Asare Emmanuel v Kwao Richard & Apostle Owusu Brempong

On 24th February, 2022, the Plaintiff sued out of the Registry of the High Court, Sunyani a Writ of Summons against the 1st Defendant for the following reliefs:

a) A declaration of title to all that piece or parcel of land lying and situate at PONWAAKROM near Tanoso in the Tano North Municipality in the Ahafo Region and shares common boundaries with the lands of Op. Kwasi Yentumi now in the possession of Eric Osei Kofi, Op. Kwabena Nkran now in the possession of Esther Mensah, Mr. Tetteh Kekebi alias Obutu and the Odo river;

b) Recovery of possession of the land described in relief (a) supra;

c) General Damages for trespass

d) Perpetual Injunction restraining the defendant, his assigns, agents, servants, successors and all such persons claiming through the defendant from ever interfering with the plaintiff’s possession, occupation and enjoyment of the land as described in relief (a) supra.

In the accompanying Statement of Claim, the Plaintiff described himself as a retired civilian employee of the Ghana Armed Forces and a farmer. He claimed ownership of the land described in his Relief A. He traced his ownership to his father Opanin Samuel Kwasi Anim who acquired same in 1948 from the then Bechem Akyeame Hemaa, Nana Akua Buor. His father possessed the land by cultivating cocoa and some food crops on it. During such possession, the Plaintiff claimed that he was born on the land, and growing up, he and his mother joined his father in cultivating the land. He pleads further that the land suffered a burn-out during the bush fires of 1983 and all the cocoa cultivated was lost. His father did not cultivate cocoa again, but cultivated food crops on the land, doing same till his demise in 2007. He avers that as son and customary successor of his late father, he inherited the land in issue. He continued cultivating the land with cocoa and palm trees, and later some cashew and coconut trees. This land, according to the Plaintiff has been trespassed by the 1st Defendant who began to plant coconut trees, intercropping the Plaintiff’s existing

cultivation. Therefore, by his action, he sought the reliefs indorsed on his Writ of Summons.

On 8th March, 2022, the 1st Defendant entered appearance personally, and on the same date delivered a Statement of Defence. In it, he averred that he was a farm manager appointed by one Apostle Osei Wusu Brempong, who had obtained a grant of the land in dispute from the then Omanhene of Duayaw Nkwanta Traditional Area, Nana Boakye Tromo III. This revelation led to an attempt by the Plaintiff to have the said Nana Boakye Tromo III joined to the suit. This appears to have been abandoned, but on 18th August, 2022, the Plaintiff filed an application to have Apostle Osei Wusu Brempong joined to the suit. This also appears to have been abandoned, but a subsequent application by the 1st Defendant dated 23rd August, 2022 for the exact same joinder succeeded. Apostle Osei Wusu Brempong thus was joined to the suit as 2nd Defendant. The Writ of Summons and accompanying Statement of Claim were thus both amended as a result to reflect the joinder, same filed on 8th February, 2023. The indorsement remained the same, but in the Amended Statement of Defence the 2nd Defendant was duly referred to.

A search in the Registry of the Court commissioned by the Plaintiff and dated 15th March, 2023 revealed that the Defendants were served with the Amended Writ of Summons and Statement of Claim on 9th February, 2023, but as at the date of the search, neither Defendant had delivered a defence, and particularly the 2nd

Defendant had failed to enter appearance. The resulting situation therefore led the Plaintiff to move under Order 10 rule 6 of the High Court (Civil Procedure) Rules, 2004, C. I. 47 to apply to have the action set down for trial. Before the application could be heard on the return date of 28th March, 2023, the Defendants entered appearance on 21st March, 2023.

On 13th April, 2023, a Statement of Defence was delivered on behalf of the Defendants. In it, the 2nd Defendant averred that he had been put into effective possession by his grantor, Nana Boakye Tromo III, then the Omanhene of the Duayaw Nkwanta Traditional Area upon an earlier grant of the land in dispute to him for a term of 50 years. He further contended that for three years he had been in effective possession of the land, cultivating same with coconut with the assistance of the 1st Defendant. Upon that, he averred further that the Plaintiff’s action was but a frivolous and vexatious exercise which should not be entertained.

