Asamoah v Kofi (A1/20/2024) [2025] GHADC 226 (30 January 2025)

INTHE DISTRICT COURT SITTINGATWAMFIE ONTHE 30TH DAYOF JANUARY,2025BEFORE HIS WORSHIP EUGENEOBENG-NTIM,ESQ. SUITNO:.A1/20/2024 ASAMOAHJOSEPH (SuingFor HimselfAnd OnBehalf Of HisSiblings) Attakrom, Shell2 ------ PLAINTIFF NearAmomaso VRS KOFI Prince@ Guy Guy Attakrom, Shell2 ------ DEFENDANT NearAmomaso. JUDGMENT Introduction The Plaintiff, Asamoah Joseph, instituted this action for himself and on behalf of his siblings. The Defendant, Kofi Prince alias Guy Guy was served with the Writ of Page1of12 Summons by substitution upon application of his counsel in line with Order 4 rule 5 of the District Court Rules, 2009, since personal service proved futile. Due to the failure to effect, personal service on Defendant, all subsequent service of processes wereeffected by substitution. TheReliefs being sought The Plaintiff is seeking the following reliefs: i. A declaration of title and Recovery of possession of one and half acre cocoa farm situate and lying at a place commonly known and called Attakrom which shares boundary with the property of Plaintiff, Kwame and the Defendant, is the PropertyofthePlaintiff and hissiblings; ii. An order compelling the Defendant to pay for the Plaintiff quarter acre cassava farm the Defendant harvested at GH¢ 300, 76 plantains he harvested estimated at GH¢ 1,400 and 16 mounds of yams he destroyed estimated atGH¢220; iii. An order compelling Defendant to render an account of cocoa he harvested during the2023cocoa season; Page2of12 iv. An order for perpetual injunction restraining the Defendant, assigns, workmenetcfromhaving anything todo withthe disputed cocoa farm. The court has earlier stated that the Defendant failed to appear in court to defend the action. Nevertheless, the Defendant was put on notice of the proceedings in court. For instance, the court ordered for witness statements to be filed by the parties and adjourned the suit to the 17th of September, 2024 with an order for hearing notice to be served on Defendant by substitution. The Plaintiff, in compliance with the order of the court, served the Defendant with hearing notice and his witness statements. The court then set the 3rd of December, 2024 for hearing and the Defendant was duly servedwithhearing notice by substitutionas soordered by the court. Then, onthe 3rd ofDecember, 2024,the date of hearing, Defendant failed to appear in courtand the hearing wasconducted without him. The Plaintiff, who is seeking a declaration of title to land, among other reliefs, was called upon by the court to prove his case since a default judgment was not available to a party seeking such a relief. Thus in the case of CONCA ENGINEERING (GHANA) LTD. v. MOSES [1984-86] 2 GLR 319-334, the Court of Appeal at p.330 stated that a declaration of title will only be made when the Court is fully assured first as to the precise nature of the title in respect of which a declaration is sought and secondly that Page3of12 there is evidence by which the Court is satisfied that a title of the nature claimed has been established. The court further stated at p.331 that in our adversary system, the plaintiff who seeks a declaration of title mustestablish this by clear and acceptable evidence whether or notthe defendantagainstwhom heseeks the reliefwas presentor absent. It is on this basis that the court called upon the Plaintiff to file his witness statement and thatofhis witnesses to provehis case and proceedtoprove his case. TheEvidence ofPlaintiff The Plaintiff gave evidence for himself and on behalf of his other siblings. His evidence is that the land on which the cocoa farm and food crops is situate forms part of a large tract of land which had been cultivated by his parents for several decades. His father demarcated a portion for his mother during his lifetime. After the death of his father several years ago, his portion of the land devolved to him, his siblingsand defendant’s father. He and his siblings have been cultivating the portion of his father until his brother, who is the father of the defendant died. According to him, after his death, Defendant drove his brother from the land with threat of death and took possession and had it cultivated on “Abunu” basis. Their family and elders met andit wasagreed that Defendant be givenaportion. Page4of12 Plaintiff continued that after the sharing of the farm, the