Amoah v Akonnor and Others (A1/31/23) [2025] GHACC 54 (4 April 2025)

IN THE CIRCUIT COURT OF GHANA HELD IN THE EASTERN REGION (NSAWAM) ON FRIDAY 4TH APRIL, 2025 BEFORE HER HONOUR MS. DIANA ADU-ANANE CASE NO. A1/31/23 ABUSUAPANYINSAMUEL AMOAH PLAINTIFF HEADOF NONKOR &AGYAKOBEA FAMILYOF THE ASONA CLANOF AHWEREASEDAMANINTHE E/R SUINGFOR HIMSELF&ON BEHALF OF THE FAMILY HOUSE NO. DNT 18ASAMANKESE VRS YAWAKONNOR DEFENDANTS KLIPHORDODURO DARKWA LANDS COMMISSION JUDGMENT Plaintiff –Present Defendants –Absent C. B. NimakoEsq. forthe plaintiff By Court: Suit is for judgment By a writ of summons filed on the 11th of April 2023, the plaintiff described himself as the head of the Nonkor & Agyakobea Family of the Asona Clan of Ahwerease Daman in the Eastern Region of the Republic of Ghana. The 1st defendant is described as a brother to the plaintiff and a principal member of the said family. The 2nd defendant according to plaintiff is unknown to the plaintiff and family but currently has registered in his name a 20-acre parcel of land which forms part of the 85.30 acres of land belonging to the Nonkor & Agyakobea Family by the 3rd defendant, a statutory body mandated by law to plot and record land transactions in this country. 1 D.A.A It was further averred that a portion of this land which has passed through several successors with plaintiff as the current head and custodian was leased to the 2nd defendant by the 1st defendant who though a principal member of the family has no right to alienate family lands, thus clearly, an example of nemo dat, hence same is null and void. The land was described as situate at Baa Yaw Akuraa-Apantem in the Akuapem SouthDistrict and sharing boundaries with the properties ofNanaAtta, Nana Obom, KofiLarbi, YawMensah and theAsua stream The plaintiff accordingly sued forthe following reliefs: a. Adeclaration that the 20 acres out of the 85.30 acres of land, the 1st defendant leased to2nd defendant is thebona fide propertyofplaintiff’s family. b. A declaration that the lease transaction between the 1st and 2nd defendants is void for 1st defendant’s lack of capacity to alienate the land without the consent and concurrence ofthehead and principalmembers ofthefamily. c. Recoveryofpossession. d. An order directed to the 3rd defendant to delete the name of 2nd defendant fromits recordsasthe lessee ofthe disputed land. e. Generaldamagesagainst the1stand 2nd defendantsfor trespass. f. Perpetual injunction restraining the 1st and 2nd defendants, their agents, servants, privies, assigns, workmen and anyone claiming through them from interfering withplaintiff’sownershipofthe property. g. Costsoflitigation. Upon service of the Writ and its accompanying statement of claim on the 1st defendant personally, the 2nd defendant by substituted service and the 3rd defendant through its Secretary, Mary Sakyibea respectively, the defendants refused and/ or failed to enter appearance thereby leading the plaintiff to file a motion ex-parte for an interlocutory judgment against the 1st and 2nd defendants for their failure to enter appearance letalone file adefence to theplaintiff’saction. 2 D.A.A On the 15th of September 2023 and the 1st of July 2024 this court entered interlocutory judgment against the 1stand 2nd defendants respectively and infavour ofthe plaintiff. The court then ordered the plaintiff to prove his title and further serve all processes ondefendants. On the 10th of December 2024, when the matter came up for definite hearing of the case, this court noted that the defendants had been served with plaintiff’s witness statement and pretrial check list as well as hearing notice and court notes informing them about the day’s proceedings and their presence required to cross examine plaintiff on his claim, but the defendants still chose to exempt themselves from the proceedings. Accordingly, this court gave the plaintiff and his witness the opportunity to take the witness stand totestify. EVIDENCE OF THE PLAINTIFF The plaintiff testified that he is the head of the Nonkor & Agyakobea Family of the Asona Clan ofAhwerase Daman in the Eastern Region of the Republic of Ghana and by virtue of his position, the custodian of 85.80 acres or 34.50 hectares of their family land situate at Baa Yaw Akuraa-Apantem. A site plan of the land was tendered in evidence asExhibitA. According to plaintiff, the allodial owner was Baa Yaw and it is by successive successionthathe has inherited same. It is the evidence of plaintiff that