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Land –
Compulsory acquisition -
Leasehold – Ownership of the
various portions - Encroachment
– Demolishing - Order of
cancellation - Land Title
Certificate – Fraud - Damages
for trespass – burden of proof -
Whether or not it does not
matter whether the acquisition
was previous to the interest
held in the land by an
individual or subsequent thereto
HEADNOTES
The
plaintiffs desirous of putting
up residential dwellings
severally negotiated the
purchase from the James Town
Stool, Accra of various plots of
land within an area called
Dunkonaa in the Greater Accra
Region. The negotiations and
purchase of the said plots took
place on different dates between
1990 to 2004. The defendant
corporation was in or about the
year 1996 allocated portions of
land that had been previously
acquired by the government. The
said acquisition was made
primarily for the benefit of
members of Ghana Real Estate
Development Association (GREDA)
but when they were unable to
meet the requirements of the
grant to them the government
allocated 507.75 acres out of
the 586.25 acres of the land
compulsorily acquired to the
defendant. The allocation to the
defendant was by means from 1996
for a term of 99 years. As a
result of the grant of the
leasehold to the defendant by
the Lands Commission, the
defendant was obliged to pay
compensation to the previous
owners, the James Town Stool. In
the course of its entry on the
land, the defendant noticed
several acts of encroachment in
the form of building works on
the land. The defendant caused
notices to be served on the
developers and when the matter
could not be peaceably resolved,
it caused the buildings on the
land to be demolished. The
plaintiffs claiming to be the
owners of the properties
demolished took out the action
herein claiming general and
special damages and a
declaration that the defendant
in utilising the area allocated
to it had exceeded same by 43.30
acres as well as an order of
perpetual injunction. Also
claimed by the plaintiffs was an
order of cancellation of the
Land Title Certificate issued to
the defendant on the ground of
fraud. the High Court, Accra
determined the case in favour
of the plaintiffs with the award
of special damages; perpetual
injunction and the cancellation
of a Land Title Certificate The
defendant successfully appealed
to the Court of Appeal. The
plaintiffs thereafter launched
the instant appeal to us seeking
a reversal of the decision of
the Court of Appeal
HELD
Since the
claim of the plaintiffs was
adverse to the right of the
defendant to occupy the area of
507.75 acres granted to them by
the Lands Commission, the said
claim to the land having failed,
it was right for the Court of
Appeal to grant those reliefs in
their favour. The above reasons
are sufficient to dispose of the
questions that arise for our
determination in the appeal
herein. The result is that the
appeal herein fails and is
accordingly dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
NRCD 323
CASES
REFERRED TO IN JUDGMENT
Kwesi Arhin v
Davies [1996-97] SCGLR 660
Memuna Moudy
v Antwi [2003-2004] SCGLR 967
Re Accra
Industrial Estate Acquisition
[1966] GLR 118 at 122
Gregory v
Tandoh IV [2010] SCGLR 971
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England, Volume 17
Mc Cormick on
Evidence, 2nd Edition
DELIVERING
THE LEADING JUDGMENT
GBADEGBE, JSC
COUNSEL
_____________________________________________________________________
J U D G M E N T
_____________________________________________________________________
GBADEGBE,
JSC;
My Lords, by
the appeal herein, the
plaintiffs seek a reversal of
the unanimous decision of the
Court of Appeal that allowed in
favour of the defendants an
appeal from the decision of an
Accra High Court. It appears
from the decision with which we
are concerned in these
proceedings that the learned
justices of the Court of Appeal
came to the conclusion on the
evidence that the plaintiffs had
failed to discharge the burden
of proof that they assumed in
the matter. Consequently, they
dismissed the claim of the
plaintiffs and entered judgment
in favour of the defendant but
limited only to part of their
counterclaim. The facts relevant
to our determination in these
proceedings are as follows.
The
plaintiffs desirous of putting
up residential dwellings
severally negotiated the
purchase from the James Town
Stool, Accra of various plots of
land within an area called
Dunkonaa in the Greater Accra
Region. The negotiations and
purchase of the said plots
according to the pleadings filed
on their behalf took place on
different dates between 1990 to
2004. The defendant corporation
was in or about the year 1996
allocated portions of land that
had been previously acquired by
the government under EI 5 of
1993. The said acquisition was
made primarily for the benefit
of members of Ghana Real Estate
Development Association (GREDA)
but when they were unable to
meet the requirements of the
grant to them the government
allocated 507.75 acres out of
the 586.25 acres of the land
compulsorily acquired to the
defendant. The allocation to the
defendant was by means of a
lease commencing from 1 November
1996 for a term of 99 years.
