THE DAGBOSHEE SKIN VRS KARIM & 3 OTHERS (A1/8/23) [2024] GHADC 97 (30 January 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 30TH JANUARY, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN SUIT NO. A1/8/23 THE DAGBOSHEE SKIN [ACTING PER ITS CURRENT OCCUPANT, DABOSHEE NAA ALHASSAN ADAM NABLA] - PLAINTIFF AND 1. MR. KARIM 2. ABUKARI ALHASSAN 3. MARY OBIMPEH JOHN 4. PASTOR SOLOMON - DEFENDANTS JUDGMENT INTRODUCTION 1. This judgment relates to land. 2. The plaintiff is a divisional skin of Dagbon and the sub-allodial owner of all that parcel or piece of land within the jurisdiction of the Dabogshee skin. Defendants are described as trespassers. 3. By an amended writ filed on 9th March, 2023, the plaintiff instituted this action against the defendants for the following reliefs: “a. Declaration that plaintiff is the sub-allodial owner of Dabogshee Skin land within which plots nos. 1, 78 both within Block H; 295, 195, 197 and 199 all within Block I; and plot no. 117 Block D of Yung-Duuni Dabogshee Residential Area. - 1 - b. Declaration that following the proper zoning of the Dabogshee Skin land, all persons who previously acquired parcels or plots of land from the previous occupants of Dabogshee Skin were mandated to meet the current occupant of the plaintiff for re-issuance of allocation papers corresponding to the numbering in the layout after the plaintiff had duly notified the general public of the zoning. c. Declaration that without allocation paper and building permit from the Municipal Assembly, the defendants have no right to develop any piece of land within the Yung-Duuni Dabogshee Residential Area. d. An order of mandatory injunction to the defendants to pull down or remove the structures or materials they erected or placed on the various plots belonging to the plaintiff. e. An order of perpetual injunction restraining the defendants, their agents, servants, assigns or persons claiming through them from interfering in whatever manner with the plaintiff’s possession, ownership and use of the respective plots of land as described herein above. f. Recovery of possession. g. Damages against the defendants for trespass to the land. h. costs.” 4. On 16th March, 2023 the 1st, 2nd and 3rd defendant pleaded liable to the plaintiff’s claim and prayed the court for settlement. Subsequently, the plaintiff discontinued its action against the 1st, 2nd and 3rd defendants. The 4th defendant never attended court or filed any process despite due service on him. - 2 - 5. In proof of its case against the sole defendant, the 4th defendant, the plaintiff filed an amended witness statement on 2nd November, 2023. I shall deal with the 4th defendant’s failure to attend court or file any process, later in this judgment. PLAINTIFF’S CASE 6. The plaintiff testified through Mr. Ibrahim Andani Yakubu, the current secretary of the Dabogshee Divisional Chief. The summary of plaintiff’s case is that the District Court 1, Tamale on 9th March, 2020 granted an order for the Survey Department to demarcate and relay the land belonging to Dabogshee Skin. Copy of the said order was filed as Exhibit A. Accordingly, the plaintiff caused for public sensitization, education and notification of the zoning exercise through radio announcements, beating of the gong gong and posting of notices at vantage places on the lands, see Exhibit B being a copy of the official layout of the area after the zoning. Mr. Yakubu added that mindful of the fact that the current occupant of the Dabogshee Skin is bound by its previous grants, it served notices to the public with previous allocations to come forward for re-issuance of allocation notes and the old ones retrieved. Exhibit C is a copy of the said notice. The new allocations bear plot numbers under the Yung- Duuni Dabogshee Residential Area scheme. 