Atta Vrs Atta and Two Others [2022] GHACC 84 (9 August 2022)

IN THE CIRCUIT COURT HELD AT KPANDO ON FRIDAY THE 9TH DAY OF AUGUST 2022 BEFORE HIS HONOUR FRANCIS ASONG OBUAJO ESQ. CIRCUIT COURT JUDGE SUIT NO. C1/11/2021 DESMOND ATTA PLAINTIFF VRS. 1. 2. 3. PETER ATTA DEFENDANTS ENVIRONMENTAL HEALTH OFFICER TOGBUI ABLOLOR VII J U D G M E N T The Plaintiff on the 10/12/2020 brought this action against the 1st and 2nd defendants on behalf of Atta family of Kpando Aloyi seeking perpetual injunction directed at the two defendants, their assigns, privies, agent, workmen and anyone claiming through them from further burying corpses on the Attah Family land, cost including solicitors fees. The plaintiff averred that he stays at Kpando Aloyi and identified the 1st defendant as the Head and lawful representative of Attah family of Kpando Aloyi. The Plaintiff stated further that the family owns a vast swathes of land commonly known as “Avelele” situate, lying and being at Kpando bounded on the 1st side by Hoke family property, on the 2nd side by Ankude family property, on the 3rd side by Adza family property and the 4th side a proposed road. The plaintiff father contended that, members of Atta family have been building houses for residential purposes with some sinking water pumps. However, the Defendants have been permitting burial of corpses on the land whereas there is public cemetery in Kpando. He stated again that the corpse buried in the land if care is not taken will emit disease into the ground and may eventually affect the health of those on the land. In his statement of defence filed on the 14-12-2020, 1st defendant denied being the head of Atta family of Aloyi and mentioned one Atta Michael as the current head of Atta family. 1st defendant contended that the plaintiff has no capacity to bring this action against the defendants. The 3rd defendant on the 14-01-2021 on an application on notice with affidavit in support applied to this court and was on the strength of the application joined to this suit as such. On the 23-02-2021, 3rd Defendant filed his statement of defence in this case and counter claim as follows: a. A declaration of title over all that land described in paragraphs of the plaintiff’s statement of claim as bona fide of the Ablolor family of Kpando Aloyi and not the property of the Atta family. b. c. d. e. A declaration that the Atta family is part and parcel of the Ablolor family and thus members of the Atta family are entitled to benefit from the Ablolor family land. A declaration that benefitting from the land is subject to good behavior and not as of right and that the Plaintiff has lost that privilege, having abused the privilege given him by being disrespectful and disparaging of the elders of the Ablolor family as well as the Atta family. A declaration that the sinking of a borehole was without the concern of Ablolor family. An order that the plaintiff is entitled to only one building plot of the land. f. An order for recovery of all land plaintiffs is farming on and recovery of rent for the period he has been farming on the land. g. An order for perpetual injunction restraining the plaintiff from interfering with Ablolor family’s right to bury its dead on it’s own land in the Ablolor family. h. Damages and cost. There was affidavit of service of the 3rd defendant’s statement of defence and counterclaim served on the plaintiffs’ counsel on the 24-02-2021. On the 9-04-2021, 1st and 3rd defendants filed application for directions. On the 19-08-2021the Plaintiff filed notice of discontinuance on the case. 1st and 3rd Defendants on 29-12-2021filed a motion on notice for judgment in default of defence of counterclaim with affidavit in support under order 13 Rule 7 of C. I.47, 2004, which was served on the counsel for plaintiff on the 14-1-22. The said motion was on the 17-01-2022 moved and judgment entered in favour of the 3rd Defendant/Application over the counterclaim as filed. The 3rd defendant was ordered to proceed with the counterclaim as same were about immovable property so he can lead evidence to prove his case as it has to do with recovery of possession from the plaintiff as provided for under Order 13 Rule 7 of C. I 47. Order 13 Rule 7 of C. I.47 of 2004 provides: Default of defence to counterclaim: Rule 7 (1) A defendant who counterclaims against a plaintiff shall be treated for the purpose of this order as if the defendant were the plaintiff who has made against a defendant the claim in the counterclaim. (2) Where the plaintiff or any other party against whom a counterclaim is made fails to file a defendant to counterclaim, this order shall apply as if the counterclaim were a statement of claim, the defence to counterclaim a defence and the parties making the counterclaim and against whom it is made were plaintiff and defendant respectively, and as if reference to the period fixed by those rules for filing the defence were a reference to the period to the period so fixed for filing of the defence to counterclaim. The above rules of court have been relied upon by this court for entering judgment in default of defence to counterclaim against the plaintiff for defendants. On the 21-02-2022 the defendant filed two (2) witness