without his consent and concurrence as well as that of the principal members of the family, the 1st defendant granted a lease of 99 years of20acres ofthe land tothe 2nd defendant who is unknown tomembers ofthe family. That this is aclassicexample ofalienating landthat he doesnotown. According tothe plaintiff, the lease covering the land which he has not seenhas been processed and plotted in the records of the 3rd defendant per a search report tenderedin evidence as Exhibit B. 3 D.A.A The plaintiff concluded that the transaction is null and void and thus entitled to the reliefs he seeks. One, Ansah Kwasi, a principal member of the plaintiff’s family testified as PW1. His evidence essentially corroborated the evidence of the plaintiff. He further recounted the genealogy of the plaintiff’s family and the various successors who inherited the property by custom before currently under the custody of the plaintiff, the current head. Since the defendants did not file any defence, the issue for the court to determine is whether the Plaintiff has adduced sufficient evidence to prove his claim of title to the landonthe preponderance ofprobabilities? ANALYSIS OF ISSUESAND EVALUATIONOF EVIDENCE Asstated supra, despite the service ofCourtprocesses on the Defendants, they failed toturnup inCourt. The trialduly proceeded withouttheir input. A preliminary discussion that come up is whether in the absence of the defendants fromthe trial, it will be right togoahead withthe determination ofthematter. I will answer this question in the affirmative. In line with the audi alteram partem rule, both sides to any dispute must be heard and that non-compliance with this rule may lead to a judgment being quashed by certiorari, it is however my humble view that if a party has been given every opportunity to come to trial but he fails to do so, the defaulting defendant takes the blame for failing to appear in court to defend an actionagainst him. In the case of The Republic vrs High Court, Accra (FastTrack Division) Ex-Parte State Housing Corporation Limited; Korenteng-Amoaku (Interested Party) (2009) SCGLR 185, it was held that “A party who disables himself from being heard cannot later turnaround andaccuse the adjudicator ofbreaching the rules ofnaturaljustice. See also Republic vrs Court of Appeal Accra, Ex Parte East Dadekotopon 4 D.A.A Development Trust, Civil Motion No. J5/39/2015, dated 30th July 2015 and Baiden vrsSolomon [1963] GLR488@ 495. Also, in Ghana Revenue Authority vrs SIC Company Ltd, (2019) 131 GMJ. 146 @ 255, the Court of Appeal, per Sowah JA in holding 1, stated that a trial judge has a duty toensure the speedy determinationofamatter withinthe bounds oftherules. Similarly, the Respected Jurist, S. A. Brobbey commented as follows in his authoritative book - Practice and Procedure in the Trial Courts of Ghana (2nd Edition)at Page380: “…A party to a case may refuse to participate in proceedings or fail to lead evidence. The Rule is that when a party is given opportunity to lead evidence in support of his stand or in defence of allegations against him but deliberately declines to avail himself of that opportunity, the Court will be entitled to proceed with the trial to conclusion and make deductions, draw conclusions, or make findingsbased on the evidence adduced at the trial…”. In this case by ordering service of court notes and hearing notices on the defendants at various points in the proceedings, I am of the humble view that the court has stayed within the rules and therefore I hold the considered view that it can go ahead with the judgment eventhough the defendants refused and orfailed to participate in thetrial. I must also state the general principle that even where the defendant fails and or refuses to participate in the trial, his mere absence will not warrant a decision being entered against him because it is trite that in all civil cases, the plaintiff must succeed on the strength of his own case and not on the reliance on the apparent weakness of the defendant’s case. In the case of Ofori vrs AP (2017-2018) SCGLR 497, the Supreme Court reiterated this point that a party must rely on the strength of his own case and notrelyonthe apparentweaknessin thecase ofhisopponent. More importantly, in the case of Dr. R.S.D. Tei & Anor vrs Messr Ceiba Intercontinental [2018] DLSC 3301 @ pg. 4, Pwamang JSC opined that “It must be remembered thatthe fact that adefendant does not appear to contest a case doesnot 5 D.A.A mean