Esoun and Another v Sika and Another (A1/26/23) [2025] GHACC 46 (27 June 2025)

IN THE CIRCUIT COURT OF GHANA HELD IN THE EASTERN REGION (NSAWAM) ON TUESDAY 27TH JUNE, 2025 BEFORE HER HONOUR MS. DIANA ADU-ANANE SUIT NO. A1/26/23 1. WILFRED ABEIKU ESOUN 2. YVONNE NANA OYE ESUON PLAINTIFFS VRS 1. ABOA SIKA (TRESPASSER) 2. KWESI YIRENKYI DEFENDANTS JUDGMENT 1ST PLAINTIFF- PRESENT AND REPRESENTING 2ND PLAINTIFF –ABSENT DEFENDANTS – ABSENT EUGENE AYITEY ESQ FOR THE PLAINTIFF The plaintiffs through their counsel caused a writ of summons to issue against the 1st defendant on the 7th of March 2023 claiming the following reliefs: i. A Declaration that plaintiffs are the current owners of ALL THAT PIECE OR PARCEL OF LAND lying and situate at Asuaba-Adeiso in the Upper West Akim Municipality in the Eastern Region of the Republic of Ghana , containing an approximate area of 33.94 Acres or 13.74 hectares and commencing from survey pillar SGE13692 20 1 to pillar SGE A3692 20 2 bearing 241 45 and measuring 900.0 feet, from survey pillar SGE A3692 20 2 to pillar SGE A3692 20 3 to pillar SGE A3692 20 4 bearing014 48 and measuring 241 45 measuring 847.0 and from survey pillar SGE A3692 20 3 to Pillar SGE A3622 20 6 bearing 01215 measuring 141.8 survey pillar SGE A3692 20 6 to survey pillar SEG A3692 20 7 BEARING 00647 bearings measuring 22.4 feet from survey pillar SGE A3692 20 5 to pillar SGE A 362 20 6 Bearing 01215 measuring 141.8 survey pillar SGE A3692 20 6 to survey pillar SGE A 3692 20 7 bearing 00647 measuring 198.9 feet from survey pillar SEG a3692 20 7 to pillar SEG A3692 20 8 to pillar SGE A3692 20 8 bearing 06628 measuring 700.6 feet, from survey pillar SGE A3692 20 8 to pillar SGE A3692 20 8 TO PILLAR SGE A3692 20 9 bearing 06628 bearing 06628 measuring 700.2 feet, survey pillar SGE A3692 20 10 bearing 16110 measuring 556.5 feet from survey pillar SGE A3692 20 10 to pillar SGE A3692 20 1 bearing 13454 measuring 196.2 feet more or less. Recovery of possession. An order of perpetual injunction to restrain defendant by himself, his servants, agents, assigns, workmen or however described from trespassing unto plaintiffs’ land. General damages for trespass. Cost. ii. iii. iv. v. The 1st defendant on the 14th of March 2023 through his counsel filed an entry of conditional appearance to the suit. The 1st defendant however failed to take steps to have the writ of summons or service of the writ of summons set aside; to declare that the writ or notice of the writ has not been served on the defendant and to discharge any order that gives leave to serve notice on the defendant outside the jurisdiction within the 14 days stipulated by Order 9 r 8 of the High Court (Civil Procedure) Rules, 2004, C. I 47. The conditional appearance thus metamorphosed into an unconditional appearance. See Amissah-Abadoo vrs Abadoo [1973] 1 GLR 490. In the absence of any defence, the plaintiffs seeking a declaratory relief on the 18th of April 2023 applied for directions to be taken. The plaintiffs were accordingly ordered to prove their claim. However, on the 21st of April 2023, another person by name Joseph Kweku Adzinyo through his counsel, same counsel for 1st defendant John K. A. Klu Esq. filed another Entry of Conditional Appearance. The said Joseph Kweku Azinyo who is not a party to the suit without leave of the court on the 26th of April 2023 filed a statement of defence. The said defence filed by a non-party and without leave of the court was struck out prompting the said Joseph Kweku Azinyo filing an application for relist claiming Aboa Sika is not his name. Also, in the absence of his defence, the plaintiff should have applied for judgment in default of defence. Therefore the court’s orders asking the plaintiff to prove his claim should be set aside. On the authority of The Republic vrs High Court, Winneba – Respondent; Exparte Professor Mawutor Avoke – Applicant and 1. Supi Kofi Kwayera, 2. University of Education, Winneba and 3. Minister of Education; Interested Parties; Unreported Civil Motion No. J5/45/2018; delivered on the 31st of October 2018, where the Supreme Court held that: “the settled practice of the courts is that a declaratory relief cannot be obtained by a motion in the cause but after hearing the parties either by way of legal argument or a full scale trial”, his application was dismissed. The plaintiffs then proceeded to prove their case as the 1st defendant failed to take the necessary steps to file a defence to the suit. The 1st defendant then proceeded to cross examine the plaintiffs on their claim since it is trite that the absence of defence on record does not prevent a party present from been heard. On the 9th of August 2023, the 2nd defendant through his counsel applied to join the suit and same was granted on the 19th of September 2023. Pursuant to the joinder application the plaintiffs on the 5th of October 2023 filed an amended writ of summons claiming the same reliefs. In the accompanying statement of claim, the plaintiffs averred that the 1st defendant is a trespasser who has trespassed unto plaintiffs land and asserting a rival claim to same. That the 2nd defendant claims to be the 1st defendant’s grantor and the current head of the Afua Offeibea Asona Family of Akropong at Asuaba. It was averred that the plaintiffs in the year 2020 jointly acquired the disputed land from Osagyefo Amoatia Ofori Panin with the consent and concurrence of the principal elders of Akim Abuakwa and had their interest duly registered. The plaintiffs claimed that there was no let, hinderance or adverse claims from any