statements with exhibit 1 to 3 attached and a pre-trial-check list in order to prove his case. The 1st and 3dr defendants on the 15-05-2022, the 1st and 3rd defendants took turns and gave evidence in court as they tendered their witness statements in evidence to prove their title to the land as led by their counsel in open court. Order 12 Rule 2 (1) and (3) of C. I.47 of 2004 on defence to counterclaim provides: Rule 2 (1) A plaintiff on whom a defendant serves a counterclaim shall, if the plaintiff intends to defend it, file a defence to the counterclaim. (3) A defence to counterclaim shall be filed by the plaintiff before the expiration of fourteen days after the service on the plaintiff of the counterclaim to which it relates. Order 12 Rule 4 of C. I.47 of 2004 on proceedings on counterclaim provides: Rule 4(1) A counterclaim may be proceeded with, although judgment is given for the Plaintiff in the action or the action is stayed, discontinued or dismissed. (2) Where a Defendant establishes a counterclaim against the claim established by the Plaintiff and there is a balance in favour of one of the parties, the court may give judgment for the balance, but without prejudice to the court’s discretion in respect of cost. It was held in IN RE NUNGUA CHEIFTANCY AFFAIRS; ODAI AYIKU IV VRS ATTORNEY GENERAL (BORKETEY LAWEH XIV APPLICANT) [2010] SCGLR 413 at 425 that “...if a party served with the writ does not appeal within the time limited for appearance, the Plaintiff may file an affidavit of service and the action proceeds as if such party had appeared ...“proceed as if such party had appeared” means that the case be set down for hearing. The Plaintiff must lead evidence in proof of this claim”. See also Order 10 Rule 12 and Order 13 Rule 4 of C. I.47 of 2004. The Supreme Court in the case of SASU BAMFO VRS SINTIM [2012] 1 SCGLR 136 at 155 per ROSE OWUSU JSC held that: “Counterclaim is a different action in which the defendant, as a counter claimant is the plaintiff and the Plaintiff in the action becomes a defendant”. Now on the burden of proof on a counter claimant, it was held in the case of ARYEH AND AKAKPO VRS AYAA IDRDRISU [2010] SCGLR 891 at 901 per BROBBERY JSC that: “A party who counterclaims bears the burden of providing his counterclaim on the preponderance of probabilities and will not win on the issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent’s case”. It is my view from all the rules of court as referred to and the decided cases considered that the defendant herein thus the 3rd Defendant in his counter claim is now the Plaintiff who has to proceed and lead evidence to prove his claims against the Plaintiff who has now become the Defendant. Per Order 12 Rule 4(1) of C. I.47 as referred to, that even though the Plaintiff has discontinued this case after the counterclaim had been filed against him does not stop the 3rd Defendant from proceeding in his counterclaim against the Plaintiff. For the purpose of this Judgment, the issues set down for hearing from the Application for directions filed by the Defendant on the 9-04-2021 are: 1) Whether or not the plaintiff has capacity to institute the instant action. 2) Whether or not the land in dispute is Atta family land or Ablolor family land. 3) Whether or not, the 2nd defendant granted permit base on application by the defendants to locate a cemetery. 4) Whether or not the 2nd defendant carried out feasibility studies pursuant to the grant of permit for a burial place. 5) Whether or not the 1st and 3rd defendants are justified in siting a burial place on their own land. On the burden of proof in this case, sections 11(4) and 12(1) of the Evidence Act, 1975 (NRCD 323) referred. In the case of SERWAH VRS KESSE [1960] GLR 227 at 228 SC, it was held that the onus of proof on a party in a civil case is however less than that of the prosecution in a criminal case. With this provisions of the law and the principles expatiated in the decided case in mind, I will now proceed to consider the first issue. ISSUE ONE: - WHETHER OR NOT. THE PLAINTIFF HAS CAPACITY TO INSTITUTE THE INSTANT ACTION. Even though the first defendant denied in his paragraph 5 of the statement of defence that he is the head of the Atta family of Kpando Aloyi, 3rd defendant both in his statement of defence and evidence in court agreed and admitted that the 1st defendant is the head of Atta family that forms part of the bigger Ablolor family. Both the 1st and 3rd defendants stated that the plaintiff belongs to the Atta family which forms one of the families under Ablolor. 