Ahenkorah vrs Amihere (H1/17/2006) [2008] GHASC 5 (29 May 2008);

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                   ABBAN, J.A.

                   APALOO, J.A.



29TH MAY, 2008




      V E R S U S



                                  J  U  D  G  M  E  N  T



ABBAN [MRS[, J.A.: -  This is an appeal from the Circuit Court “B” Accra.  The judgment of the court was delivered on 8/12/04, and it went against the Defendant (hereinafter referred to as the Appellant).

            Being dissatisfied, the Appellant filed a Notice of Appeal on the 24th January 2005 together with his ground of Appeal.  The original ground of appeal was that:

  1. “The judgment is not warranted by law.”
  2.   Further grounds shall be lodged when a copy of the judgment is obtained

  from the Circuit Court Registry.”

            On the 18/2/05, the Appellant filed seven (7) additional grounds of appeal namely:

            1.  The trial judge erred when he failed to attach any weight to the

                 defence of the defendant since the defence raised a legal issue as

                 to whether or not the defendant was the right person to be sued.

            2.  The trial judge erred by not giving the defendant the opportunity to

                 defend the suit and this constitutes denial of justice.

            3.  The absence of the defendant makes the judgment a default judgment.

                 The defendant had no notice of the hearing when judgment was given

                 against him.

            4.  The trial judge erred in awarding ¢5 million damages against the defendant

                 for trespass since damages were not proved in court.

5.  The trial judge erred in admitting the lease document in evidence and

                 placing weight on it as same had not been registered in accordance with


            6.  The paucity of the plaintiff’s evidence required corroboration with law.

            7.  The judgment was against the weight of evidence.”

            The facts of this case which gave rise to this appeal are that the Plaintiff

(hereinafter referred to as the Respondent) on the 8th day of September 2003 issued a writ of summons along with a statement of claim against the Appellant claiming:

            (1)  A Declaration of title to all that piece and parcel of land at Frafraha,

                   Accra containing approximate area of 0.15 acre more or less bounded

                   on the North-East by the lessor’s land measuring 99.7 feet more or less

on the South-East by a proposed Road measuring 68.5 feet more or less on   the South-West by the Lessor’s land measuring 99/7 feet more or less and on the North-West by Lessor’s land measuring 65.8 feet more or less.

            (2)  Damages for trespass.

            (3)  Recovery of possession.

            (4)  Perpetual injunction Restraining the Defendant, Assigns, Agents, workmen

                   etc. from entering the said land for any development.

            The Respondent also filed a motion ex-parte the same day i.e. 8th September 2003 for leave for interim injunction to restrain the defendant, his agents, servants, workmen and privies from entering or developing or dealing with the land in dispute in any manner whatsosever that will be adverse to the Plaintiff’ (Respondent’s) interest pending the final determination of the suit.

            In both the statement of claim accompanying the writ of summons and the affidavit in support of the motion ex-parte for interim injunction, the Respondent averred and deposed to the fact that the Appellant had trespassed to the land claiming ownership thereof.  In the statement of claim, the Respondent averred that he started developing the land only to realize that the Appellant had come to destroy the foundation he had constructed.  Respondent called the Appellant on telephone who was then laying adverse claim to the land.  The Appellant reported the matter to the Police at Madina, and at the

Police Station, documents on the land belonging to Appellant and Respondent were examined by the Police who decided that the matter was a civil matter.

            The Respondent averred that at the Police Station, the Appellant produced an indenture dated      2003, long after the Respondent’s indenture was executed.  There is evidence on record that the Respondent’s indenture was executed on 4th April 2002.

            The record of appeal however does not indicate when if ever the motion ex-parte for interim injunction was taken and granted, nor whether after the grant of the ex-parte application notice of same was ever served on the appellant.

            Again the Respondent conducted a search on the 14th November 2003 at the Registry of the court below seeking to find out whether or not the Appellant had entered appearance to the writ of summons and if so when?

The answer was “yes” 16/9/03, and whether or not the Appellant herein had filed any defence or motion and the answer was “no.”  Based on the outcome of the search, the Respondent herein filed an application for judgment in default of defence on the 27/11/03 and this was fixed for 17th December 2003 for hearing.  Again there is no indication in the record as to whether this application was dealt with by the court below and it was withdrawn or granted.

