TWENEBOAH VRS FEKAA (C1/014/23) [2024] GHAHC 224 (9 June 2024)

1 | P a ge IN THE SUPERIOR COURT OF JUDICATURE, HIGH COURT OF JUSTICE COMMERCIAL DIVISION ‘’A’’ HELD AT SUNYANI ON TUESDAY THE 9TH DAY OF JUNE, 2024 BEFORE HIS LORDSHIP JUSTICE HARRY ACHEAMPONG-OPOKU ESQ. SUIT NO. C1/014/23 ADJEI TWENEBOAH PLAINTIFF VRS: KOSUA FEKAA DEFENDANT JUDGEMENT The plaintiff in this case Adjei Tweneboah did on 29th August, 2023 recover an interlocutory judgement against the Defendant on account of defendant default on entering an appearance to contest the claim of the plaintiff. In this action the plaintiff sued for; (a) A declaration that all the parcel of land situates at Tweto on Drobo stool lands in the Bono Region and shares boundaries with Opanin Ankama, Opanin Kwame Ankamah, Madam Abena Badu and Nana Yaw Sawiri is the property of the plaintiff. (b) Recovery of possession. (c) General Damages 2 | P a ge (d) Perpetual injunction restraining the Defendant, he assigns, workmen, privies, servants etc. from interfering with the plaintiff ‘s quiet enjoyment of the disputed farm land. Indeed, to put on record that, since plaintiff was asking for declaration, he needs to prove his ownership by leading evidence to that effect. Hence in compliance with the rules, the court directed service of hearing notice in respect of entry of the interlocutory judgment on the Defendant and also plaintiff’s witness statements and pre-trial check list on the defendant to at least, contest the quantum of damages, if she is minded. This order was dutifully carried out. Regardless, the defendant evinced every intention not to contest the plaintiff’s claim as she did not put in any appearance in court. But why would the court go to that length to cause defendant to be served with hearing notices when she did not seemed bothered to attend court? On authorities, where a court has taken a decision without due regard to a party who was absent at a trial because he was unaware of the hearing date that decision is a nullity for lack of jurisdiction on the part of the court. See Barclays Bank Vrs. Ghana Cable Co. (2002-2003) SC GLR 1 this principle had earlier been stated in Vasque Vrs. Quarshie (1968) GLR 62. It needs emphasizing, however, that where a party affected was sufficient aware of the hearing date or was sufficiently offered opportunity to appear and in the present case, where the defendant was duly served with series of hearing notices but she failed to avail herself or refused to come to court, the court was entitled to proceed and to determine the case on basis of the evidence adduced at the trial, her absence notwithstanding. See the case of In re west Coast Dyeing Industrial limited Vrs. Tandoh (1987-88) 2 GLR 561. I now proceed to address the issues generated by the instant case. 3 | P a ge It is of particular importance to note that although the defendant did not offer evidence in rebuttal, however, once the plaintiff is claiming inter alia declaration general damage and recovery of possession he was required to prove his claim to the satisfaction of the court damages are always at large and must be proved to the satisfaction of the court. Brief facts of case According to the plaintiff he acquired the said land in dispute, which is farm land situate at Tweto on Drobo stool lands from one Peter Kyeremeh in 2020 and that the said farm land shares boundaries with Op. Kwame Krah, Op. Kwame Ankamah, Madam Abena Badu and Nana Yaw Sawiri. And that he has cultivated cashew on portion of the disputed farm land. However, according to the plaintiff in 2021 -2022 the defendant trespassed unto a portion of the disputed farm land by given same out to one Yaa Nketia on Abunu Tenancy for the cultivation of cashew. Plaintiff avers that he informed his grantor about the trespass act of the defendant, however, his grantor told him to wait until he visits Drobo. Plaintiff avers that his grantor Mr. Kyeremeh Peter somewhere last year (2022) visited Drobo and upon their visit to the disputed farm land. Mr. Kyeremeh Peter indicated the land was part of the vast farm land he sold to him and the defendant can not claim same. Plaintiff further says that the defendant is known for giving out people’s land on Abunu tenancy without the consent and approval of the land owners. That many attempts to stop the defendant from continuing her trespassory act has proven futile hence this action. 