OPANIN E. K. AGYARKWA & ORS v. JAMES FOLAGIN & ORS

KOTEY, JSC:-

Introduction

On the face of it, this case is an appeal from the judgment of the Court of Appeal, dated 23rd May, 2018. The case had actually commenced in 2008 when the Plaintiff/Appellant/Respondent (the Plaintiff) brought an action against the Defendant/Respondent/Appellant (the Defendant) claiming the following:

“Declaration of title to all that land situated and lying and being at Adamorobe on the Dodowa road containing an approximate area of 6 plots and bounded on the South by Accra-Oyibi main road on the East by the (Plaintiff’s) family land and on the North by (Plaintiff’s) family land and on the West by (Plaintiff’s) family land.

Damages for trespass

Recovery of possession

An order of perpetual injunction to restrain the (Defendant), his agents, privies, assigns and servants from entering into or in any way disturbing the (Plaintiff’s) family’s possession of the said land”.

The Defendant, who was the only Defendant in that action, entered appearance and, when he was not filing a Statement of Defence, the Plaintiff applied for judgment in default of defence. The Defendant subsequently filed his Statement of Defence. In this statement, the Defendant outlined that he had acquired the six (6) plots of land from the Mayawei family of Nungua. He also stated that upon acquiring the disputed land, “the Defendant” had built on the land “without led and hindrance” and has been living on the land for the past eight years. The Defendant counterclaimed as follows:

“General damages for trespass unto Defendant’s six (6) plots of land lying at Oyibi.

Injunction to restrain the Plaintiff from entering into Defendant’s land, threatening Defendant’s life and/or demolishing Defendant’s property;

Damaging for trespass;

Cost”.

Counsel for the Defendant was present at the Applications for Directions stage and directions was taken on 17th June, 2009. When counsel for the Defendant failed to attend court, hearing notice was served on him on two occasions. On 7th December 2009, Counsel for the Defendant wrote to the court, upon service of a hearing notice on him, that though it still represented the Defendant they had lost touch with him for about ten months and the hearing notice should be served on the Defendant personally. As the Defendant could not be traced, the Plaintiff was granted leave to serve the Defendant by substituted service and this was done.

Trial then commenced in the absence of the Defendant. The Plaintiff gave evidence and tender