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_____________________________________________________________
J U D G M
E N T
______________________________________________________________
I deem it necessary to mention
that the instant action was
instituted against two
defendants but plaintiff, in the
course of this proceedings,
discontinued the action against
the first defendant. In effect
this action was fought between
the plaintiff and second
defendant and for purposes of
this judgment I will refer to
second defendant simply as
defendant.
The plaintiff is an educational
institution created by statute,
that is, Polytechnics Act, 2007
(Act 745). Before the creation
of Accra Polytechnic, it used to
be Accra Technical Institute.
By operation of law, all assets
and liabilities of Accra
technical institute devolved on
Accra Polytechnic.
On or about 6th
September 1960, per Exhibit ’A’,
a Certificate of Allocation, the
Government of Ghana acting per
its lawful agent the then Lands
Department confirmed by way of
certifying the allocation of
land the size of which was 2.55
acres to the Ministry of
Education as a site for staff
housing for Accra Technical
Institute.
It appears that portions of this
land was developed into
bungalows for the staff of
plaintiff. However, in 2004
plaintiff embarked upon not only
rehabilitation of the facilities
on the land but also
construction of fence wall to
prevent encroachment.
It was then that plaintiff
claims it discovered that
defendant was carrying out her
business as a restaurant and
drinking bar operator on a
portion of the land.
Consequently, plaintiff wrote a
letter dated 5th
October 2004, Exhibit ‘B’ in
which defendant was informed
that she had without the
permission or consent of
plaintiff encroached on portions
of lands forming the Polytechnic
properties and defendant was
therefore requested to move out
of the property on or before
Friday, 5th November
2005.
To Exhibit ‘B’, defendant
responded per Exhibit ‘C’ and
for its full effect I crave
indulgence to quote it in
extenso.
“Dear Sir/Madam,
RE-ENCROACHMENT ON LAND
AT CANTONMENT
Your letter No. AP/SEC/APP/VOL 1
dated October
5th 2004 refers
I write this in
response to the above quoted
letter and wish to state that,
it is true that I did not have
your consent before going into
occupation of your land in
question.
Sir, I sought and obtained the
consent of Mr. Addo who
is a member of your staff in the
year 2001 when he was sick in
the house.
I am pleading with you
to forgive me for not officially
informing the appropriate
authorities before going into
occupation of the land.
I would be
grateful if you could allow me
to stay on the
land to keep the place clean. I
am also prepared to pay monthly
dues as and when you
will demand, please.
Yours faithfully
(sgd)
(MISS OLIVIA EJIMANDUS)”
It appears that plaintiff
insisted on moving out defendant
from the land and defendant
failed to comply hence the
instant action whereby plaintiff
claimed for (a), Recovery of
possession; (b) Damages for
trespass; (c) Perpetual
injunction and (d) costs.
Defendant denied the claims of
plaintiff and in her statement
of defence filed on 19th
March 2010, the thrust of her
defence are contained in
paragraphs 9, 10 and 12 thereof.
I quote them hereunder for their
effect and relevance.
“9. In
further answer, defendant says
that
she
has been in undisturbed
occupation of the
land
for over 18 years and that it
was only in
October 2009 that the plaintiff
herein wrote to
defendant laying claim to
ownership of the land.
10. defendant says in
further answer to paragraph 11
that she has
invested all her money and
earning in
her business
and that her presence on the
land was
known to the
plaintiff during the period of
undisturbed
occupation.
12. In further answer,
defendant says that having stood
by knowingly for
18 years while defendant
painstakingly
put up structures, invested huge
capital
sums in the
business, and virtually invested
her life
savings to
establish the business and
tremendous
goodwill, the
plaintiff is stopped by conduct,
laches
and acquiescence
from recovering any of the
claims
set out in
paragraph 13 of the statement of
claim”
Defendant relied on
paragraphs 1to 12 of her
statement of defence and
counterclaimed for “Prompt
payment of compensation for loss
of business and disruption of
economic activity and costs of
the suit”
In its reply, plaintiff denied
the counterclaim and in addition
averred that no permanent
structure has been erected on
the land apart from a toilet
facility which was erected after
the commencement of this suit.
Plaintiff again denied the
averments relating to estoppels
raised by defendant.
At the close of pleadings. The
issues settled upon for
determination were:-
(a)
Whether or not defendant has
encroached on plaintiff’s
land.
(b) Whether or not plaintiff
notified defendant to
vacate the land when defendant
unlawfu occupation
came to the notice of the
plaintiff
l
(C) Whether or not
defendant has enjoyed
undisturbed possession for
the past 18 years
(d) Whether or not defendant
has built permanent
structures on the land.
