GH - STEPHEN ARHIN v. MALLAM ABU

DENNIS ADJEI, J.A.:

This appeal emanates from the judgment of the High Court, Cape Coast which dismissed the plaintiff’s claim as unproved on 16th June, 2008. The plaintiff sued the defendant for:

“a. A declaration of title to all that piece or parcel of land at Kasoa-Odupong-Pkehe, sector 8 Block B and described as Plot No. 182, covering an approximate area of 0.30 acres and bounded by plot Nos. 180,181,184 and proposed road.

b. Recovery of possession of the said plot of land

c. Damages for trespass

d. Perpetual Injunction restraining the defendant, his agents, servants, workmen, assigns etc from interfering with the plaintiff’s title to the land and more particularly from continuing his trespassory etc”.

The defendant entered appearance and filed his statement of defence. Even though he denied being a trespasser he did not assert ownership to the disputed property. He pleaded further that the land is neither for him nor the plaintiff. The defendant did not take part in the hearing. The plaintiff gave evidence and tendered Exhibits but the trial High Court judge however held that he had failed to prove his title on the preponderance of probabilities. The plaintiff in his appeal raised seven (7) grounds of appeal. The grounds of appeal are as follows:

“a. The judgment is against the weight of evidence

b. The Judge with the greatest respect misdirected himself on the onus of proof required of the plaintiff and this occasioned a substantial miscarriage of justice

c. the learned trial Judge misunderstood the legal import of the deed of conveyance tendered with attachments which deed was registered and marked Exhibit ‘A”.

d. the learned Judge holding that Exhibit ‘A’ was forged, was unfounded as there was no evidence before him to that effect.

e. the Judge erred when he held that because reserved rent has not been paid, plaintiff could not assert title to the disputed land.

f. the Judge misdirected himself on the law of Declaration of Title when he held that the Declaration of the Title to the land is discretionary.

g. The Judge did not exercise his discretion fairly when he awarded cost against the plaintiff for the defendant”.

The defendant was served with Form 6, Plaintiff/Appellants written submission and hearing notice by substituted service. The defendant did not file any written submission and cannot participate in the hearing of the appeal except on the question of costs. Rule 20(8) of C.I. 19 provides that where a respondent does not fil