The Plaintiff elected to file a Reply to the Statement of Defence, filing same on 26th October, 2023. In it he contested the right of the 2nd Defendant’s grantor to grant the land in dispute claiming that same was not part of the Duayaw Nkwanta Stool land, and, though denied, even if it was, then, by his father’s long possession of the land, without objection from the Duayaw Nkwanta Stool, since 1948, the said Stool was estopped from contesting such possession that he had continued with. Therefore, he contended that the Duayaw Nkwanta Stool was accordingly statute barred under

the Limitations Act, 1972, NRCD 54 from any claim of possession to the land in dispute.

An Application for Directions was filed by the Plaintiff on 4th December, 2023 and same was heard and granted on 19th April, 2024. The issues set down as issues for trial were the following:

a) Whether the disputed land forms part of the Duayaw Nkwanta Stool land, defendant’s grantor or the Bechem Stool Land the Plaintiff’s grantor;

b) Whether the Duayaw Nkwanta stool, has any interest in the disputed land to have purported to transfer same to the 2nd defendant;

c) Whether the Bechem Stool is the proper stool to alienate an interest in the disputed land to the Plaintiff’s predecessor;

d) Whether the Plaintiff through his predecessor’s long, undisturbed, visible and unchallenged possession of the disputed land bars the defendant’s grantor from laying any claim to the disputed land;

e) Whether the disputed land being all that piece and parcel of land lying and situate at “Ponwaakrom” near Tanoso in the Tano North Municipality in the Ahafo Region and sharing common boundaries with the properties of Op. Kwasi Yentumi now in the possession of Eric Osei Kofi, Op. Kwabena Nkran now in the possession of Esther Mensah, Mr. Tetteh Kekebi alias Obutu and Odo river is the bona fide property of the Plaintiff.

In compliance with C. I. 87 of 2014, the Plaintiff, together with two witnesses, filed witness statements for use as their respective Evidence-in Chief at trial, all dated 25th June, 2024, together with a Pre-Trial Checklist of the same date. The Defendants failed or neglected to do so within the time allotted by the Court, and despite adjournments to allow same to be filed late, the Defendants never did. Case Management was therefore held on 19th November, 2024, at which the Plaintiff’s witness statement, as well as the two for his witnesses, Abusuapanin Adjei Mensah (PW1), and Nii Mensah (PW2). The Defendants’ entire defence was struck out by the Court under Order 32 rule 7A of CI. 47 of 2004 as amended by

C.I. 87 of 2014. Trial was fixed then to commence on 20th December, 2024.

Earlier on 9th July, 2024, the lawyer for the Defendants, Francis Asiedu, Esq. filed a Notice of Withdrawal of Representation, withdrawing as counsel for the Defendants. The purported withdrawal was without leave of the Court. Obviously out of the abundance of caution the Court, on 17th October, 2024, and on 7th November, 2024, ordered that the Defendants be served with hearing notices to appear. The records of the Court attest to the fact that these were done, however, the Defendants never appeared. Comments will later be made on the manner of withdrawal of representation as counsel by the lawyer for the Defendants.

The Evidence-in Chief of the Plaintiff, as contained in his Witness Statement dated 25th June, 2024, repeats his pleadings in their entirety. Among the exhibits attached are Exhibits E, F, G, H, J, and K.

Exhibit E is a letter dated 28th March, 1994, described as a Tenant Farmer Identification Card/Form. It is signed and stamped by someone referred to as Nana Asiwbour Gyamfi II, the Omanhene of Bechem Traditional Area. It appears to have been issued to one Samuel Kwasi Anim, which name ties with that averred to be the name of the Plaintiff’s late father. The contents of the letter appear to be an authorization to farm with a condition stated that royalties in respect of the land are to be paid to the ‘Regional Lands Secretary, Regional Lands Commission Secretariat, Sunyani.’

