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J U D G M E N
T
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On or about 23rd
April 1997, plaintiffs caused a
writ of summons to issue against
defendant. Plaintiffs claimed
for “declaration that a valid
transfer of title had taken
place on the piece of property
known as H/No. E84/11, Nima to
the plaintiffs who are now the
real legal owners of same”.
Ancillary to this claim was
another prayer seeking
‘perpetual injunction to
prohibit defendant, his agents
and successors from interfering
with the peace and quiet
enjoyment by the plaintiffs to
their property’
According to the statement of
claim the property under
reference, that is, H/No.
E84/11, Nima was acquired by one
Kojo Akrong who died intestate
in 1945 possessed of this
property. Plaintiffs created the
impression that upon the demise
of Kojo Akrong, the property in
dispute devolved on his children
and between 1972 and 1983,
Ibrahim Lassey Akrong whom
plaintiffs described as the
eldest son of Kojo Akrong
initially leased the property to
plaintiffs and subsequently sold
same with the knowledge and
consent of his brothers and
sisters. Plaintiffs alleged that
there are in existence receipts
and indentures on these
transactions duly executed by
Ibrahim Lassey Akrong in their
favour. Plaintiffs averred
further that after purchasing
the property they have performed
acts of ownership of the
property without any objection
from any member of the family or
siblings of Ibrahim Lassey
Akrong.
On the part of the defendant he
denied the allegation of the
lease and the subsequent sale
allegedly made by Ibrahim Lassey
Akrong with the knowledge and
consent of his siblings.
Defendant maintained that
plaintiffs are in the property
as tenants and are never the
owners of the property.
Defendant averred further that
he is rather the eldest son of
the father the late Kojo Akrong
in contradistinction of
plaintiff’s allegation that
Ibrahim Lassey Akrong was the
eldest son of Kojo Akrong.
Besides stating that he is the
eldest son of Kojo Akrong
defendant claims he is now the
only surviving child and the
head of family and that H/No. E
84/11, Nima is his family
property. In the premises
defendant counterclaimed for:-
“1.
Declaration of title to H/No. E
84/11, Nima, Accra.
2. An order for
recovery of possession of H/No.
E 84/11,
Nima Accra.
3.
Accumulated rent from January
1988 to date
4. Interest on
the rent at the current
commercial
rate from
January 1988 to the date of
final payments.
5. Costs”
On record, plaintiff’s claim was
dismissed for want of
prosecution on
25th January 2010 on
the strength of the provisions
in order 36 of the High Court
(Civil Procedure) rules, 2004,
(C.1 47).
It appears that subsequent to
this, the 1st and 3rd
plaintiffs told the court the
reason why they failed to attend
court for which reason their
case was dismissed. The court,
then constituted by Kwasi Dapaah
J advised the plaintiffs to
inform their lawyer for him to
take the necessary procedural
step to address their
predicament.
I salute the directive that the
learned judge gratuitously and
graciously offered to
plaintiffs. Nevertheless,
regrettably, this laudable
advice came to naught as
plaintiffs failed to take
advantage of it.
Under the circumstance
plaintiffs’ case remained
dismissed and the court was
constrained to call upon
defendant to prove his
counterclaim.
Defendant sought to establish
that H/No. E 84/11, Nima was
acquired by his late father Kojo
Akrong who died in 1942
according to the pleadings.
In paragraph 2 of the statement
of claim plaintiffs alleged that
Kojo Akrong died in 1945 and in
paragraph 3 of the statement of
defence, this averment of
plaintiffs was unequivocally
admitted. However, in the year
2010 when defendant was adducing
evidence in chief he said his
late father Kojo Akrong died
about 30 years ago. This puts
the date of death of Kojo Akrong
around 1970.
Whatever the year Kojo Akrong
died, Exhibit ‘1’ that was
tendered by defendant to prove
the fact that Kojo Akrong
acquired this property in
dispute springs tremendous
surprise to me. What I make out
of Exhibit ‘1’ is that in 1992,
Kojo Akrong resurrected from
death and applied for and
obtained the Land Title
Certificate;
Even if it was applied for by
defendant why was the name Kojo
Akrong used at a time that that
man had become a ghost?
This poignantly casts some
ominous clouds on the
genuineness of
Exhibit ‘1’.