4 | P a ge EVIDENCE OF PLAINTIFF IN SUPPORT OF HIS CLAIM It must be noted that by rules of procedure plaintiff was made to filed his witness statement with the document that he intended to rely on and also witness statement of the two witnesses that he called to corroborate his case. Plaintiff in his evidence in chief which is the repeat of his witness statement stated that the said farm land in dispute was acquired by him from Peter Kyeremeh in 2020 and that the said farm land also shares boundaries with Op. Kwame Krah, Op. Kwame Ankamah , Madam Abena Badu and Nana Yaw Sawiri. That after acquiring the said farm land in dispute from Peter Kyeremeh in 2020 a Deed of Transfer was executed Between him and the said Peter Kyeremeh, who by the said deed of transfer was transferring his interest in the said farm land to the plaintiff. Indeed, the said Deed of Transfer which was stamped and registered at lands commission was tendered by the plaintiff in evidence and same was admitted in evidence and marked as exhibit ‘A’. Plaintiff further avers in evidence that, he had cultivated portion of the said farm land with cashew, however in 2021 – 2022, the defendant trespassed unto portion of the disputed farm land where she gave same to one Yaa Nketia on Abunu basis for cultivation of cashew. Plaintiff in evidence further avers that, he informed his grantor about the trespass act of the defendant. However, his grantor who was out of Drobo told him to wait until he comes. Plaintiff further avers in his evidence that, when his grantor came to Drobo in 2022, he and his grantor visited the said disputed farm land to see whether the defendant has trespassed onto the plaintiff farm land, the land in dispute. 5 | P a ge According to plaintiff, his grantor Mr. Peter Kyeremeh indicated to him that the disputed farm land was part of vast farm land he sold to him and therefore Defendant cannot claim same. Plaintiff further avers in his evidence in chief that the defendant has a habit of given people’s land to tenant farmers on Abunu basis and that many attempts by the plaintiff to stop the Defendant from her trespassory act has proved futile. Plaintiff after finishing giving his evidence was discharged from the witness box because defendant failed to come to court to cross-examine the plaintiff on his evidence. After, this plaintiff calls his first witness one Yaw Sawiri whom he shares boundary with. In deed the witness evidence is in tandem with his witness statement filed this court. According to Yaw Sawiri the plaintiff witness says that he knows the defendant and the plaintiff. That the farm land in issue was originally acquired by Opanin Kwame Krah and that Opanin Kwame Krah before his death gifted same to his children. He also avers that Peter Kyeremeh was gifted the said land in dispute by his father Opanin Kwame Krah in the presence of witnesses and he provided Aseda. And that Peter Kyeremeh sold the disputed farm land to the plaintiff in 2020 and that he witnessed the said agreement between plaintiff and Peter Kyeremeh. He further avers in his evidence that the defendant has trespassed unto a portion of the disputed farm land where she has given same out to one Yaa Nketia on Abunu Tenancy for the cultivation of cashew. And finally says that, the said disputed farm land is the property of the plaintiff and therefore plaintiff is entitled to his claim. After finishing his evidence, the witness was discharged because defendant failed to attend court to cross-examine the witness despite the fact defendant was served with hearing notice to come to court. 6 | P a ge Finally, plaintiff calls his second and last witness one Kwasi Ayimadu whose evidence is in consonance with his witness statement filed. According to the said witness he lives at Katakyiekrom and knows the plaintiff and the defendant and also know the disputed farm land. According the plaintiff second and last witness the disputed farm was originally acquired by Opanin Kwame Krah and that the said Opanin Kwame Krah gifted his property including the disputed farm land to his children. That Peter Kyeremeh was gifted the said disputed farm land by his father Opanin Kwame Krah in the presence of witnesses and he provided Aseda. That he was the one who farmed on the said disputed farm land but later felt sick and became incapacitated that, the said farm land was given to him by Peter Kyeremeh to cultivate cashew on Abunu tenancy basis. Peter Kyeremeh later sold the said farm land in dispute to the plaintiff in 2020 the said witness in his evidence stated that, the defendant has trespassed unto a portion of the said farm land in dispute by granting same to one Yaa Nketia on Abunu Tenancy for the cultivation of cashew. That when he met Yaa Nketia he told her that the defendant was not the owner of the said disputed farm land hence where she farms on it, even for years same would be taken away from her. He finally concluded his evidence by saying that the disputed farm land is the property of the plaintiff and that he is entitled to his claim. After his evidence the said witness was discharged because