7. According to the plaintiff, the 4th defendant never approached the plaintiff with any allocation paper covering his land. Again, per plaintiff’s record, the 4th defendant never acquired any plot of land from the current or previous occupant of the skin. Plaintiff tendered a picture of sea sand deposited on 4th defendant’s alleged/disputed plot, i.e. plot no. 117 Block D, as Exhibit D. Plaintiff maintained that it has a duty to ensure that every developer of any piece or parcel of its skin land must have a valid allocation and permit from the municipal assembly and other relevant state institutions before commencement of any development in accordance with the new - 3 - zoning/layout. Plaintiff’s witness added that the 4th defendant will not cease his encroachment onto the land, unless he is restrained by this court. Moreso, the 4th defendant is not entitled to the said land. ISSUE FOR DETERMINATION 8. The only issue borne out of the facts is whether or not the 4th defendant is a trespasser on the plaintiff’s skin land such that the plaintiff is entitled to recovery? BURDEN OF PROOF AND ANALYSIS OF PLAINTIFF’S CLAIM 9. As earlier mentioned, the 4th defendant was duly served with the court processes, but he failed to attend court or filed any process. The law regarding the defendant’s inaction is that where a party fails to appear in court after due service on him, he is said to have deliberately failed to take advantage of the opportunity given him to be heard. The audi alteram partem rule cannot be said to have been breached. The court is entitled to proceed with the trial to conclusion and make deductions, draw conclusions or make findings on the basis of the evidence adduced at the trial, see the cases of In re West Coast Dyeing Industry Limited: Adams v Tandoh [1984-86] 2 GLR 561, CA and Ankumah v. City Investment Co. Ltd. [2007-2008] 1 SCGLR 1068. See also the case of Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd. (No. 2) Koranten-Amoako Interested Party, [2009] SCGLR 185 where Wood JSC (as she then was) stated authoritatively at page 190 as follows:- “A party who disables himself or herself from being heard in any proceedings cannot later turn round and accuse an adjudicator of having breached the rules of natural justice.” 10. The law is also that where plaintiff has endorsed on his writ a claim for declaration of title to land, the plaintiff must establish by positive evidence the identity and limits of the land which he claims. The authorities are legion on this principle, see Asante- - 4 - Appiah v Amponsah @ Mansa [2009] SCGLR 90 @ 98, Nii Tackie Amoah VI v Nii Amarh Okine & Ors. [2014] DLSC 2910, Nene Narh Matti & 2 Ors. v Osei Godwin Teye & Samuel L. Ayortey & 2 Ors. v Osei Godwin Teye (Consolidated) (2017) Suit No. J4/13/2017, Unreported dated 22/11/17, SC, just to mention a few. The Supreme Court, in the case of Nortey v. African Institute of Journalism and Communication [2013-2014] 1 SCGLR 703 held however that such a description of the land does not have to be mathematically certain or exact. Failing which, the claimant must lose, see the cases of Kodilinye v Odu [1935] 2 WACA 336 and Anane v. Donkor [1965] GLR 188. Further, the plaintiff is to prove on the balance of probabilities that he is entitled to that relief or his claim, see ss. 11(4) and 12(1) and (2) of Evidence Act, 1975 (NRCD 323). 11. With regards to what is required of the plaintiff in land cases, the law is that the he must succeed on the strength of his own case and not on the weakness of the defendant’s case, see Odametey v Clocuh [1989-90] 1 GLR 14, SC. Having heard the plaintiff under oath and without any challenge from the defendant, I shall proceed as appropriate, see Ex-parte State Housing Co. Ltd. (No. 2) (supra). 12. Trespass means, “a wrongful interference with the possession of property” or “entry to another’s property without right or permission”, see the WordWeb Online Dictionary. Hence, the continued presence of the other party without lawful right or permission amounts to trespass. See Banini (An Infant) v Asare [1992] 1 GLR 353 where the court held that a person is entitled to use only such force as was reasonable in the circumstance of keeping out or expelling a trespasser from his property. 