(e) Whether or not the land
being occupied by
defendant forms part of
plaintiff’s land
(f) Whether
or not defendant acknowledged
that
plaintiff owns the land
(g) Any other issue (s)
arising out of the pleadings
or may arise in the course of
the trial.
By way of prefatory remark, a
basic error committed by
plaintiff ought to be pointed
out. In the statement of claim
filed by plaintiff on 15th
February 2010, the certificate
of allocation with a site plan
was annexed. This is
fundamentally inconsistent with
rules of pleadings. It is trite
that in pleadings material facts
are averred as against evidence.
Quite clearly, the annexture was
evidence which should not have
been part of the statement of
claim. (see order 11 Rule 7 of
the High Court (Civil Procedure)
Rules, 2004 (C.1 47).
Furthermore, in the case of DAVY
Vs. GARRETT (1878) 7 CH. D. 473,
even where a statement of claim
pleaded many letters because
they contained admission, the
letters were struck out by the
court as they were regarded as
evidence and ought not to have
been pleaded. In like the same
manner, I make haste to strike
out the annexed certificate of
Allocation and the site plan
marked as “Annexure ‘A’ as same
is invalid.
It is instructive to note
however that the certificate of
Allocation and its site plan
were formally tendered into
evidence as Exhibit ‘A’ in the
course of the trial.
The evidence adduced by the
registrar of plaintiff, Mrs.
Rita Kaine coupled with Exhibit
‘A’ definitely demonstrate on
the preponderance of the balance
of probabilities that the
disputed land was allocated to
plaintiff by the then Lands
Department, the accredited and
statutory body of government of
Ghana that had the mandate to do
such an allocation of public
land.
Indeed the consistency of
plaintiff’s pleadings and the
evidence adduced regarding how
plaintiff assumed ownership of
the disputed land when
juxtaposed with the rather
inconsistent case of defendant
as to how she purportedly
acquired the disputed land lends
credence to the finding that the
disputed land is more likely and
probably that of plaintiff than
the defendant.
For instance, in the statement
of defense, there was no inkling
as to how defendant became owner
of the disputed land or even
where she operates her business.
However, in the course of the
trial, defendant made valiant
but unproductive efforts to
impress upon the court that the
disputed land was granted to her
grandmother by the La Stool and
that upon the demise of her
grandmother the land devolved on
her mother and upon the demise
of her mother she has become the
beneficial owner of the land.
With this defence which I regard
as an after thought, one may
even argue that that evidence
was a departure from the nature
of the defence filed and by law
as pointed out in the Court of
Appeal case of APPIAH Vs. TAKYI
(1982-83) 1GLR 1, I am impelled,
as a matter of rule, to prefer
the case of plaintiff to that of
defendant having regard to the
consistency in the pleadings and
the evidence of plaintiff as
against the departure from the
defence filed.
By plaintiff’s showing, the land
allocated to them was 2.55 acres
in size. There was this further
piece of evidence that defendant
has encroached unto this parcel
of land to the extent of 125 by
75 feet.
It is not in dispute that
defendant is operating a
drinking bar and a restaurant on
a portion of the land. I
therefore find that the presence
of defendant on that portion of
land without the licence or the
permission of plaintiff amounts
to a violation of the possessory
right of plaintiff on the
disputed land. This is nothing
but pure trespass and I so find.
In other words, I find that
defendant has trespassed on
plaintiff’s land to the extent
of 125 by 75 feet.
Exhibits ‘B’ and ‘C’ which were
written by plaintiff to
defendant and by defendant to
plaintiff respectively as far
back as October 2004 strongly
corroborates the fact of
defendant’s encroachment on
plaintiff’s land.
It must be acknowledged that at
the time this correspondence
took place, there was no court
action. In my humble view,
letters of this kind that
parties write prior to
institution of a legal action in
a court of law deserve critical
consideration in evaluating the
credibility of the parties
respecting evidence adduced in
court relating to the same issue
(s).
In other words, where a letter
written by a party is in direct
conflict with what the party
says in court on oath, the court
ought to regard and scrutinize
such evidence with utmost
suspicion.
It is in this light that I tend
not to be impressed by the case
of defendant. Defendant in her
letter, that is exhibit ‘C’
acknowledged her trespass on
plaintiff’s land. She even
passionately pleaded with
plaintiff for the latter to
grant her some sort of
legitimacy on the land by
accepting her as a tenant or a
licensee. When this case came
before the court, the same
defendant wants the court to
believe that she is the owner of
the land and she acquired same
from La Stool through her
grandmother and mother. In all
candidness this is clearly an
afterthought and same cannot be
accepted.
