Akpao Vrs Gavua & Another [2022] GHAHC 83 (7 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION AD – 2022. CORAM: CHARITY A. ASEM (MRS) J. SUIT NO. E1/77/2021 DATE: 7TH DECEMBER, 2022. HARRY ANKU AKPAO SUING AS HEAD OF THE AKPAO WUSU FAMILY PLAINTIFF H/NO. D2/26, BARRACKS ROAD AGBASIAFE HO-DOME VS. 1. INNOCENT KOMLA GAVUA, HO 2. LANDS COMMISSION SECRETARIAT DEFENDANTS REGIONAL LANDS COMMISSION, HO JUDGMENT The defendants’ failure to participate in the instant trial was by choice. But it is appropriate that before the court grants any reliefs in favour of the plaintiff on his claims before the court the facts leading to the instant dispute should be re-counted. The claims of the plaintiff as endorsed on his writ of summons against the defendants are as follows; a) An order affirming plaintiff’s family ownership of the land the subject of the instant action. b) An order declaring the defendants’ act on the land the subject of the instant action constitute trespass. c) An order of recovery of possession of the land the subject of the instant action. d) An order directed at the 2nd defendant to expunge from their Register any entry of title they might have entered for the 1st defendant. e) Damages for trespass. f) An order of perpetual injunction against the defendants herein, their agents, assigns, servants, workmen, successors, or privies from doing anything whatsoever with the possession, occupation, enjoyment, alienation or development of the instant land or any portion thereof by the plaintiff, its agents, servants, workmen, successors, assigns or privies. According to the plaintiff, he is the head and lawful representative of the Akpao Wusu Clan of Ho-Dome and as such institute the instant action for and on behalf of the said family. According to him their family land is commonly called Loboli land. He described the 1st defendant as a resident of Ho and a trespasser unto the disputed land. No doubt the 2nd defendant is the custodian of and manager of all government lands. According to plaintiff his family discovered sometime in 2017 that the 1st defendant has trespassed unto a portion of their land. When confronted he traced his root of title through the 2nd defendant, which demised unto him land measuring 0.17 acres. Plaintiff avers further that the defendant would not heed to their warnings to restrain from the trespass through several protests from his family. He said the land in dispute is bounded on the North by Ashong Ametorgbe’s property, the East by Wukake’s land and Kunyoadunu’s property, the South side by Kwasi Gbagida’s property and on the 4th side, North West by James Asase’s property. It is noted that 1st defendant struggled to put in a defence. When he finally did, he traced his root of title from 2nd defendant Lands Commission per the Chairman one Francis Doe, who signed defendants’ documents as Chairman of the Volta Region Lands Commission. It is noted that though the 2nd defendant was served with the writ he did not respond to same. A notice of appearance was entered in its behalf filed on 10/06/2022 and that was all. The court conducted Directions on the 12/4/2022 thereafter parties were directed to file witness statement and relevant documents pre-trial check list for the determination of the various claims of the disputants. The plaintiff complied. Defendants did not. On the 5/6/2022, Counsel for 1st defendant attended the court but withdrew his representation. He informed the court that, his client said he is no longer interested in the litigation hence 1st defendant stopped coming to court. The court mindful of the decision in the case of Takoradi Timbers Ltd Vs Awuah (1981-82) part II at 1142 where it was decided that, a party whose lawyer withdraws representation in his absence must be served with Hearing Notice. Indeed, it is the duty of the court to do justice to all persons who appears before it, and must act fairly no matter how badly it perceives the case of a litigant he ought to be heard. More so, the orders of the court may affect the interest of the 1st defendant therefore he ought to know that the court is proceeding in his absence. The order directed to serve the 1st defendant to attend court was carried out; but the defendant did not show up. And since the case cannot be in abeyance the court directed the plaintiff to state his case. A court has jurisdiction to proceed with the case where a party or his Counsel have been given the opportunity to appear to take part in the trial but ignore same. The court’s duty is to ensure that all person who may be affected by its orders are notified in order that it is not accused to have breached the rules of natural justice the audi partem rule. Please see Sarfo Adu Vs Badu (1977) 2 GLR and In Re West Coast African Ding Co. Ltd. Adams & Ors. (1984-86) 2 GLR 561 C. A. The plaintiff sought declaration of title to land; Recovery of possession and injunction. The law is that once a claimant sought declaration of title, recovery of possession etc. he has put his title into issue and he ought to proof