AKLORBORTU VRS AZADAGLI III (A1/02/2023) [2023] GHADC 1163 (18 July 2023)

IN THE DISTRICT COURT HELD AT ANLOGA ON TUESDAY THE 18TH DAY OF JULY, 2023. BEFORE HER WORSHIP REJOICE ASEYE GADAGOE, DISTRICT MAGISTRATE. REGENT TOGBI AKLORBORTU (JULIUS AGBENYEGAH GBEKOR) OF ANLOGA-DORNORGBOR. VRS 1. TOGBI AZADAGLI III 2. EMMANUEL AMUZU ALL OF TEGBI AGBEDRAFOR CASE NO.: A1/02/2023. PLAINTIFF DEFENDANTS JUDGMENT: By a writ of summons filed on 24/10/22 and amendment on 1/02/23; the Plaintiff herein sued the Defendants and claimed against them as follows: 1. “Declaration of title and ownership to all that piece or parcel of land situated, lying and being at Afedome-Tegbi a place commonly known as Seckley Borme and bounded as follows: On the 1st side by the property of SECKLEY FAMILY (ATSU TSRIMEGA FAMILY) measuring 379.5 feet more or less On the 2nd side by the property of SECKLEY FAMILY (ATSU TSRIMEGA FAMILY) measuring 405.2 feet more or less On the 3rd side by the property of SECKLEY FAMILY (ATSU TSRIMEGA FAMILY) measuring 381.7 feet more or less On the 4th side by the PUBLIC CEMETERY measuring 405.4 feet more or less 2. Perpetual injunction to be decreed restraining the Defendant by himself, his agents, privies, assigns, labourers, and or workmen and any other person or persons connected to him from committing any further encroachment onto the land, hereinabove described. 3. Recovery of cash in the sum of GH¢2,000.00 being the cost of corner pillars erected by the Plaintiff on the disputed land which the Defendant demolished. 4. Recovery of cash in the sum of GH¢45,000.00 being the estimated cost of cassava plantation on the disputed land which the Defendant harvested and took the proceeds to himself. 5. Special damages for trespass. 6. Recovery of possession. 7. Cost”. AN OVERVIEW OF THIS COURT’S FINDINGS: The preliminary facts contained in the instant suit are that, the Plaintiffs happens to be a SURVEY TECHNICIAN. Plaintiff is purported to have purchased Land from FRANK KWAKU SECKLEY. Plaintiff did not know how much he paid for a Plot of his Land. Pursuant to the DEED OF CONVEYANCE however, Plaintiff paid the sum of Ninety-Six Thousand Ghana Cedis (GH¢96,000.00) to his VENDOR, FRANK KWAKU SECKLEY on 16/08/2021. Plaintiff originally sued D1 and the said FRANK KWAKU SECKLEY. Soon after their first appearance in Court, Plaintiff applied to have FRANK KWAKU SECKLEY mis- joined. Subsequently, D2 also applied to be joined to the suit. Pursuant to ORDER 9 RULE 6 AND ORDER 9 RULE 5 (3) OF THE DISTRICT COURT RULES, 2009 (C. I. 59) RESPECTIVELY. The Rules provide as follows: ORDER 9 RULE 6: Misjoinder of Parties. “The Court may at any stage of the proceedings, and on terms that appear to the Court to be just, order that the name of a party who has been improperly joined whether as a plaintiff or as a defendant be struck off”. ORDER 9 RULE 5 (3): “Where before or at the hearing of a suit, a person who is not a party to the suit realises that the suit affects or is likely to affect that person’s interest, that person may apply to the Court to be joined either as a plaintiff or as a defendant as appropriate”. Relying on the two authorities cited above, both applications were granted and the title of the suit was amended accordingly. LOCUS IN QUO VISIT: The Honourable Court paid a fact-finding visit to the disputed land on 7th July, 2023. The Court discovered that the portion of Land plaintiff was laying claim to was under Cultivation by different Farmers. Fortunately for the Court, the Plaintiff, D2 and some of the Farmers were among the Witnesses gathered at the Locus in quo. The narrations of Plaintiff, D2 and the testimony of one of such Farmers have been reproduced below: PLAINTIFF: “Plaintiff told the team that he bought a total of 3.28 ACRES of Land from FRANK KORKU SECKLEY. FRANK KORKU SECKLEY belongs to the ATSU wing of the TSRIMEGA FAMILY. Plaintiff stated that he registered his Land and erected corner pillars. Plaintiff said there were no coconut seedlings on the Land. Plaintiff added that, his corner/boundary pillars were destroyed. His matured cassava was harvested on the instructions of D1 and the coconut seedlings were planted in their place. That in 2016 when Plaintiff first visited the disputed land, the land was bushy and there were no irrigation pipes. However, Plaintiff said when he returned in 2021 after full payment for his Land, he saw the irrigation pipes. Plaintiff stated further that, he questioned Frank Seckley about the activities being undertaken on the disputed Land”. 2ND DEFENDANT: “Second Defendant (D2) spoke on their joint behalf. 