YEBOAH VRS SALO & 2 OTHERS (C1/25/2020) [2024] GHAHC 221 (29 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE SITTING AT SUNYANI ON THE 29TH DAY OF MAY 2024 BEFORE LORDSHIP JUSTICE GABRIEL NENE KWAO MATE TEYE ========================================================== SUIT NO. C1/25/2020 OP. KWASI YEBOAH PLAINTIFF VRS 1. ALEX SALO 2. KWAME AMPONSAH DEFENDANTS 3. OSEI KUMIH =========================================== J U D G M E N T The plaintiff instituted this action against the defendants jointly and severally on 17/10/2019, seeking the following reliefs; (a) A declaration that all that piece of fallow land situate at “PRUSO” or “KOBEDA” on the Abi sub-stool land in Berekum Traditional Area which said land shares boundaries with the lands of Oheneba Yaw Krah, Oheneba Kwasi Addai, Kwame Bour and Kweku Surveyor which said land was bequeathed to him by the late Nana Kwasi Gyan Ababio II, the late Odikro of Kutre No. 1 in his last will and testament dated 26/03/1996 and vested in him by Opanin Kwaku Forkuo of Kutre No.1 aforementioned the sole executor of the said will after probate of the said will had been granted to him by the High Court, Sunyani on 17/04/2019, is his lawful property; (b) A declaration that the entry of the 1st and 2nd defendants unto the land described in paragraph (a) supra on the approval of the 3rd defendant is unlawful and constitute trespass; 1 (c) General damages against the defendant for trespass; (d) An order for the ejection of the defendants from the said lands (e) An order of perpetual injunction restraining the defendants, their agents, assigns and servants from interfering with the plaintiff’s ownership and possession of the said land. That in his statement of claim, the plaintiff described himself as a businessman and brings this action as a beneficiary of the last will and testament of the late Nana Kwasi Gyan Ababio II, the immediate past chief of Kutre No. 1 near Berekum. The plaintiff says that Nana Gyan Ababio II (deceased) who was the chief of Kutre No.1 in his lifetime was his uncle and in his lifetime, his said uncle had lands at a place commonly known as at “PRUSO” or “KOBEDA” on Abi sub-stool land in Berekum Traditional Area. That the 1st fallow land at “PRUSO” or “KOBEDA” shares boundaries with the lands of Kwame Anto, Kwadwo Fordjour, Kwaku Surveyor and a stream called “Ankama Kruwa”. The 2nd fallow land at “PRUSO” or “KOBEDA” also shares boundaries with the lands of Kwame Diawuo, Okyeame Kofi Abebrese, Kwaku Surveyor and Opanin Kwame Nimo and the 3rd Fallow land of his deceased uncle in the same area shares boundaries with the lands of Oheneba Yaw Krah, Oheneba Kwasi Addai, Kwame Bour and Kwaku Surveyor. The plaintiff’s late uncle, Nana Kwasi Gyan Ababio II died intestate at the Holy Family Hospital, Berekum in or around December 2007 and probate in respect of his last will dated 26/03/1996 was granted by the honourable high court, Sunyani dated on 17/04/2014 to the sole surviving executor named in the will as Nana Kwame Gyabaah 2 who was the Nifahene of Kutre No. 1 in his lifetime, had died at the time the probate was taken/granted. It is the contention of the plaintiff that by paragraph 3 of his late uncle’s said will, the 3rd fallow land at “PRUSO” also known as “KOBEDA” on Abi sub-stool land which shares boundary with the lands of Oheneba Yaw Krah, Oheneba Kwasi Addai, Kwame Bour and Kwaku surveyor, his said uncle devised the said land to him forever. In his evidence in chief, the plaintiff tendered in evidence copies of the will, probate and vesting assent given to him by the executor as Exhibits “A”, “B” and “C” respectively without any objection. The plaintiff contends that the defendants without any justification whatsoever had unlawfully entered his said land claiming to be theirs when they know same to be fake. Even though the defendants initially entered appearance and later filed their defence jointly, they deliberately failed to prosecute the defence and indeed refused to attend court on several occasions notwithstanding the service of various Hearing Notices on them which shows that they had abandoned their illegal claim on the disputed land. Plaintiff says, under the circumstances, it may be safe to state that, the defendant not having any legitimate right to the disputed land, they unilaterally abandoned their defence (as against the claim of the plaintiff). That, it is submitted that the defendants have no claim whatsoever on the disputed land and that being the case, the court should give judgment in favour of the plaintiff against the defendants and in so doing, grant all the reliefs of the plaintiff. That, the unlawful entry of the defendants unto the disputed land constitutes trespass for which they should suffer damages, especially so when they cultivated crops on the land for their benefits. 3 It is further submitted that the court awards damages against defendants jointly for their trespass, and that the quantum of the damages is at the discretion of the court. On the 13/05/2022, the counsel for the plaintiff filed a motion on Notice for an order to proceed without defendant’s evidence and for the defendants to be barred from calling any witness in the case. In the affidavit accompanying the motion, the plaintiff herein stated that he caused summons to be issued against the defendants on 17/10/2014 seeking the reliefs endorsed thereon. That the defendants entered appearance on 4/11/2019 through their solicitor, Eric Boamah, Esq. That on 17/02/2019, the former counsel for the defendants Eric Boamah Esq. filed statement of defence for the defendants, while the plaintiffs filed a reply on 30/12/2019 and application for directions on 13/01/2020. Subsequently, the court directed the parties to file their respective witness statements and any documents in support of their cases. That the plaintiff complied with the orders of the court by filling witness statement and pre-trial checklist and same were duly served on the defendants on 30/04/2020. That the defendants failed to file their witness statements and have since refused to comply with all subsequent orders of the court admonishing and directing them to fi le their witness statements. That on 01/07/2021, the defendants filed a motion on Notice seeking to dismiss the action but same was dismissed by the court on 18/03/2022. 4 That on that same day, i.e. 18/03/2022, the court gave final warning to the defendants to file their witness statements before the next court date which was on 29/04/2022. That, the court further admonished the defendants to seek the assistance of a lawyer if they thought they needed one. That on 29/04/2022, the defendant did not show up in court and gave no excuse or explanation whatsoever. Plaintiff stated that it has been more than two (2) years since the court first directed the parties to file their witness statements which the plaintiffs complied, but the defendants have refused to comply with the orders of the court, notwithstanding the numerous warnings, admonitions and costs against them. That the defendant’s conduct only goes to show that they have no evidence to give in the instant case. In the said motion, the plaintiff prayed the court to proceed with the case management and that the defendants be barred from calling any witness in this case. The court granted the application of the plaintiff. The case management took place and he testified in court on 29/01/2024 and tendered his Exhibits as earlier on stated. With the background given in this matter and the fact that the defendants have failed or refused to continue to appear in court for reasons best known to them alone and having shown disrespect to the court, admonitions, cautions and warnings and to the extent of taking costs against them to put them on notice, this court enters judgment for the plaintiff on all the reliefs indorsed against the defendants jointly and severally which reliefs are (a), (b), (d), and (e). 5 On relief (c), I assess general damages of GH¢10,000.00 awarded against the defendants. Further cost of GH¢5,000.00 is also awarded against the defendants for wasting the plaintiff’s time and for expenses incurred during the prosecution of the instant case in court. (SGD) GABRIEL MATE-TEYE (JUSTICE OF THE HIGH COURT) Counsel: Yaw Wiredu Peprah for the plaintiff Counsel: Eric Boamah (later withdrew) for the defendants 6