JUDGMENT

On the 4th of September, 2014 the plaintiffs, suing as the lawful representatives of the Sunu Doe family of Sokode-Etoe near Ho in the Volta Region prayed this Court for the following reliefs;

An Order for declaration that any grant or alienation of the Plaintiffs' family land made by the Defendant is unlawful and same null and void.

An Order for perpetual injunction restraining the Defendant, his agents and assigns from dealing with The Plaintiffs land in anyway.

Cost including Solicitor's fee."

The plaintiffs sued the defendant who is said to be a member of the plaintiffs’ family. It has been alleged by the Plaintiffs that the defendant even though a member of the plaintiffs family has unilaterally been selling the family land without authorization from the larger family. The defendant, it has been alleged has agents who he has engaged and which agents go about selling the family land. The plaintiffs have used all means to restrain the defendant to no avail and so the plaintiffs have applied for an injunction to restrain the defendant from wantonly dissipating family land.

When the Writ was issued the defendant per his Solicitor Mr. Emile Atsu Agbakpe entered a conditional appearance on behalf of the defendant. Counsel, even though in the affidavit of the defendant alluded to several matters including the fact that the plaintiffs have no capacity to sue, counsel for the defendant never moved. I will therefore take it that the conditional appearance of the defendant is not a conditional appearance as the Motion/Application had been abandoned. But I see from the record that this court granted an interim injunction restraining the defendant, his agents, assigns, workmen and privies from unlawful acts of selling family land indiscriminately as the defendant's personal land. Even though counsel for the defendant never moved his Motion of conditional appearance the defendant entered appearance. In the relevant paragraphs of the defendant's Statement of Defence the defendant averred;

“5) In further denial, defendant says that he inherited a piece and parcel of land from his father which does not form part of Sunu family land at Adaklu Kodzobi.

6) Defendant says that this is the land which he disposes of and he needs not the consent of the plaintiffs so to do

8) Defendant in further denial would say that the plaintiffs have little knowledge about defendant's father's personal property hence in their ignorance labeled it as family property ----"

I had asked that the parties file witness statements. The plaintiffs filed. The defendant never did inspite of the ample time offered culminating in the numerous adjournments. Indeed, when this was so, this court allowed the plaintiffs to tender their witness statement and their pre trial check list. These the plaintiffs tendered. I should not have alluded to the statement of defence as filed by the defendant as I did but it has been said that it is better to stride on the side of caution in matters of legality and justice. In any case the issues that have been slated for discussion in this matter are these;

whether or not the defendant has dealt with the Plaintiffs’ land without their consent

whether or not the defendant's father's land is different from the plaintiffs family land at Adaklu-Kodzobi

whether or not the plaintiffs are the lawful representatives of the Sunu Doe's family of Sokode

whether or not the plaintiffs are entitled to their claim".

WHETHER OR NOT THE DEFENDANT HAS DEALT WITH THE PLAINTIFFS LAND WITHOUT THEIR CONSENT.

I can only answer this question by looking at the Statement of Claim as filed by the plaintiffs. I will also look in conjunction with their Statement of Claim, their Witness Statements as filed. The defendant's Statement of Defence will be ignored. This is because a statement of claim or defence is not evidence before a court. Evidence in any case or matter must be evidence given on oath. Today a witness statement has taken the place of the elaborate viva voce evidence because a witness statement is a sworn statement. In the instance, and for now, when a witness statement is tendered the only procedure left is the cross-examination of the party who has tendered the witness statement by the opponent. Since the defendant did not tender any witness statement and never attended Court to cross-examine the plaintiffs, it is taken that the plaintiffs statement is not denied. Amah v. Kai Fo (1959) GLR 23. Therefore in their witness statement the plaintiffs have conceded that the family per the plaintiffs recently decided to inspect the said Kodzobi lands since the plaintiffs had been given the title deed to the said parcel of land which had been fully registered by the Lands Commission Secretariat. The plaintiffs have identified their family lands as the Kodzobi Lands. This land, according to the plaintiffs is situate at Adaklu Kodzobi. Since the plaintiffs have testified that the defendant had granted portions of their family land to strangers who are developing same and this has not been denied by the defendant, the answer to this question is in the affirmative:

WHETHER OR NOT THE DEFENDANT'S FATHER'S LAND IS DIFFERENT FROM THE PLAINTIFFS' FAMILY LAND AT ADAKLU KODZOBI.