Exhibit F is an invitation letter emanating from the Bechem Traditional Council to a list of persons, who were summoned to appear with their documents and stool land receipts. The letter is dated 19th March, 2018. The Plaintiff is not named in the list of recipients. One name is ticked, appearing at No. 15, but it is not the name of the Plaintiff.

Exhibits G, H, J, and K, are receipts apparently issued by the Bechem Stool Land Secretarial and described as for payment of ‘property rate.’ They are in the name of the Plaintiff.

Exhibits A, B, C, and D are pictures of several palm trees that appear destroyed.

The Plaintiff called two witnesses. They were Abusuapanin Adjei Mensah (PW1), who describes himself as the Aboaso Tanoso Akyeamehene Abusuapanin, and Nii Mensah (PW2), a resident of Adengo, Ponwaakrom.

PW1 testified that Nana Akua Bour (deceased), once the Akyeamehemaa of Tanoso, and Akyeamehemaa of the Bechem Traditional Area was his grandmother. He claimed to have known the Plaintiff and his late father to be farming on the disputed land, which land he contended was not part of Duayaw Nkwanta Stool Lands.

PW2 testified that his late father, Opanin Kwabena Nkran owned a parcel of farmland that shared a common boundary with that of the disputed property, known to him to belong to the Plaintiff’s father. He claims to have been born in 1960 and has been acquainted with his father’s land, for which his father attorned tenancy to the Bechem Stool, and never to the Duayaw Nkwanta Stool.

With the evidence of the Plaintiff and his witnesses remaining unchallenged, since the Defendants never heeded any of the notices served on them to appear, several issues set down cannot be subjected to scrutiny. Such an issue is that

which seeks a determination on whether the land in dispute falls within Bechem Stool Lands or Duayaw Nkwanta Stool Lands. Nevertheless, the burden on the Plaintiff still remains as fixed under S.11(4) and 12 of the Evidence Act, 1975, NRCD 323. He is obliged to provide proof on a balance of probabilities, being the required standard of proof in all civil actions. Should he show that his case is more probable than not, he succeeds (see Adwubeng vs. Domfeh [1996-97] SCGLR 660). The facts he relies on should easily and safely be inferable from the evidence he has adduced, and be credible enough to lead to a finding in his favour (see Zabrama vs. Segbedzi [1991] 2 GLR 247).

The evidence adduced by the Plaintiff, in particular Exhibits E, F, G, H, J, and K, do show that the Plaintiff has had a course of dealing with the Bechem Stool in respect of farm land. Admittedly, none of these actually identify a specific parcel of land. If, however, that evidence is construed together with that of PW2, a person who’s farmland shares boundary with the one claimed by the Plaintiff, it is reasonable to construe that the land claimed and described by the Plaintiff is the same one for which receipts had been issued for the payment of property rates by the Plaintiff to the Bechem Stool.

Besides, the Plaintiff’s evidence and that of PW1 and PW2 that the land in dispute does not fall within Duayaw Nkwanta Stool Lands stands uncontested. At the commencement of the instant action an attempt to join the then Paramount Chief of Duayaw Nkwanta, Nana Boakye Tromo III exists on record. He opposed

the attempted joinder by an affidavit in opposition. The application was either unsuccessful, or was withdrawn, but, it brought to the attention of that Stool the instant contest over that portion of land. The stool sat by, taking no step in the contest. It will bear the consequence of a finding against its interest in the land, if any. For, if a grantor claimed by a party to an action over land, becomes aware of such a contest, it is incumbent on such grantor to defend the action together with its grantee, by joining the action or testifying for its grantee (see Bruce vs. Quarnor [1959] GLR 292 and Egyir vs. Hayfron [1984-86] 1 GLR 510). This was not done, and extremely telling is the failure and neglect of the Duayaw Nkwanta stool to defend this action.