the plaintiff would be granted all that he asks for by the court. The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish a prima facie caseof entitlementto hisclaim”. Furthermore, the general principle of law is that in all civil cases, a party who in his pleadings or writ raises issues which are essential to the success of his case assumes theonus ofproof. SeeFaibi vrsState Hotels Corporation (1963) 1GLR176SC. Again, it needs no further emphasis that in all civil cases, the onus of proof is on the preponderance of the probabilities. See Serwaa vrs Kesse (1960) GLR 228 SC as well asSection 12(2) ofthe Evidence Act, 1975(NRCD323). By virtue of the reliefs endorsed on the Writ of Summons and despite the absence of the Defendants, the onus is squarely on the Plaintiff to adduce the requisite evidence toprovehis claim. On this proposition, the case of Asante Appiah v. Amponsah alias Mansah (2009) SCGLR at Page 95 is directly in point. The esteemed S. A. Brobbey JSC stated as follows: “…The law is well established that where a party’s claim is for possession and perpetual injunction, he puts his title in issue. He thereafter assumes the onus of proving his title by a preponderance of probabilities, just like any party who claims declarationoftitle…” Upon consideration of the evidence produced and adduced by the Plaintiff, could it be said that he has proved hisclaim? My answer is in the affirmative. The decision of the Court is based on various pertinent factors. Firstly, it is trite learning that when a party seeks declaration of title and perpetual injunction, it is of paramount importance that the subject-matter of the suit is clearly identified. 6 D.A.A The reason for this preposition is simple. The identity of the land should be easily ascertainable toensure thatany order in respect ofsame canbe enforced. The dictum of the respected Jurist Pwamang JSC is directly in point. He opined in Aku-Brown v Lanquaye (J4/4/2016) [2016] delivered on the 29th of June 2016, as follows “It is settled law that a party who claims for declaration of title, injunction and possession must clearly identify the land. The rationale for this rule has been explained by Ollenu JSC in the case of Anane v Donkor [1965] GLR 188. At page 192 of the report the eminent jurist said as follows “where a court grants declaration of title to land or makes an order for injunction in respect of the land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgement or order of the court will be in vain. Again, a judgment for declaration of title should operate as res judicata to prevent the parties relitigating the same issue in respect of the identical subject matter but it cannotso operateunless thesubject matter thereof isclearly identified”… In the instant matter, the Plaintiff has clearly produced the requisite evidence that clearlyidentifies the landwhich is the subject-matterofthe suit. All boundaries of the land have been appropriately established. Further, a site plan delineating theland wastendered inevidence asExhibitA. Secondly,when a party seeks declaration of title to land, it is important that evidence is adduced to establish the root title, mode of acquisition, and various acts of possessionexercised overthe land. Adinyira JSC, succinctly affirmed the laid down requirements for a claim to title in the case of Yehans International Ltd vrs Martey Tsuru Family and 1 other [2018] DLSC2488 @ page 8, where she stated that, “It is settled that a person claiming title hasto prove; i) Rootoftitle ii) Modeofacquisitionand 7 D.A.A iii) Various acts of possession exercised over the land...this can be proved either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on derivative title must prove the title of his grantor… Further, to prove ownership through possession, the possession must be long, peaceful, anduninterrupted…”. In the instant matter, the Plaintiff produced evidence to prove that the land is a family property, acquired through settlementby his ancestor.That the allodial owner of the land was Baah Yaw, deceased broke the virgin forest at Apantem, Ahwerase, Daman and Kwaku Donkor village. That Baah Yaw had two sisters namely, Nonkor andAgyakobea. That upon the death of Baah Yaw various successors succeeded him and the currenthead is theplaintiff herein. Toprovethe instant requirement, thePlaintiff andhiswitness adduced oralevidence in the form of testimony found in their respective witness statements filed on the 31st ofJuly 