person(s) or quarter(s) at the time of purchase of the land until sometime in the year 2023 when plaintiffs visited the land and discovered that the 1st defendant was digging foundation on their land. That all attempts to warn the 1st defendant to desist from his acts of trespass has proved futile hence this suit. The 2nd defendant on the 26th of January 2024 filed a defence to plaintiffs amended writ of summons. In his defence, the 2nd defendant asserted that the 1st defendant is not a trespasser but lawfully acquired the land in 2017/2018 from the 2nd defendant’s family who are the lawful owners of the land. The 2nd defendant further averred that the disputed land has been the property of his family for centuries when his ancestor Afua Offeibea purchased about 100 acres of land including the disputed land from the Chief of Asamankese in the 1800s. That his family has been in effective possession farming cash crops on portions of the land and sold portions to others including the 1st defendant. Therefore, plaintiffs are not entitled to their claim. After series of adjournments at the instance of the defendants to have the matter amicably settled between the parties to no avail, continuation of hearing resumed on the 13th of February 2025 between the plaintiffs and the 2nd defendant. On the 5th of March 2025, Counsel for the defendants Frank Yankey Esq. intimated to the court that there has been a new development as the defendants have decided to give another land to the plaintiffs as replacement. The 2nd defendant himself told the court that: “When we met to settle the matter, the land we gave to the plaintiffs is the one the 1st defendant is occupying now, so we have agreed to give plaintiffs a different land. We have also accepted that where the 1st defendant currently occupies is for the plaintiffs”. Counsel for the plaintiffs in response stated that their position has always been that the land belongs to the plaintiffs and upon the defendants agreement, they would accept the replacement. The suit was adjourned severally for parties to file terms of settlement to that effect. On the 8th of May 2025, Counsel for plaintiffs informed the court that the 2nd defendants have failed to take advantage of the novel opportunity offered them to accept their replacement and keeps giving them stories upon stories occasioning them much expense, so they are no longer interested in the purported settlement. That the court should give judgment in their favour based on the 2nd defendant’s earlier admission that the land occupied by the 1st defendant belongs to the plaintiffs. An admission is defined by the Black’s Law Dictionary (7th Edition) as “a voluntary acknowledgement of the existence of facts relevant to an adversary’s case”. In the case of Samuel Okudzeto Ablakwa and Another vrs Jake Obetsebi Lamptey and Another [2013-2014] 1 SCGLR 16, the Supreme Court held that: “Where a matter is admitted, proof is dispensed with”. In such case, once it is established that there are unequivocal admissions, the other party in this case the plaintiffs are entitled to apply and truncate the full trial and take judgment on admission. See Michelleti Polla vrs Crabbe [1976] 1GLR 108. It must be noted that in the instant suit the plaintiffs claim was for of declaration to a larger parcel of land measuring an approximate area of 33.94 acres or 13.74 hectares and the 2nd defendant, the 1st defendant’s grantor’s admission was in respect of the portion of land occupied by the 1st defendant and not the entire land claimed by the plaintiffs. However, counsel for the plaintiffs chose to exercise his right to apply to truncate the full trial on grounds that the area in contention was the portion occupied by the 1st defendant and the remaining portions were not contested. It must also be noted that there was no counterclaim by the 2nd defendant. Taking a cue from the case of Armah vrs Addoquaye [1972] 1 GLR 109, where Anin Yeboah JA (as he then was) held in part that: “a plaintiff may move for judgment on admissions in the defence, at any stage in the action and notwithstanding that he has joined issues on the defence and given notice of trial”. Further, in the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by) Tafo Amon II vrs Akotia Oworsika III (substituted by) Laryea Ayiku III [2005-2006] SCGLR 637, 656: it was held that “where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admissions, which is an example of estoppel by conduct”. Consequently, judgment is entered for the plaintiffs on their reliefs in part as follows: i. Declaration that the plaintiffs are the owners of the parcel of land currently occupied by the 1st defendant and specifically described as lying and being at Asuaba in the Upper West Akim District in the Eastern Region and containing an approximate Area of 0.26 Acre or 0.10 Hectar more or less, and bounded on the NORTH WEST BY LAND MEASURING 70.5 feet or more or less on the NORTH –East Recovery of possession of the said portion of land from the 1st defendant. ii. An order of perpetual injunction to restraining the 1st defendant by himself, his servants, agents, assigns, workmen or however described from trespassing unto plaintiffs’ land. iii. General damages for trespass are assessed at GHC10,000.00 against defendants iv. by proposed road measuring 157.9 feet more or less on the south –west by land measuring 71.5 feet more or less on the south east by proposed road 158.0 feet more or less which piece or parcel of land. v. Cost of GHC 10,000.00 against defendants. (SGD) H/H DIANA ADU-ANANE CIRCUIT COURT JUDGE 7