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IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (HUMAN RIGHTS DIVISION) HELD IN ACCRA ON THURSDAY, THE 16^TH DAY OF FEBRUARY , 2012, BEFORE HIS LORDSHIP, JUSTICE UUTER PAUL DERY, HIGH COURT JUDGE.

JUDGMENT

On 26-03-2009, the plaintiff, Dr. Edward Victor Collins Degraft Johnson, caused a writ of summons to issue in this court in which he claims the following reliefs:

1. A declaration that the defendant, Arnold Adu Addy, also known as Nii Akwaanor III, the chief of Ashalaja, is not entitled to lay any claim or prevent the plaintiff’s servant or servants from entering onto the plaintiff’s land purchased by the plaintiff on 23-04-1976 from the defendant’s stool family stamped and registered at the Deeds Registry as No. 1835/1997 described in the schedule thereto as ALL THAT PIECE AND PARCEL OF LAND situate lying and being at Ashalaja near Accra in the Greater Accra Region aforesaid and bounded on the North by Akwaanor Family Land for a distance of 2535 feet or more or less from EVC de GJ 19 – EVC de GJ 22, bounded on the South by F.P.C. Ashalaja Farms and Akwaanor Family Land for a distance of 2426 feet more or less from EVC de GJ 10 – EVC 6, bounded on the East by Akwaanor Family Land for a distance of 4352 feet more or less from EVC de GJ 22 – EVC de GJ and bounded on the West by Akwaanor Family Land for a distance of 4330 feet more or less from EVC de GJ 10 – EVC de GJ 17 and covering an approximate area of 200 acres (80.92 Hectares) which said piece or parcel of land is more particularly delineated on the Plan thereto attached and thereon edged PINK.

2. A declaration of trespass by the defendant or persons claiming title from them as by the defendant’s conduct and unlawful acts has granted or allowed various portions of the land knowing that he the defendant or his agents are not entitled to grant any portion of the said land as same has earlier on been alienated to the plaintiff as by the grant aforesaid.

3. Mandatory order directed at the defendant that he shall allow the plaintiff to freely enter onto any part of the said land to demarcate and survey any portion of the said land without any interference from the defendant.

4. Order of perpetual injunction restraining the defendant or any member of the Stool Family for the time being, his servants or agents for the time being from entering onto the plaintiff’s land described above and interfering with the plaintiff’s quiet enjoyment, his servants, agents or person deriving title from the plaintiff.

In the accompanying statement of claim, the plaintiff avers that he is the owner in possession of the land in issue having purchased same in 1976 for ¢2,000.00 (old currency). Sometime in 2007, the Catholic Church expressed a desire to develop a portion of the said land as a nucleus of tertiary educational institution having already approached the plaintiff. The plaintiff agreed to let out to the church 20 acres of the said land. The plaintiff, acting by one Mr. Reynolds, his surveyor as the original surveyor who demarcated the said land at the time of purchase and a representative of the Catholic Church, were instructed by the plaintiff to enter onto the said land and select an area suitable for the purposes of the church, survey and demarcate the area for the said purpose.

The plaintiff avers further that when his representatives got to Ashalaja on 19-02-2009, they went to the defendant’s stool family house and as a matter of courtesy, they informed the defendant and his elders of their mission intending then to go and work on the said land. The defendant menacingly informed the plaintiff’s survey team that the plaintiff had no land on any part of Ashalaja’s land and that if the team insisted on entering the forest to do the demarcating, they will be doing so at their own risk. The defendant also told the team among other things that he had been informed by his predecessor-in-title that there was no such grant and that the only thing that existed between the stool of Ashalaja and the plaintiff was that there was only a promise to make a grant to the plaintiff if and when he represented them in court proceeding which is false and only meant to frighten and put off the plaintiff from entering onto his said land.

The plaintiff thus contends that the defendant’s conduct and menacing utterances on the date above-mentioned has led the plaintiff in no doubt that the defendant is staking a claim to the plaintiff’s land. Thus, the plaintiff’s instant action.

In his defence, the defendant avers that the land in dispute is family (not stool) land, which land is the property of the Akwaanor family of Ashalaja, of which he is not the head. As he is not the head of family, the plaintiff has no cause of action against him so he has been wrongly sued.

The defendant also denies that the plaintiff purchased the land in issue in 1976 for ¢2,000.00 (old currency) as such the plaintiff has no valid title, or any at all to any portion of the Akwaanor family lands at Ashalaja.

In reply, the plaintiff avers that the Akwaanor family of Ashalaja has never challenged the plaintiff as to the ownership of the land. It is rather the defendant who at various times questioned the plaintiff’s right to be on the land and further had attempted in the past to compel the plaintiff to accept another land in substitution for his land which offer he rejected.

The plaintiff, again, replies that the defendant has been claiming to be both the Chief of Ashalaja and the head of the Akwaanor family of Ashalaja and he warned the plaintiff’s representatives on 19-02-2009 not to enter onto any part of the land in his capacity as the chief. As such, whether the defendant styles himself as a chief or head of family, he has shown by conduct and act to be the person who has for sometime now been obstructing the plaintiff from having full control of his land when he (the defendant) has no such right to interfere with the plaintiff.

At the application for directions, the following issues were set down for trial:

1. Whether or not the plaintiff has been granted any land by the Akwaanor family in Ashalaja for which an Indenture evidencing this grant has been made between the plaintiff and the said Akwaanor family.

2. Whether or not the said Indenture has been registered at the Deeds Registry as No. 1835/1997.

3. Whether or not the defendant as such defendant has on several occasions when the plaintiff had sought to enter onto his land threatened the plaintiff’s representatives not to enter the said land and carry out various works as directed by the plaintiff.