disputed cocoa farm now shares boundary with the Plaintiff, one Kwame and the Defendant. The Defendant has trespassed onto the portion of the plaintiff and his siblings and have harvested the cocoafor the 2023seasons and has for over the years issued threats to drive them from their father’s land. He added that not even reports to the Wamfie Police, on several occasions, have deterred the Defendant. Plaintiff concluded that the Defendant, in furtherance of his trespassory acts, has harvested a quarter of an acre ofhis cassava farm, 76plantains, 64bananas and destroyed 16mounds withyams. The Plaintiff called one witness, Asamoah Tutu @ Kwabena Asamoah, who is a brother to the Plaintiff. He corroborated the evidence of the Plaintiff. He added that Defendant has destroyed his crops, took over the portion he was cultivating and had issued death threats against him. As a result of the actions of the Defendant, he has stopped cultivating the land. Applicable laws andcases. Section11(1) and (4) oftheEvidence Act 1975(NRCD323) also provides asfollows: ‘(1) for the purposes of this Act, the burden of producing evidence means the obligation of a party to introducesufficientevidence to avoid ruling on the issue againstthat party. Page5of12 Further, section 14 of the Evidence Act, 1975 (NRCD 323) states as follows: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is ascertain. Proof in civil proceedings is established by the principle of the preponderance of probabilities or balance of probabilities. Section 12(2) provides that except as otherwise provided by law the burden of persuasion requires proof by preponderance ofprobabilities. This position is supported by the Supreme Court in Adwubeng v Domfeh [1997-98] 1GLR282where it was held atpage 295that: sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities-no exceptions are made. Similarly, the Supreme Court in the case of Odonkor and others v Amartei GBR 1993-94 VOL 1 held that the Evidence Decree 1975 (NRCD 323) sections 11(4) and 12 provided that in all civilcasesjudgment mightbe givenin favourof a party on the preponderanceof probabilities. What is required by the court, under normal circumstances, is to assess the evidence of the parties, including their witnesses, and draw a conclusion that, on the preponderance or balance of probabilities, the court is inclined to accept the evidence of one party relative to that of the other party. There is an exceptional Page6of12 circumstances in the present case because the Defendant failed, refused or neglected to appear in court to defend this action. The court would therefore examine only the evidence of the plaintiff and his witness to ascertain whether it is sufficient for the grantofthereliefs heis seeking. Evaluation ofthe evidence and application ofthe law. The Plaintiff, in his attempt to prove his case, gave evidence to establish that their parents have been farming the land in dispute for several decades and have devolved to them upon the death of their father. He described his boundary owners as Plaintiff himself, one Kwame and the Defendant. That the Defendant, whose father is the brother of the Plaintiff’s, has taken over the land of the Plaintiff and that of Pw1 after the death of his father. The Defendant had succeeded by the use of threats of death and not even several reports to the Wamfie Police had deterred the Defendant. That after the family had met, the land taken over by Defendant and cultivated on “Abunu” basis was shared and Defendants had his share. The evidence of the Plaintiff, including the harvesting of the cocoa for the 2023 seasons, wascorroborated by the witness ofthe Plaintiff. Page7of12 The first relief of the Plaintiff is for a declaration of title and Recovery of possession of one and half acre cocoa farm. He led evidence to establish his parents’ several decades ofpossession and how it had devolved to him and his siblings. His evidence was corroborated by his witness, Pw1. The court is satisfied that the Plaintiff, in the absence of the Defendant, and by clear and acceptable evidence, has established the precise nature of their title in respect of which the declaration is sought as required by the case ofConca Engineering (Ghana) LTD.v. Mosesreferred supra. The second relief is for payment by the Defendant for harvesting a quarter of an acre of cassava valued at GH¢ 300, 76 plantains estimated