court case, it was pointed out that the Plaintiff to prove the mode of acquisition of his land, i.e. how they came by the land and the ownership of his grantor. That notwithstanding, the Plaintiff’s evidence seemed to have been supplemented by his grantor who explained how he came by the land. It was a smart decision for the Plaintiff to call her grantor, otherwise her case could have suffered an unpleasant fate. Perhaps, there could be some truth in the Jamaican sayings that a new broom may sweep clean, but an old broom knows the corners. According to PW1, the land formed part of his 38.48 acres granted him as his portion of 115 acre-land he secured for the Agbawe Family of La.

Another observation I made was that the Plaintiff has the land registered in her name with the Lands Commission. However, the dimension of the land as registered in the Plaintiff’s name on the Land Title Certificate is of an acreage of 0.96 acre or 0.39 hectare. This is contrary to the 0.74 acre claimed on his writ. Virtually, no explanation was given by the Plaintiff for the disparity. In the wisdom of the Jamaicans, “you cannot have two faces under one hat.” The 0.74 acre land was what the sole witness of the Plaintiff who is her grantor at paragraph 10 of his witness statement claimed to have granted the Plaintiff. The Plaintiff’s evidence on the identity of his land appeared conflicting as she was not sure of the land he allegedly purchased. Be that as it may, I must say that the Courts in recent times tend to overlook minor and trivial inconsistencies if a party has been able to prove his case substantially. Adinyira (Mrs.) JSC in Muriel Vaughn – Williams (Per her lawful attorney, Mrs. Alice Acquaye) v. B. K. Oppong (Substituted by Mrs Cecilia Oppong) (2015) 84 GMJ 171 at p. 183 decided: “As a court we must not dwell upon insignificant or non-critical inconsistencies to deny justice to a party who has substantially discharged her burden of persuasion”. See also Torgbui Dzokui II of Zuta v. Atise Adzamli & Others, Civil Appeal No. J4/36/2015, dated 9^th December, 2015, SC (unreported) and Irene Gorleku v. Justice Pobee & Anor. [2012] 42 G.M.J. 53 at p. 80, C.A., per Appau J.A. (As he then was). Besides, land descriptions may not to be measured with strict mathematical accuracy. Dennis Adjei at page 123 of his book; Land Law, Practice and Conveyancing in Ghana noted: “The plaintiff is required by law to prove the identity of his land but the proof is not to be of mathematical precision”.

In the case of Adjeifio v. Tesa [2012] 48 G.M.J. 65 at p. 71-72, the Court of Appeal, per Akamba J.A. held: “Paradoxically, the amended endorsement in the respondent’s writ gave the acreage claimed as 918.24 acres, followed by the expression ‘more or less’ for the simple reason of obviating exactness. For some obvious reasons, it is hardly practicable to demand exactitude in land description; knowing that depending upon the type of equipment employed and some other variables, some differences are bound to occur. So long as the excess acreage or margin of error, so to speak is not outrageous, the difference should pass the acceptable mark. This court will defer consideration of whether the mark up is considerable or not and rather ascertain what was actually proved to be the respondents claimed lands. Consequently, since the margin contested by the appellants is not outrageous, this court holds that the respondents, through their evidence, have positively described the land they claim.”

It needs to be reiterated here that this matter being a civil, the burden of proof on the Plaintiff is nothing more than a proof on the preponderance of probabilities. In the case of Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah & 2 Others, Civil Appeal No. J4/61/2017, dated 11^th July 2018, S.C. (Unreported), Appau JSC held: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975 [NRCD 323]”.

Also, in the case of Adwubeng v Domfe [1996-97] SCGLR 660, the Supreme Court held at holding (3) thus: “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323)… have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities – no exceptions were made. In the light of the provisions of the Evidence Decree, 1975, cases which had held that proof in titles to land required proof beyond reasonable doubt no longer represented the present state of the law…” See also the cases of Gifty Avadzinu v. Theresa Nioone [2010] 26 MLRG 105 at page 108; Samuel Kakra Mensah v. Christopher Kwablahligbidi [2014] 75 GMJ 157 at p. 187 and Fordjour v. Kaakyire [2015] 85 GMJ 61 at p. 85.

