AGYA BOAKYE ATONSAH PREMPEH vs ERIC OFEI KWARPONG & OR
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2018
AGYA BOAKYE ATONSAH PREMPEH - (Plaintiff/Appellant)
ERIC OFEI KWARPONG & OR - (Defendants/Respondents)

DATE:  1 ST FEBRUARY, 2018
CIVIL SUIT NO:  H1/70/2017
JUDGES:  M. OWUSU (J.A.) – PRESIDING, LOVELACE-JOHNSON (J.A.), KWOFIE (J.A.)
LAWYERS:  EKOW DADSON FOR PLAINTIFF/APPELLANT
W. ASIGBATSE FOR DEFENDANTS/RESPONDENTS
JUDGMENT

 

MARIAMA OWUSU, J.A.:

 

On 9/2/2016, the High Court, Land Division, Accra, dismissed Plaintiff’s claims as not proved and gave judgment for the Defendant on his counterclaim.

 

 

 

Dissatisfied with the decision of the High Court, the Plaintiff mounted this appeal on as many as seventeen grounds.

 

 

 

The relief sought from the Court of Appeal is that, the judgment in contention should be set aside and judgment should be given in favor of the Plaintiff/Appellant.

 

 

 

Before dealing with arguments advanced in support and against this appeal, I will give a brief background of the case.The Plaintiff/Appellant (hereinafter referred to as Plaintiff) by his writ of summons claims the following reliefs;

 

 

 

“Declaration of title to the land particularly described as:

 

All that piece or parcel of land situate and being at Adjirigano on the Accra-Tema Motorway and bounded on the North by Proposed Road measuring 98 feet more or less, on the North-East by Proposed Road measuring 50 feet more or less, on the South-East by Proposed Road measuring 30 feet more or less, on the East by Proposed Road measuring 70 feet, 135 feet and 70 feet respectively more or less on the South by Public Lane measuring 101 feet more or less on the North by Play Ground measuring 345 feet more or less and covering an approximate area of 1.03 Acres.

 

B. Declaration that the encroachment by Defendant is an act of trespass;

 

C. Removal of Defendant’s structure from Plaintiff’s Land;

 

D. Recovery of Possession of the land;

 

E. Damages for trespass;

 

F. Perpetual injunction to restrain the Defendant from further acts of trespass whether by himself, his agents, servants assigns or whatsoever from having anything to do with the land;

 

G. Costs.”

 

 

 

In the 21 paragraph Statement of Claim which accompanied the writ of summons, the Plaintiff averred that, he purchased a piece of land in 1991 from the Ashong Mlitse Family of the Odaitei Tse We of Teshie-Accra and a lease dated 1st January 2001 was executed between him and Seth Laryea Mensah, head and lawful representative of the said family. The Plaintiff averred further that, after execution of the lease, he conducted a search at the Lands Commission which revealed no encumbrance on the land. Thereafter, he visited the land regularly to make sure nobody encroaches on it. He continued that, six weeks after the last visit, he visited the land to find a developer had gone onto his land without his consent and was carrying out building operations on it. He told the workers to stop work but they did not heed to his advice.

 

 

 

He therefore caused his solicitors to institute the present action and filed an application for interlocutory injunction to stop those working on his land until the final determination of this suit. It is the case of the Plaintiff that, it was at the hearing of the application for interlocutory injunction that he was served with an Affidavit in Opposition by the Defendant. The Defendant, according to Plaintiff was prosecuted at the Circuit Court, Accra, for trespassing on this very land. He concluded that, on 4/8/2004, The Lands Commission wrote to the Defendant and two others, which letters were copied to him indicating that the grantors of Plaintiff were the legitimate owners of the land in dispute which land was inadvertently plotted for Defendant and the other two persons. The Defendant and his agents according to the Plaintiff are building so fast that unless restrained by the Court, they would change the character of the land hence this action.