Nevertheless, to the
exten that both parties concede
that the property was acquired
by Kojo Akrong I do not deem it
worthwhile to belabor that point
suffice to say that learned
lawyer for defendant, with all
due deference, got it all wrong
in tendering such a piece of
evidence in an attempt to prove
title to the property in Kojo
Akrong, a fact both parties
agreed upon.
Essentially,
defendant led sufficient
evidence to show that plaintiffs
have been tenants in the
property. However, in
cross-examination, defendant
appeared to have admitted that
the property was sold. What he
did not say was who sold it and
to whom was it sold. Learned
lawyer for plaintiffs failed to
probe for these answers. What
defendant said could in no way
mean that he was admitting to
the plaintiffs’ allegation that
the house had been sold to them
by Lassey Akrong whom plaintiffs
said was the eldest son of Kojo
Akrong which fact turned
contrary to defendant’s
unchallenged evidence that he is
rather the eldest son of the
late Kojo Akrong.
Plaintiff in
paragraph 3 of the statement of
claim pleaded that:-
“3. Commencing 1972 and ending
1983, the eldest son
of the deceased called
Ibrahim Lassey Akrong with the
knowledge and consent of
his other brothers and sisters,
first leased out and then
later completely sold out all
the three complex
apartments to the three
plaintiffs,
effectively alienating
title to same for the
plaintiffs”
The line of cross-examination as
conducted by learned lawyer for
plaintiffs revealed a departure
from this pleading. He rather
wanted the court to believe that
Kojo Akrong died possessed of a
lot of properties which were
shared among his children and
that H/No. E 84/11, Nima, was
what became the share of Lassey
Akrong and his sister Atswei,
the mother of DW1. It continued
that Lassey Akrong and Atswei
sold the property to plaintiffs.
As has already been indicated,
plaintiffs denied themselves
from being heard. They failed to
adduce evidence on the record.
This state of affair coupled
with the departure from their
pleadings leaves me with no
option but to take their case as
unproved. In other words, I am
constrained to accept
defendant’s case that plaintiffs
are rent paying tenants.
For asserting ownership to the
property, plaintiffs have made
adverse claim and therefore, as
tenants, they are liable to
forfeit the lease or tenancy.
That is to say for denying the
title to the property, the
defendant who has shown that he
is entitled to title of the
property, is entitled to
immediate recovery of
possession.
The evidence showed that
defendant is now the only
surviving child of Kojo Akrong
and has thus become the
beneficial owner of the
property. He also showed that he
is also the head of the family.
In the circumstance, it is my
view that defendant is entitled
to be declared the owner of
H/No. E 84/11, Nima, Accra. I
order recovery of possession of
the property in favour of
defendant. Because of the
inability of defendant to tell
the court how much the rent
payable by plaintiffs was, I am
unable to grant reliefs 3 and 4
of the counterclaim.
I have had anxious moments as to
the propriety or otherwise for
coming out with this decision
when plaintiffs who turned
defendants for purposes of this
trial were not heard. I thought
that being defendants to the
cross-action prosecuted by
defendant, they must also be
heard as to their side of the
case. However, I am now quite
certain in my mind that having
not filed any reply and/or
answer to the counterclaim of
defendant, they cannot be heard.
They have not put down any
material facts by way of
pleadings as basis for
testifying. I can hardly
appreciate how a party who fails
to file a response to a claim
can be allowed to adduce
evidence. In other words in
civil litigation one adduces
evidence on what he has pleaded.
Therefore where a party fails to
file pleadings, the party not in
default can take judgment
against the one in default.
Indeed under Order 13 Rule 7 of
the high court (Civil Procedure)
Rules, 2004, (C. 1 47) the
defendant could have taken
judgment in default of answer to
the counterclaim. However,
defendant who has asked for a
declaratory relief took further
step, rightly in my view, to
ensure that the court would have
basis to decree title in him.
In conclusion I enter judgment
in favour of defendant against
plaintiffs for reliefs 1 and 2
as contained in the counterclaim
with costs of GH¢3,000 in favour
of defendant against the
plaintiffs.
(SGD)ANTHONY
OPPONG J
JUSTICE OF THE HIGH COURT.
LAWYERS:
DAN KOFI AGGEY, ESQ, FOR
PLAINTIFFS.
EFUA GHARTEY (MRS), ESQ, FOR
DEFENDANT. |