2024and adoptedas their evidence inchief onthe 10th ofDecember 2024. Taking into due consideration the evidence on record, I am satisfied that the Plaintiff has produced adequate evidence to prove the acquisition of the land under consideration. Further, by virtue of the reliefs sought, the Plaintiff needed to lead evidence of acts ofownership overthe property. The author of the authoritative book – Wills on the law of evidence (3rd Edition) wrotethusat Page62: “…The acts of enjoyment from which the ownership of real property may be inferred are various… the cutting of timber, the repairing of fences or banks, the perambulation of boundaries of a manor or parish, the taking of wreck on the foreshore, or leases under which possession is taken and held and also the receipt of rent from tenants of the property; for all these acts are fractions of that sum totalof enjoymentwhich characterises dominion…” The plaintiff and his witness testified that Baah Yaw, their ancestor, broke the virgin forest at Apantem where the disputed land is situated. That upon his death, his 8 D.A.A direct brother Opanin Kwame Offei inherited the property in dispute by way of custom. That Opanin Tua succeeded Kwaku Donkor while Opanin Tua was succeeded by Opanin Kwame Offei aka Kwame Kumah who was also succeeded by the plaintiff herein. Further, it is only the successive heads who can lease the land with the consent and concurrence of the principal members, hence this suit challenging the lease ofland by a principal member, the 1st defendant herein without the authorisation of plaintiff and the consent and concurrence of the other principal membersofthe family. It is trite, that the one indispensable person in the alienation of family land under customary land acquisition is the head of family. Indeed, any disposition of family landwithout the authorisationofthehead offamily is null andvoid and ofno effect. According to Woodman G. R. in his article ‘Alienation of Family Land in Ghana [1964] Vol. 1 No. 1 UGLJ 23-41, he states: “Moreover, the head of family is the person who is best able to produce evidence of title for the future protection of a purchaser. He will be the repository of family tradition, which may be relevant to the title if the land has belonged to the family for a long period: he normally has custodyof any documentsreferring to the land”. These acts, to my mind, constitute direct act of ownership and is adequate proof of thePlaintiff’sfamily custodyofthe disputed land. The plaintiff as part of his reliefs is asking for general damages for trespass. However, no evidence was offered of any acts of trespass by the defendants on the land. Whenevertrespass isalleged, theremust be positiveand direct act. In the case of Ebusuapanyin Akuma Mensah vrs Nana Atta Komfo II [2015] 39 GMJ@ page 80, the Court ofAppeal, per BarbaraAckah-Yensu J.Aheld: “As with all forms of trespass, there must be directness; the plaintiff must prove direct invasion ofthedefendant onhislandfor a claim oftrespassto succeed…”. 9 D.A.A In the instant suit the plaintiff could not lead any evidence to buttress his claim for this relief. Sameis herebydismissed. The plaintiff again prayed for recovery of possession, yet no evidence was offered as to any possessory acts exercised by the defendants. The plaintiff admitted not knowing the 2nd defendant, and only saw the recorded transaction of his interest in theland when he conducted asearchtendered in evidence as Exhibit B. Thus, just as plaintiff failed to demonstrate any acts of trespass on the land by the defendants, their claim for recovery of possession must also fail as there is no evidence to the effect that the defendants have exercised any possessory rights over thedisputed land. However, the plaintiff has established per the evidence on record, specifically Exhibit B, that 20 acres of his family’s 85.30 acres land has been sold by the 1st defendant who is not the head of family to the 2nd defendant without the authorisation of the plaintiff and the consent and concurrence of the other principal membersofthe plaintiff’sfamily. The Learned Author E.D. KOM in his article titled Unlawful Disposition of Family Land Void or Voidable; [1967] Vol. IV No.2 UGLJ 111-121; in discussing the three kinds of unlawful disposition or dealings with family land on the third point headed Unlawful Disposition by Members Excluding their Family Head stated as follows: “Whether a disposition by members of the family without the concurrence of the family head is void or voidable was considered in the case of Asafoatse Agbloe II v. Sappor where a strong West African Court of Appeal (Harragin C.J., Verity C.J. and Lucie-Smith C.J.) held: "We, with greatrespect, entirely agree . . .that the head of the family may be considered to be in an analogous position to a trustee from which it follows that it is quite impossible for land to be legally transferred and legal title given without his consent. 