AHORGBA AGBODEKA & ORS v. HUNUA DAGLOHU APEDO

SOWAH, J.A:

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, 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.

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.

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.

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”

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”.

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.

On 26th July 2007, the defendant began his evidence in chief but as with the 1st plaintiff, the case was adjourned for con