FELIX NTIAMOAH v. CALISIUS ELOZIEWU

The Plaintiff on 11th June, 2009 issued this writ accompanied by a Statement of Claim and claimed the following:

a) Declaration of ownership

b) Recovery of Possession

c) An interlocutory injunction restraining the Defendant by himself, his servants, agents or otherwise whatsoever from remaining on the land, and the subject matter of this suit containing his building operations.

d) Damages for trespass

e) Further other relieves

f) Cost.

The Writ and the Statement of Claim were served on the Defendant who entered appearance per Puozuing and Associates, as Counsel on 21st July, 2009. The defendant however failed and or refused to file defence to the claim.

On 14th May, 2010, Interlocutory Judgment was entered against the defendant for failure to file defence to the claim. The suit was then adjourned to 10th June, 2010 to prove title and to assess damages.

The Plaintiff gave evidence on 10th June, 2010 to the effect that he bought the land in dispute from one Nii Mensah, who showed him a power of attorney to the effect that he Nii Mensah should sell the family land around Nmai Dzorn. When asked whether he knew the name of the family, the Plaintiff answered that he knew only Nii Mensah. He continued his evidence in chief that when he bought the land, he was given an indenture, and tendered same as exhibit ‘A’. Exhibit ‘A’ is in the name of Mr. Felix Ntiamoah the Plaintiff herein and Mrs. Annah Ntiamoah.

The writ is however not in a representative capacity. The Plaintiff is however claiming declaration of ownership and recovery of possession. Since the Plaintiff is claiming Declaration of Ownership and Recovery of Possession, there is a burden on him to lead evidence to establish that the land is for him. This is the decision in the case of Yaa Kwesi vrs. Arhin Davies & Anor. (2007-08) SC GLR 580, holding 1 where the Court held that “since the Plaintiff-appellant sued not only for a declaration of title but also damages for trespass and an order of perpetual injunction, he assumed the onerous burden of proof of title to the disputed land by the preponderance of the probabilities as required by section 11(1) and (4) and Section 12 of the Evidence Decree 1975 (N.R.C.D. 323), or else risk the prospect of losing his case.” Again in the case of Barkers-Woode vrs. Nana Fitz (2007-08) SC GLR 879, the Supreme Court cited with approval the common law principle of “ei incumbit probation qui decit, non qui negat” and held that “The common law has always followed