Katakyie Opoku Agyemang v. Goil Oil Company Ltd Civil Appeal No. HI/85/2023, Delivered on 21st November 2023 (Court of Appeal)

20 Mar Katakyie Opoku Agyemang v. Goil Oil Company Ltd Civil Appeal No. HI/85/2023, Delivered on 21st November 2023 (Court of Appeal)

 “As a principle of law, the Plaintiff can rely on the weakness in the Defendant’s case when he had discharged the burden imposed on him. Once discharged, he was entitled to relief, but where he had failed to lead evidence that would constitute proof in accordance with the standard required, he could not avail himself of any weakness in the Defendant’s case”.

The Plaintiff/Appellant (“Plaintiff”) claimed to own six plots of land at Pokuase. In 2011, the Plaintiff sold four of these plots to the Defendant/Respondent (“Defendant”). A Deed of Assignment was executed for these four plots. In 2012, the Plaintiff obtained a Land Certificate for the remaining two plots and offered them to the Defendant for sale, but the Defendant declined.

The Plaintiff contended that in December 2012, the Defendant began using the two remaining plots by constructing a short wall, installing a signboard, and using the land as a car park for a fuel service station on the four plots it had purchased. The Plaintiff argued that these acts constituted trespass and filed an action seeking:

1. A declaration that the two plots were his property,
2. Recovery of possession, and
3. A perpetual injunction to prevent the Defendant from dealing with the land until the case was resolved.

The Defendant denied the trespass allegations, asserting that the signboard complained of was situated on the four plots it had acquired from the Plaintiff. The Defendant did not file a counterclaim.

In support of his case, the Plaintiff tendered a Deed of Lease executed in his favour by the Dodoo Clottey Royal Family of Pokuase and a Land Certificate issued in his favour as evidence of title to the disputed land. The Defendant, on the other hand, presented testimony from a civil engineer at the Department of Urban Roads (“DW1”), who tendered in a letter (Exhibit 3) which indicated that the two plots were designated as a road by the Department of Urban Roads. Although the letter was inadmissible because it was not pleaded, it was tendered without objection and was therefore admitted and considered by the trial court.

At the conclusion of the trial, the trial court dismissed the Plaintiff’s claim, holding that the Plaintiff had failed to prove his case.

The Plaintiff, dissatisfied with the High Court’s decision, filed an appeal on two grounds:

1. The learned trial judge erred in law and on the facts by dismissing the Plaintiff’s action.

1. 1. The judge ignored evidence presented by the Plaintiff, particularly regarding the unlawful annexation and development of the Plaintiff’s land by the Defendant, with the connivance of the Department of Urban Roads.
   2. The Defendant failed to prove any legal acquisition of the Plaintiff’s land by the District Assembly or the Department of Urban Roads.
   3. The reasoning underlying the trial court’s dismissal of the Plaintiff’s claim was contradicted by compelling evidence, which the judge overlooked.

1. The judgment of the court is unreasonable and cannot be supported by the evidence on record.

Whether the judgment of the court is unreasonable and cannot be supported by the evidence on record.

The Court of Appeal (“the Court”) struck out the second ground of appeal as an inapplicable ground of appeal in a civil appeal. The Court clarified that this ground is applicable only for criminal appeals per section 31(1) of the Courts Acts, 1993 (Act 459).

Whether the learned trial judge erred in law and on the facts by dismissing the Plaintiff’s action

The Court noted that in civil cases, the burden of proof rests on the Plaintiff, who must prove his case on the balance of probabilities. If the Plaintiff fails to present sufficient admissible evidence, the case will be decided against him. The Plaintiff cannot rely on weaknesses in the Defendant’s case unless he has first discharged his burden of proof.

The Court stated that to succeed, the Plaintiff was required to prove:

• His root of title to the land,
• The mode of acquisition, and
• Overt acts of possession.

Upon reviewing the evidence, the Court found that the Plaintiff had failed to prove two key elements of his claim:

• The mode of acquisition of the land by his grantors (since his title was derivative), and
• Any overt acts of possession of the disputed land after acquiring it from his grantors.

The Plaintiff also failed to provide admissible evidence to establish his claim of trespass by the Defendant. The Court explained that the Defendant’s witness had introduced a letter from the Department of Urban Roads, which stated that the disputed land was part of the road reservation for the Awoshie-ACP-Kwabenya Road. This letter was admitted without objection, and it was the Plaintiff’s responsibility to refute it. However, the Plaintiff failed to provide sufficient evidence to counter the claim that the land was a road reservation.

Further, the Court noted that even though the Defendant did not provide personal testimony to refute the Plaintiff’s claims, the evidence introduced by the Defendant’s witness, along with Exhibit 3, was enough to shift the balance of probabilities in favour of the Defendant.

The Court also clarified that the Plaintiff could not rely on the Defendant’s failure to prove the land’s acquisition by the District Assembly or the Department of Urban Roads, as the Plaintiff had not discharged his own burden of proof.

The Plaintiff’s claim of connivance between the Defendant and the Department of Urban Roads was dismissed as mere speculation, as no supporting evidence was presented.

The Court of Appeal concluded that the Plaintiff had not tendered sufficient evidence to support his claims and had failed to discharge his burden of proof. As a result, the appeal was dismissed.

Insights:

1. An appeal is by way of re-hearing, meaning the appellate court treats the case as if it is being heard for the first time. The court can accept new evidence and review the entire case, not just the specific points raised in the appeal[1].
2. In civil cases, the burden of proof lies with the Plaintiff, who must establish his case on the preponderance of probabilities. If the Plaintiff discharges this burden and the balance of probabilities tilts in his favour, that should constitute sufficient grounds for judgment in his favour on the merits. However, when the Plaintiff fails to discharge this burden, the case will be decided against him.
3. If a Defendant has no counterclaim, they are not obligated to prove anything. However, evidence presented by the Defendant can still shift the balance of probabilities to be created in the Plaintiff’s favour if it weakens the Plaintiff’s case.
4. A party in a dispute is not obligated to testify personally and may rely on the evidence of his witnesses[2].
5. Where title is derivative, the grantee must prove that the grantor held unencumbered title to the land and had the capacity to pass valid untainted title to the grantee.[3]

This publication may provide a summary of legal issues but is not intended to give specific legal advice. If you require legal advice, please speak to a qualified lawyer, which may include a qualified member of our legal team at B&P ASSOCIATES (info@bpaghana.com).

AUTHOR:
Abena Agyeiwaa Asare
Legal Associate

[1] Adwubeng v. Domfeh [1996-97] SCGLR 660, Effisah v. Ansah [2005-2006] SCGLR 943 and In Re Koranteng (Deceased); Addo v. Koranteng & Others [2005-2006] SCGLR 1039.

[2] John Dramani Mahama v. Electoral Commission and Nana Addo Dankwa Aufo-Addo Writ No. J1/05/2021, dated 4th March 2021; Adjei Fio v. Mate Tese [2013-2014] 2 SCGLR at 1548; Nyamekye v. Ansah [1988-90] 2 GLR, Nii Ashai Afutu v. Roselyn Akweley Tetteh CA No. 36/98 dated 27th August 1999, in Re Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kotey and Others [2003-2004] SCGLR 420, Yogu v. Agyekum [1966] GLR 482

[3] Awuku v. Tetteh [2011] 1 SCGLR 366