AFRIYIE VRS ATC COMPANY GHANA LIMITED (C1/74/2021) [2023] GHAHC 615 (22 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE SITTING AT SUNYANI ON THE 22ND DAY OF NOVEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE GABRIEL NENE KWAO MATE TEYE (J) =================================================================== EMMANUEL OWUSU AFRIYIE OF H/NO PLAINTIFF AH-1382-059, ABREPO ROAD, KUMASI SUIT NO. C1/74/2021 VRS: ATC COMPANY GHANA LIMITED OF 2ND FLOOR 5TH AVENUE CORPORATE OFFICE DEFENDANT PLT 32, OSU AVENUE EXTENSION WEST CANTOMENTS, ACCRA GHANA =================================================================== JUDGMENT The plaintiff, Emmanuel Owusu Afriyie, a Chartered Accountant and resides at AH 1382 1059, Abrepo Road, Kumasi, though his Counsel filed on the 26/01/2021, the instant writ against the defendant/company for; (a) Declaration of title and recovery of possession of all that Plot No. 85, Block A, Sunyani-Asuakwaa situate on Asuakwaa Stool. (b) An order of the Honourable Court cancelling any purported grant of the plot in dispute to the defendant. (c) An order of the Honourable Court compelling the defendant to dismantle whatever work it has done on any part of the plot of the plaintiff. (d) General damages for trespass. (e) An order of perpetual injunction restraining the defendant, agents, workers, assigns, privies, contractors or any one claiming through them from interfering or dealing with the plot in dispute. Thereafter, the defendant was served on the 26th January, 2021 at 9:41am and filed its statement of defence on the 4/03/2021 and per paragraph 21 of the statement of defence stated that; “The defendant avers that, it has not trespassed onto the plaintiff’s land hence, the plaintiff is not entitled to any of the reliefs being sought against it as endorsed on the writ of summons.” On the same day, the defendant filed Notice of Entry of Conditional Appearance through its solicitor, Joseph Addae Akwaboah Esq. On 26/05/2021, the plaintiff through his Counsel, William Oduro Esq. filed a motion on Notice for leave to amend writ of summons and statement of claim with the proposed Amendment of the writ of summons as thus, (a) Declaration of title and recovery of possession of all that Plot No. 85 Block K. Sector 15 Sunyani-Asuakwaa. (b) An order of the Honourable Court cancelling any purported grant of the plot or any part of the plot in dispute to the defendant. While in the proposed Amended Statement of claim, the plaintiff stated thus; Paragraph 5: “The plaintiff says, he is the bonafide owner of Plot No. 85 Block K, Sector 15 Sunyani-Asuakwaa and has remained in undisturbed occupation and possession of same for almost 30 years.” Paragraph 11: “The plaintiff says on the 22/07/2008, he took an action against one Mr. Yeboah in the High Court, Sunyani as regards the plot in dispute and had final Judgment on the 15/11/2011 after proving his title and assessing damages.” Paragraph 12: “The plaintiff says the defendant as recent as in December 2020, trespassed onto Plot No. 85 Block K. Sector 15 Sunyani-Asuakwaa and commenced building a Mast/Tower on same at a lightning speed without any permit or authorisation. Paragraph 20: “Wherefore, the plaintiff claims as follows; (a) Declaration of title and recovery of possession of all that Plot No. 85 Block K. Sector 15 Sunyani-Asuakwaa. (b) An order of the Honourable Court cancelling any purported grant of plot or any part of the plot in dispute to the defendant.” The above was served on the defendant/company through its Counsel, Joseph Addae Akwaboah Esq. on the 28/5/2021. On the 23/06/2021, Counsel for the plaintiff filed the amended statement of claim pursuant to leave granted on the 21/06/2021 and served on the defendant/company through its Counsel, Joseph Addae Akwaboah. Thereafter, Counsel for the plaintiff filed on the 14/07/2021, a search with the following questions; (a) Whether or not Counsel for the defendant has been served with the amended writ of summons. The answer was ‘Yes’ and on the 24/06/2021. And if ‘Yes’, has Counsel for the defendant filed amended statement of defence? The answer was ‘No’. On the 18/11/2021, the plaintiff filed an Application for Directions through his Counsel, William Oduro and same was served on the Counsel for the defendant. Subsequently, the defendant/company through their Counsel Joseph Addae Akwaboah filed an additional issue on the 22/11/2021 which is whether or not the defendant is a bonafide purchaser for value without notice. The plaintiff filed his witness statement on the 22/11/2021 as well as his pre-trial checklist and same was served on the defendant/company’s Counsel, Joseph Addae Akwaboah Esq. On the 23/11/2022, the plaintiff through his Counsel filed motion on Notice to Relist after the case was struck out on the 19/07/2022 for lack of interest on the part of the plaintiff to prosecute his case. A search was filed on the 19/07/2023 to ascertain the list of all Court dates since the inception of the case by the defendant which was duly listed thus; 1. 08/06/2021 2. 21/06/2021 3. 23/11/2021 4. 02/07/2022 5. 21/03/2022 6. 11/04/2022 7. 08/06/2022 8. 19/07/2022 9. 29/11/2022 10. 30/01/2022 11. 17/02/2023 12. 28/03/2023 13. 