Amankona Kennedy Robert v Nana Yaw Ankwaa

INTRODUCTION

The Plaintiff issued a writ of summons and statement of claim on 9th June, 2022 claiming the following reliefs against the Defendant;

1. A declaration of title to and recovery of possession of a farm land approximately four (4) acres in size forming part of a large tract of land acquired by the late Kwaku Tabiri at a place commonly called Nsrensre – Agya at “Berekumfour Akuraamu” on the Tekese stool land and sharing boundary with the Nserensre River and the properties of Akosua Asantewaa and one Karibo.

2. General damages for trespass

3. Order of perpetual injunction restraining the Defendant, his agents and all those claiming through him from having anything to do with the disputed land until the final determination of the suit.

The Defendant was served personally with the writ of summons and statement of claim and a lawyer entered appearance for him. Thereafter the lawyer did not file any process for the Defendant neither did he attend Court as Counsel for Defendant nor file notice of withdrawal of his representation for the Defendant. Thereafter, the Defendant never attended Court despite being served with several hearing notices by substituted service. He failed to file statement of defence within the time limited for doing so. The Plaintiff therefore obtained judgment in default of defence against the Defendant. Pursuant to the Court’s orders the Plaintiff served the Defendant with the judgment in default of

defence and witness statements for case management conference but the Defendant was

unperturbed and did not attend Court. Further hearing notices were served on the Defendant with Court notes apprising the Defendant that the Plaintiff and his witness had given evidence and gave the Defendant opportunity to attend Court to cross – examine the Plaintiff and his witness but the Defendant did not budge and spurned the opportunity to do so. The Court allowed the Plaintiff to prove his claim in accordance with Order 36 rule 1(1) and 2 (a), (b) and (c) of the High Court (Civil Procedure) Rules, 2004 (C.I 47) and the appropriate case law without further recourse to the Defendant and adjourned the case for judgment.

ORDER 36 RULE 1(1) AND (2) (A), (B) AND (C) OF THE HIGH COURT (CIVIL

PROCEDURE) RULES, 2004 (C.I 47) states that;

Failure to attend at trial

1. (1) Where an action is called for trial and all the parties fail to attend, the trial Judge may strike the action off the trial list.

(2) Where an action is called for trial and a party fails to attend, the trial Judge may

(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim;

(b) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim, if any

(c) make such other order as is just.

REPUBLIC VS. HIGH COURT (HUMAN RIGHTS DIVISION) ACCRA, EX PARTE

AKITA (MANCELL – EGALA & ATTORNEY GENERAL INTERESTED PARTIES)

[2010] SUPREME COURT OF GHANA LAW REPORT (SCGLR) 374 @ 384; the Court

held as follows;

A person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his or her own decision to boycott proceedings cannot later complain that the proceedings have proceeded without hearing him or her and then plead in aid, the audi alteram partem rule.

The case of the REPUBLIC V. HIGH COURT (FAST TRACK DIVISION); EX PARTE

STATE HOUSING COMPANY LIMITED (No. 2) KORANTENG – AMOAKO

INTERESTED PARTY [2009] SCGLR 185 AT 186 AND 190 states that;

(1) a party who disables himself or herself from being heard in any proceedings cannot later turn round and accuse an adjudicator of having breached the rules of natural justice…

In the case of WATALAH VS. GHANA PRIMEWOOD PRODUCTS LIMITED [1973] 2

GHANA LAW REPORT 126 – 136 a Defendant failed to attend Court to cross -examine a plaintiff and judgment was entered against the Defendant, he sought to have the judgment set aside and the Court held that; this was not a case in which judgment was obtained by default of appearance or by blunder on the part of counsel. The defendants were represented and were given all the opportunity that a party to an action could be given. There had therefore been a trial of the issues on the merits.

The Court found it difficult and refused to accede to a motion for an order to set aside the judgment because in its view there has been a trial of the issues on the merits of the case and that the judgment was not obtained by default.

THE PLAINTIFF’S CASE

The Plaintiff is a retired teacher and lives at Kenyasi Number 1 in the Ahafo Region. The Defendant is a farmer and lives at Ampemkro Drobo. The Plaintiff mounted this action on his own behalf and on behalf of his siblings born of their father, the late Kwaku Tabiri. The land in dispute according to the Plaintiff measures approximately four (4) acres and lies at a place commonly known and called Nsrensre – Agya at “Berekumfour Akuraamu” on the Tekese stool land. The part of the land that is in dispute was acquired in its virgin state by the Plaintiff’s biological father Kwaku tabiri almost a century ago from the then chief of Tekese Nana Diawuo @ Nana Yaw Donkor and put up a cottage on it. His father and other early settlers named the disputed area “Berekumfour Akuraamu” to wit; Berekum People’s settlement. The land shares boundary with the lands of Opanin Kwaa Amankwaa, Doogo, Kofi Amoah, Kwasi Anto, Kwaa Yeboah all deceased and river Nsrensre.

