Togbe Kakla Vrs Doe [2023] GHAHC 201 (13 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: CHARITY A. ASEM (MRS.) J. SUIT NO. E1/08/2023 DATE: 13/07/2023 GLIGBAFIA TOGBE KAKLA AKOE DOSOR IV VRS. : PLAINTIFF DAVID NSEM DOE : DEFENDANT Parties – Plaintiff - Present Defendant - Absent Lawyers: Godwin Kpoble for Plaintiff - Present JUDGMENT On the 22/07/2022 the Plaintiff Gligbafia Togbe Kakla Akoe Dosor IV Overlord of Akoefe Traditional Area and Dufia of Akoefe Tokor, Head and Lawful representative of Daheviawo of Akoefe Tokor sued the Defendant one David Nsem Doe described as Head of Kataviwo (Kata family) of Akoefe Gadza, a farmer. Plaintiff claimed the following reliefs: (a) Declaration of title to that track of land situate, lying and bring at the North Eastern part of Akoefe-Tokor and popularly known as “Tovu” and particularly bounded as; - On one side by the Dedzi land. - On another side by the Asigbede land - On another side by the Gbovle Stream, and Tonyui land - On another side by Tsidze Tokoe land (b) Recovery of possession (c) Damages for trespass (d) Perpetual injunction restraining the defendant, his assigns, kith and kin, privies, agents, workers, servants and anybody claiming title through him or at his behest from having anything doing whatsoever with the disputed land. (e) A declaration that the Daheviawo are the allodial owners of Akoefe lands per their progenitor Togbe Kakla Akoe founding Akoefe. (f) Punitive cost. (g) Any other remedies/reliefs that the court deems fit and appropriate. The writ of summon and statement of claim was served on the defendant. The defendant did not react to the summons as expected under order 9 r 1 of the High Court Civil Procedure Rules, C. I 47 of 2004. Plaintiff proceeded to conduct a search on the 09/08/2022 to ascertain whether or not defendant received the summons and steps taken by him to defend the action. The search revealed that the defendant has not entered an appearance nor filed a defence. A motion Ex-parte for interlocutory judgement in default of appearance under Order 10 r 5 was filed on 15/08/2022 to invoke the jurisdiction of this court against the defendant. Satisfied that the defendant has been served but refused to appear, the rules allow the court to make an order for Interlocutory Judgment in default of appearance against him. An order directed at plaintiff to file and serve witness statement to proof his title to the disputed land was made and complied with. Generally, a court has no jurisdiction to proceed against a person who has no knowledge of its proceedings. Guided by the above principle of law, the court directed that, entry of judgment be filed and served on the defendant. I have proof that, on the 7th March, 2023 defendant received the entry of default judgment. I have notice per the affidavit of the bailiff of the court that the witness statements filed by the plaintiff and his witnesses were also served on the defendant personally on the 08/02/2023. The court therefore, proceeded to conduct Case Management Conference on the 22/03/2023. Though the defendant ignored all invitation to participate in this trial, a further order was made to invite defendant for the hearing but he still did not bulge. Since the case cannot be in abeyance and with the zeal with which the plaintiff turn to pursue his claim, the court decided to give the plaintiff a hearing. In the case of Sarfo Adu v. Badu (1977) 2 GLR decided that, “A court could proceed with the case where a party or his counsel have been given the opportunity to appear to take part in the trial but ignored same. Similarly in In Re West Coast African Dying Co. Ltd. V. Adams & Anor. (1984 – 86) 2 GLR 561 CA. the court held that, “this is logical because, a party who refuse to participate in a trial though invited must not be heard to complain of breach of alteram partem rules” At holding (5d), amongst others the court held that, the court should first give due hearing to persons to be prejudicially affected by its decision; where the trial judge has given every conceivable opportunity to the party to rebut the evidence led against him, but he steadfastly refused, the trial judge had observed those fundamental rules of judicial procedure. The plaintiff testified and relied on his witness statement filed on the 07/03/2023. In the 57 paragraph witness statement plaintiff gave a vivid account of his claim to the disputed land, which is the Tovu land at Akoefe Tokor. Plaintiff tendered Exhibit “A” showing photographs of Chief and Queen mothers within the Asogli State which include Akoefe. Exhibit “A1” a statement of Defence filed in suit No. E1/11/2019 between Rev. John E. K. Adade & Ors. Vs. Togbe Drake Tsigbe & 6 Ors. by the 7th defendant (Togbe Akoe Dosor IV). Exhibit “B” is a site plan of land of Daheviawo clan dated 06/03/2014. Exhibit “C” is a document entitled “The Ewe People”. Exhibit “D” is a document (not clear) but looks like an old record of a court proceedings from a Native Tribunal of Akoto Akoefe. Exhibit “D1” (Bureau of Ghana Languages Ewe translation) 01/12/1931. Exhibit “E” is funeral publication of Togbe Dikro III. Exhibit “F” is a document recorded in Ewe language dated 26/04/57. Exhibit “G” statement of defence and counter claim filed by Samuel Titriku in suit No E1/14/2021 in the case between Gligbafia Togbe Kakla Akoe Dosor IV V. Samuel Titriku. Exhibit “G1” is a witness statement filed on the 24/03/2021 in Suit No. E1/14/2021. Exhibit “G2” is extract of court proceedings in suit No. E1/14/021 representing the evidence of Nsem David Doe as DW1. (The defendant herein) Exhibit “H” is Judgement in Suit No. E1/14/2021 delivered on the 13/12/2021 by His Lordship George Buadi J. in favour of the plaintiff herein. Exhibit “H1” is the Site Plan of Daheviawo Land. Exhibit “I” a warning letter dated 07/02/2022 from the office of Dufia of Akoefe Tokor to Nsem David Doe. Plaintiff called two witnesses to support his case. PW1 is Agbonugla Togbe Amua Kofis Fiagbor II. PW2 is one Godwin Abeka both relied on their witness statements filed