Dartey Vrs Ofori [2023] GHADC 108 (24 February 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT NSAWAM N. A. M. A. ON FRIDAY, 24TH DAY OF FEBRUARY, 2023 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH MAGISTRATE ABUSUAPANYIN KWASI DARTEY PER HIS LAWFUL ATTORNEY KWABENA TAKYI H/NO. M30 DUADEKYE VRS: KWAME OFORI OF H/NO. M30 DUADEKYE SUIT NO. A9/06/21 … … … PLAINTIFF … … … DEFENDANT PARTIES: PLAINTIFF’S LAWFUL ATTORNEY PRESENT. DEFENDANT ABSENT. NO LEGAL PRESENTATION JUDGMENT The Plaintiff herein commenced this action per his lawful attorney claiming the following against the Defendant: a. Plaintiff’s claim against the defendant is for an order directed at defendant to give vacant possession of two bed room self-contained building he is occupying in House No. M30 Duadekye. b. Cost The Defendant was duly served with the writ of summons and even though Defendant had notice of the pending suit; the Defendant did not file any process to contest the suit nor did he appear in Court personally to be heard. The Court therefore Page 1 of 5 proceeded under Order 25 of the District Court Rules, 2009(C. I 59), and proceeded to hear the matter without the Defendant. Order 25 r 1(2) (a) provides; “Where an action is called for trial and a party fails to attend, the trial magistrate may where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim if any and allow the Plaintiff to prove the claim” PLAINTIFF’S CASE According to Plaintiff’s lawful Attorney, Defendant came to live in the house with his father who is now deceased after the original owner of the house gave Defendant’s father temporary accommodation in the house when Defendant’s deceased’s father, Kofi Agyakwa needed accommodation at the time. Per Plaintiff’s Lawful Attorney’s evidence to the Court, after Kwasi Anim Thomas, the original owner passed on, Defendant’s father Kofi Agyakwa continued to live in the house with his wife and children which included Defendant. Plaintiff’s lawful attorney told the Court that, Defendant has shown gross disrespect to Plaintiff, is altering Plan of the building and has refused to give vacant possession of the rooms. It is the Plaintiff’s case that Defendant is not entitled to occupy the rooms in dispute. Plaintiff closed his case thereafter without calling any witness. As stated earlier, the Defendant did not file a witness Statement, neither did he appear in Court to give evidence viva voce. The Court therefore proceeded to determine the matter on the strength of the Plaintiff’s case. In the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987-1988] 2GLR pg 314 Adade JSC stated that: Page 2 of 5 ‘A person who comes to Court, no matter what the claim is, must be able to make a good case for the Court to consider, otherwise he must fail’. In the circumstance the issue that falls for determination is “Whether or not Plaintiff is entitled to recover vacant possession of rooms in dispute” In his evidence to the Court, Plaintiff’s lawful Attorney stated that, the Defendant’s predecessor, late Kofi Agyarkwa, was in need of accommodation after he was transferred to Yawkoko. Per the evidence the late Thomas Kwasi Anim, who originally owned the house, granted access to the rooms in dispute to Kofi Agyarkwa to occupy temporarily. That, the original owner of the rooms died soon thereafter and Defendant’s predecessor also died some years later after which defendant took possession of the rooms and has refused to vacate same despite being requested to do so. It is on record that Defendant has proceeded to renovate the rooms and even rented one out to a tenant. From the evidence led so far, it is clear that Defendant’s predecessor was a mere licensee and that being the case, so becomes the Defendant. And if the Defendant is a licensee, then he can be ejected by the Plaintiff who is the proper person to sue. In the case of Augustine Yaw Manu v. Madam Elizabeth Ama Nsiah[2005] scglr 25 at 30, the Court cited the case of Dotwaah V. Afriyie [1965] G. L. R. 257 as follows: “it was emphatically stated by the Supreme Court that by customary law the self-acquired property of a deceased member of a family vests in the successor for and on behalf of the family, Page 3 of 5 and thus clothing the successor with responsibility to litigate the family’s title to such property.” The position of the law is that, the Court ought to accept unchallenged and undisputed evidence. In the case of Quagraine v. Adams [1981] GLR 599 it was held that: “In a situation where a witness testifies and his opponent fails to cross-examine him, the Court may consider the witness’s testimony as admitted by his opponent.” In the case of Takoradi Flour Mills vrs Samir Faris [2005-06] SCGLR 882, the Supreme Court held that: “Where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court. The Court hereby accepts the uncontroverted evidence of the Plaintiff and finds that, the Defendant is a mere licensee. The Court again finds that by renting out one the rooms the Defendant is exercising acts of ownership and thereby challenging the title of the licensor. In view of same, the Defendant by reason of his actions can be evicted from the rooms. The learned judge His Lordship Dennis Dominic Adjei in his book Land Law, Practice and Conveyancing in Ghana, Third Edition, stated at page 308 as follows: “A licensee who denies the title of his licensor automatically becomes a trespasser. The law is that a licensee who denies or challenges the title of his licensor loses his or her right to remain in possession of the property which he or she had denied or disputed the title of his licensor” Page 4 of 5 It is clear from the record that the defendant has lost any right to remain in the rooms. And although it was only the Plaintiff per his lawful Attorney who adduced evidence at this trial, the Court was still right to accept same. In the case of Ankumah v City Investment Co Ltd [2007-2008] 2 SCGLR 1064, Baffoe Bonnie JSC held at page 1076 as follows; “A Court is entitled to give judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not wish to be heard.” Having regard to the evidence adduced during the trial, I accordingly hold that: a. The Defendant vacates the rooms in dispute. b. The Defendant is ordered to give vacant possession of the rooms in dispute to the Plaintiff within 60days. c. There will be no order as to cost. ..…………………………………………… H/W SARAH NYARKOA NKANSAH MAGISTRATE 24/02/2023 Page 5 of 5