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JUDGMENT
BY COURT:
The Plaintiff by his writ of
summons issued on 8th
February, 2005 claimed against
the Defendants the following:
a)
Declaration of title to and
recovery of possession of all
that piece or parcel of land
situate and being at Baatsona
Nungua, Accra containing an
approximate area of 0.73 of an
acre more or less bounded on the
North by proposed road measuring
200feet more or less, on the
East by proposed road measuring
160feet more or less on the
South by proposed road measuring
200feet more or less and on the
West by Lessor’s land measuring
160 feet more or less.
b)
Special damages for the
destruction of a portion of
plaintiffs fence wall and an
order for the replacement of a
trip of sand and 6 cubic metres
of chippings vandalized by
Defendants.
c)
Perpetual injunction restraining
the Defendants, their agents,
servants, licensees etc. from
having any dealings with the
said property.
d)
General damages for trespass.
By the statement of claim that
accompanied the writ of summons,
the plaintiff traced his root of
title from a lease dated 9th
May, 1997 by Nii Botrabi Obroni
II Mankrado and Acting Nungua
Mantse. The Plaintiff pleaded
further that it was the 1st
Defendant who sold part of his
land to the 2nd
Defendant.
The Defendants denied the
plaintiffs assertion that they
have trespassed unto his land,
and pleaded that the whole land
belonged to the 1st
Defendant, who caused the exact
measurement of the Plaintiffs
land, and preserved it for him.
It was the 1st
Defendant who also gave the 2nd
Defendant the land that he
occupies, and that the land that
he gave to the Plaintiff does
not fall within that which was
given to the 2nd
Defendant.
In order to resolve the
positioning of the various plots
of land claimed by the Plaintiff
and the 2nd
Defendant, the Regional Director
of Survey and Mapping Division
of Lands Commission was
appointed to prepare a composite
plan of the land in dispute and
show the positions of the land
as shown on the site plans of
the parties.
After the work had been
completed and tendered in
evidence, it was revealed that
both Plaintiff and 2nd
Defendants have built at places
that they should not have
built. Instead of terminating
the case at that stage, the
Plaintiff pressed on with his
case.
Since the Defendants have denied
that where the 1st
Defendant gave to the 2nd
Defendant falls within the land
that had been given to the
Plaintiff, the burden of proof
was on the Plaintiff to show
that where the 2nd
Defendant is occupying is part
of the Plaintiff’s land. In the
case of In Re: Ashalley Botwe
lands; Adjetey Agbosu and others
Vrs. Kotey and Others (2003-04)
S C GLR 420 Mr. Justice Brobbey
JSC interpreted section 11(1) of
the Evidence Decree 1975 (N.R.C.D
323) at pages 464 to 465 and
held that “A litigant who is a
defendant in a civil case does
not need to prove anything, the
Plaintiff who took the Defendant
to Court has to prove what he
claims he is entitled to from
the Defendant. At the same
time, if the Court has to make a
determination of a fact or of an
issue, and the determination
depends on evaluation of facts
and evidence, the defendant must
realize that the determination
cannot be made on nothing. If
the defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the Court such
facts or evidence that will
induce the determination to be
made in his favour….”
In the instant case, the
evidence before the court
indicates that the land on which
the 2nd Defendant has
built is not part of the land
that had been given to the
Plaintiff. The plaintiff cannot
complain, even though where the
2nd Defendant has
built is also outside the land
that had been given to him by
the 1st Defendant.
The evidence before the Court
indicates that it is the
Plaintiff who has trespassed
unto somebody’s land.
Since the parties admit that the
whole land in the area belongs
to the 1st
Defendant’s family, the 1st
Defendant would have succeeded
against the Plaintiff if he had
counter-claimed against him.
Since the evidence before the
Court indicates that part of the
Plaintiff’s houses D and E as
appeared on Exhibit CW 1 A are
on land that has not been given
to the Plaintiff, he the
Plaintiff cannot succeed.
Since where the Defendant and
others have built is not part of
the Plaintiffs acquired land, I
dismiss the Plaintiffs claim.
Cost of GH¢2,000.00 is awarded
against the Plaintiff.
(SGD.) MR. JUSTICE S.H.
OCRAN
Justice of the High Court
Counsel: Mr. C.
K. Koka for Plaintiff.
Mr. Ekow Dadson for Defendants.
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