As a result
of the grant of the leasehold to
the defendant by the Lands
Commission, the defendant was
obliged to pay compensation to
the previous owners, the James
Town Stool. In the course of its
entry on the land, the defendant
noticed several acts of
encroachment in the form of
building works on the land. The
defendant caused notices to be
served on the developers and
when the matter could not be
peaceably resolved, it caused
the buildings on the land to be
demolished. The plaintiffs
claiming to be the owners of the
properties demolished took out
the action herein claiming
general and special damages and
a declaration that the defendant
in utilising the area allocated
to it had exceeded same by 43.30
acres as well as an order of
perpetual injunction. Also
claimed by the plaintiffs was an
order of cancellation of the
Land Title Certificate issued to
the defendant on the ground of
fraud.
The matter
proceeded to a full scale trial
before
the High Court, Accra that was
determined in favour of the
plaintiffs with the award of
special damages; perpetual
injunction and the cancellation
of a Land Title Certificate
issued in favour of the
defendant in respect of the area
allocated to them.
The
defendant successfully appealed
to the Court of Appeal. The
plaintiffs thereafter launched
the instant appeal to us seeking
a reversal of the decision of
the Court of Appeal. Before
us in these proceedings, the
plaintiffs by their notice of
appeal have raised several
objections to the judgment, the
subject matter of the instant
appeal. In this delivery,
consideration would be given to
the arguments presented to us by
the plaintiffs in so far as they
are relevant to our
determination of the appeal
herein.
Since the
claim of the plaintiffs included
damages
for trespass and an order of
perpetual injunction, on the
strength of settled judicial
opinion although there was no
claim for declaration of title,
the reliefs they sought
necessarily required their title
to the lands to be determined.
It being so, the plaintiffs
assumed the burden of
convincingly and satisfactorily
proving their respective titles
to the areas that they had
occupied before the demolition.
In their determination, the
learned justices of the Court of
Appeal referring to among
others, the case of
Kwesi
Arhin v Davies [1996-97]
SCGLR 660 concluded that the
plaintiffs had failed to
discharge the evidential burden
on them having regard to the
state of the pleadings. The
plaintiffs in a bid to persuade
us to reverse the decision of
the Court of Appeal in their
favour have submitted
considerable arguments to us
partly of law and of mixed fact
and law to the contrary. For
reasons that follow shortly, the
learned justices of the Court of
Appeal were right and expounded
the law correctly on the
questions that arise for our
decision in the matter herein.
Having regard
to the issues that turned on the
pleadings, the plaintiffs
assumed the burden of leading
credible evidence on the facts
on which they relied and also of
persuading the trier of fact of
their existence. One crucial
fact that comes to mind
requiring proof by them is the
identities of the plots of the
several claimants. This means
from the rules of evidence that
the plaintiffs bore the risk of
failure of proof of persuasion.
Unfortunately, there was no
evidence introduced by them in
respect of this crucial aspect
of the case and one wonders how
they could without leading any
such evidence in relation to
the area admitted by them to
have been acquired by the state
for the benefit of SSNIT have
any reasonable tribunal accept
their case? The knowledge that
the plaintiffs had from their
grantors that a huge portion of
the lands owned by them had been
compulsorily acquired for the
use of the defendants placed a
duty on them at the time they
were negotiating to ascertain
the identity of the respective
areas acquired by them and also
in the course of the trial
before the High Court to lead
credible evidence to establish
clearly their identities, which
must be proved to be outside the
acquisition area. This required
proof by clear, convincing and
satisfactory evidence which a
careful consideration from the
admitted evidence does not point
to.
In the case
of
Memuna Moudy v Antwi
[2003-2004] SCGLR 967 in
considering the burden that a
party whose claim to title was
in respect of compulsorily
acquired land, Wood JSC
(as she then was) observed at
page 974 as follows:
“Since the
evidence led to the inescapable
conclusion that the land in
dispute had been compulsorily
acquired by the government, in
their bid to prove title, the
plaintiffs unavoidably had to
prove the extent or identity of
the land owned by them as well
as the mode of acquisition….”
Although the
nature of claim by the
plaintiffs in the above case is
in some respect different from
the case of the plaintiffs
herein, I think the observation
of the learned judge in so far
as it relates to proof by a
party of portions of land that
had been compulsorily acquired
by the state is of much value to
us in these proceedings.
Authority aside, the observation
to which reference has been made
is in accord with principle and
common sense as the title to
compulsorily acquired lands
cannot be impeached or called in
question in any action.
Therefore, since the plaintiffs
through their grantors were
aware of the acquisition they
were required to show positively
that the plots, which they had
acquired individually fell
outside the area of the
acquisition. Since an
acquisition by the state
operates to extinguish any title
and or interests that a person
might have had at the date of
the publication of the
instrument of acquisition,
it does
not matter whether the
acquisition was previous to the
interest held in the land by an
individual or subsequent thereto.