4. Whether or not the defendant on several occasions after the death of the head of the Akwaanor family the chief of Ashalaja offered to give the plaintiff another land in substitution of the original land granted to him, which offer the plaintiff had always refused.

5. Whether or not the defendant is the person who the plaintiff had met on few occasions in respect of this land.

6. That the Court orders or appoints the Regional Survey Department to survey for the purposes of identifying the land and its extent as described in the plaintiff’s Indenture.

The court directed the Regional Survey Department to survey the plaintiff’s land and identify its extent as described in the plaintiff’s Indenture. One Frank Wontumi from the Regional Survey Department carried out the said directions, came to court and tendered the plan and the report in evidence as Exhibits CW and CW1 respectively. In Exhibits CW and CW1, the plaintiff’s land has been identified as well as the site for the proposed Catholic University campus.

I would now propose to deal with the main issues in dispute in the order in which they have been set down.

It is the plaintiff who asserts that he acquired the land in dispute from the Akwaanor family. The defendant in his defence denies that the plaintiff acquired the said land from the Akwaanor family. By sections 10; 11(1) and 11(4) of the Evidence Act, 1975 (NRCD 323), it is the duty of the plaintiff to lead evidence to persuade the court to believe as a fact that he did acquire the said land from the Akwaanor family.

The plaintiff gave evidence to the effect that he purchased the land in dispute from the Akwaanor family through the elders in 1975 for the sum of ¢2,000.00 (old currency). To buttress his oral testimony, the plaintiff tendered in evidence an Indenture covering this land duly executed by the Akwaanor family and himself (Exhibit A). Exhibit A was executed on 23-04-1976 between Kwami Addy, head of the Nii Akwaanor family of Accra in the presence of Lalifu Armarh, Akwaanofio Addy and Emmanuel Adu Nablah, on the one hand as vendors, and the plaintiff, on the other hand as purchaser.

The plaintiff has thus proved on the balance of probabilities that he purchased the land in dispute from the Akwaanor family. He has, therefore, discharged the burden imposed on him by law. The defendant, apart from his bare denial in his statement of defence, has not made any attempt in his evidence to challenge the plaintiff’s testimony. I, therefore, find it as a fact that the plaintiff was granted the land in dispute by the Akwaanor family.

2. Whether or not the said Indenture has been registered at the Deeds Registry as No. 1835/1997.

The Indenture, Exhibit A, was registered at the Land Registry by Mrs. M.G. Quansah, the Registrar of Lands, as NO. 1835/1997 as evidenced at the back of Exhibit A. There is, therefore, no dispute about the registration of the Indenture at the Lands Registry.

The evidence of the plaintiff in relation to the defendant’s interference with his title and possession of this land is from Harry Randolph (Reynolds), a professional land surveyor. His evidence is that he surveyed the land when the plaintiff asked him to demarcate a portion of his land, that is 20 acres, for the Catholic Church to establish an Accra campus of the Catholic Church. He went to inform the defendant about the demarcation but the latter told him that the plaintiff has no land at Ashalaja. The defendant denies ever meeting the plaintiff’s witness over the demarcation of the plaintiff’s land to the Catholic Church. So, it boils down to the oath of the surveyor as against the oath of the defendant. Whose evidence should the court take as the truth?

The law has been stated that if a party makes an assertion which is denied by his opponent, the party does not prove his assertion by simply mounting the witness box and repeating same on oath – See Majolagbe v. Larbi [1959] GLR 190. The plaintiff asserted in paragraph 7 of his Statement of Claim that “his Survey Team and a representative of the Catholic Church met … the defendant”. In evidence, the surveyor repeated that he went to the defendant with his team and a representative of the Catholic Church. The defendant denies the assertion and the evidence of the surveyor. Yet, the plaintiff has failed to call any of the persons he went with to see the defendant in the light of this clear denial. No reason has been advanced by the plaintiff as to why none of those witnesses have been called to testify. In my view, therefore, the plaintiff has failed to prove that the defendant prevented the plaintiff’s representatives from entering his land to work thereon. In any case, it was once and not several occasions as alleged by the plaintiff.

Again, on the authority of Majolagbe v. Larbi supra, the plaintiff has failed to prove his assertion. The plaintiff alone gave evidence to prove this assertion. The defendant denies the assertion and the evidence. One would have thought that since the plaintiff’s case is that the defendant on several occasions made this offer to him, it would have been done in the presence of witnesses, at least in some of the occasions, and these witnesses could be called to testify for the plaintiff. As it is now, it again boils down to the oath of the plaintiff as against the oath of the defendant. The court has no reason to believe the plaintiff and disbelieve the defendant. The plaintiff thus fails to prove his assertion that the defendant offered him another land in substitution of the one granted him by the Akwaanor family which offer he refused.

5.Whether or not the defendant is the person who the plaintiff had met on few occasions in respect of this land.

Following from my findings, on issues 3 and 4 the plaintiff has failed to prove that he met the defendant on any occasion in respect of the land in dispute.

6. The last issue is whether the plaintiff has any cause of action against the defendant.

It is not in dispute that the land in dispute is a family land. It is also not in dispute that the defendant is not the head of family but the chief. So, it follows that if the plaintiff had any problem with the land he acquired from the Akwaanor family, it is the head of family that he had to sue and not the defendant (See Order 4, rule 9(2) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).

It appears that the plaintiff sued the defendant because to him, he as the Chief of Ashalaja, wrongfully interfered with his title to the land. As shown earlier on in this judgment, the plaintiff has failed to prove that the defendant did interfere with his rights of ownership and possession over the land in dispute.

The plaintiff, therefore, has no cause of action against the defendant. Accordingly, the plaintiff’s action against the defendant lacks merit and same is hereby dismissed. The defendant is awarded cost of GH¢3,000.00.