1st defendant actually described the plaintiff as his cousin in his paragraph one of the evidence. In paragraph 4 of the 1st defendant evidence just as in paragraph 7 of the 3rd defendants evidence, both of them stated that the plaintiff is entitled to enjoy or the right to inherit and eat from the land. The plaintiff was subsequently granted a portion of the land to farm on it. It is the further evidence of 1st defendant as in paragraphs 9 and 10 that when they started burying the dead at the place that the plaintiff started making unfounded claims to the land as being the Atta family land to him and that he tried to explain to the plaintiff that is not so but the plaintiff will not listen. It is my finding from the evidence of the 1st defendant at this stage that, he is the head of Atta family of Aloyi of which the plaintiff belong. The Atta family has a right to benefit from the larger Ablolor family land and therefore the portion granted to the plaintiff was appropriate. The plaintiff who was duly granted a portion of the land and was working on it, was threatened with the burial of the corpses on that portion of the land and reported same to the head of Atta family the 1st defendant to stand up and defend their family land but the 1st defendant will not do so hence the instant action from the plaintiff. Order 4 Rule 9(3) of C. I. 47 of 2004 states: Rule 9 (3) If for any good reason the head of a family is unable to act or if the head of a family refuses or fails to take action to protect the interest of the family, any member of the family may subject to this rule sue on behalf of the family”. The above rule was upheld as some of the exceptions to the general rule that it is the head of the family who is the proper person to institute suit for the recovery of family land as held in the case of KWAN VRS NYIENI AND ANOTHER [1959] GLR 67. CA that: “...(2) To the general rule there are expectations in certain special circumstances such as: i.) Where the family property is in danger of been lost to the family; and it is shown that the head (either out of personal interest, or otherwise) will not make a move to serve or preserve it; Or ii.) Where owing to a division in the family, the head and some of the principal members will not take any step; or iii.) Where head and principal members are deliberately disposing of the family properties in their personal interest to the detriment of the family as a whole”. In any such special circumstances, the court will entertain an action by any member of the family, either upon proof that he has been authorized by other members of the family to sue, or upon proof of necessity, provided that the court is satisfied that the action is instituted in order to protect the family character of the property”. It is my candid view that the principle established in this decided case falls within Order 4 Rule 9 (3) of C. I.47. In this decided case, it is not only the head of the family and the principal members therefrom who can sue to preserve a family property but any member of the family has a capacity to do so on behalf of the family. This rule in Kwan vrs. Nyiene (Supra) has been given further boost by the Supreme Court of Ghana in the case of AGBOSU AND OTHERS VRS KOTEY AND OTHERS [2003-2005] 1 GLR 685 AT 697 PER WOOD JSC, SC thus: “…Plainly, nothing in the passage can be read as establishing an intractable rule of law that an action instituted by a non-head of the family, specifically ordinary members of the family, can only succeed upon the proof that there was a head of who was deliberately for one reason or the other refusing to act to save the property. On the contrary, the Court of Appeal recognized that there was situation (described by the court as special circumstances) in which ordinary members of the family can in their own right, take up the mantel and sue to protect family property, without having to prove there is a head of family who is refusing to act. Therefore, actions brought by ordinary members of the family do not succeed, only upon proof that there is a head of family who is apathetic...” It is my further finding and conclusion from the foregoing that, both the 1st and 3rd defendants in their witness statements tendered in evidence acknowledged and admitted that the plaintiff is a member of the Atta family who has interest and right to the disputed land. Per that admissions in paragraphs 2 and 4 of 1st defendant’s evidence and in paragraphs 3 and 4 of the 3rd defendants evidence in court. Therefore it is my conclusion that the plaintiff has the capacity to institute the instant action in court as he has done and has done so within the law as required. ISSUE TWO:- WHETHER OR NOT THE 3RD DEFENDANT IS ENTITLED TO HIS COUNTERCLAIM. Order 12 Rule 1(1) of C. I. 47 on counterclaim against plaintiff provides: “Rule 1(1) A defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in an action in respect of any matter whenever and however arising, may, instead of bringing a separate action, make a counterclaim in respect of that matter”. Order 12 Rule 2 (1) and (3) of C. I. 47 on defence to counterclaim states: “Rule 2 (1) A Plaintiff on whom a defendant serves a counterclaim shall, if the Plaintiff intends to defend it, file a defence to the counterclaim. (3) A defence to counterclaim shall be filed by the plaintiff before the expiration of fourteen days after the service on the plaintiff of the counterclaim to which it relates” Order 12 Rule 4 (1) and (2) of C. I. 47 on proceedings on counterclaims provides: “Rule4(1) A counterclaim may be proceeded with, although judgment is given for the plaintiff in the action or the action is stayed, discontinued or dismissed. (2) Where a defendant establishes a counterclaim against the claim established by the plaintiff and there is a balance in favour of the parties, the court may give judgment for the balance, but without prejudice to the courts discretion in respect of cost”. Pursuant to the rules of court as referred to so far, the 3rd defendant was duly joined to this suit and filed his statement of defence and counterclaim with the leave of court as permitted by the rules. The Plaintiffs’ lawyer was duly served with the statement of defence and counterclaim of the 3rddefendant on the 24-02-2021 but failed to file a defence to the counterclaim after the expiration of fourteen days after serviced on the Plaintiff. On the 09-04-2021 the 1st and 3rd Defendants filed application for direction. However on the 19-08-2021, the Plaintiff rather filed notice of discontinuance of the suit against the defendants. 