KUSI VRS PIAGYEI (A1/36/17) [2023] GHADC 804 (5 December 2023)

CORAM: IN THE DISTRICT COURT HELD AT KODIE IN THE ASHANTI REGION ON TUESDAY THE 5TH DAY OF DECEMBER, 2023 BEFORE HER WORSHIP MRS. CHRISTIANA ODARKOR BRUCE-ASHIRIFIE (ESQ.), THE DISTRICT MAGISTRATE. HANNA KUSI ] … PLAINTIFF SUIT NO. A1/36/17 H/NO. PLOT 137 BLK “B” KRONUM VRS NANA KWAKYE PIAGYEI ] … DEFENDANT ODIKRO OF EJURATIA TIME: 8:35AM JUDGMENT The Plaintiff instituted this action against the Defendant by a writ of summons filed on the 18th of January, 2017 claiming the following reliefs: 1. Declaration that the Defendant is not the owner of the house at Ejuratia bounded to the North by the Ejuratia Mamponteng road, South by the Plaintiff’s family house, east by a street and the West by the property of one Abena Saah. 2. Recovery of possession 1 | P a g e 3. Damages for destroying the Plaintiff’s building foundation and for appropriating and using Plaintiff two trips of sand and two trips of chippings 4. Perpetual injunction restraining the Defendant, his assigns, workmen and customary successors from further dealing with the land 5. Cost. The court differently constituted on the 30th of July, 2019 made an order for parties to file their respective witness statement and that of their witnesses. The Plaintiff complied but the Defendant failed to file his witness statement. Thereafter several hearing notices were served on the Defendant personally and through his lawyer to appear in court and take part in the proceedings but all to no avail. So on the 6th of September, 2023, the court made an order for the Plaintiffs to serve the Defendant personally with a hearing notice to notify him of the trial and for him to appear in court to cross examine the Plaintiffs if he so wish. Again, the Defendant failed to appear in court on the adjourned date to participate in the trial. The trial proceeded the absence of the Defendant notwithstanding pursuant to Order 25 rule 2(a) of the District Court (Civil Procedure) Rules, 2009 (C. I. 59) which states as follows: “Where an action is called for trial and a party fails to attend, the Court 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; or (c) make any other order that is just.” 2 | P a g e Thus, even though the Defendant was notified of the trial but failed to appear in court to participate in the proceedings, it is still necessary for the Plaintiff and his witnesses to mount the witness box to prove her case to the satisfaction of the Court. Our Courts are always admonished to take evidence before proceeding to enter judgment. This caution is reiterated by Appau J. A. (as he then was) in the case of Ayiku IV v A. G. & Anor (2009) 5 GMJ 148 as follows: “the trial court could not have entered default judgment in favour of the appellant in respect of the declaratory reliefs sought by the appellant in the action based on an ex-parte application without calling evidence to establish the claim or reliefs…” The Plaintiff has the burden to prove the existence of the assertions made. I am guided by the dictum of Adade JSC (as he then was) in the case of Nartey v Mechanical Lloyd Assembly Press Ltd. [1987 – 88] 2 GLR 314: “a person who comes to Court no matter what the claim is must be able to make a case for the court to consider otherwise he fails…” It was further held in the case of Ackah v Pergah Transport Ltd & Ors [2010] SCGLR 728 per Adinyira JSC. as follows: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of a fact is more probably reasonable than its non-existence. This is the requirement of the law on evidence” 3 | P a g e The issue to be determined is whether or not the Plaintiff is entitled to the reliefs she seeks. This case was a one-sided case as the Defendant even though was notified of the trial, failed to attend court to fully participate in the trial. So I made a decision solely on the evidence that was led by the Plaintiff. According to the witness statement filed by the Plaintiff on the 30th of August, 2017, she is the customary successor of one Opanin Yaw Mensah and she has brought this action on her behalf and of the family. According to the Plaintiff herein the family is the rightful owner of the plot in dispute. She averred that one of her nieces by name Antie Mary attempted to build on a piece of the land which was the self-acquired property of Opanin Yaw but was stopped by her mother over twenty-five years ago. The Plaintiff averred that Yaa Abrafi was a uterine sister to the deceased Yaw Mensah. She stated that she was going to build a house for the occupation of Opanin Yaw Mensah’s immediate family. The Plaintiff averred that whilst she was working on the land