 

 

 

The Defendant/Respondent (hereinafter referred to as Defendant) reacted to Plaintiff’s claim by filing his Statement of Defence and counterclaim denying Plaintiff’s claims and put the latter to strict proof of his averments. In particular, the Defendant averred that, by a High Court Decision of 17/11/2000 in the case of THEODORE ADJEI OSAE (DR) & 2 ORS V. NUUMO NORTEY ADJEIFIO & 2 ORS, the Osae Family was declared owners of land including the land in dispute. The Defendant continued that, he obtained a grant of the disputed land from the Osae Family on 2/2/2001 and his Indenture was stamped and registered at the Land Valuation Board as LVB 7487/2001 and AR/3961/2001. Subsequently, the Defendant continued, on 15/7/2005, the Court of Appeal affirmed the interest of the Osae Family in Suit No. CA 22/2001 titled THEODORE ADJEI OSAE (DR) & 2 ORS V. NUNMO NORTEY ADJEIFIO & 2 ORS. The Osae Family’s interest in the subject matter was finally and effectively declared by the Supreme Court on 7/5/2008 in Civil Appeal No. j4/22/2007 titled THEODORE ADJEI OSAE (DR) & 2 ORS. V. NUUMO NORTEY ADJEIFIO & 2 ORS. The Defendant denied carrying on illegal development on the land. He averred that, the Plaintiff lodged a complaint against him but subsequently abandoned the complaint. On the letter from the Lands Commission to him, the Defendant averred that, any claim by the Lands Commission that the disputed land is owned by the Plaintiff is inaccurate and have no legal basis. He concluded that, the building on the disputed land is already complete with an occupant in it and maintained that, the Plaintiff is not entitled to his claim.

 

 

 

The Defendant Therefore Counterclaimed for;

 

i) Declaration of title to All that piece of land situate, lying and being at New Otinshie-Accra and known as Plot No. 6 containing an approximate area of 0.33 Acre and bounded by the North Lime Street measuring 110 feet more or less on the East by a Road measuring a total distance of 120 feet more or less on the South by Plot No.2 measuring 130 feet more or less and on the West by Site for Nursery measuring 120 feet more or less.

 

ii) An order of perpetual injunction restraining Plaintiff, his servants, agents and workmen from setting foot on the land described above, and from doing anything inconsistent with Defendant’s ownership and quite enjoyment of same.

 

iii) General Damages for Trespass.

 

 

 

At the trial, the Plaintiff testified through his Attorney and called two witnesses. The Defendant also testified and called one witness. At the end of the trial Plaintiff’s claims were dismissed as not proved. The Defendant’s Counterclaim was upheld hence this appeal.

 

 

 

As stated supra, the Plaintiff filed as many as 17 grounds of appeal. They would be referred to as and when necessary.

 

 

 

In his Written submissions, counsel for the Plaintiff did indicate in the introductory remarks that, he will seek leave of the Court to file and argue additional grounds of appeal. Let me put it on record at this stage that no such additional grounds of appeal were filed and argued.

 

 

 

In arguing the appeal, counsel for the Plaintiff after referring to the Statement of Claim and Statement of Defence and Counterclaim, stated that, the land Plaintiff is laying claim to is different from Defendant’s land. This is because a look at the Defendant’s Counterclaim shows that his land is situate at New Otinshie, Accra, whilst the Plaintiff’s land is located at Adjirigano. In addition, the size of the land claimed by each party is also different. He then submitted on ground one of the appeal which states that the judgment is against the weight of evidence, that, CW1, the Surveyor, had admitted in his evidence that, a look at Exhibit CW2, the composite plan, the grantor of plaintiff’s land i.e. the land of Ashong Mlitse family is different from Nii Osae Family Land. Whilst conceding that the trial court is not bound by the opinion of the expert witness on a subject, counsel argued that, there is no other evidence to the contrary. Secondly, that the evidence of CW1 remains unchallenged on record. Therefore, the trial court ought to have applied this relevant piece of evidence to the core issue for determination. The trial court ought to have referred to any contradictory evidence on this issue which it relied on to grant judgment to the Defendant. According to counsel, there was no such indication or evidence advanced by the trial court. Consequently, the trial court erred on the identity of the lands claimed by the parties through their grantors and this occasioned a miscarriage of justice as the Plaintiff has always maintained the land he claims is located and situate at Adjringano and tendered Exhibit G to support this fact.