Once again the defendant did not provide evidence. Even though it is the burden of the plaintiffs to provide proof in matters of these nature, the plaintiffs have been able to do so in their witness statement. Indeed, the plaintiffs in their witness statement have averred;

**I know that the defendant's father and contrary to the defendant's assertion his father had no land at Kodzobi as his bona fide property. The defendant's father like any other member of the Sunu Doe family can farm on portions of the family land. However, such farming activities do not cloth a member with the authority to treat the land as his bona fide property."

The plaintiff's witness statement was signed on behalf of the plaintiffs by the 3rd plaintiff. And so on the authorities of Seraphim v. Amua-Sekyi (1971) 2 GLR 132, Nyaasemhiwe and another v. Afibiyesan (1975) 1 GLR 27, Kwaw v. Awortwi (1989/90 GLRD 21 and Ussher v. Kpanyinli II (1989/90) GLRD 69 on the burden on proof in land and Civil matters, the plaintiffs have been able to prove this question. And so the answer is in the affirmative.

WHETHER OR NOT THE PLAINTIFFS ARE THE LAWFUL REPRESENTATIVES OF THE SUNU DOE'S FAMILY OF SOKODE

It is trite that when the authority of a person to sue in a representative capacity is challenged, the onus is upon him to prove that he has been duly authorized. The person challenged cannot succeed on the merits without satisfying the court on that important preliminary issue. Since this assertion appeared as a preliminary issue, the defendant should have canvassed this issue from the beginning and this the defendant failed to do even though the defendant entered a conditional appearance. Kojo Mensah v. Alex D C (Land) 38 – 47 page 128, Youhana v. Abboud (1973) 1GLR 258 and Nyamekye v. Ansah (1989/90) GLRD 91. In this case the plaintiffs' Writ has been endorsed with the capacity in which they are proceeding in court and the 3rd plaintiff who swore to the witness statement on behalf of the plaintiffs testified as follows;

“That the family has mandated us the plaintiffs to be responsible for protection of the family lands and also to alienate, grant or sell the family's interest in the said lands with the consent of the members of the family ---- The family have since time immemorial have specific procedures by which family lands are given out or sold to strangers and the defendant as a member of the family is fully aware of the said procedure ---. That at a meeting of the other members of the family it was agreed that the plaintiffs take this Court action against the defendant so that he can be restrained by the Court from the unlawful sale of the family land and an order to restrain him from dealings with the land in any way ----"

And once again since there is no rebuttal coming from the defendant by way of evidence, this question is also answered in the affirmative. In the circumstances, I hereby offer judgment for the plaintiffs in respect of the reliefs prayed for in this court as they are entitled to their claims.

COST INCLUDING SOLICITOR'S FEES

The issue of costs is a discretionary exercise embarked upon by the Court but I wonder if Solicitor's fees are part of this discretionary exercise. It is trite learning that a court can mulct a party in costs if his conduct contributed to damages he or she suffered even though a Court has no discretion to totally take away the right for costs merely because the successful party has misconduct she or himself. Indeed the award of costs even though a discretionary exercise, it must be done judicially and a Superior Court can interfere in the award of Costs if the discretion has been exercised on material that was legitimate or violated some principles of substantive right. The onus however is on the appellant to show that the discretion had been wrongly used. Generally however costs are awarded at the end of a case and the award should reflect, (a) the industry put in the case by the person entitled to the costs (b) the number of adjournments and at whose instance (c) the travel to and from Court and the station of Counsel (d) to compensate a party by way of costs as a result of paying in full for his filing fees is a wrong use of discretion. Juxton-Smith v. KLM Dutch Airlines (2005 – 2006) SC GLR 438. And for the above, the cases of; Amponsah v. Wusu (Div. Courts) (1931 – 37) page 397, Asibey III v. Ayisi (1973) 1 GLR 102 C.A. and Republic v. National House of Chiefs, Kumasi and anor. Ex-parte Kusi-Apea (1984 – 86 2 GLR 90 are cases in point. Therefore, taking the whole circumstances of this case into consideration and the complexity of the issues involved which were not so complex after all, I award costs of GH€5,000.00 (Five Thousand Ghana Cedis) for the Plaintiffs against the Defendant.