with a justifiable belief that she had right over the property, the children of Antie Mary caused the arrest of her children who were working on the land. She added that Antie Mary was not the uterine sister of Yaa Abrafi but a child of Yaa Abrafi’s sister. According to the Plaintiff about thirteen years ago after the death of Antie Mary she decided to develop the land and demolish the building abandoned by Antie Mary since it has become dilapidated with time. It is the case of the Plaintiff that the children of Antie Mary later summoned her before the Odikro of Ejuratia, the Defendant herein. She averred that instead of the Defendant 4 | P a g e deciding the case properly, since he knew that the property belongs to her family he rather stated that he will take the land and use as a lorry station for the town. According to her, the Defendant stated that he will pacify her with two plots of land at a place convenient to her age and ill-health since she could not walk with ease. She stated that the Defendant further stated that he will assist her with money to construct a new block though he did not disclose the amount. The Plaintiff testified that he informed the Defendant that she had to seek the consent of her family of which she later informed him that her family is in agreement to it. She stated that the Defendant forcibly started rehabilitating the building without fulfilling his promise. It is the case of the Plaintiff that the Defendant was trying to exploit her ignorance and old age to deprive her family of the property. The Plaintiff tendered into evidence Exhibit “A” to “A4” which are property rates paid in the name of one Opanin Yaw Mensah. The Plaintiff called one Edward Asante who testified in support of her case. Per PW 1 witness statement filed on the 30th of August, 2019 he corroborated the evidence as led by the Plaintiff. He further stated that the disputed property, not being a family property but the self-acquired property of Opanin Yaw Mensah, cannot in anyway be inherited by Antie Mary’s descendants except the Plaintiff herein and her descendants. In the case of Republic vrs High Court (Human Rights Division) Accra, Ex-parte Aleita (Mancell Egala & Attorney General) Interested Parties [2010] SCGLR, the Supreme Court held that a person cannot be found guilty or liable by an order or judgment unless he had been given fair notice of the trial or proceedings to enable him appear and defend himself. However, a person who had an opportunity to be heard but deliberately spurned it to satisfy his or her decision to boycott proceedings, cannot later complain of any 5 | P a g e procedural irregularity as the party would be deemed to have waived any irregularity thereof. The Defendant did not attend court to refute any of the evidence given by the Plaintiff even though he had notice of the trial and so the court was duty bound to accept it without further proof as stated in Quaigraine v Adams [1981] GLR 599 as follows: “When a party makes an averment and his opponent fails to cross examine him on it the opponent will be deemed to have acknowledged sub silentio, that averment by the failure to cross examine”. Furthermore, the law was enunciated in the case of Alpha Musa v Dr. Francis Asante Appeagyei [2015] DLCA 4532, that: “failure to deny the assertion of the respondent contained in a pleading amounted to an admission requiring no proof” Therefore, the Plaintiff’s evidence stood uncontroverted. After considering all the evidence adduced before me, I am satisfied that on the balance of the probabilities the Plaintiff has proven her case. In light of the above, I enter judgment in favour of the Plaintiff in respect of the reliefs as follows: 1. The Defendant is not the owner of the house at Ejuratia bounded to the North by the Ejuratia Mamponteng road, South by the Plaintiff’s family house, east by a street and the West by the property of one Abena Saah. 2. The Plaintiff is to recover possession of the said property mentioned in 1 supra. 6 | P a g e 3. The Plaintiff did not lead any evidence on her relief “c” where she claims damages against the Defendant for destroying her foundation and for appropriating and using her two trips of sand and two trips of chippings 4. Perpetual injunction restraining the Defendant, his assigns, workmen and customary successors from further dealing with the land 5. Cost of GH¢2,000.00 awarded in favour of the Plaintiff against the Defendant. ................................................ CHRISTIANA BRUCE-ASHIRIFIE (ESQ.,) (DISTRICT MAGISTRATE). PARTIES :- PLAINTIFF PRESENT, DEFENDANT ABSENT LEGAL REPRESENTATION :- SOLOMON ACHINA (ESQ.,) 7 | P a g e