 

 

 

Additionally, the Plaintiff led unchallenged evidence to prove his possession, i.e. how he consistently visited and guarded the land. Thirdly, the Plaintiff led evidence which evidence was unchallenged that there was a demarcation of the boundaries by both parties. This counsel argued should have indicated to the court that the lands claimed by the parties fall at different locations. But more importantly, the Supreme Court judgment that the Defendant relied on was between Defendant’s grantor and another family and does not relate to the land in dispute. The Plaintiff’s grantor was not a party to that suit. Counsel for the Plaintiff concluded on this ground that all the evidence on record prove one thing and that is the Defendant is claiming land in a different location, that is Otinshie. Not to mention the evidence of PW1 which corroborated that of the Plaintiff. Counsel for the plaintiff then submitted that, the Defendant who alleged that his land falls within the land covered by the Supreme Court Judgment in favor of his grantor failed to prove same and only relied on his mere assertion.

 

 

 

The Defendant should have at least tendered a plan that plotted this land within the land covered by the judgment. This he failed do and his assertion should fail. Counsel also invited us to take note of the fact that the Plaintiff purchased his land in 1991 and has been in possession all this time until 2009 when the Defendant filed his counterclaim. This is a period of eighteen (18) years. Therefore, this brings Plaintiff within the protection of section 10 of the Limitations Act, 1972 (NRCD 54). Consequently, the Defendant’s counterclaim is statute barred and he is estopped from laying claim to the land in dispute as his interest has become extinguished. But more importantly counsel argued, the trial judge lacked jurisdiction to pronounce on the Banga. This proposition is founded in law as that case was not an issue before the court. Counsel referred to the case of GIHOC REFRIGERATION AND HOUSEHOLD PRODUCTS LTD V. HANNA ASSI, and submitted that, the trial judge descended into the arena of litigation and mounted a case for the Defendant when it rejected Exhibit H and the judgment contained in the Banga Case. From the forgoing, counsel for the Plaintiff submitted that, the Judgment is against the weight of evidence on record. He invited us to set aside the judgment of the High Court and enter judgment for the Plaintiff.

 

 

 

In response to the arguments canvassed in support of ground one of the appeal, counsel for the Defendant observed that, counsel for the Plaintiff spent a lot of time on the location of the disputed plot. Whether it is located at Otinshie or Adjringano. He then submitted that, the trial judge was right when he held that evidence of acquisition is not conclusive in determining the case. This is because, the disputed land falls outside the land declared by Plaintiff’s grantor as their own, especially since the Banga judgment the Plaintiff’s grantor relied on as their judgment plan, Exhibit H does not exist in law. The Plaintiff’s grantor in the Banga case never counterclaimed and no land was declared in their favor. Therefore, whether or not Plaintiff properly acquired the disputed land from the Ashong Mlitse family of Odaitei We or not, the disputed land never belonged to the Plaintiff’s grantors for them to have granted same to the Plaintiff. He concluded on this ground that the reasoning by the trial judge is correct and cannot be faulted.

 

 

 

In this appeal, the Plaintiff’s complaint in ground one of the appeal is that the judgment is against the evidence on record. Authorities abound that where an appellant complained that the judgment is against the weight of evidence, the appellate court would be under an obligation to go through the entire record of appeal to satisfy itself that a party’s case was more probable than not. Furthermore, the appellant has to demonstrate the lapses he is complaining about. See the case of OWUSU-DOMENA v AMOAH [2015-2016 ]1 SCGLR 790, 792, holding (2)

 

 

 

In his judgment, the trial judge on the identity of the land has this to say:

 

“From all intents and purposes, the Plaintiff’s grant was based on the judgment plan in respect of the BANGA V. DJANIE CASE. The plan was registered by the Plaintiff’s grantor because they believed that the judgment granted them title over the land litigated in that case.