1st and 3rd defendant on the 29-12-2021 filed a motion on notice for judgment in default of defence to counterclaim with affidavit in support under Order 13 Rule 7 of C. I. 47. This motion was moved to be granted by this court on the 17-01-2022. As required also under Order 12 Rule 4(1) of C. I. 47. Order 13 Rule 7 of C. I. 47 on default of defence to counterclaim provides: “Rule 7(1) A defendant who counterclaims against a plaintiff shall be treated for the purpose of this order as if the defendant were a plaintiff who has made against a defendant the claim in the counterclaim. (2) Where the plaintiff or the other party against who counterclaim is made fails to file a defence to counterclaim, this order shall apply as if the counterclaim were a statement of claim, the defence to counterclaim a defence and the parties making the counterclaim and against whom it is made were the plaintiffs and the defendant respectively, and as if reference to the period fixed by this rule for filing the defence were a reference to the period so fixed for filing of the defence to counterclaim”. From these rules the plaintiff failed to file a defence to the counterclaim of the 3rd defendant. To that extent, the 3rd defendant is permitted to proceed against the plaintiff over the counterclaims as if the counterclaims were statement of claim. The 1st and 3rd defendant’s motion on notice for judgment in default of defence to the counterclaim was moved and granted by this court on the 17-01-2022 as required by the rules. Order 13 Rule 2 of C. I. 47 provides that: “Rule 2. Where the plaintiffs claim against a defendant is for an unliquidated demand only and the defendant fails to file for a defence to the claim, the Plaintiff may, after the expiration of this period, fixe by these rules for filing a defence, apply for leave to entre interlocutory judgment against the defendant for damages to be assessed and for cost, and proceed with the action against other defendants, if any”. Considering the counterclaims by the 3rd defendant against the plaintiff, same are unliquidated demands only. The 3rd defendant is seeking a declaration of title to the disputed land and among others the recovery of same from the plaintiff, which counterclaim had been vividly captured in the judgment. Order 13 Rule 4(1) of C. I. 47 the plaintiff but in this case (the defendant) applied to entre judgment for the possession of immovable property against the defendant (plaintiff in the case) and for cost and proceed with the action against other defendants, if any. It is my candid opinion that the 3rd defendant has duly complied with this order in this particular instance. It was held in the case of IN RE NUNGUA CHIEFTANCY AFFAIRS: ODAI AYIKU VRS ATTORNEY GENERAL (BORKETEY LAWEH XIV APPLICAT) [2010] SCGLR 413 at 424-425 that: …if a party served with the writ does not appear within the time limited for the appearance, the plaintiff may file on affidavit of service and that action may proceed as if such party has appeared. “... Proceed as if such party has appeared” means that the case be set down for hearing. The plaintiff must lead evidence in proof of his claims. See: CONCA ENGINEERING (GHANA) VRS MOSES [1984- 86] 2 GLR 319 CA It is, therefore, my considered view from the decided case that, because the claims of the 3rd defendant in his counterclaim are declaration of title and recovery of the disputed land from the plaintiff, the 3rd defendant has a duty under this rule of Court to lead evidence to proof his title to the disputed land as required by the law after the interlocutory judgment had been granted. The 3rd defendant was ordered to led evidence to proof his title to the disputed land as he claims The 3rd defendant filed his witness statement together with that of the 1st defendant pre- trial checklist and some exhibits and was led in evidence in court by their counsel to proof their title to the land in dispute in open court on the 15-05-2022. Exhibit 1, a copy of Ablolor land site of which the disputed land forms a little portion. Exhibit 2, a copy of defendant application to Environmental Health Department for permit of a cemetery and Exhibit 3, a copy approval of a cemetery from the Environmental Health Department. Counsel for the 1st and 3rd defendant led them evidence-in-chief on the 15-05-2022 and they tendered their witness statement as filed into evidence and tendered their Exhibit into evidence in proof of their title to the disputed land in open court. The two Defendant led