ASOGBA VRS BOTWE II & ANOTHER (HI/92/2021) [2021] GHACA 37 (24 June 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA- AD 2021 CORAM: DENNIS ADJEI, JA –PRESIDING JENNIFER A, DODOO, JA GEORGE KOOMSON, JA CIVIL APPEAL SUIT NO. HI/92/2021 24TH JUNE, 2021 COMFORT ASOGBA DEFENDANT/APPELLANT VRS. 1. NII LARYEA BOTWE II 2. EVANS QUAYE PLAINTIFFS/RESPONDENTS JUDGMENT DODOO, J. A. (MRS) The Plaintiff/Respondent’s claim against the Defendant/Appellant was for the following: i. A declaration that the Wulomo and others who purportedly allocated the land in dispute described herein in the statement of claim to the defendant have no capacity to alienate Nungua Stool Lands. ii. An Order for ejection and recovery of possession against the defendant in respect of the land described in the statement of claim. iii. An order of perpetual injunction against the Defendant, her agents, assigns, workmen, personal representatives or any person whomsoever from going unto the land and undergoing any form of activity on the land. iv. Damages of trespass to the land. v. Costs. The Defendant/Appellant was served with the processes by substituted service (i.e. newspaper publication (see pp. 38, 39, 44, 45, 47 & 48 of the ROA). On 21st February, 2018 Interlocutory Judgment was entered against the Defendant and the matter adjourned to 10th April, 2018 for the Plaintiffs to adduce evidence to establish their declaratory relief and for assessment of damages. The Defendant thereafter filed an application to set aside the interlocutory judgment and for leave to file a defence out of time. (See p. 51 of the ROA). In her affidavit in support of her application found at pp 52-53 of the ROA, the Defendant stated that she had no notice of suit as the processes were never brought to her attention. Indeed, she stated in paragraph 9 of her affidavit in support of her application that her caretakers on the land were illiterate and did not appreciate the nature of the processes posted and therefore did not bring them to her notice. She also further deposed to the fact that it was her vendor, the TDC, which brought the processes to her notice and that she took steps to engage the services of a lawyer. She attached a proposed statement of defence (see p. 55 of the ROA). The trial judge declined to set aside the interlocutory judgment saying that no useful purpose would be served if the interlocutory judgment is set aside. In her notice of appeal (see p. 67 of the ROA), the following grounds were set out: a. The learned judge committed an error of fact when he held that although Defendant/Applicant/Appellant claims to have obtained the disputed land from TDC, yet she admits that the land is for Nungua Stool. b. The learned judge erred when he held that no useful purpose would be served if the interlocutory judgment is set aside. c. The ruling is against the weight of evidence. d. Further grounds of appeal to be filed on receipt of the record of proceedings. The parties would simply be referred to as the Appellant and Respondents respectively. Appellant’s Submissions The Appellant argued that the learned trial judge erred in holding that no useful purpose would be served if the interlocutory judgment was set aside as in her view, the Appellant had shown that she had a reasonable defence to the action and that her default to file a defence was not a deliberate disregard for the rules of court. She argued that by Order 13 rule 8 of the High Court (Civil Procedure) Rules, 2004 CI 47, the Court may, on application by a party affected and on such terms as it thinks just, set aside or vary any judgment entered by it. She referred to the cases of Botchway and Anor v. Daniels and Others (1991) 2 GLR 262 and Agyeman v. Ghana Railways and Ports Authority (1969) CC 60 where the court had held that the power to set aside a default judgment was discretionary and that a party who sought this discretion must show by an affidavit in support of his application that there was a reasonable defence to the action and that it would be unjust not to have his case decided on the merits. She contended that she had a good defence to the action and that was predicated on her proffering a proposed defence and thus made her deserving of a trial on the merits. She submitted that although an interlocutory judgment had been given, the Respondents had not taken further steps to prove their case and therefore would not be prejudiced if the said interlocutory judgment was set aside. Furthermore, the Appellant argued that the learned trial judge committed an error of fact when he held that although she had claimed that she obtained the land from the TDC, she went on further to admit that the land was for the Nungua Stool. She averred that she had in her proposed defence said she had purchased the land from the Chief of Lashibi, who claimed ownership of the land. However, it was when she entered onto the land that she was confronted by persons from the Nungua Traditional Area who also claimed ownership. Her initial investigations revealed that the TDC had returned those lands to the Nungua Stool. As a result, she approached the Nungua Stool to regularize her purchase. She stated further that she later found that the land did not form part of those lands returned to the Nungua Stool. She therefore had to go back to TDC for regularization of her title. She claimed further that having regard to the evidence on record, it was erroneous for the trial judge to refuse to set aside the default judgment. Respondents’ Submissions The Respondent was