 

That the judgment in the BANGA V. DJANIE case has been misapplied and abused by the Plaintiff’s grantor is an understatement. That judgment never declared the Plaintiff’s grantor’s title in lands litigated over. The Plaintiff’s grantor withdrew the counterclaim in that case and at the time of judgment, had no substantive claim…..

 

Since the reliefs of declaration of title and recovery of possession are substantive reliefs and legal in nature, they could not have been granted the land to the Defendant in the BANGA V. DJANIE case where no such reliefs were sought.”

 

 

 

So, the question is, what is the extent of land granted the Plaintiff’s grantor in the BANGA V. DJANIE case?

 

 

 

In his evidence in chief CW1 has this to say after tendering in evidence the composite plant Exhibit CE3.:

 

“Yes, I want to interpret what I have done.

 

The title of the case is AGYA BOAKYE ATONSAH PREMPEH V. ERIC OFEI KWAPONG, situate at Adjringano/Otinshie in the Greater Accra Region. Land shown to Surveyor by the Plaintiff is edged violet. The land shown to the Surveyor by the Defendant is edged yellow. Land shown on the site plan by the Plaintiff is edged magnata. The land shown on site plan by the Defendant is edged yellow again. It is the same as on his site plan. The land shown on the boundary plan of Nii Osae family of Otinshie is edged red. Land shown on boundary plan by Nii Ashong Mlitse family with Land registration number 56/9/1977 is edge green. Land shown on boundary plan of Nii Ashong Mlitse family is edged blue. They have two site plans but only one with a registration No. That is all”.

 

 

 

Under cross examination by counsel for the Plaintiff, CW1 said:

 

Q. The composite plan that you have tendered, EXHIBIT CE3 and shows an overlap of the land of the defendant’s

 

A. Yes.

 

Q. And the land in dispute is within this overlap?

 

A. Yes.

 

Q. In terms of the Plaintiff’s grantor the overlap is on the boundary plan that you have tendered as Exhibit B.

 

A. Yes”.

 

 

 

When counsel for the Defendant cross examined CW1, this is what transpired between the two.

 

Q. You have shown the Defendant’s grantor’s land on your composite plan, Exhibit CE3 as red.

 

A. Yes.

 

Q. Does the Defendant land edged yellow falls within his grantor’s boundary plan?

 

A. Yes.

 

Q. Does the site edged yellow which belongs to the Defendant falls within the Plaintiff’s grantor’s land?

 

A. NO (our emphasis)”.

 

 

 

Towards the end of his cross examination this is what this witness said.

 

Q. The number that you identified on the plan edged blue, is the same number as registration No. 6066/29/1977?

 

A. No.

 

Q. I put it to you that the number shown on the site edged blue on Exhibit CE3 is not a registered number.

 

A. Yes, it is not a registered number”.

 

 

 

From the cross examination quoted supra, the Defendant’s land does not fall within Plaintiff’s grantor’s land. This is significant, especially when this witness in his evidence said the Plaintiff’s grantor has got two different boundaries. One registered and the other not registered. This piece of evidence should be considered alongside the evidence of PW1, one of the heads of the Odaitei Tse We family who oversees Adjringano lands. He said their family registered their land in 1992 after they got Judgment. If that is the case, then the Plaintiff’s land edged blue with registration No. 6066/29/1977 cannot be the true reflection of the Plaintiff’s land. This is because, as at 1977 the Plaintiff’s grantor’s land has not been registered according to PW1, the family registered their land in 1992. He also said before then the family was not issuing documents to its grantees as it was litigating over the land in 1989.

 

 

 

The trial judge in his judgment on the identity of the land held that:

 

“By the evidence and the Exhibits tendered by CW1, the Plaintiff’s grantor has two different boundaries. When the plan registered under the Judgment of BANGA V. DJANEI is taken into account, the disputed land is overlapped by the land of the Plaintiff’s grantor. When the Statutory Declaration of the Plaintiff’s grantor is used alone however, the disputed land falls outside the purview of the land of the Plaintiff’s grantor. The Defendant’s grantor however maintained one site plan within which is located the land granted the Defendant and covered by the area in dispute.

