Moses Vr Mesianyi [2022] GHADC 65 (7 December 2022)

IN THE DISTRICT COURT, KADJEBI IN THE OTI REGION OF THE REPUBLIC OF GHANA, HELD ON WEDNESDAY 07TH DAY OF DECEMBER, 2022 BEFORE H/W ERIC K. FIAMORDZI ESQ, MAGISTRATE Suit No: A9/05/2022 EGBLE MOSES OF MENU - PLAINTIFF VS KOTOR MESIANYI OF MENU - DEFENDANT Parties present. JUDGMENT The judgement herein originates from a writ of summons instituted by the plaintiff against the defendant as required by law that is Order 2 rule 3(6) of the District Court Rules, 2009, C. I 59, for the following reliefs: 1. An Order for immediate ejection of the defendant from occupying a portion of plaintiff’s building plot at Menu, which is bounded on two sides by the landed property of one Alidu and on the other two sides by the landed property of one Asarah. 2. Cost of the application. SUMMARY OF SUBJECT MATTER OF CLAIM Plaintiff is a farmer resident at Menu whiles defendant is also a farmer and a nephew to the plaintiff, and resident at Menu. Plaintiff states that, sometime ago, his (plaintiff’s) sister Gble Lena came to lodge with him at Menu, in the company of the defendant, who is her son, to stay with him on a portion of his (plaintiff’s) land. He continues that, for some time now the defendant has been using derogatory words against him. So, he later reported the conduct of the defendant to some elders, including the plaintiff’s vendor at Menu, but nothing has changed. All efforts to let the defendant give vacant possession of his land cannot succeed hence this action before the court for redress. Wherefore he (plaintiff) claims from the defendant as per the writ of summons. On the 29th day of April, 2022, the plea of the defendant was taken before the court, but he pleaded not liable to the reliefs of the plaintiff. As such, the court ordered the parties to file their witnesses’ statements and any relevant documents in relation to the subject matter in issue (that is the land). The parties complied with the orders of the court by filing their witness’s statements only. The statements filed were swapped between the parties on the 25th day of May, 2022. But due to some unforeseen circumstances, the evidence in chief of the plaintiff was taken/ heard on the 02nd day of September, 2022. The plaintiff relied on the witness statement filed in his evidence in chief on oath. Under cross examination by the defendant, the plaintiff stated that the defendant has been threatening to kill him verbally, so he harped on the need for the defendant to be ejected from the land, by an order of the court. He (plaintiff) added that the defendant has even ejected his own biological mother from the house because of the frequent threat on their lives. The plaintiff relied on a witness who happens to be his wife to establish his case. The witness of the plaintiff also relied on the witness statement she earlier filed. Under cross examination by the defendant, the Plaintiff’s first witness corroborated the evidence of the plaintiff that, the defendant has been threatening the plaintiff to kill him. She added that, the parties herein are not even in talking terms because of the frequent threats on the lives of the plaintiff and his children by the defendant, apart from the fact that they openly fought before. She (PW1) concluded that, the parties fought for some time now. The defendant was called upon to open his defence after the case of the plaintiff. He also relied on the witness statement he filed, in addition to two witnesses who also filed their witness’s statements. Under cross examination by the plaintiff, the defendant declared that he does not know the reason why the plaintiff has decided and is determined to eject him from the land on which they are all residing. He (defendant) denied ever threatening to kill the plaintiff, his wife (Pw1) and their children. The defendant denied that an elder of their area called Ntem has called or invited him over this matter and he refused to attend. He added in conclusion that, the land does not belong to either of his (defendant’s) parents, so he is ever ready to vacate same and relocate. Under cross examination by the plaintiff, the DW1 denied that she went to seek the consent of the plaintiff before moving to the land with the defendant where they have put up a dwelling place of abode. She maintained that, she went and sought the consent of their biological father, who is the owner of the land before putting up the building. According to the DW1, the defendant herein went for swish/clay which he processed /prepared and used for the construction of the building of the Plaintiff’s current residence without charging the plaintiff anything as workmanship. She added that all what the plaintiff did was to roof the building himself after which he moved inside. She explained that, the foundation trenches of the building were also dug by the plaintiff himself. The DW1 maintained that, their biological father is currently alive and so the plaintiff has no locus to eject her or her children from the now disputed parcel of the land over such fabricated pack of lies that the defendant has threatened to kill him. The plaintiff rather corroborated the fact that their father is alive currently. The DW1 told the court in conclusion that, she has moved from her current house to go and stay with her daughter who has put to bed, and not over any form of threats from the defendant. The DW2 told the court under cross examination by the plaintiff that, the DW1 initially lodged with him (DW2) before putting up her own building on the land. He (DW2) denied that he (DW2) and the defendant have ever raised cutlass against each other. He also denied in conclusion that he has ejected the defendant from his house. The issue(s) for the determination of this court are whether or not; 1. The defendant has threatened to kill the plaintiff, his wife and their children and or whether or not the plaintiff has the capacity to sue the defendant. 