2nd Defendant asserted that the land was founded by his great-grandfather, TSRIMEGA. Togbi Tsrimega begat ATSU, ETSE and DOE on the disputed land before they re-settled near the sea. The land was cultivated through the generations by Family members including their parents. D2 claimed that at a point, the state requested portions of the land for the construction of a school and the land was surveyed. He provided the boundaries to the land as follows; ‘Sea side by Tovia Clan Lagoon side by Lagoon West side by Leafe clan East side by their 2nd family land’. D2 also stated that he granted the SHILOH CHURCH permission to build on the disputed land. The coconuts and banana trees were also planted by the Defendants. That the land has been under cultivation for ten (10) years on crop-sharing basis. Proceeds are therefore shared among the three descendants of Togbi Tsrimega. D2 insisted the lands were never shared among the THREE GATES. D2 said they were Not aware of any sale of the Family land until the Plaintiff showed up and even caused Police to arrest their Head of Family who is also the 1st Defendant herein”. ACCOUNT OF MR. CHRISTOPHER ANIMLA (A FARMER): One of such Farmers is MR. CHRISTOPHER ANIMLA. He informed the Honourable Court that, he returned from Benin in 2012 and requested land for cultivation from MR. AMUZU GAKPLEAZI which was granted to him on the disputed Land. He cleared all the bush on the land and cultivated crops thereon. Mr. Christopher Animla even had irrigation pipes laid in 2014. The materials he said, were purchased by MR. ASHIGBUI in 2013. According to Mr. Christopher ANIMLA, somewhere last year, the Plaintiff and his VENDOR, MR. FRANK KORKUVI SECKLEY’ came to plant cassava among their Tomatoes crops. He said he was restrained and that prevented a scuffle. Mr. Christopher Animla stated further that, when the Cassava was ready for harvesting however, their Head of Family, TOGBI AZADAGLI III (D1), gave instructions for them to harvest the Cassava. Plaintiff filed copies of A MEMORANDUM OF UNDERSTANDING (MOU). In it, Plaintiff claimed to have worked on 49 ACRES. He also attached a DEED OF CONVEYANCE which had been marked exhibit “C”. Again on 12/11/2021, the Plaintiff wrote to the Head of the TSRIMEGA FAMILY, TOGBI AZADAGLI III, to formally declare his OWNERSHIP and REGISTRATION of the Tsrimega Family Land to him. ATTACHED DOCUMENTS: 6 8 10 EVALUATION OF THE FACTS PRESENTED SO FAR: SECTION 12 OF THE LAND ACT, 2020 (ACT 1036); provides as follows; “Protection of Land and Interest in Land (1) A person who a) Unlawfully exercises or purports to exercise supervision and control of Land development in a location, b) has no interest in Land and - extorts money or other benefits from a person who has an interest in land, or - prevents a developer from developing the land; or c) Personally, or through another person unlawfully uses force or violence to prevent a person who has interest in the Land from having access to the land or drives away that person with an interest in land from the land, commits an offence and is liable on summary conviction to a term of imprisonment of not less than five years and not more than fifteen years, or both……..” Respectfully, aspects of the facts contained in the instant matter appear to have been captured in the above provision. The Honourable Court’s fact-finding visit to the disputed was very instructed and put everything in its proper perspective. The portions being claimed by the Plaintiff were under serious cultivation. Some of the Farmers were direct descendants of the THREE ORIGINAL OWNERS OF THE DISPUTED LAND. THE DESCENDANTS ALSO CONSTITUTE THE ROYAL GATES OF ATSU, ETSE AND DOE. Plaintiff confirmed that he purchased the land in 2021. Plaintiff paid his VENDOR, MR. FRANK KORKUVI SECKLEY; an amount of GH¢96,000.00. The information is captured in the “DEED OF CONVEYANCE” attached above. Rather curiously, the Head of family appears not to have been in the know, and Plaintiff had to notify him about the transaction subsequently in a Letter. Whereas the Deed of Conveyance was drafted on 16th February, 2021; the Plaintiff’s letter to the Head of Family TOGBI AZADAGLI III (D1), notifying him of Plaintiff’s Ownership of the family land was dated, 12th November, 2021. The said Letter was titled; “ATTEPT (ATTEMPT) TO ENCROACH ON MY LAND AT TEGBI-SEGL- BORME”. Plaintiff quoted his Registration Number from the Lands Commission as; “REGISTRATION NUMBER 874/2021”. Finally, in the MOU, the Plaintiff claimed to have worked on FORTY-NINE (49) ACRES of Land for TSRIMEGA FAMILY. During preliminary hearing in Court however, Plaintiff reduced the approximate size of the Total Land he worked on to TWENTY-NINE (29) ACRES. CONCLUSION: In answer to a question put to the Parties on how much a Plot of Land could cost in the disputed area, D2 estimated A PLOT OF LAND to cost SIX THOUSAND GHANA CEDIS (GH¢6,000.00). An Acre of Land comprises Four Plots. Even the 29 Acres would equal over 100 Plots of Land; with each costing roughly GH¢6,000.00. SECTION 47 (1) (f) OF THE COURTS ACT, 1993 (ACT 459); AS AMENDED BY ACT 620; AND FURTHER AMENDED BY L. I. 2429; had enhanced the monetary jurisdiction of the District Court to FIVE HUNDRED THOUSAND GHANA CEDIS (GH¢500,000.00). In spite of this enhancement, this Court would be seen to be attempting to deal with Land with value far in excess of its monetary jurisdiction if it ventures into the merits of the instant suit. Again, should it turn out that aspects of the issues therein are captured under THE LAND ACT, 2020 (ACT 1036); the instant Court would not have jurisdiction to entertain them. On the stated grounds therefore, this Honourable Court humbly dismisses the instant suit in anticipation of want of capacity. REJOICE ASEYE GADAGOE (SGD). DISTRICT MAGISTRATE 18/07/2023. 12