same whether or not the defendant appears. The plaintiff testified on the 11/11/2022 and relied on his witness statement together with the exhibits annexed thereto. He re-iterated the fact that the Loboli land is the property of the Akpao Wugu family of Ho-Dome. He relied on Exhibit “D” which is an approved site plan signed by the Head of Survey and Mapping Division of the Lands Commission Ho and stamped. He further relied on Exhibit “F” being judgment delivered in favour of plaintiff’s family against others delivered by the High Court Ho recently in Suit No. E1/24/2006 entitled, Togbe Akpao II substituted by Vector F. Eilbu & 5 ors. Vs. Francis Kofi Asare & 4 ors. on 15/12/2020. In the above judgement his Lordship Buadi J. recounted in detail the occurrences between the parties from 2006 until he took over the trial to conclusion, when he delivered judgment in favour of the plaintiffs herein. Amongst other observation he stated at pages 8-9 that, the defendants though served to appear to participate in the trial did not avail themselves. The court did not hesitate to grant the reliefs sought in favour of the plaintiffs who are the plaintiffs in the instant suit. Plaintiff further tendered exhibits to show that over the years they have been and exercise ownership and possessory right over the disputed land and have also granted several portions to third parties; without let or hindrance. Besides the testimony of the plaintiff he called one witness in the person of Rev. Father Jesse Amedzi the Parish Priest of Roman Catholic Church, who is also the Priest in charge of Holy Spirit Basic School, Loboli Ho. In brief he acknowledges the plaintiff’s family as their grantors from whom they acquired portions of disputed land as far back as 2007. That the Dioceses Bishop Kofi Anani Lodonu of the Ho-Diocese, led the church to acquire 59.88 acres of land from the Akpao family Togbe Akpao II Head and Lawful representation of the Wusu family of Ho – Dome. That the Diocese has been in peaceful occupation of the land so acquired without protest from anyone. As stated earlier, the defendant denied himself the right to cross-examine plaintiff and his witness on the issues canvased. In the absence of any challenge to the evidence adduced by the plaintiff and his witness coupled with what I make of all the exhibits tendered herein I have no doubt that the plaintiff has proved his case on the balance of probabilities and the case of the plaintiff is believed. The defence filed on the 25/11/2021 by the defendant herein contains no counter – claim. The unsubstantiated defence of the defendant is worsen by the fact that he failed to appear to show evidence of the acquisition of the land which 2nd defendant allegedly granted to him. Flowing from the above therefore I have no option but to declare ownership and possessing right of the disputed land in favour of the plaintiff herein. Accordingly, judgment is entered in favour of the plaintiff. He is declared the owner of all the piece of land known as Loboli land belonging to the Wusu Akpao family. The plaintiff is ordered to recover possession of the disputed site from defendant. I grant without hesitation plaintiffs relief (d) thus, an order directed at the 2nd defendant to expunge from their register any entry of title they might have entered for the 1st defendant in respect of the disputed site; and defendant by himself, his servants, agents, assigns, privies and anyone claiming title through him are hereby restrained from interfering with the peaceful occupation of the Loboli-land. CONCLUSION; The plaintiff sought damages for trespass. What are these acts of trespass? Though the plaintiff has stated in his witness statement that the defendant has trespassed unto the land and continue developing despite warning, he failed to disclose the nature of trespass for which damages may be determined. I am not sure that merely claiming that defendant has trespassed unto his land amounts to proof in law. I believed the defendants must have made his presence felt on the disputed site hence this action but plaintiff’s evidence is silent on exactly what he did to aid the court to assess damages. In the case of Emmanuel Osei Amoako Vs Standford Edward Osei (Subst.) by Bright Osei Lartey, Civil App. No. J4/2016 dated 1/06/2016 SC His Lordship Appau JSC held that, “Judgments must be based on established facts not mere rhetoric or narrations without any supporting evidence that can sustain the claim.” Please see also Eric Asante V. The Rep. (2017) 109 GMJ 1. Per Dotse JSC on the same principle. The plaintiff is entitled to cost. Even though defendant knew perfectly well that he had no case, he made a show for contest. His withdrawal was late in my considered view and having put plaintiff to cost, he must be compensated. Cost is therefore accessed at GH₵10,000.00 in favour of the plaintiff. CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) (SGD.) PARTIES; Plaintiff – Present. Defendants – Absent. LEGAL REPRESENTATION Awuku Atakli for the Plaintiff – Present. jd* 6