NASR AND ANOTHER VRS. MIKAIL AND ANOTHER (LD/0599/2022) [2024] GHAHC 143 (22 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAND DIVISION HELD IN ACCRA THIS WEDNESDAY THE 22ND DAY OF MAY 2024 BEFORE HIS LORDSHIP WILLIAM APPIAH TWUMASI(J) SUIT NO: LD/0599/2022 1. ASSAD TSEGAH NASR PLAINTIFFS 134th Otwse Street South La Estates Accra 2. MICHEL TSEGAH NASR 134th Otwse Street South La Estates Accra VRS. 1. ABUBAKAR MIKAIL DEFENDANTS 2. THE DEVELOPERS All of Tse Addo Unnumbered Plot PARTIES: ABSENT Page 1 of 9 JUDGMENT According to the amended Statement of Claim accompanying the instant Writ of Summons filed on 13th September 2022, Plaintiffs state that they are the owners of separate portions of the subject land situate at La, Accra and lying behind Ghana International Trade Fair. 1st Plaintiff avers that he acquired his portion of the subject land in 2005 from his grandmother who also acquired hers from the East Dadekotopon Development Trust and took vacant possession upon making full payment for the land. He stated that he has exercised acts of possession by erecting a gated fence wall around the land and deposited building materials on same. The 1st Plaintiff states that he has since regularly cleared the land of weeds and bushes and additionally had some workers of the East Dadekotopon Development Trust keep an eye on the land. The 2nd Plaintiff also states that his part of the land was acquired in 2010 from the East Dadekotopon Development Trust, and he was issued with an indenture dated 7th January 2010 to evidence the transfer. The Plaintiffs state that they had both since their respective acquisitions, been in undisturbed occupation of their lands until their representatives met a group of men, led by 1st Defendant, trespassing on the subject land on 3rd September 2022. The Plaintiffs further claim that the group of men cleared the land with excavators despite the protests of the Plaintiffs’ representatives. The Plaintiffs further state that the 1st Defendant, upon being queried, claimed that the land belonged to him following a court judgment which he failed to produce. The 1st Defendant and his group only left the land after the representatives of the Plaintiffs reported the incident to the Police and brought them unto the land. Page 2 of 9 Upon these facts, the Plaintiffs claim against the Defendants jointly and severally for the following reliefs: 1. Declaration of title to a parcel of land situate lying and being at La, Accra behind Ghana International Trade Fair in paragraph 3 of the Statement of Claim. 2. Declaration of title to a parcel of land situate lying and being at La, Accra behind Ghana International Trade Fair and more particularly described in paragraph 9 of the Statement of Claim. 3. Perpetual injunction against the Defendants, their assigns, agents, and workmen from interfering or dealing with the land the subject matter of the dispute and from developing same or returning to same to conduct any development on same or from re-entering same for any purpose or to change the character of the land or from taking or exercising possession. 4. Recovery of any part or the whole of the land in dispute or the subject matter of this suit in any form or character. 5. Order of demolition in favour of the Plaintiffs to demolish all structures, developments, etc that have been placed on the land by the defendants or their agents or representatives or workmen in any form or manner either before the commencement of this, during or after same or as the court may direct or order at any time or upon judgment. 6. Damages for trespass. 7. General damages. 8. Costs inclusive of Solicitors fees. 9. Any other Order(s) the Honourable Court may deem fit. Page 3 of 9 The Defendants did not participate in this matter despite being served with all processes by substituted service. Upon filing the Writ of Summons, the Plaintiffs filed an Ex Parte Motion for Interim Injunction on 13th September 2022. The Order was granted by this Court on 20th September 2022. The Plaintiffs subsequently repeated the Motion on Notice for an Order of Interlocutory Injunction on 29th September 2022, and this was served on the Defendants by substitution on 19th October 2022. The Court granted the Order for Interlocutory Injunction on 7th November 2022 after the Defendants failed and/or refused to file an Affidavit in Opposition or appear before this Court to challenge the said application. The Plaintiffs further took steps to serve the Writ of