Dzivenu And Another Vrs Korku And 4 Others (E12//01/2023) [2024] GHAHC 249 (9 July 2024)

IN THE HIGH COURT OF JUSTICE, HELD IN SOGAKOPE ON TUESDAY, THE 9TH DAY OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE DANIEL MENSAH, ESQ., JUSTICE OF THE HIGH COURT. ========================================================= SUIT NO: E12//01/2023 1. NANI AGBOGLI DZIVENU = PLAINTIFFS/APPELLANTS 2. JOHNSONDOGBEY MORDEDZI VS 1. FAMOUSKORKU RESPONDENTS 2. AMEGAANDREWS ATSUKORKOR 3. AMEGAALBERTKWAWUKUMEY 4. WISDOM ATSIASAKUKUBOR ========================================================= PARTIES: 1ST APPELLANTPRESENT. 1ST AND4TH RESPONDENTS PRESENT. 2ND RESPONDENT REPRESENTEDBYALI KUKUBOR. 3RDRESPONDENT REPRESENTEDBY THOMPSON SEMENA. COUNSELS: MR. BERNARD DZINYELA,ESQ., HOLDING BRIEF FOR MR.B.T. ADAKANLA,ESQ., COUNSEL FORAPPELLANTS - PRESENT. ======================================================== JUDGMENT The Plaintiffs/Appellants have filed the present appeal against the judgment at the District Magistratedelivered onthe 22/02/2022 in the District Court,Anloga. ~ 1 ~ To help understand the basis of this appeal, the background leading to the appeal oughttobe stated. On the 09/12/2020, the Plaintiffs/Appellants caused a writ to be issued against the defendant (now 1stdefendant/respondent in this appeal) for: - a) Declaration of title and rightful ownership to all that, piece or parcel of land (building plot)situatelying and being atKpordui andbounded as follows: OntheEast by the propertyofthePlaintiffs. OntheWest by the propertyofthe Plaintiffs. OntheSouthby thepropertyofPlaintiffs, and OntheNorthby the propertyofthe Plaintiffs b) An Order for perpetual injunction to be decreed, restraining the Defendants by himself, his assigns, privies, workmen and or labourers and any other person or persons whatsoever connected to the Defendants from any further act oractsoftrespassunto the land, subject matterofdispute. C) Generaldamagesfortrespass and wrongfulencroachment. d)Recoveryofpossession. e)Cost. The Plaintiffs/Appellants pursuance to an Order of the Court filed their Statement of Claim on the 06/01/2021 two (2) days after the said Statement of Claim, three (3) personsfiled an applicationtojoin the suit asCo-defendants. Notwithstanding an Affidavit in Opposition filed by the Plaintiffs/Appellants to the said application, the learned District Magistrate granted the application joining the three(3)personsas Co-defendantsin thematter. ~ 2 ~ Both parties gave evidence in the matter and called witnesses to buttress their varied positions astohow theyhad come to ownthe landindispute. Subsequently, the trial court embarked on a Locus and thereafter continued the final hearing ofthe matter. The learned District Magistrateafter the hearing delivered judgmentin the matteron the 22/02/2022 dismissing the Plaintiffs/Appellants action and entering judgment in favourofthedefendants and Co-defendants. The Plaintiffs/Appellants being dissatisfied with the said judgment has filed the presentappealongrounds stated therein. The Plaintiffs/Appellants grounds of appeal can be found at page 214 of the record ofAppeal. Groundsof Appeal a) That thejudgment is against the weight ofevidence. b) That the Plaintiffs did not suited the Kpordui land rather Mordedzi Family land. c) LocusReport on20/09/2021. d) Judgment sent to me on the 24/02/2022 was not my suit No. A1/09/2021 while my suit No. A1/07/2021. e) That thecost awardedagainst the Plaintiffs is unacceptable in law. f) Further grounds of Appeal would be filed upon receipt of the records of proceedings. ~ 3 ~ Subsequently, the Plaintiffs/Appellants obtained leave to argue additional grounds ofappeal. The said additionalgrounds ofappealis statedas follows: - g) The court below erred when it determined that the Defendants/Respondents have capacity to join and defend the matter in respect of the land subject matterofthesuit. Particularsof error. a) The court below failed to avert its mind to the fact that Defendants did not present any evidence to support their capacity when the same was put in issue by Plaintiffs/Appellants. b) The trial Magistrate failed to consider the fact that some of the Defendants are not indigenes of Kpordui for which reason they lack the capacity to defend thematter. (h) The Court below erred in law when it acted ultra vires of its jurisdiction and expanded the same and dimension of the land in respect of which the action commenced and expanded the scope to the entire Kpordui land in excess of its jurisdiction. Particularsof Error. a) The court below failed to restrict itself to the parcel