The Plaintiff contends that the about four acres of land in dispute now shares boundary with the farms of Akosua Asantewaa his niece, Karibo and river Nseresre. It is the Plaintiff’s case that after his father acquired the land, he reduced portions of it into cultivation of cocoa and food crops. The Defendant’s father who is related to his mother pleaded with his father for permission to cultivate food crops on a portion of the land for his subsistence and Plaintiff’s father granted the Defendant’s father the portion of the land which is currently in dispute. The Defendant’s father clandestinely planted cocoa and marijuana on the land to the Plaintiff’s father’s annoyance which caused the Plaintiff’s father to recover the land from the Defendant’s father and the Defendant’s father never stepped on the land again for about fifty (50) years ago.

The Plaintiff’s father continued to cultivate the land including where he ejected the Defendant’s father with some of Plaintiff’s siblings until his father died in 1998. Upon his father’s death the land devolved to him and his siblings and it has remained their property to date. The Plaintiff and his siblings had undisturbed possession of the disputed land and continued to cultivate it with their nieces and nephews after the Plaintiff’s father died in 1998 to date. In or around February 2022 the Defendant appeared from nowhere and started clearing a portion of the land that his father previously cultivated. It is the Plaintiff’s case that he left a wide expanse of the land including the disputed land to fallow for bee keeping but the Defendant trespassed unto that portion of the disputed land. The Plaintiff contends that unless the Defendant

is restrained by the honourable Court he will persist in his illegality. Wherefore the Plaintiff claims the reliefs indorsed on the writ of summons against the Defendant. The Plaintiff repeated his averments in his pleadings on oath without attaching any exhibit and called one witness to prove his case.

EVIDENCE OF PW1

PW1 is a teacher and the Plaintiff’s father is his grandfather. According to PW1 the land in dispute is situate on Tikese stool land which became the bonafide property of Nana Kwaku Tabiri and his descendants including the Plaintiff and himself. His farm is on a portion of the disputed land and some of his aunties and other family members also cultivate the land. According to him neither the Defendants nor their father has any land in the disputed area. The Defendant’s father cultivated a portion of his grandfather’s land for his subsistence with the consent of his grandfather but his grandfather subsequently recovered the land from the Defendant’s father and from then no member of the Defendant’s family had anything to do with the land. Recently in the year 2022 the Defendant entered a portion of the land that his father previously cultivated which constitutes trespass.

EVALUATION OF THE FACTS, EVIDENCE AND APPLICATION OF THE LAW

In his book LAND LAW, PRACTICE AND CONVEYANCING IN GHANA, FIRST

EDITION AT PAGES 130 to 131 Justice Dennis Dominic Adjei states as follows;

The most common feature of evidence in land matters is the use of traditional evidence. Whenever there is a dispute over property acquired several years ago and none of the parties and their witnesses could give eye witness accounts or the acquisition of the property has a long standing history, the impressions given by the parties when they are in the witness box should not be used to either credit or discredit them but the court is to examine their evidence with undisturbed overt acts of long possession or occupation or judgments that have been obtained in respect of the land. In measuring the success of a case in which traditional evidence has been adduced, the courts are to use the evidence of living or recent memory to satisfy itself that a party has been able to prove his case by a preponderance of the probabilities…The law is settled that acts in living or recent memory such as overt acts of ownership and possession over the disputed property take precedence over traditional history.

In the case of YEHANS INTERNATIONAL LIMITED VS. MARTEY TSURU FAMILY &

1 OTHER [2018] Dennis Law Supreme Court (DLSC) 2488 the Court held that;

It is settled and trite law that a person claiming title has to prove i) his root of title ii) mode of acquisition and iii) various acts of possession exercised over the land…This can be proved either by traditional evidence or by overt acts of ownership in respect of the derivatory land in dispute. A party who relies on a title must prove the title of his grantor.

SECTION 10 (1) AND 11(1) OF THE EVIDENCE ACT, 1975 (NRCD 323) states that;

10. Burden of persuasion defined

(1) For the purposes of this Act, 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.

11. Burden of producing evidence defined

(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.

From the evidence proffered by the Plaintiff and his witness they both did not tender any document to establish the case which ordinarily falls short of the MAJOLAGBE VS. LARBI AND OTHERS standard which requires proof by proper legal means. Proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances. However, the Majolagbe case also held in holding (1) that a plaintiff's proof of his mere possession of land is sufficient for him to maintain trespass against anyone who cannot show a better title.