 

I have held supra that that the Judgment plan of the Plaintiff’s grantor, Exhibit H was a nullity. In my view, their settled land is captured in their own Statutory Declaration, Exhibit 3. They were unable to establish title over lands beyond those defined in the Statutory Declaration. Grant of any such land is clearly without merit”.

 

 

 

The trial judge concluded on the identity of the disputed land thus:

 

“Based on the evidence and the survey report, I conclude that, whereas the Plaintiff’s land falls outside the established lands of his grantor, the Defendant’s land is within the boundaries of the lands of his grantor”.

 

 

 

We agree with the trial judge on the conclusion reached on the identity of the disputed land for the following reasons.

 

1. The Plaintiff’s grantor was not able to explain the existence of their two boundaries of the same land as captured in Exhibit CE2 and same must be held against them.

 

2. The Plaintiff’s grantor’s land is captured in their Statutory Declaration dated 1977. But according to PW1, when the family sold land it was not issuing out documents to its grantees since as at 1989, the family was litigating over their land, which dispute ended and the family registered its land in 1992. Therefore, Plaintiff’s grantor’s land even after the litigation, the dimensions or its extent should be the same as the one in its Statutory Declaration.

 

3. As rightly held by the trial judge, the BANGA V. DJANIE case never declared any land in favor of the Plaintiff’s grantor as the latter withdrew its counterclaim.

 

4. Contrary to the assertion by counsel for the Plaintiff, the trial judge relied on the Expert witness’s evidence and Exhibit CE2 as a guide to arrive at his decision.

 

 

 

From the forgoing, grounds 1, 6, 7, 12, and 17 of the appeal fail and they are hereby dismissed.

 

 

 

This brings us to ground 2 of the appeal which reads:

 

The trial court erred in law when it concluded that evidence on acquisition was not conclusive in determining the case.

 

 

 

The argument advance in support of this ground is that, the Plaintiff relied on a Judgment Plan Exhibit H and his grantors relied on both the Judgment Plan and the Statutory Declaration, Exhibit 1. Therefore, these two Exhibits or evidence proved the Plaintiff’s grantor’s larger land. To conclude that the evidence on acquisition was not conclusive was wrong in law, counsel for the plaintiff submitted. On the other hand, the Defendant failed to prove his mode of acquisition and root of title. He also did not tender any document or give oral evidence on how his grantor acquired the land but relied heavily on a Judgment which did not place his grantor’s land within Adjringano.

 

 

 

We have already held under ground one that the Plaintiff’s grantor was not able to explain the existence of its two boundaries of the same land and same should be held against it. Secondly, from the Plaintiff’s grantor’s own showing, it was not issuing documents to its grantees due to the fact that, it was litigating over the land. But more importantly, if the Plaintiff’s grantor does not own the disputed land, the evidence of acquisition by the plaintiff from his grantor would not advance his case. With respect to the Defendant relying on a judgment, what better proof can one offer than a Judgment. A judgment is a documentary proof par excellence. This is because, his grantor’s mode of acquisition, both oral and documentary was evaluated by the Highest Court of the Ghana, the Supreme Court. As held by our apex Court in the case of FOSUA & ADU-POKU V. DUFIE (DECEASED) & ADU-POKU MENSAH [2009] SCGLR 310, 311 holding (1):

 

“It was settled law that documentary evidence should prevail over oral evidence. Thus, where documents supported one party’s case as against the other, the court should consider whether the latter party was truthful but with faulty recollection….”

 

 

 

In the words of Atuguba JSC:

 

“Given the high evidential potency of documentary evidence in the eyes of the law, the trial judge should have given cogent reasons for doubting the veracity of Exhibit 2, being the undertaken given by the late Kwaku POKU….”

 

 

 

Ground 2 of the appeal has not been made out and it is accordingly dismissed.

 

 

 

This bring us to Ground 3 of the appeal which reads;

 

The trial judge erred in law when it concluded that the Defendant was in actual possession when the evidence on record shows that the possession was unlawful against which the Plaintiff/Appellant protested at all times.