The
plaintiffs must have thought
that the mere proof that the
area allocated to the defendants
is less in size than what they
registered amounted to proof
that they went outside their
grant in the demolition exercise
which provoked the action
herein. But this is not a
necessary and or compelling
inference to be made from the
mere fact of proof that the area
in respect of which the
defendants’ land title
certificate was issued is larger
than the area allotted to them
by the Lands Commission. In
fact, one reasonable inference
that arises from the plaintiffs’
inability to positively identify
the areas that each of them
occupied is that their areas
fall within the site of SSNIT.
See:
Re Accra Industrial Estate
Acquisition [1966] GLR
118 at 122. In the circumstances
of this case, the failure by the
plaintiffs to provide evidence
to establish the particular
areas occupied by each of them
was fatal to their claims before
the court. The conclusion that
the learned justices of Appeal
thus came to is supported by the
application of the rules of
evidence particularly the
burden of
proof. However, as the
plaintiffs have called the said
decision into question, we think
it is appropriate for the
purpose of the task we are faced
with to measure it by reference
to the rules of evidence.
Writing on
the subject “Incidence of the
legal burden”, the learned
authors of
Halsbury’s Laws of England,
Volume 17 on Evidence at
paragraph 14 of page 11 state as
follows:
“The legal
burden of proof normally rests
upon the party desiring the
court to take action, thus a
claimant must satisfy the
tribunal that the conditions
which entitle him to an award
have been satisfied. In respect
of a particular allegation, the
burden lies upon the party for
whom the substantiation of that
particular allegation is an
essential of his case.”
This
statement is sometimes expressed
that the party who asserts the
affirmative of an issue has the
incidence of the legal burden.
Applying the above principle to
the case herein, the plaintiffs
must firstsatisfy this burden
before the defendants introduce
evidence in rebuttal. The
Evidence
Act, NRCD 323 makes
elaborate provisions in sections
10 – 17 on the burden of proof
including the consequence of
failure to discharge the
evidential burden by a party to
an action. For a better
understanding of the
considerable submissions made to
us by the plaintiffs regarding
the conclusion reached by the
learned justices of the Court of
Appeal on the issue of proof by
the plaintiffs of the area of
trespass reference is made to
relevant portions of the
Evidence Act as follows:
“10. (1) for
the purposes of this Decree, the
burden of persuasion means the
obligation of a party to
establish a requisite degree of
belief concerning a fact in the
mind of the tribunal of fact or
the court.
(2) The burden of persuasion may
require a party to raise a
reasonable doubt concerning the
existence or non-existence of a
fact or that he establish the
existence or non-existence of a
fact by a preponderance of the
probabilities or by proof beyond
a reasonable doubt.
11.(1) For the purposes of this
Decree, the burden of producing
evidence means the obligation
of a party to introduce a
sufficient evidence to avoid a
ruling against him on the issue.
(4) In other
circumstances the burden of
producing evidence requires a
party to produce sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of
the fact is more probable than
its non-existence.
12. (1)
except as otherwise provided by
law, the burden of persuasion
requires proof by a
preponderance of probabilities.
(2) “Preponderance of
probabilities” means that degree
of certainty of belief in the
mind of the tribunal of fact or
the court by which it is
convinced that the existence of
a fact is more probable than its
non-existence.
14. Except as
provided by law, unless and
until it is shifted a party has
the burden of persuasion as to
each fact the existence or
non-existence of which is
essential to the claim or
defence he is asserting.”
By the rules
of evidence, at the close of
pleadings in the matter herein,
based on the allocation of the
burden of proof, the plaintiffs
were required to lead evidence
before the trial court on the
respective areas claimed to
belong to each of them for the
purpose of persuading the trier
of fact that the facts asserted
in support of their case were
more probable to have existed
than their non-existence. “Proof
by a preponderance of
probabilities” within the
context of the burden of proof
simply means weightier or
superior evidence. Thus, the
plaintiffs were required to lead
evidence in proof of their
ownership
of the various portions of
the area occupied by them before
the demolition in such a manner
that would satisfy the learned
trial judge that their assertion
that the demolition exercise was
carried out within an area
separate and distinct from the
area compulsorily acquired by
the government under EI 5, was
more probable to exist than its
denial by the defendant. When
the burden of proof is satisfied
by a party, its effect is
torender the evidence more
convincing than that presented
by his adversary.In their book
entitled
Mc Cormick on Evidence, 2nd
Edition published in 1972 at
page 783, the learned authors
writing on the subject: “The
Burden of Proof: The Burden of
Producing Evidence and the
Burden of Persuasion” state
as follows:
“………..The
term encompasses two separate
burdens of proof. One burden is
that of producing evidence
satisfactory to the judge, of a
particular fact in issue. The
second is the burden of
persuading the trier of fact
that the alleged fact is true.