evidence in line with their averments in their statement of defence. Focusing on the evidence of the 3rddefendant who described himself as Togbui Ablorlor VII a traditional ruler and an elder of Ablorlor family of Kpando Aloyi. He said Ablorlor family is made up of different families including; Tachie, Dzahene and Atta to which the Plaintiff and 1st defendant belong. He added as part of his averment that the Ablorlor family owns a large track of land near the Kpando Township known as “Avelele”. He said the said land shares boundaries with those depicted by the Plaintiff but says that the land in dispute is part of the large Ablorlor family land which measures 183.81 acres or 74.39 Hectres which shares boundaries on the North with Gbedi family property, on the North East with Togbui Gbor family property, on the South West with Kwamehene family property, on the South with Tatse Kwaku family property and on the West with Gbedi/ another’s Tsakpe Deveme family property as shown on exhibit 1. 3rd defendant stated further that he was informed about four years ago, that the plaintiff through the 1stdefendant wanted to work on the family land and pay the family through the produce from the land as the plaintiff wanted said land for family purpose only, to which plaintiff was entitled as one of them. It was his further evidence that in recent times the public cemetery at Aziave get filled up and their family was finding it difficult to easily bury the dead as they have to buy graves. So the family decided to explore the option of acquiring a private cemetery and so applied to the Environmental Health Department for one and same was approved and attached exhibit 2 and 3 to buttress his evidence for the cemetery, and has started burying their dead there. It was then the Plaintiff started a campaign of insults and vilification against the elders of the family with the support of some members of Atta family. Further evidence at the hearing was that the Plaintiff failed to honor his promise of sharing the farm produce since he started farming there and has even gone ahead the sink a borehole on the land without notice to them. So plaintiff started harassing and threatening them not to bury their dead there. Plaintiff then started laying unfounded claims to the said portion of land that it belongs to his Atta family alone. It was the evidence of the 3rd defendant that the larger land as in Exhibit 1 was founded by their ancestor Ablorlor who found the Aloyi Township and have several children who are the other constituent families as indicated earlier. Adding that the plaintiff’s denying that the land in dispute belongs to the larger Ablorlor family is a serious challenge to the interest of the larger Ablorlor family especially as he is being emboldened by other members of his own family with the exception of 1st defendant. In order to preserve the land for the future and unborn generation of Ablorlor family, he has to so ensure the preservation of this land. Concluding that the Ablorlor family or claim has demarcated a building plot for each member and the plaintiff has a member of Atta family is entitled to own that one building plot and so the plaintiff is to stop working on the remaining ten (10) acres that he is working on and prays for his counterclaim be granted to him against the plaintiff. The evidence of the 1st defendant was equally in line of his statement of defence as filed which was largely in support of the evidence of the 3rd defendant as stated earlier. Considering the provisions of the law as referred to earlier in Order 13 Rule 2 and Order 13 Rule 4(1) of C. I. 47 that allows the defendant to proceed in this case to proof his claim, I am therefore satisfied that the 1st and 3rd defendants have proven their title to the larger dispute land of which the plaintiff portion of land forms a part. I hereby declare title of the large family land as described in paragraph five (5) of the 3rd Defendants statement of defence and counterclaim as the bona fide property of the Ablorlor family land of Kpando Aloyi. I hereby also grant all their counterclaims as filed except their counterclaim: a. b. c. d. e. For the avoidance of doubt, it is hereby declared that, the land as described in paragraph 5 of the counterclaim is for the Ablorlor family of Kpando. It is declared that Atta family forms part and parcel of the larger family of Ablorlor and is entitled to benefit from the Ablorlor family land. The sinking of borehole on the disputed land by the plaintiff was without the consent of the head and elders of Ablorlor family. The Plaintiff herein is only entitled to one building plot of the Ablorlor family land. It is the Order of the Court that the 3rd defendant recovers all land that plaintiff is farming on and recover rent from the plaintiff over the period of farming on the land as agreed on before going onto the land to do so. f. The plaintiff and all persons traceable to him are hereby perpetually restrained from interfering with the Ablorlor family’s right to bury their dead on the Ablorlor family cemetery. Cost of Gh₵1,000.00 awarded against the Plaintiff for the Defendants. No damages awarded. FRANCIS ASONG OBUAJO CIRCUIT COURT JUDGE. 9/08/2022 15