It is useful to add that notwithstanding the fact that the Defendant did not come to Court the Plaintiff must on the strength of his case prove to the Court’s satisfaction that the land in dispute belongs to him and that the Defendant trespassed unto the land. The Plaintiff’s evidence buttressed by the evidence of PW1, established that the Plaintiff’s father acquired the land in dispute in its virgin state from the chief of Tekese Nana Diawuo also known as Nana Yaw Donkor almost a century ago. He further established that his father put up a cottage on the land and cultivated cocoa and other food crops on the land. His father upon the Defendant’s father’s request for a portion of the land to cultivate for his subsistence, gave him a portion of the land which is currently in dispute to cultivate.

The Defendant’s father clandestinely cultivated cocoa, marijuana and other crops on the land to the annoyance of Plaintiff’s father who recovered the land from the Defendant’s father. The Plaintiff further established that after his father’s death, himself, his siblings, his nieces and nephews continued to cultivate the land without hindrance from anyone until the Defendant trespassed unto the land recently in February 2022. PW1 buttressed the Plaintiff’s evidence regarding the Plaintiff’s father’s acquisition of the land and the fact that the Plaintiff’s father who is his grandfather gave a portion of the land to the Defendant’s father to cultivate for his subsistence. He further buttressed the Plaintiff’s evidence that his father recovered the land from the Defendant’s father subsequently and the Defendant’s father had nothing to do with the disputed land until the Defendant trespassed unto the land recently in the year 2022. He confirmed that himself and other family members including his aunts are cultivating the land.

In the absence of any contrary evidence by the Defendant to challenge the Plaintiff’s claim of title and ownership to the land, the Court is satisfied that the Plaintiff per his own evidence and the evidence of his witness, PW1 established the Plaintiff’s root of title traditionally. The Plaintiff established that his deceased father Kwaku Tabiri acquired the disputed land in its virgin state almost a century ago from the then chief of Tekese Nana Diawuo @ Nana Yaw Donkor and put up a cottage on it. His father and other early settlers named the disputed area “Berekumfour Akuraamu” to wit; Berekum People’s settlement. According to the Plaintitiff the disputed land measures approximately four (4) acres and lies at a place commonly known and called Nsrensre – Agya at “Berekumfour Akuraamu” on Tekese stool land.

He stated that the disputed land currently shares boundary with the farms of Akosua Asantewaa his niece, Karibo and river Nsresre. He led further evidence to establish that his late father exercised overt acts of ownership over the land and cultivated cocoa and other food crops on the land. Upon his father’s death, himself, his siblings, nieces and nephews continued to cultivate the land without interference from anyone until the Defendant trespassed unto a portion of the disputed land in February 2022. In the light of the evidence adduced by the Plaintiff buttressed by the evidence of PW1 the Court is convinced that the Plaintiff established his root of title to the disputed land with living or recent memory and undisturbed overt acts of long possession over the land for almost a century notwithstanding the fact that the Plaintiff did not tender any document to support his case.

The Plaintiff claims for general damages otherwise known as noneconomic damages. It is trite law that general damages are compensation for losses without specific price tag but comes as compensation for intangible loss. Having heard the Plaintiff and his witness the Court holds the view that the Plaintiff is entitled to damages for trespass unto the disputed land by the Defendant. The Court finds it prudent to award cost in favour of the Plaintiff after considering the length of the trial for two years and three months, expenses incurred by the Plaintiff regarding processes filed, hearing notices served on the Defendant, reasonable transport expenses incurred by the Plaintiff in prosecuting the case, the fact that no cost was awarded the Plaintiff during the proceedings, the fact that the Plaintiff engaged Counsel in the matter and in the light of Order 74 of C.I 47.

The Court is satisfied from the totality of evidence adduced by the Plaintiff and his witness that the Plaintiff strictly established his burden of proof regarding title and ownership of the disputed land by himself and his surviving siblings born by his father Kwaku Tabiri. In the light of the foregoing the Plaintiff is therefore entitled to the reliefs claimed against the Defendant and the Court so holds in favour of the Plaintiff for;

1. A declaration of title to and recovery of possession of a farm land approximately four (4) acres in size forming part of a large tract of land acquired by the late Kwaku Tabiri at a place commonly called Nsrensre – Agya at “Berekumfour Akuraamu” on the Tekese stool land and sharing boundary with the Nserensre River and the properties of Akosua Asantewaa and one Karibo.

2. General damages for trespass in the sum of Ghs 10,000.00 is awarded in favour of the Plaintiff.

3. An order of perpetual injunction is hereby granted restraining the Defendant, his agents and all those claiming through him from having anything to do with the disputed land.

4. Cost of Ghs 20,000.00 is awarded in favour of the Plaintiff.