The burden of
producing evidence on an issue
means the liability to an
adverse ruling (generally a
finding or directed verdict) if
evidence on the issue has not
been produced. It is usually
cast first upon the party who
has pleaded the existence of the
fact, but as we shall see, the
burden may shift to the
adversary when the pleader has
discharged his initial duty……..
The burden of
persuasion becomes a crucial
factor only if the parties have
sustained their burdens of
producing evidence and only when
all the evidence has been
introduced……….”
The above
statements though made in
reference to the evidentiary
rules in the United States of
Americaare substantially in
agreement with the provisions
contained in our Evidence Act to
which reference has been made in
the course of this judgment and
its effect on the case herein is
that the plaintiffs must first
introduce evidence on the facts
essential to their case before
the defendant would introduce
evidence in rebuttal. But as the
record of appeal discloses there
was no proof of the areas
occupied by the plaintiffs who
strangely spent so much time in
proof of the value of the
demolished properties. It is
surprising to relate that
although the defendant testified
positively that the demolition
was in its area of allotment,
the plaintiffs made no effort to
place a contradictory view of
the matter before the trial
court and cannot now seek to be
relieved from the consequences
of such a default on their case.
As this was a claim predicated
primarily on trespass, the
failure by the plaintiffs to
prove that in carrying out the
demolition the defendant
encroached into their portions
of land that fell outside the
entire area occupied by EI 5 was
fatal to their action. The
plaintiffs not having introduced
any evidence on the facts
essential to their claim, the
finding in respect of the
alleged trespass in their favour
by the trial court was not only
unreasonable but perverse and
the Court of Appeal acted
correctly in setting it aside.
See:
Gregory v Tandoh IV
[2010] SCGLR 971 at 987 per
Dotse JSC.
From the
evidence before us, it would
appear that the plaintiffs
entered the land of the
respondent wrongfully and it
being so they cannot sue in
trespass against the real
owner-the defendant whose entry
on to the land is thus
justified. In the absence of
proof of their title to the
areas in respect of which they
mounted their action, the
possession which the plaintiffs
relied on in law must give way
to proof of a better title to
the land, a defence which on all
the evidence the defendants
established at the trial. Proof
of a better title by the
defendants rendered the
plaintiffs encroachers and
deprived them of any protection
that ordinarily attaches to
those who are in lawful
possession.
Accordingly,
the attacks in these proceedings
directed at the conclusion
reached by the Court of Appeal
on the facts are to say the
least without any merit and must
be rejected. Reference is made
in this regard to the very
careful consideration given to
this aspect of the matter by
Kanyoke J A who delivered
the judgment of the court at
pages 502-511 of the record of
appeal. The above consideration
is sufficient to dispose of the
grounds of appeal that raise
issues about the burden of proof
and the effect of the evidence.
Having
determined that the plaintiffs
failed to discharge the burden
of proof that they assumed at
the close of pleadings, there is
nothing of substance in the
remaining claimsthat was
deserving of the attention of
the court. The collapse of their
substantive claim based on an
alleged encroachment on their
lands by the defendants brought
an end also to the ancillary
reliefs. Consequently, the claim
seeking a cancellation of the
Land Title Certificate numbered
as GA 18630 Vol.09 Folio 27 of
the 14 February 2003 as well as
the order for perpetual
injunction that were allowed by
the trial court were in error.
On the state of the admitted
evidence, the plaintiffs were
without a scintilla of interest
regarding the area comprised in
the said land title certificate
and accordingly it was not open
to them to mount any claims
concerning it. This appears to
be the unassailable conclusion
that the learned justices of the
Court of Appeal came to at page
511 of the record of appeal as
follows:
“In
conclusion, I hold that for the
foregoing reasons analysed
above, the defendants having
failed completely to discharge
the burden of proving their
titles and identities and
boundaries of their respective
plots and locations, the learned
trial judge ought to have
dismissed their claims.”
The next
question of relevance for our
determination in these
proceedings is the counterclaim
of the defendants, which was
allowed in part by the Court of
Appeal.
Since the claim of the
plaintiffs was adverse to the
right of the defendant to occupy
the area of 507.75 acres granted
to them by the Lands Commission,
the said claim to the land
having failed, it was right for
the Court of Appeal to grant
those reliefs in their favour.
The above
reasons are sufficient to
dispose of the questions that
arise for our determination in
the appeal herein. The result is
that the appeal herein fails and
is accordingly dismissed.
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) S. A.
B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
(SGD)
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) R. C.
OWUSU (MS)
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
COUNSEL;
NO APPEARANCE
FOR THE APELLANTS.
PETER ZWENNES
FOR THE REPONDENT |