Summons and accompanying Statement of Claim on the Defendants by substituted service on 28th March 2023 by an order of this Court. Notwithstanding being served, the Defendants again blatantly ignored the processes and refused to appear before the court in gross disregard for this Court. By their actions, the Defendants showed that they were not interested in defending this matter. The Plaintiffs consequently filed a Motion Ex Parte for Judgement in Default of Appearance and Defence on 2nd May 2023. Considering the eagerness of the Plaintiffs to prosecute the present matter and the sheer disregard of the matter by the Defendants who had been served with all processes by substitution, Interlocutory Judgment was granted on 4th May 2023 upon an application by the Plaintiffs. Per the records, the Defendants were again served with the interlocutory judgment by substitution on 23rd June 2023. By an order of this Court, a Witness Statement was filed by Assad Tsegah Nasr, 1st Plaintiff on behalf of the Plaintiffs on 23rd October 2023. Page 4 of 9 NOTE On 8th November 2023, the Court granted an Order for substituted service of the Plaintiffs’ Witness Statement which per the records was effected on the Defendants on 17th November 2023. Although there are Affidavit of Posting indicating that the Defendants have been served with all the processes filed so far in the matter, they have failed to respond to any of these processes filed by the Plaintiffs. The Plaintiffs subsequently filed their written submission on 13th March 2024 as directed by the Court. The Defendants having failed/or omitted to participate in this matter, the only outstanding issue was for the Plaintiffs to go into the witness box to prove their title since they had listed declaration of title as one of their reliefs. THE BURDEN OF PROOF IN CIVIL MATTERS In civil cases, the general rule is that the party who in his pleadings or writ of summons raises issues essential to the success of his case assumes the onus of proof. This principle was applied in the case of Faibi V State Hotels Corporation [1968] GLR 471. The onus of proof in a civil case is that the Plaintiff is to prove his case on a balance of probabilities as was held in the case of Serwah vs Kesse [1960] GLR 176, SC. A bare assertion by a witness on oath or the repetition of his averments in the witness box cannot constitute proof. This was the holding in the case of T. K. Serbeh & Co Ltd Page 5 of 9 vs. Mensah {2005-2006] SCGLR 341 @ 360-361 this same principle had earlier on been enunciated in the celebrated case of Majolagbe vs. Larbi [1959] GLR 190 @ 192. SUMMARY OF THE EVIDENCE ADDUCED BY 1ST PLAINTIFF (ASSAD TSEGAH NASR) In reviewing the record including the Plaintiffs’ Witness Statement and the exhibits attached, it was discovered that per Exhibit ‘B’, the grandmother divested herself of the subject property on 13th May 2022 to the 1st Plaintiff (ASSAD TSEGAH NASR) and one FRANCESCA ANDAH by way of a gift. The legal implications of this discovery is that the persons who had capacity to institute this action were the donees as indicated in Exhibit ‘B’. It should be noted that the said gift from the grandmother (Peace Adjei-Mensah) was not a conditional gift but an outright one which took effect immediately the legal instrument was signed by the Donor and the Donees. For whatever reason, Assad Tsegah Nasr is made the 1st Plaintiff’s attorney who for all intents and purposes should have been made the Plaintiff. Be that as it may, one of the legal owners found his name on the Writ of Summons and more or less prosecuted the instant matter. In view of that, in the interest of justice and for litigation to come to an end as envisioned in the rule of court, that is CI 47, I drew the Plaintiff’s attention to this anomaly and the Writ was amended by substituting the Attorney for the 1st Plaintiff pursuant to Order 4 r (3) and per Order 1 r 1(2). Again, the Witness Statement filed by Assad Tsegah Nasr had the document covering the 2nd Plaintiff’s land as exhibit H at paragraph 11. Apart from this reference nothing is mentioned in respect of the 2nd Plaintiff, and neither is there any indication as it were that the Witness Statement is being filed as a composite one for and on behalf of the 2 Plaintiffs. Page 6 of 9 Furthermore, I found what is labeled as exhibit C ‘1’ as part of the 1st Plaintiff’s Attorney’s witness statement. Exhibit C ‘1’ is a supreme court judgment of a consolidated case titled Elikplim