AHORGBA AGBODEKA, YAOTSE AGBODEKA, EHI AGBODEKA AND KOETEY AGBODEKA, ALL OF WUDOABA-DETSIME vs. HUNUA DAGLOHU APEDO, ALL OF WUDOABA-DETSIME [2014]DLCA4465

AHORGBA AGBODEKA, YAOTSE AGBODEKA, EHI AGBODEKA AND KOETEY AGBODEKA, ALL OF WUDO... [2014]DLCA4465

Date	2014-06-05
Suit No.	Suit No: H1/232/2013
Citation No.	[2014]DLCA4465

ABBAN J. A. (PRESIDING)

ACQUAYE J.A

SOWAH J.A.

[2014]DLCA4465
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													<main id="main" class="content" style="min-height: 60rem" >AHORGBA AGBODEKA, YAOTSE AGBODEKA, EHI AGBODEKA AND KOETEY
AGBODEKA, ALL OF WUDOABA-DETSIME<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>HUNUA DAGLOHU APEDO, ALL OF WUDOABA-DETSIME<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

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

ABBAN
J. A. (PRESIDING), ACQUAYE J.A, SOWAH J.A.<o:p></o:p>

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

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0in;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>SOWAH,
J.A:<o:p></o:p>The salient facts
of this case on appeal are as follows: The plaintiffs /respondents [hereinafter
simply referred to as the respondents] took out a writ of summons at the High
Court,&nbsp; Denu, claiming against the
defendant/appellant for declaration of ownership of a piece of land situate at
Wudoabe-Dotsime and general damages for trespass. The case of the respondents' as
averred in their statement of claim was that the land in dispute which was in
their possession had been gifted to their grandfather Agbodeka by Togbui Aglor,
the grandfather of the defendant/appellants [hereinafter referred to as the
appellant]. The respondents' also pleaded a judgment rendered in favour of
their grandfather by the Native Court of Togbui Fiti III on 25th
January 1946. <o:p></o:p>The appellant filed
a statement of defence denying any gift of the land in dispute, or that Torgui
Aglor ever owned any land at Wudoabe. He asserted that the respondents'
ancestor was a fugitive who was given shelter by his grandfather. <o:p></o:p>After close of
pleadings, 7 issues and 5 additional issues were settled for trial. The trial
commenced on 25th July 2006 before Mr. Justice E. C. Azumah J. The
parties were not represented by counsel.<o:p></o:p>As gleaned from the
record of appeal, the 1st plaintiff Ahorgba Agbodeka testified in
chief and tendered without objection as exhibit ‘A’, the outcome of arbitration
before Torgbui Fiti. The defendant began his cross examination. However the
case was adjourned to 16th October 2006, in the words of the trial
judge, “to enable the parties to reflect
on the evidence adduced and personally to determine the appropriate question to
ask” <o:p></o:p>The Record is
silent on what transpired on the 16th October 2006, but shows that
on 30th October 2006, Torgbui Tormi was sworn in as “PW 2”. His
testimony ended abruptly with an adjournment to 6th December 2006 “for the witness to prepare his testimony”.<o:p></o:p>On 6th
June 2007, “PW1” was reminded of his oath and the record indicates that his
evidence in chief continued and he was cross-examined by the defendant. I think
it is safe to presume from all the surrounding circumstances that the reference
to Torgbui Tormi as PW2 in the proceedings of 16th October 2006 was
an error. The appellant who raises this point in his submissions is not able to
state that the respondent called any other witness apart from Torgbui Tormi.<o:p></o:p>On 26th
July 2007, the defendant began his evidence in chief but as with the 1st
plaintiff, the case was adjourned for continuation “to enable the witness organize his facts”. The record does not show
what happened on the adjourned date of 26th October 2007. On the
record therefore, the cross examination of the defendant was never completed.
However about a year later, on 7th July 2008 Koku Apedo was sworn as
DW1. He testified in chief, and the court noted that the plaintiff was absent
from court and adjourned the case to 18th July 2008 for cross
examination of DW1. [See page 30 of the record]<o:p></o:p>On 13th
May 2009, the record indicates that a new trial judge Justice F. Miezah
Anyimiah J adopted the proceedings with the consent of the parties. He noted
that the defendant had not been cross examined before he was made to call his
witness. Defendant was therefore recalled for cross examination by the
plaintiff. <o:p></o:p>The record further
shows that on that day, the plaintiff attempted to tender the judgment of Torgbui
Fiti lll’s court through the defendant. The trial judge was of the view that
the document ought to have been filed with copies served on the defendant and
the court. It is apparent from the Record at page 47 that the document was duly
filed and the defendant raised objections to its acceptance. The court notes of
19th June 2009 [page 49 of the Record] states:<o:p></o:p>“the plaintiffs inform the
court that the original document from which they made photocopies … is now lost,
so proceedings are to go on without the admission of that proceedings since the
defendant had expressed doubt about the document”.<o:p></o:p>The trial continued
with further cross examination of the defendant by the plaintiffs. Thereafter,
DW1 was also recalled for cross examination. Then DW2 Kofi Vormewor gave
evidence and was cross examined. The final witness was the courts witness to
the visit to the locus. The trial court delivered judgment on 21st
June 2010 to be found at pages 75 – 87 of the record. <o:p></o:p>The Notice of
appeal contained one ground of appeal, namely: &nbsp;The judgment is against the weight of
evidence. &nbsp;The following additional
gr</main>