In view of the aforesaid, this Court finds that the Plaintiff succeeds on Reliefs B and D of the claims indorsed on his Writ of Summons.

In respect of Relief A, it is the position of the Court that the evidence adduced by the Plaintiff, though establishing possession, did not meet the threshold to permit a declaration of title in his favour. All the evidence adduced by him proved that his late father was a tenant farmer holding the land in dispute upon the behest of the Bechem Stool. It confirms the validity and presence of possession that has devolved to the Plaintiff, but not title to same. That Relief is therefore denied.

Relief C is a claim for general damages for trespass. To this the Plaintiff alleged and proved damage to his farm caused by the Defendants. Exhibits A, B, C, and D, as addressed above, are images of the destruction of some crops on the farm. The Plaintiff, however, failed to assist the Court determine the extent of such damage. The fact of some damage proven, however, entitles the Plaintiff to some award. He is declared to recover the amount of GH¢5000.00 from the 2nd Defendant.

I promised a comment earlier on the Notice of Withdrawal of Representation filed on 9th July, 2024 by the lawyer for the Defendants, Francis Asiedu, Esq. Under Order 75 of the High Court (Civil Procedure) Rules, 2004, C. I. 47 there are three situations in which a lawyer’s representation of a party could be terminated:

a. Where the party elects to change the lawyer by appointing a new one, or elects to represent himself or herself in the action;

b. Where the lawyer deceases, becomes bankrupt or cannot be found, fails to take out a practicing licence, is struck off the Roll of Lawyers or is suspended from practicing, or for any other reason ceases to practice law; or

c. Where the lawyer elects to cease to act for a party.

Where it is the party changing his or her lawyer, it is obvious that upon the filing of a ‘notice of change of lawyer’ by a newly retained lawyer, the court and all other parties are informed of the termination of the previous lawyer’s instructions and the assumption of responsibility by a new lawyer appointed. If the party elects to represent himself or herself, then the party is obliged under Rule 3 to file a notice of such change and serve all parties with such notice.

Where, however, it is the lawyer electing to cease acting on behalf of the party, Rule 6 applies. In that situation, the lawyer is under a duty to apply to the Court to make an order confirming his or her withdrawal of representation. Such an application will be supported by an affidavit stating the grounds upon which the application is made.

The circumstances permitting the withdrawal by a lawyer of representation of a client are covered in Rule 85 of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 L. I. 2423. This Rule provides that except for good cause, a lawyer shall not withdraw legal representation. The option to withdraw should be in the situation where the client has lost confidence in the ability of the lawyer to represent his or her interests, or where, after reasonable notice, the client fails to provide funds on account of disbursements or fees (Rule 86).

Further, Rule 87 provides circumstances where it becomes mandatory for a lawyer to withdraw representation, or it is untenable for the lawyer to continue to offer representation to the client.

The fiduciary relationship created by the contract for legal representation is one that creates significant obligations and duties on the part of the lawyer to perform for his or her client. In choosing to disengage, care should be taken to ensure that such withdrawal does not compromise the client’s interest. Withdrawal of representation is an ethical issue. That is why it is required that the lawyer applies for an order confirming the withdrawal where the lawyer elects to terminate services to that client.

Litigation practice can be stressful, and where the lawyer and client relationship suffers strain, it is easy to result in a frustrating situation for a lawyer who may choose simply to file a notice of withdrawal simpliciter and forget about that case. Let lawyers be advised to treat withdrawal of representation with caution, so as to avoid offending the professional and ethical rules. Note should be taken of the proper application of each situation provided under Order 75 that could result in a lawyer withdrawing or being changed. If it is the lawyer choosing to withdraw, Rule 6 requires that an application be made for an order confirming the withdrawal, except where the client as party, replaces such lawyer with another who files a notice of change, or the client files a notice to self-represent.

Upon the grant of Reliefs B, C, and D, the Plaintiff succeeds in this action.

Costs after trial is set at GH¢10,000.00 against the Defendants, in favour of the Plaintiff.