SUALE VRS ALIDU (A1/8/24) [2024] GHADC 86 (12 March 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 12TH MARCH, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. A1/8/24 - - PLAINTIFF DEFENDANT BETWEEN ALIDU SUALE AND ABUBAKARI ALIDU JUDGMENT INTRODUCTION 1. This judgment relates to land. 2. Plaintiff is a staff of Angel Security Company Limited and resides in Tamale. The defendant is a motorcycle repairer and also resides in Tamale. Both parties are siblings. 3. Plaintiff through his lawyer instituted this action on 22nd November, 2023 against the defendant for the following: “a. A declaration that rooms 5 and 12 is the bona fide property of the plaintiff following the distribution of the properties of their late father on 13th October, 2023 by the family. - 1 - b. Recovery of possession of room 5. c. Damages for trespass. d. An order of court for the recovery of the sum of GHS1.003.00 being cost of renovation of room 5 after the violent trespass by the defendant. e. Costs and any other relief(s) deem fit by this court.” 4. The defendant was duly served with the Writ of Summons on 22nd November, 2023. Subsequently, the defendant was served with a copy of the plaintiff’s witness statement and hearing notice on 15th January, 2024. Despite due service on defendant, he failed to attend court or filed any response to the plaintiff’s claim. 5. I shall deal with defendant’s failure to attend court or file any process later in this judgment. PLAINTIFF’S CASE 6. The summary of plaintiff’s case is that defendant is his elder brother and of the same father, Alhassan Alidu, Yapalsi-Naa of Kunkunidana, Tamale. He stated that on 13th October, 2023, after that after the death of their father, defendant and the other siblings together with the principal elders of Dabosable family allocated the rooms of H/No. K808, Kalpohini belonging to their father, to which distribution he (plaintiff) was allocated rooms 5 and 12. He tendered in evidence a copy of the distribution as Exhibit A. Plaintiff added that just recently defendant caused a portion of room 5 to be pull down with intention of adding to his own and also caused for his (plaintiff) items to be thrown out. He tendered in evidence pictures of the destruction to room 5 and the thrown out items as Exhibits B and C, respectively. Plaintiff maintains that despite repeated advise from the principal elders, defendant would not desist from his actions. He added that defendant has gone ahead to change the keys and locks, - 2 - denying him access to rooms 5 and 12. Pictures of the said locked rooms tendered as Exhibit D. Lastly, plaintiff submitted that the cost to repair upon the actions of the defendant is estimated at GHS1,003.00. Copy of the estimate was tendered as Exhibit E. In sum, plaintiff prays for the aforementioned reliefs. BURDEN OF PROOF AND ANALYSIS OF PLAINTIFF’S CLAIM 7. As earlier pointed out, the defendant was duly served with the court processes, but he failed to attend court or filed any process. The law regarding the defendant’s inaction is that where a party fails to appear in court after due service on him, he is said to have deliberately failed to take advantage of the opportunity given him to be heard. The audi alteram partem rule cannot be said to have been breached. The court is entitled to proceed with the trial to conclusion and make deductions, draw conclusions or make findings on the basis of the evidence adduced at the trial, see the cases of In re West Coast Dyeing Industry Limited: Adams v Tandoh [1984-86] 2 GLR 561, CA and Ankumah v. City Investment Co. Ltd. [2007-2008] 1 SCGLR 1068. See also the case of Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd. (No. 2) Koranten-Amoako Interested Party, [2009] SCGLR 185 where Wood JSC (as she then was) stated authoritatively at page 190 as follows:- “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.” 8. Based on the above, all that is required of the plaintiff is to prove his case on the balance of probabilities, see ss. 11(4), 12(1) & (2) and 14 of NRCD 323. See also the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. - 3 - 9. In the case, Korkor Mensah v Robert Tetteh Mensah & Anor. [2018] DLSC 5687 the Supreme Court held that: “The partitioning of family property is permissible under customary law, where it is advantageous to the whole family and where the property itself is capable of being shared, the paramount consideration being the convenience of the parties to the sharing. Upon sharing, it is obvious that there is a change in the nature of ownership, that is from communal ownership to individual control or ownership Okaikor v Okyere [1956] 1 WALR 275 and Adablah v Kisseh [1972] 1 GLR 43.” 10. Now, having heard the plaintiff under oath and without any challenge from the defendant, I shall proceed as appropriate, see In re West Coast Dyeing Industry Limited: Adams v Tandoh (supra). 11. From the evidence, it is clear that the property of the parties’ farther was shared customarily, see Exhibit A. With that, the nature of the property changed from communal/family to individual control and management, see Korkor Mensah v Robert Tetteh Mensah & Anor. (supra). Hence, the defendant after the partitioning has no right to interfere with that of the plaintiff. Accordingly, the actions of the defendant in breaking part of room 5 of H/No. K808, Kalpohini, see Exhibit B, is unlawful. Similarly, the throwing out the plaintiff’s items outside, left at the mercy of the weather, see Exhibit C, is wrongful. The defendant’s actions constitute trespass, see Laryea v Oforiwaa [1984-1986] 2 GLR 410. I also find that the estimated cost to renovate room 5 is GHS1,003.00, see Exhibit E. Accordingly, I find that the plaintiff has been able to prove his case on the balance of probabilities. - 4 - CONCLUSION 12. In sum, I hereby enter judgment in favour of the plaintiff as follows: a. I declare that rooms 5 and 12 of H/No. K808, Kalpohini is the property of the plaintiff following the distribution of the properties of their late father’s estate on 13th October, 2023. b. Plaintiff is at liberty to recover possession of room 5, H/No. K808, Kalpohini. c. Plaintiff to recover the sum of GHS1,003.00 being the estimated cost to renovate room 5. d. General damages for trespass assessed at GHS1,000.00. e. Costs also assessed at GHS1,000.00. H/W D. ANNAN ESQ. [MAGISTRATE] AURO NAPARI ESQ., FOR THE PLAINTIFF DEFENDANT ABSENT References: 1. ss. 11(4), 12(1) and (2) and 14 of Evidence Act, 1975 (NRCD 323). 2. In re West Coast Dyeing Industry Limited: Adams v Tandoh [1984-86] 2 GLR 561, CA 3. Ankumah v. City Investment Co. Ltd. [2007-2008] 1 SCGLR 1068 4. Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd. (No. 2) Koranten-Amoako Interested Party, [2009] SCGLR 185 5. Korkor Mensah v Robert Tetteh Mensah & Anor. [2018] DLSC 5687 6. Okaikor v Okyere [1956] 1 WALR 275 7. Adablah v Kisseh [1972] 1 GLR 43. - 5 - 8. Faibi v State Hotels Corporation [1968] GLR 471 9. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420 10. Laryea v Oforiwaa [1984-1986] 2 GLR 410 - 6 -