Agbemava Vs. Attorney General and Alfred Tuah Yeboah Vs. Attorney General and Nana Asante Bediatuo Vs. Attorney General which matter dealt with the challenge to the presidential pardon of what has become known as the “Montie 3”. I have been struggling to understand the relevance of this exhibit and any reason for its inclusion. Counsel must be cautioned to pay particular attention to exhibits they attach to their clients’ witness statement as such errors can give evidence away and cause irreparable damage thereby jeopardizing their clients’ case. The fact that a defendant refuses or decides to participate in a matter brought against him or her does not mean that counsel should not pay attention to details. To my mind, that is where counsel ought to assist the court in arriving at a decision that is utmost fair and just, regardless of the fact that it is a one-sided trial. The Court should not be reduced to a robot wherein it grants reliefs for the mere fact that it is not challenged. In the case of Republic vrs. Court of Appeal: ex parte Tsatsu Tsikata [2005-06] SCGLR 612 @ 614 per holding 3, It was held unanimously that; “an opponent who had not filed any affidavit in opposition to the applicant’s affidavit was only deemed to have admitted the facts therein. The default did not debar the applicant from arguing the matter in connection thereto on points of law. The applicant was, under such circumstances, not entitled to an automatic grant of the prayer on the sole basis that the facts were undisputed. Where it was the court’s discretionary jurisdiction, which was being invoked, the curt or tribunal seized with the matter, was under a legal obligation to determine whether, in the event, on the merits, the applicant was entitled to the prayer sought”. Page 7 of 9 By parity of reasoning, the Tsatsu Tsikata case cited above, is applicable in the instant matter in terms of the scrutiny the court must exercise in arriving at a decision. In an action for declaration of title, the law requires that the Plaintiff must prove the following on the balance of probabilities: - a. Boundaries of the land being claimed, b. Identity of the land, c. Mode of acquisition, d. Root of title, e. Evidence of acts of unchallenged possession. See the cases of: Antwi vrs. Abbey [2010] 27 MLRG 89 SC and Adwenbeng vrs. Domfeh [1996-97] SC GLR 660 SC Again, where the Plaintiff claims perpetual injunction as in this case, the law requires that he proved the area the injunction should be placed, else the claim must fail. See: Kwabena vrs. Atuahene [1981] GLR 136 CA Anane vrs. Donkor [1965] GLR 188 SC In this case, the Plaintiffs were able to establish the identity of the land, the boundaries, mode of acquisition and root of title. They also established the area in dispute. The Defendant was not in Court to cross examine them after being served with the witness statement and hearing notices. The Court will therefore admit their evidence as the truth of the matter. After all the Plaintiffs’ averments and evidence are not denied in cross examination by the Defendant. See: Bonsu vrs. Kusi [2010] 26 GMJ 20 SC Page 8 of 9 Fori vrs. Ayirebi [1966] GLR 627 SC I wish to say that the Defendants waived their right to be heard in this case. This is because they were served with the motion for interlocutory judgment but failed to appear in Court. And when the motion was granted, they were also served with hearing notice for the Plaintiffs to come and prove their title, but they failed to appear in Court. The law is that, if a party is served with a notice to appear in Court but failed to appear after notice of the proceedings have been given to them, it would be justifiable that they have waived their right to be heard. See: Ankumah vrs. City Investment Co. Ltd [2007-08] SC GLR 1064 @ 1067 Hol. 4 Accordingly, I enter judgment in favour of the Plaintiffs. In my view, the Plaintiffs have proved their case on the balance of probabilities, and I must grant them all the reliefs endorsed on their Writ of Summons. The Defendants, their agents, assigns, privies, servants etc. are perpetually restrained from interfering with the land in dispute. The Plaintiffs are granted GH¢20,000.00 for general damages for trespass. Cost of GH¢ 30,000.00 is awarded in favour of the Plaintiffs against the Defendants. The Plaintiffs’ action succeeds in its entirety. (SGD) WILLIAM APPIAH TWUMASI (J) COUNSEL: EKOW DADSON FOR THE PLAINTIFFS NO LEGAL REPRESENTATION FOR THE DEFENDANTS Page 9 of 9