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JUDGMENT
BY COURT:
The Plaintiff as the head of
Tete pa ogya Agona family of
Adamorobe, claimed for and on
behalf of the said family the
following reliefs against the
Defendant:
a)
Declaration of title to all that
land situate and lying and being
at Adamorobe on the Dodowa Road
containing an approximate area
of 6 plots and bounded on the
South by the Accra-Oyibi main
road, on the East by Plaintiff’s
family land and on North by
Plaintiff’s family land and on
the West by Plaintiff’s family
land.
b)
Damages for Trespass.
c)
Recovery of possession.
d)
An Order of Perpetual Injunction
to restrain the Defendant, his
agents, servants, privies, and
assigns from entering unto or in
any way disturbing the
Plaintiff’s family’s possession
of the said land.
The Statement of claim that
accompanied the writ traced the
plaintiff’s root of title from
conquest, and possession from
time immemorial. The Defendant
filed a defence and denied the
Plaintiff’s claim. The
defendant however traced his
root of title from the Mayawei
family of Nungua, and
counter-claimed for the
following:
a)
General Damages for trespass
unto Defendant’s six plots of
land lying at oyibi.
b)
Injunction to restrain the
Plaintiff from entering into
Defendant’s land, threatening
Defendant’s life and or
demolishing Defendant’s
property.
c)
Damages.
d)
Cost.
On 21st May, 2009
after application for direction
had been filed, the Defendant’s
solicitors filed an application
to join Quaye family of Nungua
as second Defendant. The
applicant failed to move the
application, and same was
dismissed on 1st
June, 2009 as being incompetent,
as the application was supposed
to be by the Quaye family of
Nungua without disclosing which
member of the family is to
represent the family. The
affidavit in support of the
application for joinder was
sworn by one Richard Khimson
Avetu of Accra who described
himself as the court clerk of
the Applicant’s law firm. In
the meantime, in the statement
of defence, the Defendant
pleaded that the land belonged
to the Mayawei family of Nungua.
The issues set down for
resolution were as follows:
a)
Whether or not plaintiff’s
ancestral family had at all
material times owned the land in
dispute.
b)
Whether or not the Mayawei
family of Nungua are the owners
of the disputed land.
c)
Whether or not the plaintiff had
at all material times been in
possession of the land.
d)
Whether or not the plaintiff is
entitled to his claim.
e)
Any other matters arising out of
the pleadings.
After direction had been taken
with the involvement of Defence
Counsel on 17th June,
2009, Defence Counsel stopped
attending Court. Hearing notice
was served on two occasions on
defence counsel since he and his
clients were not attending
Court. When the second hearing
notice for the hearing of the
suit on 25th and 27th
January, 2010 was served on
Defence Counsel, he still failed
to attend Court, but wrote by
letter dated 7th
December, 2009 that even though
they are representing the
defendant, they had lost touch
with him for about 10 months so
the hearing notice should be
directed on the Defendant
personally. As the Defendant
could not be traced, the
Plaintiff was granted leave to
serve the Defendant by
substitution, and same was
effected.
The Plaintiff gave evidence
through one Kwame Ntow who
described himself as the
Kwamuhene of the Tete pa ogya
Agona Family of Adamorobe, and a
member of the said family.
Even though the Spokes person
had no power of Attorney to
speak on behalf of the
plaintiff, the evidence of the
spokesperson is admissible
evidence, since by the authority
of Nyamekye vrs. Ansah (1989-90)
2 GLR 152, a party to an action
did not need to give evidence
himself provided he could adduce
evidence from other sources, the
Court would have to look at that
evidence in considering the
totality of the evidence before
it.
The Spokesperson gave evidence
that his family has land at
Adamorobe and shares boundary
with the Dodowa Road. Even
though the Plaintiff’s
Spokesperson did not mention the
exact boundaries of the
Plaintiff’s Land, he gave
evidence that the family had
litigated over the land and
won. He also said the family
has a land title certificate
acquired under the Land Title
Registration Law (P. N.D.C. Law
152) and same was tendered as
exhibit ‘A’. Exhibit ‘A’ has a
plan attached to it. By the
authority of Agyei Osae vrs
Adjeifio (2007-08) SCGLR 499,
the Supreme Court held that
where a site plan is admitted
without objection or challenge,
it may be considered as
unchallenged evidence, and forms
part of the record before the
trial court to be evaluated at
the end of the trial.”
The Plaintiff did not call any
other witness, apart from the
spokesperson. However since the
spokesperson tendered the
plaintiff’s previous judgment on
the land, and exhibit ‘A’ the
land title certificate, also has
a site plan attached, which site
plan delineated the Plaintiff’s
land. I accept the evidence of
the Plaintiff as the truth since
both the Plaintiff’s pleading
and the evidence have not been
controverted in any way. In the
case of Takoradi Flour Mills
vrs. Samir Faris (2005-06) SC
GLR 882, it was held that “A
tribunal of fact can decide on
issue on the evidence of only
one party. A bare assertion on
oath by a single witness might
in the proper circumstances of a
case be enough to form the basis
of a judicial Adjudication. The
essential thing is that the
witness is credible by the
standards set in section 80(2)
of the Evidence Decree 1975 …” I
therefore hold that the 6 plots
in dispute fall within the
Plaintiff’s ancestral family
land, but not for the Mayawei
family of Nungua.
The Plaintiff however did not
lead sufficient evidence on the
extent of the trespass, except
to say that the Defendant has
built on the plots. The
Defendant himself admitted in
his Statement of Defence that he
has built on the land, and this
he did without the consent of
the Plaintiff’s family.
I therefore enter Judgment for
the plaintiff as follows:
a)
Title is declared in the
Plaintiff to the land in dispute
b)
The Plaintiff is to recover
possession of the 6 plots in
issue
c)
GH¢10,000.00 as General Damages
for trespass to the land in
dispute
d)
The Defendant, his agents,
servants, privies, etc are
hereby restrained from entering
unto the land in dispute or in
any way disturbing the
plaintiffs family’s possession
of the said land.
The Defendants counter-claim is
dismissed. The Plaintiff is
awarded cost of GH¢2,000.00.
(SGD.)MR. JUSTICE S.H.
OCRAN
Justice of the High Court
Counsel: Mr.
Justine Amenuvor for Plaintiff.
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