24/07/2023 On the 24th day of July, 2023, the case was called for Hearing. The plaintiff was present, the defendant/company was absent. The Counsel for the plaintiff, William Oduro Esq. was present. The Counsel for the defendant Joseph Addae Akwaboah was absent. The Court on record stated that, the defendant has failed to file its amended defence. Consequently, the plaintiff was called upon to mount the witness box to testify. In his evidence in Chief, Emmanuel Owusu Afriyie told the Court that, his witness statement bears his signature which he filed on the 22/08/2022 and that, he relies on the witness statement filed before the Court. Led by his Counsel, William Oduro, he tendered in Exhibit “A” – Allocation from the Lands Commission, Exhibit “B” – An indenture, whilst Exhibit “C” is the Tax Clearance Certificate, Exhibit “D” – Judgment of the High Court dated 15/11/2011 by Justice Emmanuel Sarpong and that, he relies on the Exhibits tendered in evidence. At the end of his evidence, there was no cross examination by the defendant from its Counsel, Joseph Addae Akwaboah, as they failed to appear in Court to cross examine the plaintiff. There was no letter or correspondence notifying the Court while the defendant and its Counsel failed to attend Court. Consequently, the plaintiff was discharged having closed his case. In his evidence in chief, per his witness statement, the plaintiff stated that, he is the owner of Plot No. 85 Block K, Sector 15, Sunyani-Asuakwaa and that, he has remained in undisturbed occupation and possession of same for almost 30 years. That, the plot in dispute was approved and allocated to him by the Lands Commission on the 15/08/1991. He tendered in Exhibit “A”, allocation from the Lands Commission and that, he acquired the plot in dispute for the purpose of building a residential accommodation. That, the acquisition of the plot in dispute was reduced into a valid lease dated 10/02/1995, which was executed in his favour, Exhibit. He also obtained a Tax Clearance Certificate from the Internal Revenue Service, now Ghana Revenue Service to enable him secure a lease on the plot in dispute, Exhibit “C”. That, on the 22/07/2008, he took an action against one Mr. Yeboah in the High Court, Sunyani as regards to the plot in dispute and had a final judgment on the 15/11/2011 after proving his title and assessing damages, Exhibit “D”. He stated that, as recent as December, 2020, the defendant trespassed onto his Plot No. 85 Block K. Sector 15, Sunyani-Asuakwaa and commenced building a Mast/Tower on same at a lightning speed without his consent, power or authority and that, all efforts to compel the defendant and her agents to stop their illegal acts proved futile. That, the defendant and or her grantors are all out of time from claiming the ownership of his plot he has possessed and occupied since August, 1991. That, any purported grant of the plot in dispute to the defendant is of no legal effect and prays that same be cancelled by the Court. The defendant has evinced that, she will not stop her trespassory acts unless compelled by an order of the Court. As earlier indicated, the defendant failed to appear in Court to cross examine the plaintiff who testified on the 24/07/2023. I have examined all the Exhibits tendered in by the plaintiff when he testified in Court and I am satisfied that, he used due process and the acquisition of the plot in dispute which he acquired in 1991 and has since been in effective occupation and possession. I have taken a look at Exhibit “D” being the Judgment delivered by the High Court, Sunyani on the 15/11/2021 by Justice Emmanuel Ato Assan Esq. He stated in that Judgment thus; “I am satisfied that, Exhibit “A” is an unchallenged evidence that the plaintiff has a ninety-nine (99) year lease of Plot No. 85 Block K, Sector 15, Sunyani-Asuakwaa, Exhibit “A” is thus evidence of the plaintiff’s title to the said plot.” I am satisfied that, the plaintiff in the instant case testified and prove the title of his case against the defendant and therefore, I enter judgment in favour of the plaintiff against the defendant/company; (a) That, a declaration of title and recovery of possession of all that Plot No. 85 Block K. Sector 15 Sunyani-Asuakwaa is the bonafide property of the plaintiff herein and should remain as such. (b) The Court orders the cancellation of any purported grant of the Plot No. 85, Block K. Sector 15 Sunyani-Asuakwaa or any part of the plot in dispute to the defendant. I award a cost of GH¢20,000.00 against the defendant/company in favour of the plaintiff to settle any debt incurred in pursuing this case in Court. (SGD) GABRIEL NENE KWAO MATE-TEYE (JUSTICE OF THE HIGH COURT) Counsel: William Orleans Oduro for the Plaintiff. Counsel: Joseph Addae Akwaboah for the Defendant/Company. IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE SITTING AT SUNYANI ON THE 24TH DAY OF JULY, 2023 BEFORE LORDSHIP JUSTICE GABRIEL NENE KWAO MATE TEYE =================================================================== SUIT NO. C1/74/2021 EMMANUEL OWUSU AFRIYIE OF H/NO PLAINTIFF AH-1382-059, ABREPO ROAD, KUMASI VRS: ATC COMPANY GHANA LIMITED OF 2ND FLOOR 5TH AVENUE CORPORATE OFFICE DEFENDANT PLT 32, OSU AVENUE EXTENSION WEST CANTOMENTS, ACCRA GHANA =================================================================== Plaintiff present Defendant absent Counsel William Oduro with David Oduro for plaintiff present Defendant has failed to file defense. Evidence in chief of plaintiff (Emmanuel Owusu Afriyie) S. O. B in English Court room cleared. Q: Full name to the Court Q: Look at this document, at the signature and identify the witness statement filed on 22/08/2022 and want to rely on the witness statement of the witness filed on the above date. Counsel: we have exhibits that must be marked. Exhibit ‘A’ – allocation from the Lands commission - tendered and marked as Exhibit ‘A’ Exhibit ‘B’ – an indenture or lease Exhibit ‘C’ – tax clearance certificate Exhibit ‘D’ – judgment of High Court dated 15/11/2011 by Justice Emmanuel Sarpong. Exhibits to be relied on. End of Evidence of the Plaintiff. No cross examination as the Defendant is absent from Court without any justification, permission or notification. Plaintiff is discharged. By Court: Case is adjourned to 22/11/2023 at 11:30 for judgment. 11