of the view that the trial judge did not err in refusing to set aside the default judgment. They contended that the trial judge examined the affidavit in support and in opposition before arriving at his ruling which stated that granting the application will serve no useful purpose. They argued that the Appellant was not candid with the court when she stated that there were caretakers on the land but that they were illiterate and therefore did not appreciate the processes posted on the land. It was their contention that the purpose for putting caretakers on the land was to serve her interest and to report all matters concerning the land to her. If they failed to do so and disregarded these processes, then they could not be blamed for the default judgment entered against her and for her failure to file a defence to the action. The Respondents contended further that the Appellant did not justify the assertions in her pleadings. According to them, she could have attached the documents she had claimed she had received from the Nungua Traditional Council or at least the receipts she had referred to. Not having done so, she could not rely on the ground that the judgment was against the weight of evidence. a. The learned judge committed an error of fact when he held that although Defendant/Applicant/Appellant claims to have obtained the disputed land from TDC, yet she admits that the land is for Nungua Stool. The Respondents as Plaintiffs issued out a writ of summons against the Appellant as Defendant claiming the following reliefs: i) A declaration that the Wulomo and others who purportedly allocated the land in dispute described herein in the statement of claim to the defendant have no capacity to alienate Nungua Stool Lands. ii) An order for ejection and recovery of possession against the defendant in respect of the Land described in the statement of claim. iii) An order of perpetual injunction against the defendant, her agents, assigns, workmen, personal representatives or any person whomsoever from going unto the land and undergoing any form of activity on the land. iv) Damages for trespass to the Land. v) Costs. It was the Respondents’ case that the land in dispute belonged to the 2nd Respondent as it had been granted him by the 1st Respondent, which was a Stool. It was their case that the Appellant who was relying on documents allegedly issued to her by the Nungua Traditional Council and signed by the Wulomo had trespassed onto the land in dispute. They therefore prayed for the reliefs as endorsed on their writ. From the record, interlocutory judgment was entered against the Appellant on 21st February, 2018. The Respondents had yet to lead evidence in support of their claim when the application for an order setting aside the interlocutory judgment and for leave to file a statement of defence out of time was filed on 4th January, 2019. In the affidavit in support of her application, the Appellant deposed to the fact that all the processes were served on her by substituted service and that same had not been brought to her notice. She also attached a proposed defence to the suit in her application. In paragraphs 6, 8-19 of her proposed defence the Appellant stated as follows: 6. Defendant states that about 30 years ago, she purchased the disputed land from the Chief of Lashibi. 8. Defendant states that sometime after she purchased the land from the Chief of Lashibi, certain persons claiming to be from the Nungua Traditional area confronted her, claiming that the land belongs to the Nungua Stool … 9. Defendant states again that she again constructed a wooden structure on the land and placed caretakers in same to take care of the land on her behalf. 10. Defendant states that it consequently came to her notice that the disputed land fell in the Tema Acquisition Area. However TDC Development Company Limited had relinquished its interest in certain lands at Communities 16 and 17, including the disputed land to the Nungua Stool. 11. Defendant states that she therefore approached the Nungua Traditional Council to regularize her title to the land which she occupied. 12. Defendant states that she was made to pay the sum of GH¢20,000.00 by the Nungua Traditional Council as fees for regularizing her title to the disputed land. 13. Defendant states that the Nungua Traditional Council thereafter gave Defendant a document to be presented to the TDC. The document stated that the piece of land had been allocated to the Defendant by the Council and requested TDC to prepare a lease for the Defendant and also to grant her a building permit for her construction. 14. Defendant says that on presentation of the document to TDC, she was informed by the TDC that the said parcel of land (the land currently in dispute) does not form part of the area of land that was given back to the Nungua Stool. The said piece of land was therefore owned by TDC. 15. Defendant states that she was then made to apply directly to TDC for a regularization of her stay on the land. 16. That TDC has since started processing Defendant’s application and is in the final stages of the process to grant the necessary documentation to the Defendant. 17. Defendant states that it was during a final site visit by TDC to the land as part of its regularization process that they discovered that a writ of summons had been posted on the property in respect of the land. 18. Defendant ….. states that sometime in September 2015, the Plaintiffs confronted Defendant and her caretakers again claiming that the land belongs to the Nungua Stool. 