KORY CONSTRUCTION (PLAINTIFF) vs. EDDIE GYAN (DEFENDANT) [2019]DLHC7045

Date	2019-04-30
Suit No.	SUIT NO E1/109/14
Citation No.	[2019]DLHC7045

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.

KING DAVID ADDAE ESQ. FOR THE PLAINTIFF.

C. KUDZEDZI ESQ. FOR THE DEFENDANT

[2019]DLHC7045
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													<main id="main" class="content" style="min-height: 60rem" >KORY CONSTRUCTION<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>EDDIE GYAN<o:p></o:p>(DEFENDANT)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH
COURT, SEKONDI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO E1/109/14&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 30TH APRIL, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KING
DAVID ADDAE ESQ. FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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C. KUDZEDZI ESQ. FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The real issue in this case is which
of the two parties isentitled to the plot of land in dispute. Their contrasting
stories are pleaded in few paragraphs which I capture as follows.<o:p></o:p>The plaintiff, a limited liability company
for purposes of its quarry business acquired a parcel of land situate at Mpeasem
near Ngyiresia from one Mary Quainoo upon payment of valuable consideration.
The land measuring approximately 44.06 acres was granted by assignment, a deed
of which was executed and registered under file No. 2762/8210 TJ, Document No.
2586/12, Property No. 545—Land Valuation No. LVB/WR/1405/13 and Deeds No. 4735.
The plaintiff put servants and security men on the land to protect same from
encroachment. The defendant recently trespassed onto a portion of the land and
started developing same. The plaintiff filed a writ at the district court which
was struck later out for want of jurisdiction at the defendant’s instance. The
defendant continues developing the land even in the face of the challenge.<o:p></o:p>The defendant on the other hand
pleads he has not trespassed onto the plaintiff’s land. He some time in May
2007 acquired a plot of land from the Ngyiresia stool for valuable
consideration. He caused the land to be registered and the documents stamped at
the Lands Commission as No. WR 1340/07 with file No. WR2762/378/07 and deed No.
5293. He commenced a building project which is nearing completion. He says the
plaintiff has no cause of action against him. He did not counterclaim. <o:p></o:p>The plaintiff however sought the
following reliefs.<o:p></o:p>i. Declaration of title to all that
piece and or parcel of land situate and lying at Mpeasem near Ngyiresia in the
Sekondi Takoradi Metropolis of the Western Region enclosing an approximate area
of 44.06 acres.<o:p></o:p>ii. Recovery of possession of the
said land.<o:p></o:p>iii. Perpetual injunction
restraining the defendant either by himself, relations agents workmen artisans
etc from worrying, interfering or disturbing the plaintiff’s ownership,
possession and enjoyment of the said land.<o:p></o:p>iv. Damages for trespass.<o:p></o:p>v. An order directed at the
defendant to remove any structure(s) constructed on the plaintiff’s said land
and or in the alternative the plaintiff to remove same and surcharge the
defendant with the cost of removal of any such structure(s).<o:p></o:p>vi. Any other reliefs as this
Honourable Court may deem fit.<o:p></o:p>This is an action for declaration of
title to land by the plaintiff. Other related reliefs are damages for trespass
and perpetual injunction. The initial burden is thus assumed by the plaintiff
to prove title cogently and satisfactorily. This remains a common learning under
our law requiring no long list of authorities to explain. The plaintiff
discharges the onus on a preponderance of the probabilities. That is the
standard of proof in all civil cases under our law in terms of the provisions in
Section 11(4) and 12(1) of the Evidence Act. It simply means that the plaintiff
has to produce evidence which considered in the light of all the evidence leads
to the belief that what the plaintiff claims is likely to be true than not. That
the plaintiff assumes the initial burden does not mean the burden is fixed.
Upon the adduction of such evidence leading the court to conclude on the
probable existence of the claim than its non existence, the defendant will be
obligated to adduce such evidence of facts essential to the defence. See DUAH
VRS YORKWA (1993/94)1 GLR 217; ADWUBENG VRS DOMFEH (1997/98)1 GLR 282. I
proceed to consider the evidence against this background.<o:p></o:p>The plaintiff testified through its
Managing Director Amine EL-Khoury (PW1). He narrates that in 2011, whilst in
search of a quarry land to acquire, he came into contact with one EK Aggrey,
owner of Mempeasem Quarry Company. He negotiated and bought the company with
all its assets. He tenders Exhibit A series to be the documents evidencing the
purchase of the company. He thought that the land in dispute formed part of the
assets of the company but was not. The vendor introduced him the Mary Quainoo
the owner of the land. He again negotiated and bought the land from Mary
Quainoo which transaction is evidenced by a deed of assignment, Exhibit B.<o:p></o:p>A security man of his company Paul
Eshun informed him that someone had dug a foundation to develop a portion of
the land. The defendant went to buy stones from his company and it was whilst the
stones were being delivered that they got to know the defendant was the
encroacher. According to him, his initial operation of the quarry created
problems between the company and the people of Ngyiresia as the quarry was
close to the town. He therefore decided to develop the land. It was during that
period that defendant and other persons encroached upon the land.<o:p></o:p>In his evidence, Paul Eshun said he
used to work for Mempeasem Quarry company before it was sold to the plaintiff.
The plaintiff engaged him and one Espee to assist its appointed surveyor
demarcate the land based on its site plan. Thereafter, they used pillars
(Signposts) to mark the edges of the land to signify that the plaintiff owned
the place. It was after this that the plaintiff engaged him as a security man.
Whilst on duty he saw the defendant and his workmen on the land. He confronted
the defendant and told him the land belonged to the plaintiff. The defendant however
resisted the claim and said he acqu</main>