I am inclined to believe it was
when plaintiff decided to
construct a fence wall on the
2.55 acre land that they noticed
clearly the defendant’s
trespass. And when plaintiff
observed this trespass, they
duly notified defendant of the
fact of her trespass. Exhibit
‘B’ tells it all. Before then, I
would want to believe that
defendant was on the land as an
implicit bare licensee or a
squatter.
Having unambiguously conceded
these matters, defendant cannot
now be heard to say something
different. In fact Exhibit ‘C’
quoted extensively earlier on in
this judgment incurably nails
defendant’s case to the
doldrums.
The crucial defence put up by
defendant, that is paragraphs 9,
10 and 12 of the statement of
defence which have been
extensively quoted earlier on in
this judgment, centered on the
equitable principle of laches
and acquiescence.
The contention has been that
defendant has not only been on
the land for about 18 years but
has put up permanent structures
to the knowledge of plaintiff
and yet plaintiff did not raise
any protest and therefore
plaintiff should not be allowed
to now assert their interest
having by their conduct and
silence created the impression
that defendant has acquired
cognizable interest to the land.
In my view, defendant being a
trespasser or a squatter on
plaintiff’s land cannot claim
any interest in the and merely
because she has been on the land
for a long period of time,
unless it is established that
defendant had done certain
things or conducted herself in a
manner adverse to the interest
of plaintiff’s ownership of the
land. In the absence of any
exercise of rights adverse to
the interest of plaintiff,
plaintiff cannot be convicted of
laches and acquiescence.
For instance if defendant in
occupying the land had alienated
the land or built permanent
house (s) on the land to the
knowledge of plaintiff and
plaintiff fully aware of this
adverse acts did not protest,
then plaintiff stands liable for
laches and acquiescence.
Defendant claimed she put up
permanent structures on the land
and plaintiff not only denied
that but contended that
defendant merely put up
temporary structures where she
carried out her business. It was
therefore incumbent on defendant
to prove that the structures she
had put on the land were indeed
of permanent nature.
Unfortunately, defendant failed
to discharge the onus of proof.
To the extend that whether the
structure is of a permanent
nature or not is something
capable of positive proof and
defendant merely testifying
that permanent structure had
been developed on the land,
which testimony was vehemently
denied, I hold that defendant
did not establish that the
so-called structures where she
carries her business are
permanent houses. Defendant
would have substantially helped
her case if the artisan who
developed the structure had been
called or better still she could
have called an expert, a
quantity surveyor or a mason to
tell the court whether the
structure on the land is of
permanent nature or not.
Furthermore, defendant ought to
have proved that plaintiff was
aware of her so-called adverse
occupation on the and yet did
not protest or resist.
Plaintiff is not an individual
person. It is an educational
institution created by law.
Therefore it was incumbent on
defendant to have adduced
evidence that her occupation of
the land was not only adverse
but was also known to either the
Rector, the registrar or any
accredited member of the
governing body of the school. No
such evidence was proffered by
defendant.
I am not oblivious of the one
name that cropped up. One Mr.
Addo, for all intends and
purposes appears to have been
aware of defendant’s occupation.
It seems that he even played a
critical role as far as
defendant’s occupation on the
land was concerned. This is
discernible from Exhibit ‘C’.
However this Mr. Addo was
described merely as a member of
staff of plaintiff institution.
Was he a teacher, an
administrator or a worker of
plaintiff? There is dearth of
information as to the actual
status of the said Mr. Addo. In
the circumstance his knowledge
of defendant’s occupation on the
land cannot by any stretch of
the imagination be imputed on
plaintiff.
I therefore find that defendant
failed to prove that she has
been in adverse possession on
the disputed land to the
knowledge of plaintiff so as to
avail herself the doctrine of
laches and acquiescence. Being a
squatter in a temporary
structure operating a drinking
bar cannot be regarded as
adverse.
Defendant should have realized
that as long as she has no
legitimacy to title respecting
the land, she stands to loose
out one day against the true
owner of the land. This risk
inherent in the business of
defendant is what has
materialized and she must
stoically take it in her
strides.
From the foregoing it is clear
that defendant is not entitled
to her counterclaim and same is
dismissed. I enter judgment in
favour of
Plaintiff. Accordingly I order
recovery of possession in favour
of plaintiff against defendant.
For general damages for trespass
I award plaintiff the sum of
GH¢800.00. Defendant by herself,
her agents, assigns, workers etc
are hereby restrained from
carrying out any business on the
land in question. Plaintiff is
awarded costs of GH¢500.00.
(SGD) ANTHONY OPPONG
JUSTICE OF THE HIGH COURT.
LAWYERS:
ADDAE KYEREMEH ESQ;
FOR PLAINTIFF
GEORGE ESHUN ESQ;
FOR DEFENDANT.
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