the defendant failed to come to court to cross-examine him in order to test the truthfulness and the credibility of the witness. After this the plaintiff close his case. 7 | P a ge In view of the defendant failure to attend court, I would proceed to determine the case on the basis of the evidence the absence of the defendant notwithstanding. I now proceed to the evidence. It is particularly important to recognize that although the defendant did not attend court to offer evidence in rebuttal, once the plaintiff claiming declaration of title and damages. It is the requirement of law in terms of section 11 (4) and 14 of the Evidence Act, 1975 NRCD 323that he proves his case to the satisfaction of the court as though the defendant appeared and controverted the claim. On evidence plaintiff tendered exhibit ‘A’ which is a deed of transfer, transferring interest and ownership of the said farm land the subject matter in dispute to plaintiff by one Peter Kyeremeh. In fact, exhibit ‘A’ is entitled “Deed of Transfer absolute sale” and is registered and stamped at the land commission in the Bono Region. In deed paragraph 4 of “Deed of absolute sale” states as follows; “In consideration of an amount of fourteen thousand Ghana cedis (GHc14,000.00) which the purchaser has paid to the vendor (receipt of which the vendor hereby acknowledges). The vendor as beneficial owner of the said property here by conveys to the purchaser absolutely free from all encumbrances”. A critical look at the document that is Deed of Absolute sale would indicate that it was executed between Kyereme Peter and the plaintiff, whereas Kyereme Peter was the vendor the plaintiff was a purchaser of the said farm land which has been described in the schedule attached to the Deed of Absolute sale agreement. Indeed, it must be noted that this Deed of Transfer or Deed of Absolute sale was witnessed by four witnesses including plaintiff witness in this case Nana Yaw Sawiri. 8 | P a ge Indeed, Peter Kyereme ownership of the said subject matter of dispute, that is the farm land in dispute has been confirmed by plaintiff’s witness and one of the boundary owners Nana Yaw Sawiri, indeed in his evidence in chief, this what he said; My land share boundary with the disputed farm land and that Opanin Kwame Krah was the original owner of the disputed farm land and that Opanin Kwame Krah was the original owner of the disputed land. And that Opanin Kwame Krah before his death, gifted his property including the disputed land to his children. He also avers that Peter Kyereme or Kyereme Peter was gifted the land in dispute by his father Opanin Kwame Krah in the presence of witnesses and he provide “Aseda" and that Peter Kyereme or Kyereme Peter sold the disputed farm land to the plaintiff in 2020. I witnessed the said agreement between the plaintiff and the said Kyereme Peter or Peter Kyereme. From the above evidence, it is clear to trace the root of title of the plaintiff to the said Peter Kyereme as beneficial owner of the disputed land has every right to transfer his interest in the said land to the plaintiff, by Deed of sale. Indeed, plaintiff witness PW2 also corroborates, plaintiff story as to how he came by the said farm land n dispute. Now, having regard to the unchallenged evidence led on record, I hold that on the preponderance of probabilities, the plaintiff has made a case sufficient to entitle him to judgement. Accordingly, I enter judgement for the reliefs endorsed on the writ of summons. I, therefore decree title of the said subject matter of dispute in the plaintiff. He is to recover possession of same. 9 | P a ge The defendant her assigns and those claiming through her etc. are restrained perpetually from dealing with the said farm land the subject matter of dispute or dealing with it inconsistent with plaintiff right of ownership and possession. The plaintiff having proved better title to the said subject matter in dispute and establish trespass against the defendant is entitled to damages. It is trite learning that trespass is actionable per se without proof of special damages. And assessing damages in respect of trespass, the general rule is that regard should be had to land on which trespass was committed and the period of wrong occupation and the damage caused. The court also has the discretionary jurisdiction to award damages in addition to perpetual injunction see the cases of; Laryea Vrs Ofori (1984-86) 410 and Ballmoos Vrs. Mensah (1984-86)1 GLR 724. Therefore, given peculiar circumstances and the facts of this case I make an award of Ghc20,000.00 for general damages. Plaintiff cost is assessed at Ghc15, 000.00. (SGD) ………………………………….. JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF THE HIGH COURT) 10 | P a ge Cay/..