at GH¢ 1,400 and destroyed 16 mounds ofyams estimated atGH¢ 220. Furthermore, the Plaintiff’s summary of subject matter of claim attached to the Writ of Summons stated that Defendant harvested a quarter of an acre of cassava valued at GH¢ 300, 76 plantains estimated at GH¢ 1,400 and destroyed 16 mounds of yams estimated at GH¢ 220. He referred to them in his witness but failed to state the value ofthe crops. This claim amounts to special damages because it relates to losses he has incurred as a result of the action of the Defendant. The law ona claim for special damages is that the party alleging must plead it in their pleading and provide particulars. Thus, in the case of Oham v. Evonna [1992] 1 GLR 287-296, the High Court per Kpegah J, as Page8of12 he then was at p.290 provided a definition of special damages as is pointed out in Halsbury's Laws of England (3rd ed.), Vol. 11, p. 218, special damages are compensation for special damage which is not presumed by law to be the natural and probable or direct consequence of the act or omission complained of but which does in fact result in the circumstances of the particular case and of the injured party's claim to be compensated. His Lordship continued that ‘“Special damages’ . . . are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character, and, therefore, they must be claimed specially and proved strictly.” This position is supported by the case of Royal Dutch Airlines (KLM) And Another v. Farmex Ltd [1989–90] 2 GLR 632-649 at page 632 that special damages must be specially pleaded and specificallyproved. The Plaintiff, apart from referring to those crops in his summary of subject matter of claim attachedto theWrit ofSummons, failed to particularise andprove same. He has therefore failed to meet the requirement for special damages as set by the cases of Oham v. Evonna and Royal Dutch Airlines (KLM) And Another v. Farmex Ltd. The third relief ofPlaintiff is for anordercompelling Defendant to renderan account of cocoa he harvested during the 2023 cocoa season. The Plaintiff referred to the size Page9of12 of the cocoa farm in his Writ of Summons but failed to provide further details, including the estimated number of bags Defendant is alleged to have harvested and the price of each bag. Since the Plaintiffs is seeking for an order for Defendant to render account of harvested cocoa for the 2023 seasons, evidence should have been led to prove, at least, the estimated number of bags Defendant is alleged to have harvested and the price of each bag. The Plaintiff failed woefully in that respect. Plaintiff wouldtherefore notbe entitled tothatrelief. The forth relief is for an order for perpetual injunction restraining the Defendant, assigns, workmen from having anything to do with the disputed cocoa farm. Since the court had earlier held that Plaintiff is entitled to his claim of declaration of title and recovery of possession, he ought to be protected from further interference with the use and possession of the land. The court shall therefore grant the prayer of Plaintiff foranorderofperpetualinjunction. Conclusion: i. The Plaintiff is entitled to a declaration of title and recovery of possession of one and half acre cocoa farm situate and lying at a place commonly known and called Attakrom which shares boundary with the property of Plaintiff, oneKwame and the Defendant. Page10of12 ii. The Plaintiff shall not be entitled to the claim since he failed to particularise thelosses and provesame. iii. The Plaintiff shall not be entitled to an order compelling Defendant to render account of cocoa he harvested during the 2023 cocoa season since he failed to prove. iv. The Plaintiff is entitled to an order for perpetual injunction restraining the Defendant, assigns, workmen, etc from further trespass unto the cocoa farm ofthe Plaintiff. Theaward ofcost The Plaintiff did not pray for cost as one of his reliefs. Nevertheless, since the award of cost is at the discretion of the court, the court shall exercise its discretion by awarding the Plaintiff cost. Considering that the Plaintiff had to serve all the processes on the Defendant by substitution and also engaged the services of a counsel, Plaintiff shallbe entitled to costofGH¢4,000. Reliefs(i) and (iv)ofthe Plaintiff aregranted. Reliefs(ii) and (iii) are dismissed. Page11of12 Sgd. Eugene Obeng-Ntim (District Magistrate) Page12of12