13. Also, trespass to land, as a tort, is actionable per se. This means that once the act of trespass has been proven against a defendant, the plaintiff does not have to prove by - 5 - evidence that he has suffered damages. The law presumes injury to the plaintiff to be a natural consequence of the defendant’s act of trespass and therefore a claim for general damages will arise as of right by inference of the law. See the cases of Laryea v Oforiwaa [1984-1986] 2 GLR 410, Ayisi v Asibey III & Ors. [1964] GLR 695, Klah v Phoenix Insurance Limited [2012] 2 SCGLR 1139 and Esi Yeboah v Mfantseman Municipal Assembly, Suit No. A2/6/2021 dated 13th October, 2022, HC. 14. From the evidence, plaintiff was able to identify the land in dispute as Plot No. 117, Block D of Yung-Duuni Dabogshee Residential Area. It maintained that the 4th defendant has never been issued any allocation, per its records. Also, from Exhibit D, it is clear that the defendant has deposited sea sand on the disputed land. To it, the continued presence of the 4th defendant on the said land constitutes trespass. 6. Based on the above authorities, I have no doubt in coming to the conclusion that the plaintiff has been able to prove its case: (a) identifying the disputed land, see Nortey v. African Institute of Journalism and Communication [supra], (b) proving that the 4th defendant has no record in its registry, and (c) 4th defendant has trespassed onto the said land, see Exhibit D. More so, as earlier mentioned, where a party fails to appear in court after due service on him, he is said to have deliberately failed to take advantage of the opportunity given him to be heard, and an unfavourable ruling may be entered against him based on the findings, deductions and conclusions at trial, see Ex-parte State Housing Co. Ltd. (No. 2) [supra]. 7. I hold that the plaintiff has been able to prove its case on the balance of probabilities and therefore succeeds on its claim against the 4th defendant. - 6 - CONCLUSION 8. In sum, I hereby enter judgment in favour of the plaintiff against the 4th defendant as follows: a. I declare that Plot No. 117, Block D, Yung-Duuni Dabogshee belongs to the plaintiff skin. b. I declare that without allocation paper from the plaintiff skin, the 4th defendant has no right to develop any piece of land within the Yung-Duuni Dabogshee Residential Area. c. I hereby order the 4th defendant to pull down or remove the structures or materials erected or placed on the above plot. d. The plaintiff is at liberty to recover possession. e. The 4th defendant, his agents, servants, assigns or persons claiming through him are perpetually restrained from interfering in whatever manner with the plaintiff’s ownership of the land described herein above. f. Damages for trespass assessed at GHS2,000.00 against the 4th defendant. g. Costs of GHS1,000.00 is awarded against the 4th defendant. H/W D. ANNAN ESQ. [MAGISTRATE] LAMBON SAMPSON ESQ., HOLDING THE BRIEF OF SYLVESTER ISANG ESQ., FOR THE PLAINTIFF References: 1. ss. 11(4) and 12(1) and (2) of Evidence Act, 1975 (NRCD 323). 2. In re West Coast Dyeing Industry Limited: Adams v Tandoh [1984-86] 2 GLR 561, CA - 7 - 3. Ankumah v. City Investment Co. Ltd. [2007-2008] 1 SCGLR 1068 4. Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd. (No. 2) Koranten-Amoako Interested Party, [2009] SCGLR 185 5. Asante-Appiah v Amponsah @ Mansa [2009] SCGLR 90 @ 98 6. Nii Tackie Amoah VI v Nii Amarh Okine & Ors. [2014] DLSC 2910 7. Nene Narh Matti & 2 Ors. v Osei Godwin Teye & Samuel L. Ayortey & 2 Ors. v Osei Godwin Teye (Consolidated) (2017) Suit No. J4/13/2017, Unreported dated 22/11/17, SC 8. Nortey v. African Institute of Journalism and Communication [2013-2014] 1 SCGLR 703 9. Kodilinye v Odu [1935] 2 WACA 336 10. Anane v. Donkor [1965] GLR 188 11. Odametey v Clocuh [1989-90] 1 GLR 14, SC 12. Banini (An Infant) v Asare [1992] 1 GLR 353 13. Laryea v Oforiwaa [1984-1986] 2 GLR 410 14. Ayisi v Asibey III & Ors. [1964] GLR 695 15. Klah v Phoenix Insurance Limited [2012] 2 SCGLR 1139 16. Esi Yeboah v Mfantseman Municipal Assembly, Suit No. A2/6/2021 dated 13th October, 2022, HC 17. WordWeb Online Dictionary - 8 -