of land in dispute and expandedthe scope beyonditsjurisdiction per theLaw. (i) The Court below committed an error of law when it allowed and considered the petition filed by people who are not parties to the suit in its decision which processwas neverserved onthe plaintiffs. Particularsof Error. ~ 4 ~ (a) The court belowdid not orderthe exclusion ofapetition placed on its docket withoutnotice to theplaintiffs. (b) The trial Magistrate relied on the content of the impugned petition to give judgmentagainst the plaintiffs. (j) The Locus Report of 20/09/2021 is tainted by Defendants dishonesty in presenting Mr.JohnAgbenyeke asaneutralpersonwhen in fact he hasaninterestin the matter, for which reason the learned magistrate’s reliance on the said testimony as being credible has occasioned in justice tothe Plaintiffs. (k) The Court below erred when it failed to consider the Watchdog Committee Report which states that the land subject matter of the suit would not be alienated to privateindividuals. Particularsof Error The Court did not avert itself to the fact that some of the Defendants are non- indigenes of Kpordui and hence could not have validly obtained any interest in the landthe subjectmatterofthe instant suit. The judgment decreed by the learned District Magistrate over which the Plaintiffs/Appellants have appealed to this court can be found in pages 181-210 of theRecord ofAppeal. The first ground of appeal filed by the Plaintiffs/Appellants is that the Judgment of theCourtis against the weight ofevidence. It is now settled law, backed by a host of cases that where an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied could have changed the decision in his favour, or that there are certain pieces of evidence that has been wrongly applied against him. The onus is on such an appellant to clearly and ~ 5 ~ properly demonstrate to the appellate court the lapses in the judgment being appealed against. Seecase ofDjin v. Musah Baako(2007-2008) SCGLR 686. It is again trite law that an appeal is by way of rehearing See Tuakwa V. Bosom (2001-2002) SCGLR61. In such a case, it is incumbent on the appellate court, in a civil case, to analyse the entire record ofappealtakeninto account the entire testimonies and alldocumentary evidence adduced at the trial before arriving at its decision. That is to satisfy the court that, on the preponderance of the probability, its conclusion is reasonably or amply supported bythe evidence. Perthe judgment ofthecourt atpages207-208, thecourt expressed itself asfollows. “Plaintiffs do not even know the boundaries of the land they came to court to claim and should not expect magic from the court. Plaintiffs have also not proved that Togbe Torsu |Akposoe founded the Kpordui land …..The Co-defendants adduced sufficient evidence toprooftheir actsofownership and controloverKpordui lands”. Atthis stage, it may be usefulto refertothe case ofGregoryv.Tandoh &ano.(2010) SCGLR 971@975 to indicate the circumstances under which an appellate Court like this courtmay depart fromfindings offact byatrial court. These were stated inthe case supra asfollows: - (1) Where from the entire record of appeal the findings of fact by the trial court wereclearly not supportedby the evidence onrecord. (2) Where the findings of fact by the trial court could be seen from the record of appeal to be either perverse or inconsistent with the totality of evidence led by the witnesses and the surrounding circumstances of the entire evidence on record. ~ 6 ~ (3) Where the findings of fact are consistently inconsistent with important documentaryevidence onrecord. (4) Wherethe trialcourt wronglyapplied aprinciple oflaw. The 1st Plaintiff/Appellant who described himself as the current head of the MordedziFamily ofKporduigaveevidence at the trialcourt. He told the court the land in dispute forms part of a larger land belonging to the Mordedzifamily at Kpordui. According to him the said land had been founded by their ancestor Torsu Akporsoe who subsequently gifted theland totheir family. He gave the boundaries of the land in dispute which according to him is surrounded by the Adzovia Clan land (the land ofthe Co-defendants) On the claim by the 1st Plaintiff/Appellant that the land in dispute which forms part of the land to the Mordedzi Family the following cross examination of the 1st Plaintiff/Appellant tookplace onthe20/04/2021. Q: You are saying or claiming that Torgbi Torsu Akporsoe founded the Kpordui lands. A: Yes. Q: Whereis TogbiTorsuAkporsoefrom? A: Dzita. Q: Which clandoeshe belong to? A: Tovia Clan. Fromthe