2. The defendant has the legal right to remain on the land. 3. The reliefs of the plaintiff should be endorsed by the court. In the case of Kwan V. Nyieni [1959] GLR, 67 CA and Nyamekye V. Ansah [1989-90] 2GLR 152, it has been held that “subject to some expectations, the general rule/ principle is that, it is only the head of family who can sue and be sued in respect of family property”. In the instant suit, the plaintiff has been unable to convince this that the land, subject matter in dispute belongs to him. This is because, he has admitted the claim/ point raised by the DW1 and DW2 that the subject matter in issue belongs to their biological father, who is even alive currently. It therefore implies that, the subject matter does not even yet fallen into the category of family property yet. The subject matter belongs to their father. As children of their father, who is alive both the Plaintiff, DW1, DW2, (who are biological children of their father) on one hand, and the defendant (who is a grandchild/ son to their father) on the other hand are all by law, permitted to enjoy the land by remaining on it, subject to good behavior. Both parties, especially, the plaintiff has been unable to convince this court that their father and grandfather who is currently alive, and who possibly is the head of their family is aware of the plaintiff’s action before the court, and has given his blessings. Otherwise, any of them (the parties) could have at least called him as witness. At least he must have been informed of the plaintiff’s action before this court. Besides that, the plaintiff has been unable to convince this court that the property (if it is a family property) is in danger, yet the head of family will, out of personal interest, or otherwise, not make a move to save or preserve same. Again, the plaintiff has been unable to state and convince this court that, there is a division in the family, or that he (plaintiff) is clothe with capacity to institute this action against the defendant herein. The plaintiff herein could have devised a very good way of going about the issue by causing a copy of the writ of summons to have been served on their father, who is the head of the family, in compliance with the High court (civil procedure) Rules, 2004, Order 4 rule 9(2) -(4). The plaintiff has filed the writ not on behalf of his family, but in his own personal name and accord. In the case of the Republic V. High Court, Accra, Ex parte Aryeetey (Ankra, Interested party, [2003- 2004] SCGLR 398, Cecilia H. Sowah, J. A stated, “Capacity is a point of law which is very fundamental and goes to the root of the action. Lack of Capacity to sue, would render the writ and subsequent proceedings null and void”. The Plaintiff herein, who has the burden to prove that indeed the defendant truly threatened him with death, has been unable to establish that fact. Issues of threat are not to be handled lightly but seriously by promptly reporting to the appropriate law enforcement agencies/ authorities. In the instant suit, the plaintiff has tried to make a case that even the DW1 and DW2 have all been threatened by the defendant. Both the DW1 and DW2 have all debunked that assertion by the plaintiff. Generally, the plaintiff might have made some investments on the land. But, that could not render him the absolute owner of the land, the subject matter in issue. The first relief of the plaintiff is “an order for immediate ejectment of the defendant from occupying a portion of plaintiff’s building plot at Menu…” In the case of Tetteh V. Hayford [2013] 43 MLRG, 85, Lamptey J. A (as he then was) held as follows “To succeed in an action for a declaration of title to land, a party must adduce evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title…” In the instant suit, apart from the fact that the plaintiff has been unable to adduce the evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title, he has also not been able to satisfy the “nemo dat quod non habet principle” when he sought to argue that the DW1 sought his consent before moving onto the land with the defendant. Clearly, the plaintiff has shifted or lost focus of why he is before the court; that is to lay or establish sufficient evidence to convince this court that the land he has described supra, belongs to him, and for which reason the defendant who has no right whatsoever to stay or remain on the land, must be ejected. From the evidence adduced before the court, the defendant is clear in his mind that he is maternally connected to the plaintiff and has not challenged him in respect of the subject matter before this court. So, the plaintiff cannot succeed on the weakness of the case of the defendant. It is his responsibility to convince the court on what he is claiming. From the evidence adduced before this court, the facts and the law, it is the candid decision of the court that the reliefs of the plaintiff cannot succeed and as such, must fall. He has no such capacity as in the case of Obaapanyin Adjoa Nyarkoa V. Kwabena Darko & 3 ors [2017] 113 GMJ, 215, C. A, to institute this action against the defendant. I award a cost of four thousand, five hundred and ninety Ghana Cedis (Gh₵4,590.00) against the plaintiff in favor of the defendant for instituting such a vexatious, frivolous and unsubstantiated writ against him (defendant). H/W ERIC K. FIAMORDZI (MAGISTRATE) 7