19. Defendant states that she explained to them that even if the land belongs to the Nungua Stool, she had already paid for the land to the Nungua Traditional Council. However, it turned out the land does not belong to the Nungua Stool but rather TDC and TDC had given her a license to stay on the land whilst her documentation is being processed. The Appellant in her proposed defence did state that she initially acquired the land from the Chief of Lashibi. She stated also that it was when she occupied the land that she was confronted by the Nungua Stool which claimed ownership. She stated further in her proposed defence that she regularized her title with the Nungua Stool who issued her with documents to be sent to the TDC. Thereafter on presenting these documents, the TDC informed her that they rather owned the land which did not form part of the parcel of land they had ceded to the Nungua Stool. The TDC, according to her, made her apply formally for the land and were in the process of regularizing her grant. It is therefore not correct for the trial court to state that she had claimed to have obtained the disputed land from TDC, yet had admitted that the land was for the Nungua Stool. In our opinion, the matter of who really was the owner of the land in dispute can only be ascertained after a trial on the merits. We therefore uphold this ground of appeal. b. The learned judge erred when he held that no useful purpose would be served if the interlocutory judgment is set aside. It is provided in Order 13 rule 8 thus: 8. The Court may, on application by a party affected and on such terms as it thinks just set aside or vary any judgment entered in pursuance of this Order. In praying for the Court’s discretion to set aside a default judgment, the party so applying must surmount 3 hurdles i.e. (1) He/She must disclose by affidavit or some acceptable means that he/she has a reasonable defence to the claim (2) that it would be unjust to leave their case unadjudicated upon and (3) that there was a reason for the delay in applying for the judgment to be set aside. See Agyeman v. Ghana Railways and Ports Authority (1969) CC 60 and Botchway and Anor v. Daniels and Others (1991) 2 GLR 262. In the instant case, the Appellant in her proposed defence has shown that she has a reasonable defence to the action. She has indicated that she had acquired the plot of land from the Lashibi Chief, had been confronted by the Nungua Stool to which she had had to pay some money to and had also applied for a licence to the TDC for licence to remain in occupation of the land. It may be the case that she may or may not be able to prove her case but she deserves a trial on the merits. See the case of Duncan v. Kawoaco Ltd (1981) GLR 476. This ground succeeds and is also upheld. c. The ruling is against the weight of evidence The authorities are to the effect that where an appellant appeals against a judgment on the omnibus ground that the judgment is against the weight of evidence, the appellate court is bound to consider comprehensively, the entire evidence on record before coming to a conclusion on the matter. See the cases of Aryeh & Akakpo v. Ayaa Iddrisu (2010) SCGLR 891 and Djin v. Musah Baako (2007-2008) SCGLR 686. The Appellant herein is implying that there were certain pieces of evidence on the record which, if applied in her favour, could have changed the decision in her favour, or that certain pieces of evidence have been wrongly applied against her. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against. The Appellant has demonstrated that she has a defence to the action by filing a proposed statement of defence. In view of this, had the trial court averted its mind to the defence, it would have ruled in her favour by setting aside the default judgment and hearing her on the merits. Furthermore, the Respondent attached to its affidavit in opposition a copy of a Ruling delivered by the High Court (Land Division) on 20th June, 2014 in respect of the case of Nii Laryea Botwe II (the 1st Respondent herein) v. Forestry Commission, Tema Municipal Assembly, Tema Development Company and Emmanuel Assinu. (See p. 61 of the ROA). The 1st Respondent who was the Plaintiff in that suit had applied for an order of interlocutory injunction to restrain the Defendants therein, their agents, agents, contractors and associates from interfering with the land in dispute until final determination of the suit. The 3rd Defendant in that suit is the TDC to whom the Appellant says she has applied for a lease from. There is no indication that the suit for which the injunction was granted has been determined. As a result, with true ownership of the land remaining unresolved, the door to justice cannot be shut in the Appellant’s face to prevent her from seeking same. This ground succeeds and is also upheld. d. Further grounds of appeal to be filed on receipt of the record of proceedings. No other grounds were filed. Accordingly, this ground of appeal is struck out. The Appeal succeeds in its entirety. The trial judge’s ruling refusing to set aside the default judgment is itself set aside. The Appellant is to file her statement of defence 7 days from today’s date. The Suit is remitted to the High Court to be tried on the merits and is to take its normal course. sgd JENNIFER A. DODOO (MRS) (JUSTICE OF APPEAL) I AGREE I ALSO AGREE COUNSEL sgd. DENNIS D. ADJEI, (JUSTICE OF APPEAL) sgd GEORGE KOOMSON, (JUSTICE OF APPEAL) PETER OSEI ASAMOAH FOR APPELLANT EUNICE NAA MATEKI TAWIAH FOR RESPONDENT 11