10 D.A.A These decisions are in accord with the customary law, for principal or leading matters, elders of the family, or the council of the family have no locus standi vis- a-vis the outside world. The family head is the external relations officer of the family and he is, therefore, the proper person to enter into any transaction on behalf of the family. Moreover, in the whole family he is the only person having the power of sale or any other disposition of family property. Any disposition done without his knowledge and consent is void for the vendors have no locus standi and for lack of power of disposition. The part played by principal or leading members, elders or family council in any disposition is the grant of consent and nothing more. While the family head is still in office, no family business can be done overhis head or behind his back. The principle of "nemodat quod nonhabet," however, isknown to customarylaw.” The general principle as enunciated in the case of Ababio v Akwasi III [1994-95] Ghana Bar Report, part II, 774 is that “A party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue, however, as stated by Mensah Boison JA in the case of Acqyaye v Awoti [1982-83] 2GLR 110, the testimony of a plaintiff is presumptive evidence which is rebuttable. The well-known rule of evidence is that although proof in civil cases rested on the plaintiff, that burden was discharged once the plaintiff had introduced sufficient evidence of the probability of his case. The burden shifted to the defendant to rebut theplaintiff’sevidence”. Thus, the plaintiff having led evidence as to the probability of his claim, the burden shifted unto the defendants to rebut this claim, however, as noted above the defendants wilfully refused to defend this suit and that clearly demonstrates that the defendantshaveno defence tothis action. Relating the above dictum to the instant suit, giventhe complete absence of evidence challenging the Plaintiff’s evidence his claim oughtto succeed. 11 D.A.A Regarding acceptance of unchallenged evidence by a Court of law, the Distinguished and esteemed Jurist, Chief Justice Anin Yeboah stated as follows in the Landmark case of Nana Addo Dankwa Akufo-Addo and 2 Others v. John Dramani Mahama and 2Others (2013) SCGLRspecial edition: “… I accept the proposition of law that when evidence led against a party is left unchallenged under cross-examination, the Court is bound to accept that evidence…”. Moreover, taking into due consideration the above erudite exposition of the law by the then Chief Justice, I am emboldened in my belief that the Plaintiff is entitled to his proven reliefs. This is because the testimony relating to same were left unchallenged and must therefore be accepted by this Court. In the instant matter, this Court is convinced that the Plaintiff has adduced requisite evidence toprovehis claimin partonthepreponderance ofprobabilities. Accordingly,Judgment is enteredinfavour oftheplaintiff as follows: It is hereby declared that the 20 acres out of the 85.30 acres of land 1st defendant leased to 2nd defendant is the bona fide property of Plaintiff’s Nonkor and Agyakobea Family of the Asona Clan of Ahwerase Daman in the Eastern Region of theRepublic ofGhana. It is hereby declared that the lease transaction between 1st and 2nd defendants is void for 1st defendant’s lack of capacity to alienate the land without the authorisation of theHead and consent and concurrence Principal membersofthe said family.’ Consequently, the Lands Commission, Koforidua, 3rd defendant herein is ordered to expunge from its records the transaction dated the 23rd of October 2020 between Abusuapayin Yaw Akonor, the 1st defendant herein and Kliphord Odoru Darkwa, the2nd defendant herein. 12 D.A.A The 3rd and 4th reliefs for recovery of possession and damages for trespass as hereby dismissed for wantofproof. Cost of GHȼ 10,000.00 is awarded in favour of the plaintiff and against the defendants. (SGD) H/HDIANA ADU-ANANE CIRCUIT COURT JUDGE 13 D.A.A