Donkor Vrs Kaberu [2023] GHADC 398 (13 April 2023)

Judgement ( Land) 2022 IN THE DISTRICT COURT /AFLAO-VOLTA REGION SUIT No : C/KS/DG//A1/2023 MARTIN DONKOR ) PLAINTIFF AND KABERU ) DEFENDANT ……………………………………………………………………………………………………… JUDGEMENT GIVEN BY H/W STEPHEN OFORI AKRASI ESQ (DISTRICT MAGISTRATE) DATED 13TH APRIL, 2023. Judgement ( Land) 2022 IN THE DISTRICT COURT HELD AT AFLAO ON TUESDAT, THE 13TH DAYOF APRIL, 2023 BEFORE HIS WORSHIP STEPHEN OFORI AKRASI ESQ. DISTRICT MAGISTRATE SUIT No: C/KS/DG//A1/2023 MARTIN DONKOR ) PLAINTIFF AND KABERU ) DEFENDANT ................................................................................................................................... JUDGEMENT …………………………………………………………………………………………… Background facts: Plaintiffs claimed that sometime in the year 2011 he acquired a piece of land comprising three plots from one Nii Noi Morton, situate, lying and being at Asabahan Ngleshie Judgement ( Land) 2022 Amanfrom bounded as follows: Declaration of title to all that piece of land and recovery of title situated , lying and being at Asabahan Ngleshie Amanfrom and bounded on its four sides as follows: ➢ On the North by the property of Nii Noi Morton neasuring 110 ft more or less. ➢ On the south by the property of Nii Noi Morton neasuring 108.7 ft more or less. ➢ On the East by the property of Nii Noi Morton neasuring 210.0 ft more or less. ➢ On the West by the proposed road neasuring 210.0 ft more or less. That he sold two of the plots and kept one plot to himself bounded as follows: On the North by the property of Nii Noi Morton. On the south by Kwame Daniel. On the East by the road. On the West by Morton city. From nowhere Defendant’s and his mother trespassed unto the land and began to from on it without his consent, That, he stopped them as he was about to start building on the land. That he then reported their trespassing conduct to the Ngleshie Amanfrom, but the refused to pay heed to the police invitation. He then reported them to the Legal Aid Commission for amicable solution, yet they refused to honour the invitation and all efforts made by him to recover his land has proved futile. Aggrieved by the plaintiff on 14/4/22 the Plaintiff issued a writ of summons from this court against the Defendants/Respondents seeking: Judgement ( Land) 2022 Declaration of title to all that piece of land described supra and recovery of title situate , lying as described supra. A declaration the defendant has trespassed unto the land of the Plaintiff. Perpetual injunction restraining the defendants, their assigns, privies, agents, servants, workmen etc. from further acts of trespassing or having anything to do with the land . General damages. Cost. i. ii. iii. iv. v. The Defendants once again failed to honour the writ of summons served on them as well as hearing notice. The legal issue for determination per the facts is : 1. Whether or not Defendant has trespassed unto Plaintiff’s land. 2. Whether Plaintiff is entitled to the relief being claimed. EVALUATION OF THE ISSUES AND APPLICATION OF LAW In order to succeed in a suit for a declaration of title, the Plaintiff assumes the onerous burden of proving their title to the disputed land by the preponderance of the probabilities as required by sections 11 (2), 12 (1) and 13 (1) of the Evidence Act, 1975 (NRCD 323). See also the cases of Yaa Kwesi v Arhin Davis & Another (2007-2008) 1 SCGLR 580 at 584 . Adwubeng v Domfeh (1996 –97) SCGLR 660 . Agyei Osae v Adjeifio (2007-2008)1 SCGLR 499,Nii Kofi La Family v Attorney General (2015) 89 GMJ. Judgement ( Land) 2022 The Supreme Court in the case of Mondial Veneer (Gh) Ltd V. Amuah Gyebu XV (2011) 1 SCGLR 466 @ 475 per Georgina Wood JSC laid down evidential burden in a declaration of title to land as follows: “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title and whom the burden of persuasion falls, as in this instant case, to prove the title or his root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation.” Indeed Rules of natural justice dictates that no person should be tried in absentia, except on a stated legitimate grounds . Both parties must be heard, be allowed to produce their witnesses, cross examine their opponents, engage a counsel of their own choice and of right to appeal. These rules are clearly captured under Art. 19 (2) (c) of the 1992 constitution. Denning L J in RE-APPEAL COMMITTEE OF LONDONQUARTER SESSION EX- PARTE ROSSE (1956) 1 ALL ER620 at 624 on rules of natural justice held as follows: “…….. It is to be remembered that it is a fundamental principle of our law that no one is to be found guilty of found guilty or liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. The common law has always been very careful to see that the defendant is fully apprised of the proceedings before it makes an order against him” However, in the instant case the Defendant was sufficiently served but he failed to attend court. In the case of The Rep v High Court (Human Rights Division ) , Accra, Ex Parte Akita( Mancell Egala & . A . G, Interested party) .(2010) SC GLR 372. At page 146. It was held that; Judgement ( Land) 2022 “ A person who had an opportunity to be heard but deliberately spurred it to satisfy his decision to boycott the proceedings is deemed to have waived the right to be heard. Accordingly such a person cannot rely on the principle of Audi alteram paterm. ( See also Agbewole v Agbodogbey (2012) 44 GMJ124 C. A AT PAGE 146 Per Kusi Appiah J . A . Rep v Fast Track High Court, Accra Ex parte State Housing Corporation Ltd. (2009) 21 MLRG 163,S. C, Per Wood C J In the circumstance and on the strength of the above authorities the court has no alternative than to proceed with the matter. It is hereby ordered that Defendant is to quit from Plaintiff’s land with immediate effect. Defendant his agents, privies, assigns, workmen, dependants, are perpetually restrained from having anything to with the land. Damages and Cost is assessed at GHc 4,000.00. (SGD) STEPHEN OFORI AKRASI (District Magistrate) 6