 

 

 

The argument advanced in support of this ground is that, the defendant by his pleadings and evidence, said his developments on the land was active within the period of six months preceding the suit. Therefore, the most logical conclusion the trial court should have arrived at was that the Defendant went into unlawful possession of the land and developed same at a fast pace. Secondly, having taken vacant possession of the land in 1991, the Defendant’s counterclaim against the Plaintiff has been defeated as it is statute barred.

 

 

 

The above argument does not advance the Plaintiff’s appeal in anyway. This is because from the Plaintiff’s grantor, the Plaintiff acquired land from their family in 1991. But at that time the family was not issuing documents to its grantees but listed their names. The reason being that, the family was litigating over its land in 1989. Thereafter there was dispute in the family between 1994/95. PW1 also said what the family sold to the Plaintiff is within the land over which they obtained judgment but we have already come to the conclusion that, no land was declared in favor of the Plaintiff’s grantor’s family in the BANGA CASE as the latter withdrew its counterclaim in that case. This ground also fails and it is accordingly dismissed.

 

 

 

Grounds 4, 9 and 10 will be dealt with together as they relate to the Plaintiff’s grantor’s possession on the disputed land.

 

 

 

We have addressed this issue when we came to the conclusion that the Judgment in favor of the Defendant’s grantor confirmed the latter’s ownership of Otinshie Village and its environs. The Judgment of the Supreme Court considered the historical evidence of the parties’ grantors, possession, acquiescence and other related matters before coming to a final conclusion in that case, i.e. Civil Appeal No. J4/22/2007 titled THEODORE ADJEI OSAE (Dr.) & 2 Ors vs. NUUMO NORTEY ADJEIFIO & 2 Ors.

 

 

 

Grounds 4, 9, 10 and 16 have also not been made out and are hereby dismissed.

 

 

 

This brings us to Grounds 11 and 13.

 

 

 

Counsel for the Plaintiff’s complaint under these ground is that the trial judge misapplied the ratio deadendi and wrongly interpreted the Banga Case in relation to the Plaintiff’s case. We do not think so to the extent that the trial judge came to the conclusion that, the said case did not declare any land in favor of the Plaintiff. The Plaintiff’s grantor from its own showing said the extent of its land is captured in its Statutory Declaration dated 1977, Exhibit A. The Plaintiff’s grantor’s counterclaim was struck out as withdrawn in the Banga case. If the Plaintiff’s grantor testified to the effect that, the land it granted the Plaintiff is within that for which it obtained judgment, then the trial judge was right when he held that;

 

“That the judgment in the Banga Case has been misapplied and abused by the Plaintiff’s grantors is an understatement. That judgment never declared Plaintiff’s grantors’ title in the lands litigated over. The Plaintiff’s grantor withdrew the counterclaim in that case and at the time of judgment had no substantive claims….”.

 

 

 

After quoting holding 8 in the case of Gihoc Refrigeration and Household Products Ltd v. Jean Hanna Assi [2006] 1 MLR 99; [2005-6] SCGLR 458, the trial judge concluded on the effect of the said case as follows;

 

“Since the reliefs of declaration of title, and recovery of possession are substantive reliefs and legal in nature, they could not have been granted the Defendant in the Banga Case where no such reliefs were sought”.

 

 

 

The trial judge continued thus:

 

 

 

In the case of Empire Builders Ltd v Topkings Ent. Ltd (Suit No L94/99, dated 11th June 2003, at page 9), Brobbey JSC, sitting as an additional High Court Judge, explained the court’s decision in the Banga Case as follow:

 

“The fact that the Plaintiff lost the action did not mean automatically that what was lost to Plaintiff inured to the benefit of the Defendant…”

 

 

 

From the quotations supra, the trial judge properly interpreted and applied the decision in the Banga Case in relation to the Plaintiff’s case.

 

 

 

Grounds 11 and 13 fail and they are dismissed.