In considering the entire evidence on record, the Court thus finds substance in the Plaintiff’s case and would not relent in holding her as the owner of the disputed land, especially when the Defendants failed to appear in Court to deny the Plaintiff’s claim.

Whether or not the Defendant is entitled to his counterclaim?

I have already stated in this Judgment that the Plaintiff in a civil case is expected to establish her case on the balance of probabilities. Conversely, the above standard holds good for a Defendant who files a Counterclaim. A counterclaim is a separate and independent action with the burden of proof no different from the Plaintiff’s legal burden. In the case of Op. Kwasi Asamoah v. Kwadwo Appea (2003-04) SC GLR 226 at p. 246, it was held: "The position with regards to proof of the defendant's case was that since they made a counterclaim, they assumed the same onus of proof as lay on the plaintiff."

The Supreme Court per Akamba JSC also held in the case of Nortey v. African Institute of Journalism

Communication (supra) at page 40 thus: “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 proof prescribed by Sections 11 and 14 of NRCD 323 the Evidence Act (1975)” See also Messrs Van Kirksey & Associates v. Adjeso & Others [2013-2015] 1 GLR 24 at holding 3, per Welbourne J.A. and Nii Odoi Kwao Asumang & 2 Ors v. William Sowah Charwey & 14 Ors (2014) 75 GMJ 108 at page 135.

The Defendants in this case filed a Counterclaim. Regrettably, they did not attend Court to adduce evidence to prove it. The attempt to wake them up from their slumber with a hearing notice was disregarded. According to a Navajo Proverb, “You cannot wake up a person who is pretending to be asleep”. I understand the law to mean that, it is only evidence adduced on oath in Court which can be considered and evaluated.

The Supreme Court in the case of Ofori Agyekum v. Madam Akua Bio (Dec’d) substituted by Agartha Amoah;Civil Appeal No. J4/59/2014, dated 13^th April, 2016, SC (Unreported), held per Benin JSC thus: “… Where no evidence is adduced on a fact that has been pleaded, it is treated as having been abandoned by the pleader, the court does not call it into question in its judgment. The court’s only duty is to consider the evidence the party has profferred in determining whether or not he has met the right standard of proof”. Also, in Adjetey Adjei & Ors. v. Nmai Boi & Ors. [2013-2014] 2 SCGLR 1474, Adinyira JSC decided: “… It is trite law that pleadings would not constitute evidence. To hold otherwise would negate the requirements of proof as provided in the Evidence Act, 1975 (NRCD 323).” The Court of Appeal applying the principle held in the case of Fordjour v. Kaakyire [2015] 85 GMJ 61. His Lordship Ayebi J.A. espoused: “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”.

In the circumstance, this Court is confronted with just one option - that is dismissing the said Counterclaim. I am mindful of the fact that the Defendants’ Statement of Defence and their Counterclaim were struck out on 26^th October 2018 even before the Plaintiff mounted the witness box. I must admit that I took that course with no relish, but the case cannot be made to drag unreasonably till thy kingdom come.

Conclusion

Although the Plaintiff has been able to prove her title in the four plots in dispute, she appeared to have failed in establishing the encroachment of the second and third Defendants in the four plots. In her Statement of Claim, she averred that the two are both related to Anthony Koranteng. However, in the attorney’s Witness Statement, he did not adduce evidence on any such relationship between them. At paragraphs 26-27 of the Witness Statement, the attorney stated under oath that even Anthony was claiming two out of the four plots he got judgment. He could not tell us which of the two plots that was encroached. He could not also tell the Court the very structures erected by the two Defendants which the Plaintiff wants an order of demolition.

Consequently, I decree and declare as follows:

That relief (a), (b) and (c) contained in the endorsement on the Plaintiff’s writ of summons are hereby granted against the second and third Defendants.

That reliefs (d) and (e) contained therein are refused.

I award costs of GH₵5,000.00 in favour of the Plaintiffs against the second and third Defendants.

ALEXANDER OSEI TUTU J.

(JUSTICE OF THE HIGH COURT)