McDan, another slapped with GH¢6,000 cost in alleged trespassing case

The Court presided over by Justice Rita Abena Abrokwa Doko awarded the costs, following an oral application by Mr. Nii Akwei Bruce-Thompson, counsel for the plaintiff, Mr. Magnus A. L. De Souza, a businessman, for delaying the court process.

Lawyers for the defendants, Daniel McKorley and Joseph Nii Mensah Ashong failed to show up in Court on 4th July 2023, being the date set by the court for Mr. De Souza to present his evidence-in-chief, and for further cross-examination by lawyers for the defendants.

The Court allowed the plaintiff to give his evidence-in-chief which was later adopted, and the Judge instructed that the proceedings be served, on the lawyer for the defendants.

She set a new date for hearing on 20th July 2023.

On 20th July 2023, the lawyer for the defendants, Theophilus Donkor, filed an application, with the Registrar, at 8am on the same day, to cross examine Mr. De Souza.

The judge then adjourned the case, to 31st July 2023, to allow the defendants lawyer to proceed with the cross examination, of the plaintiff, Mr. De Souza.

At the hearing on 31st July 23, the lawyer for the defendants, claimed that his staff had wrongly entered the time, for the hearing on, 4th July 23, when Mr. De Souza gave his witness statement under oath, and objected to being marked absent.

The judge stated that, having been served, on the date and time of the hearing, they were absent, when the case was called and therefore the internal diaries, of the defendants’ lawyers’ firm were irrelevant.

Mr. Nii Akwei Bruce-Thompson, lawyer for Mr De Souza, prayed the court for a cost of GHC50,000.00, because Mr de Souza comes from abroad to attend the hearings.

He argued that since the case was filed in 2018, the defendants have never showed up in court but continued to file numerous vexatious applications to derail and delay the hearing and conclusion of the matter. Furthermore, the lawyers for the defendant have been absent at several hearings.

Lawyer Claudia Obeng, who was being led by lead counsel, Mr. Theophilius Donkor, prayed the court to reduce the cost to GHC 5,000. That was after Mr. Donkor has promised the court that his clients would show up in subsequent hearings. The Court subsequently awarded GHC 6,000 against the defendants.

Mr De Souza, in his evidence in chief claimed the defendants deployed land guards on the land to enable them to carry out the building on his land.

In his Witness Statement, he stated that “The defendants without my consent have trespassed unto the land, with Ashong wrongfully claiming ownership and selling same to the Mckorley who with the use of land guards has forcibly dug a foundation trench and is building on my land,” the witness said.

Mr De Souza had hithertoo sued Joseph Nii Mensah Ashong and Dr Mckorley for allegedly trespassing on his land.

However, the first defendant- Ashong, in his defence, has refuted the claim of the plaintiff, insisting that his late father acquired the disputed land in 1974 from the Nii Odoi Atsem family of La, and went into immediate possession after the acquisition.

The plaintiff, he contended, was a non-Ghanaian, and therefore acquiring an interest in the land for more than 50 years was unlawful and a violation of the Land Act, 2020 (Act 1036) and the 1992 Constitution.

He further added that he started construction on the land in 2000 but decided to pull it down to begin the current construction because of financial support from his partner.

“Neither the plaintiff nor his grantor has possessed the land in dispute, or entered or done anything on the disputed land for these years that they claim to have acquired the land. If the plaintiff or his grantor did have any interest in the disputed land, that cannot be the reality now as for the past 10 years they have not developed or exercised any act of possession on the land”, he added.

Led in evidence by his lawyer, on 4th July 23, Mr. Nii Akwei Bruce-Thompson, the plaintiff told the court, presided over by Justice Rita Abena Abrokwa Doko, that he acquired the land from one Professor David Kpakpo Acquaye.

He said the transaction was evidenced by a deed of assignment, dated November 8, 1995 between himself as assignee and Prof. Acquaye as assignor.

The said land, he said, had been plotted at the Lands Commission with No. AR/2667A/97, and that a search at the Lands Commission would confirm.

“David Kpakpo Acquaye was granted a 99-year Lease of the land by the Government of the Republic of Ghana and the document evidencing it is dated 25th March, 1977 and stamped as AC/11759/77 and registered at the Deeds Registry as No: 2425/1978”, he stated in his witness statement in court.

The plaintiff further noted that he had been in undisturbed possession of the fenced land since 1995., until the defendants allegedly trespassed.

The plaintiff further told the court that when Mr. Mckorley started developing the land, he sued the two defendants at the Land Division of the High Court, but the suit was initially dismissed because he had failed to endorse the writ with his foreign address. This was later rectified in a fresh suit. He stated that “I have maintained control of the land and in my absence Mr Kwesi Dzane-Selby had done so, and that the father of the first defendant (Ashong) has never been in possession”, he added.

It is also his case that the root of his title to the land could be traced to the Government of the Republic of Ghana by virtue of an acquisition of land made by the Colonial Government, under the Public Lands Ordinance Cap. 134, with title certificate dated September 1, 1944.

Mr De Souza further stated in his witness statement that the first defendant had claimed that his father had acquired the land from the Nii Odoi Atsem family of La, was false.

Justice Rita Abena Abrokwa Doko adjourned the case to 3rd November 2023.

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