 

 

 

This brings us to Ground 5 of the appeal, which reads;

 

 

 

The trial judge erred grievously when it concluded that Plaintiff tendered a composite plan prepared by the court expert as exhibit B

 

 

 

The argument advanced in support of this ground is that it is clear from Exhibit B that Adjirigano and Otinshie are at two different locations or places. For the Defendant to claim land which lies at Adjirigano which does not intersect or overlap either on the ground or from the available documents which the court endorsed is wrong in law.

 

 

 

We have addressed this issue when we analyzed the submissions on ground one of the appeal. We will only add that the trial court ordered a composite plan to be drawn taking into account the respective site plans of the parties in addition to each party showing the extent of his land on the ground to the surveyor. CW1 in his evidence was emphatic that, the disputed land is within the Defendant’s grantor’s land. Consequently, the endorsement by the trial court that the disputed land is within the Defendant’s grantor’s land cannot be faulted. Secondly, the complaint by counsel for the Plaintiff that, the trial judge failed to support his conclusion with documentary and real evidence on record thus leading to miscarriage of justice has also not been made out. This is because the trial judge referred to the composite plan it ordered, the evidence of the Surveyor as well as the judgment of the Supreme Court in the case THEODORE ADJEI OSAE & ORS. (DR) v NUMO NORTEY ADJEIFIO & ORS. cited supra which judgment declared Otinshie village and its environ in favor of the Defendant’s grantor, The Osae Family. It is therefore not correct that the trial judge failed to support the conclusion he reached with any document and evidence on record.

 

 

 

There is no merit in Grounds 5 and 8 and they are accordingly dismissed.

 

 

 

This bring us to Ground 14 regarding the capacity of the Defendant vis-a-vis his counterclaim. The submission under this ground is that, having sold the land in dispute to a third party whilst the suit was pending, the Defendant divested himself of any interest in the land and therefore had no capacity to maintain his counterclaim.

 

 

 

Our short response is that, the Plaintiff sued the Defendant as the one who trespassed onto his land. The submission that the latter has divested himself of the disputed land was not raised in the course of the trial. No particulars were given as to the person the Defendant sold the land to. It is too late in the day to address this concern in the written submission. This ground also fails and it is hereby dismissed.

 

 

 

This leaves us with Ground 15. It states;

 

The learned trial Judge erred in law when in the face of overwhelming evidence that the grantors of the parties had jointly/together demarcated their boundaries, the Defendant was estopped from claiming land that his grantors had by their conduct acknowledged and accepted as part of Plaintiff’s grantor’s land.

 

 

 

The submission on this ground is that from the evidence on record, the grantors of the parties demarcated their boundaries. This means that, the grantors of the parties acknowledged the respective land of each other. Therefore, the trial Judge should have held that the land in dispute falls within Adjirigano which the Defendant’s grantor does not claim. To hold otherwise is wrong in law.

 

 

 

We addressed the issue whether the disputed land is located at Adjirigano or Otinshie in Ground one of the appeal. At the risk of sounding repetitive, we will quote the answers from the Surveyor, CW1 for emphasis when he was crossed examined by counsel for the Defendant.

 

Q. You have shown the defendant’s grantors land on your composite plan (Exhibit C.E. 3) as red?

 

A. Yes

 

Q. Does the defendant land edged yellow falls within his grantors boundary plan?

 

A. Yes.

 

Q. You have shown a site edged green which is the registered boundary of plaintiff’s grantor and registered as NO. 5629/1977?

 

A. Yes.

 

Q. Does the site edged yellow which belongs to the defendant falls within the plaintiff’s grantor’s land?

 

A. No.”

 

 

 

If the disputed land does not fall within Plaintiff’s grantor’s land which is at Adjirigano, then the disputed land can only be located at Otinshie which is where the Defendant’s grantor’s land is located. We have already commented on the existence of two boundaries by the Plaintiff’s grantor which the latter has not been able to explain. We do not intend to do same again.

 

 

 

From all of the forgoing, there is no merit in the appeal and it is hereby dismissed. The judgment of the High Court dated 9th of February, 2016, is hereby affirmed.