together with exhibits attached. Since the defendant did not show up the witnesses were discharged. The law is that, a court cannot grant a declaratory relief in absence of evidence given under oath. Acquaye JA in the case of Hydrafoam Estate v. Moi Ashong (2012) 49 GMJ page 161 CA held that, “An action for declaration of title where there is a default of appearance the plaintiff can obtain an interlocutory judgment in default of appearance, enter the witness box and give evidence of his title before he can obtain final judgment of declaration of title.” Similarly, the court of appeal per Apau J A (as he then was) in Ayiku V. Attorney General & Ano. (2990) 5 GMJat 172 decided that, “The trial court could not have entered final judgment in favour of the appellant in respect of the declaratory relief sought by the appellant in the action based on the ex- parte application without calling evidence to establish the claims or reliefs. The rules of the High Court; either the repealed L N 140A of 1954 or the current C I 47 of 2004 do not permit that.” See also Republic V. High Court Ex-parte Osafo (2011) 2 SCGLR 966. I have examined the claims of the plaintiff against the defendant herein. Have no reason to doubt the plaintiff is the Dufia of Akoefe Tokor, head and lawful representative of Daheviawo of Akoefe Tokor. It is an undeniable fact the defendant herein testified against the plaintiff herein in favour of one Samuel Titriku in suit No. E1/14/2021 entitled Gligbafia Togbe Kakla Dorsor IV V. Samuel Titriku. I have read exhibit G1 and G2 being the witness statement (evidence in chief) by the defendant in the above mentioned suit, and Exhibit G2 which is his testimony and cross examination on oath. In his testimony, it is true that defendant denied that, the Tovu land belongs to the plaintiff clan. In the ensuing judgment in exhibit (H) delivered by His Lordship, George Buadi J on the 13th December, 2021, he found the testimony of the defendant not tunable based on the quality of evidence adduced by the plaintiff and his witnesses. The court found as a fact that the plaintiffs are the customary grantors of the defendant (Titriku) contrary to evidence led by him and the defendant herein. Satisfied that the plaintiff led credible evidence to prove that the land claimed belong to the plaintiff’s Daheviawo family as allodia customary owners, and so granted all his reliefs. In the instant claim, the Dufia of Akoefe-Tokor said the defendant and his family are also the subjects of the plaintiff. Plaintiff deemed the evidence led in favour of the defendant Samuel Titriku by the defendant herein as denial of the title of their grantors/licensee. The averments made by the plaintiff in his pleadings and the evidence adduced in support of same is verifiable from the exhibits attached and the corroborative witnesses and so highly probable and acceptable to the court. Denial of ones grantors title attracts forfeiture and evidiction. The court in absence of any challenge to the above evidence, grant the reliefs a, e, and f, thereof without hesitation. In respect of relief (b) the plaintiff claimed damages for trespass. From the evidence before the court, the plaintiff said the defendant and his family have been their guest for several years. He said it was the Daheviawo clan that permitted the defendants to live and cultivate the Tuvo land for many decades. Therefore they cannot be accused of trespass. Trespass is referred to as quare clausum frigit which is a tort of unjustifiable interference with land in possession of another. See ASHAR V. HITLOCK (1965) 1 QB 1 MAJOLAGBE V. LARBI & ORS (1959) 1 GLR 192. Therefore the relief (b) and (c) is denied. Plaintiff in his relief (d) claim perpetual injunction restraining the defendant, his assigns, kith and kin, privies, agents, workers, servants, and anybody claiming title through him or at his behest from having anything doing whatsoever with the disputed land. Thought the denial of ones grantors title amount to forfeiture, this is a special case where the plaintiff had permitted the defendant and their kith and kinesis to occupy their present location for many years. Plaintiff the Dufia will agree that, the defendant and his family of which he is the head are a large group of individuals on the Tuvo land. To pray the court to evict these individuals, prevent them from farming etc. will be callous with all due respect. But the defendants must never harbor the slight inclination that they are not subjects to the plaintiff and the Dayeviawo clan of Akoefe- Tokor. With that said, Courts exist to do justice and justice will not be served in the present case should the court grant the plaintiff the relief (d), they seek presently. The plaintiffs themselves per their relief (g) said the court should grant any reliefs it deem fit and appropriate in the circumstances. In the considered view of the court, the defendants will remain subjects of the plaintiff. In the circumstances therefore, court orders as follows, henceforth all major activities concerning the land, alienation, grant and sale of the Tovu land, must be subject to the approval and supervision of the plaintiff Daheviawo clan. It follows therefore that, Defendant and all persons claiming through him are denied the right to alienate, sell any portion of the Tovu land without the consent of the plaintiff clan. Section 5 of Act 1036, tends to guarantee the title of the allodial owners of land. By stipulation that an alienation by a non-indigene who has acquired usufractury title should obtain the written consent of the allodial owner. CONCLUSION The refusal of the defendant to participate in this trial was by choice as the court is satisfied that every conceivable opportunity was given to him to attend the court and be heard, but he STEADFASTLY declined. Judgment for the plaintiff per the endorsement subject however to the terms of the variation. Cost of GH¢10,000.00 against the defendant. (SGD.) CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION GODWIN KPOBLE FOR THE PLAINTIFF - PRESENT 8