YAW OFOSUHENE AND ANOTHER vs. KWABENA AGYABENG AND 7 OTHERS [2011]DLHC8520

Date	2011-06-29
Suit No.	SUIT NO C1\|148\|08
Citation No.	[2011]DLHC8520

HIS LORDSHIP JUSTICE JACOB B. BOON

ERNESTINA KUUKUWA ABRAHAM LED BY PAAPA DADSON FOR THE PLAINTIFFS

ERNEST OWUSU DAPAA FOR THE DEFENDANTS.

[2011]DLHC8520
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													<main id="main" class="content" style="min-height: 60rem" >YAW OFOSUHENE
AND ANOTHER<o:p></o:p>vs.<o:p></o:p>KWABENA AGYABENG AND 7 OTHERS<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO C1|148|08&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
29TH JUNE, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ERNESTINA
KUUKUWA ABRAHAM LED BY PAAPA DADSON FOR THE PLAINTIFFS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

ERNEST
OWUSU DAPAA FOR THE DEFENDANTS.&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>The plaintiffs/respondents, to be called the plaintiffs
hereafter, sued the defendants/applicants, hereafter to be referred to as the
defendants, claiming declaration of title to a 2.75acre piece of unnumbered
land commonly described and known as ‘AREA B’ situate and lying at Sepasi in
the Atwima District of Ashanti, damages for trespass and an order of perpetual
injunction. On 16th January, 2009, interlocutory judgment in default
of appearance was entered for the plaintiffs and the matter adjourned for
assessment of damages. The court further ordered hearing notices to be served
on the defendants by one publication in the Pioneer Newspaper. This was
accordingly published at page five of Friday, January 23, 2009 issue of the newspaper.<o:p></o:p><o:p>&nbsp;</o:p>On 2nd February, 2010 the 2nd
plaintiff led evidence for herself and the other plaintiff in proof of their
claim. Judgment was subsequently entered on the 25th of February,
2010 in their favour. After several failed attempts to serve the defendants
with the judgment, as depicted in a search report filed on 25th
February, 2011, the plaintiffs were again granted leave to serve the defendants
by substitution. Notices of the judgment were ordered to be posted on the
notice boards of Kumasi High Court, Kumasi Circuit Court and Ash-Town District
Court, and one publication of it in the Pioneer newspaper, which was
accordingly done in the March 18, 2011 issue. And as the plaintiffs were
desirous in executing the judgment in their favour, they instructed their
lawyer and he wrote to occupants of structures on the disputed land giving them
notice of their intention to go into execution and requesting them to yield
vacant possession of the property. The letter is exhibited by the defendants as
‘EG’. <o:p></o:p><o:p>&nbsp;</o:p>The defendants now claim they were shocked when they were
served with exhibit ‘EG’ because that was the first time their attention was
drawn to a suit respecting the disputed property. They, therefore, filed the instant
application praying the court to exercise its discretion by setting aside the
judgment entered for the plaintiffs, and grant them leave to put up their
defence so as to be heard on the merits of the case. According to them, they
acquired their various pieces of land from the Abuakwa Maakrohene and they are
at a place known and called Abuakwa Maakro North, Block H, and not at “AREA B” Sepasi, as claimed by the
plaintiffs. They further asserted that all the defendants have put up buildings
on the disputed land, the last one of which is now seven years old. They
expressed surprised that, for all this period, not a single process in respect
of the suit against them was posted on any of the buildings. They were of the
contention that the court was hoodwinked into granting the plaintiffs leave to
serve the various processes by substitution when they could have been
personally served as is the case of exhibit ‘EG’. Be that as it may, they
deposed that they do not read the Pioneer and are not frequent visitors to the
premises of Kumasi courts and could not have been expected to be aware of the
suit since the processes were published in and posted at those places
respectively.<o:p></o:p><o:p>&nbsp;</o:p>The motion was vehemently resisted by the plaintiffs.
Their case is that the matter proceeded in the normal course of the court rules
and practices which culminated in they leading evidence in proof of title to
the disputed property and assessment of damages made judicially; that the
processes were served through substitution because the defendants had all along
evaded service and they had no choice than to resort to other lawfully accepted
methods, at great costs and inconvenience, of putting defendants on notice of
the suit. They further deposed that it was untrue, particularly on the part of
the 8th Defendant, that they were not aware of plaintiffs’ action
when the search report of 11th April, 2008 showed that he was
personally served with the writ of summons and statement of claim, yet, he
failed and/or refused to file any process in the matter until now.<o:p></o:p><o:p>&nbsp;</o:p>They were also in denial that the defendants were
personally served with exhibit ‘EG’ as the recipients of it, who are occupants
of the disputed property, did not include any of the defendants.<o:p></o:p><o:p>&nbsp;</o:p>Finally, it was deposed for the plaintiffs that the
description they gave to the disputed property was accurate and same is
supported by documents.<o:p></o:p><o:p>&nbsp;</o:p>In arguing the motion, counsel for the defendants
referred to Order 10 rule 8 of the High Court (Civil Procedure) Rules, 2004, C</main>