abovecrossexamination, the1stPlaintiff/Appellant statedthat ~ 7 ~ the land granted to their family was given to them by Torgbe Torsu who is from Tovia Clan. The land inquestion is at Kpordui. The 1stPlaintiff/Appellants admittedthat hisancestor Mordedziwho was gifted theland in dispute was fromDzovia Clan whilst he (1stPlaintiff/Appellant)was fromTovia Clan, thesame clan asTogbi TorsuAkporsoe. The 1stPlaintiff/Appellant went ontotellthe courtthat theMordedzi wasTorsu’s sister’s son At page 82 of the record of appeal the following record appear on the place the land indispute lies. Q: Isit not within Kporduiland? A: Ihave said TogbiTorsuAkporsoe founded theKporduiland. The evidence givenby the 1stPlaintiff/Appellant in totality isthatthe land gifted to the Mordedzi Family was lying and situate in Kpordui township and that the said land had been founded by his ancestor Togbi Akporsoe about Four Hundred (400) years ago. The Defendants/Respondents clearly dispute this claim by thePlaintiffs/Appellants. PW1Agbotadua Ahevialso gaveevidence tosupport this claim by the 1st ~ 8 ~ Plaintiff/Appellant. 2nd defendant/ respondent gave evidence in this court and stated that Togbe Torsu |Akporsoe land is nowhere near Kpordui and that the Mordedzi aresettlersontheKporduiland. 2nddefendant/respondent maintained the landindispute formspartof theKpordui land whichshares boundarywith Tovia land. Ihave had the pains toperuse the entire record ofappealand have notbeen leftin any doubtthat the landindispute is lying and situate within Kporduitownship. The said land togetherwithitscreeksat Kporduihas since the1920s beenadjudgedas the land ofthe Adzovia clan from whichthe Co-defendantscome from. Ontheotherhand, theclaim by the Plaintiffs/Appellants thatthe land in dispute belongs to Togbe Torsu Akporsoe who gifted same to Mordedzi is not supportedby the evidence onrecord. Ifthatclaim by the Plaintiffs/Appellantswere tobe true, Exhibit “C”on the record of appeal by the Supreme Court could not have been decreed as stated by PrempehJsitting inGhana TransVolta JudicialDivisionat Ho onFriday 29/06/1962. Furthermore, it is an undisputed fact in this appeal that land holding in the Volta region is held by clans and in this case the land in dispute which forms part of the Kporduilands cannot be vestedonany otherclan apartfromAdzovia. ~ 9 ~ To that extent the appeal filed by the Plaintiffs/Appellants that the judgment of the courtisagainst the weight ofevidence cannot be true. In his written submissions to this court, Counsel for the Plaintiffs/Appellants opined atpage 19 ofthesaid submission, as follows “Nowhere did the appellants sought adeclaration fromthe entire land ofKpordui as erroneously statedby the trialMagistrate”. Itiswithout doubt that the claimfiled by theplaintiffs/Appellants was in respect of the plot of land that they claimed the 1st Defendant/Respondent had trespassed uponand wasdeveloping. That plotofland formspart ofthe MordedziFamily land which land had beengifted tothemby Torgbui TorsuAkporsoe. But it is also not in doubt thatthe said landgranted tothe MordedziFamily according tothe Plaintiffs/Appellants wassituate in Kpoduiaccording to therecord of Appeal. Per the Defendants/Respondents, Kpordui land and its creeks belonged to the Adzovia clan that they belonged. The claim by the Defendants/Respondents had since 1924 been adjudged to be the property of the Adzovia clan that the defendants/respondentsbelonged. To the Extent that the said land belonged to the Adzovia clan, the claim by the Plaintiffs/Appellants that it was Torgbi Torsu Akporsoe who founded it cannot be ~ 10 ~ true. The said claim is not supported by the evidence on record when the said Torgbui Torsu Akporsoe comes from the Tovia Clan which is different from the Adzovia clan. The evidence before this court is that the plot in dispute has been granted to the Defendant by the Adzovia Clan who are the rightful owners of the land. The land in dispute never belonged to Torgbi Torsu Akporsoe to enable him gift same to the MordedziFamily as claimed by the Plaintiffs/Appellants. The conclusion reached by this court clearly suggest that the claim by the Appellants that the judgment is not borne out of the record is not correct. The said ground of appeal does not find favour with me and same is accordingly dismissed with respect tocounsel forthePlaintiffs/Appellants. The nextground ofappealisthat thePlaintiffs/Appellants did notsue fromthe Kpordui land but that oftheModedzifamily land. Judging fromthewrit filed by the Plaintiffs/Appellants the claim related toaplotofland which formspartofthe