            Subsequent to the filing of this preceding application for judgment in default of defence, the Appellant filed his statement of defence on the 6th February 2004.  The Respondent then filed a reply to the statement of Defence; and on 12/3/04 filed summons for directions.  It is at this stage that I find it strange that the summons for directions which was filed on 12/3/04 and made returnable on Friday 19/3/04, was kept at the registry of the Circuit Court “B” and was never served on the Appellant or his counsel until 20/9/04, (six whole months later).

Directions were taken on 23rd September 2004 and the matter was set down for hearing on 8th and 9th November 2004.

            The case was however called and heard on 8th December 2004 in the absence of Appellant and his counsel.  On that day the Respondent gave evidence in support of his claim.  He told the court how much he bought the land for and by what means he effected payments for the land.  He tendered the three cheques he issued in payment of the land.  He also tendered a lease agreement between himself and the lessor family (Kplen We Family and Nii Mensah Okpoti).  He indicated that the document had been submitted to the Lands Commission for registration.

            He also gave evidence to the effect that his workers started digging the foundation of the building he purported to erect on the land, but the Appellant lodged a complaint at the Police Station against him and the two parties were invited to the Police Station where a request was made for them to produce their documents covering the land.  They did so and finally the Police advised that the matter be resolved by the Civil Courts.  Hence the action he (Respondent) took against the Appellant.  At the close of the evidence the judge went ahead to give judgment for the Respondent.

            The Respondent never mentioned that the Appellant had destroyed any foundation of his building; and therefore he had suffered any damage from the Appellant.

Pieces of the evidence captured go like this:

             “I erected pillars on the land and moulded block on the land and deposited

               sand and stones on the land.

               In August, my workmen started digging the foundations when the

               defendant lodged a complaint against me.  The Police invited us and we

               produced our documents.  I purchased my land in 2002 and the defendant’s

              document is dated 2003.  The Police advised that we go to Civil Court.

              After this I conducted a search again which showed on the 21/8/2003

              that the land was not state land and not encroached.  I wish to tender the

              Search in evidence………………………………………………………..

              I therefore claim as per the endorsement on the wit of summons.

              That is all.”

By Court: -  Witness discharged.

The submission by counsel for the Appellant that the appellant was not                  given the opportunity to be heard is untenable since Or. 36 rules 16 of                        LN 140 (Civil Procedure) Rules 1954 states thus:-

“Rules 16 if when a trial is called and the Plaintiff appears, and the                 defendant does not appear, then the Plaintiff may prove his claim, so                         far as the burden of claim lies on him.”

            From the above quotes, the burden of proof lies on the Plaintiff or Defendant

if he has a counter-claim to prove their claim beyond reasonable doubt.  It is not enough to just mount the witness-box and say anything and judgment will be given in your favour.  The law requires proof beyond reasonable doubt.

            In the instant case, the Respondent appeared in court on the hearing date set down for the trial of the suit and gave evidence in accordance with the rules in the absence of the defendant.  The judge was right in hearing him and giving judgment.  We however are of the opinion that the evidence the Respondent gave does not in anyway reflect his pleadings.  The Respondent never mentioned the damage he had suffered at the hands of the appellant nor did he lead evidence as to the two of them going to the Police Station in respect of the land in dispute.  The evidence on oath does not implicate the Appellant in any way.  Having pleaded that the Appellant had destroyed his foundation which act of Appellant ended up at the Police Station, it is surprising that the Respondent was silent on all this in his evidence to the court.  Basically this is the main reason why he went to court, and the court was in duty bound to make a finding on that.  The learned trial judge failed to do so.  The learned trial judge rather dwelt extensively on the unregistered and unstamped lease agreement between the Respondent and the Kplen We Family.

            It is our opinion that the judge was wrong in admitting this document in evidence – See the case of Palme vs. Bukari [1992-93] part 4 GLR 1536 C.A. which held inter alia that the trial Magistrate erred in admitting the unstamped and unregistered document as they were inadmissible.”  The document tendered in the instant case not having been stamped or registered was therefore inadmissible following the decision in the above-quoted case of Palme vrs. Bukari.

            From the foregoing, we are of the opinion that the judgment is against the weight of evidence adduced.  In the premises we allow the appeal and set aside the judgment of the court below along with all the consequential orders flowing therefrom.





                                                                                                H. ABBAN [MRS]

                                                                                          JUSTICE OF APPEAL





I agree.                                                                                         B.T. ARYEETEY

                                                                                                JUSTICE OF APPEAL





I also agree.                                                                              R.K. APALOO

                                                                                                JUSTICE OF APPEAL