MordedziFamilypropertyin Kpordui. The defendants perhis statement ofdefence indicated thatthe land he was workingonbelonged tothe Adzovia Clanwho had granted same tohim. ~ 11 ~ Perthe evidence onrecord the land indispute can be found inKpordui. The 1stPlaintiff/Appellant and hiswitnesses admittedthis fact. Both partiesper thetotality oftheir evidence onrecord admitted this fact. But theparties disagreed onthemode ofacquisition ofthedisputed land. According tothePlaintiffs/Appellants it was TorgbiTorsuAkporsoe who had founded the land about FourHundred (400)yearsagobefore gifting same toMordedziwho was his sister’sson. Itwas aportion of the land granted to the Mordedzi Family that the Defendants had trespassed unto leading tothe issuance ofthe writ. The defendants/Respondents denies this claim by the Plaintiffs/Appellants that it was Torgbi Torsu Akporsoe who had founded the land. According to them the entire Kpordui land and creeks belonged to the Adzovia clan who are the rightful ownersoftheland in dispute. Even though the dispute before the trial court related to a small portion of Kpordui land, by the varied positions of the parties in this case, ownership of the Kpordui landswas in thecentre ofthe dispute. The trial court had to determine which of the Parties-Plaintiffs or Co-Defendants were the rightful owners of Kpordui land to enable the court determine whether the Defendant had trespassed untothe land ornot. The Plaintiffs/Appellants have filed severaladditional grounds of appealbut the effect ofthe said grounds clearly relatedtothe joinder ofthe Co-defendant tothe claim filed by thePlaintiffs/Appellants and ~ 12 ~ theeffect ofthe LocusReport onthesaid judgmentofthe court. Inrespect ofthe joinder oftheCo-defendants/respondents the Plaintiffs/Appellants havesubmitted thatthe joinder ofthe said personswere notwarranted. Granted but not admitting that the joinder of the Co-Defendants was even not warranted by any rule, that fact alone cannot impeach the judgment of the court or between the Plaintiffs/Appellants and the Defendants/Respondents. See Order 4 Rule 5(1) of CI 47. Fortheavoidance ofany doubtthe said rule provides asfollows. “Noproceedings shall be defeated by reasonofmisjoinder ornon- Joinderofany party,and the courtmay in anyproceeding determine theissues orquestionsin dispute so far asthey affect the rightsand interestsofthe personswho areparties to theproceedings”. In the matter before the trial court, the Plaintiffs/Appellants had sued the defendants foraplot ofland theyclaimed the defendants/respondentshad trespassed unto. The defendants/respondents in his defence stated that he bought the property from theAdzovia Clan who arethe owners. The Plaintiffs/Appellants in their statement of claim have stated clearly that the plot in dispute forms part of their family land given to them by Torgbe Akporsoe. It is in view of this claim by the Plaintiffs/Appellants that the Co-defendants applied to join ~ 13 ~ the suit. The Co-defendants based on this counterclaim against the Plaintiffs/Appellants fordeclarationoftitle in respect oftheKpordui lands. It is the claim by the Plaintiffs/Appellants which had forced the Co- defendants/Respondents tojoin. I have perused the record and do not see anything contrary to the joinder of the Co- defendants/respondentsin thematter. Grantedbut notadmitting I haveevenfallen inerror, the decision ofthe courtthat landindispute lies within Kporduiand it is theCo-defendant who arethe properpersonstoalienate is amply supported by the evidence onrecord. Ido notsee the need for thelocus inspection made by the court because there was enough material on record to determine the matter in dispute. Be thatas it may, the record asstated by the said locus report could not haveput torest who was theowner ofthe Kporduiland. Imust howeveradmit that thePlaintiffs/Appellants ancestorswere in possession of some portions of the Kpordui land. That possession alone could not havemade themownersofthe land in dispute. The Co-defendants/respondentshad also granted some portions ofthe landindispute tocertain persons. Be thatas it may ownership oflandswithin VoltaRegion generally belongs toclan asstatedin the evidence onrecord.The Kporduilands clearly ~ 14 ~ belongstothe Adzovia clan who could properly alienate same. Allthe conclusions reached by me clearly suggest thatthe present appealhasno merit. I would dismiss same with respectto Counsel forthe Plaintiffs/Appellants. Accordingly,the decision bythe District Magistrate is hereby affirmed. Noorderasto cost. [SGD] H/LJUSTICE DANIELMENSAH JUSTICEOF THE HIGH COURT. ~ 15 ~