VANDERPUIJE vs. ADAM [1961]DLHC1383

Date	1961-11-27
Suit No.
Citation No.	[1961]DLHC1383

OLLENNU J

E. N. MOORE FOR THE PLAINTIFF-APPELLANT

P. F. O. ANTESON FOR THE DEFENDANT-RESPONDENT.

[1961]DLHC1383
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 733

DATE: 27TH NOVEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

E.
N. MOORE FOR THE PLAINTIFF-APPELLANT.

P.
F. O. ANTESON FOR THE DEFENDANT-RESPONDENT.

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OLLENNU, J.

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&nbsp;

By his writ issued in the Accra West Local Court, the
plaintiff-appellant claimed damages for trespass to a piece of land which is a
portion of land situate at Achimota. The plaintiff proved conclusively, both by
oral and documentary evidence that the said land was sold and conveyed to him
by one C. T. Quarcoo in 1940, that he was placed in possession upon the sale to
him, and that together with his vendor he fixed pillars at the four corners
thereof. He led evidence that the defendant-respondent came upon the adjoining
land a long time after he, the appellant, had been in possession of his land,
and later encroached upon his, the appellant’s land, by erecting a temporary
structure across the boundary extending some eight to nine feet into his land.
Evidence was led on behalf of the appellant that the respondent admitted in the
presence of witnesses that he had trespassed onto the appellant’s land. These
facts were not cross-examined to.

Again evidence was led on behalf of the appellant that all the
lands at Achimota belong to the appellant’s vendor’s family, the Quarcoo
family. Further evidence was led on behalf of the appellant that it was the
father of the appellant’s vendor who granted and conveyed the land in dispute
to the appellant’s vendor. There is no evidence to refute the allegation that
the Quarcoo family are the owners of the Achimota lands of which the land in
dispute is a portion, and until the sole witness for the respondent came into
the witness box, it was never alleged that some person other than the father of
the appellant’s vendor and members of the Quarcoo family had taken part in
demarcating the land to the appellant’s vendor. The local court magistrate
should therefore not have dismissed the evidence of the appellant and his
vendor so lightly.

By customary law, where a person is in possession of land in an
area and another person comes to acquire and occupy the adjoining land, the
boundary of the land of the person already in possession becomes the common
boundary between his land and the adjoining land which the new-comer occupies.
Again by customary law a person is not entitled to fix a boundary between his
land and an adjoining land in the absence of the owner or occupier of the
adjoining land. Consequently when a person goes on land, a new-comer to the
area, he cannot by his unilateral act bind a person he meets in occupation of
land by a boundary he fixes between the land he comes to occupy and that
already occupied by the one he meets.

According to the respondent himself he fixed iron rods at two
corners to form a common boundary between his land and the appellant’s land. He
fixed them in the absence of the appellant and his vendor. That act of his is
wrong; the law does not permit him to do so. On the contrary, he has to accept
the boundary of the land as executed before he went on the land unless the
person already in possession agreed with him to fix a new one.

The local court magistrate stated that the appellant had said that
he erected his corner pillars only four years ago. In this respect he
misdirected himself. The evidence both of the appellant and his vendor P.W. 3
is that pillars at the four corners of the appellant’s land were fixed at the
time of the sale, which according to the conveyance exhibit A was made in 1940.

The local court magistrate gave judgment against the appellant on
the grounds that iron rods fixed by the respondent must be deemed to mark the
common boundary between the parties. In this he misdirected himself. Since at
the time the respondent went upon the land, the area adjoining the land he
acquired was in possession of someone, the boundary of the person already in
possession must customarily be deemed to be the common boundary between the two
lands. Such a boundary, as pointed out, cannot be altered except by the joint
act of the owners of those two adjoining pieces of lands. The local court
magistrate therefore erred in rejecting the appellant’s boundary.

Again since the witness for the respondent is not a member of the
Quarcoo family, the owners of the land, and since there is no evidence to prove
how he, the stranger, came to demarcate a portion of the Quarcoo family land to
a member of that family, the local court should not have preferred his confused
evidence to that of the vendor, P.W. 3, a member of the family. Even P.W. 2 the
headman of Achimota himself said that it was Quarcoo, and other elders who
appointed him headman of the village. He further said that when the respondent
was served with the writ of summons in this case and he brought th</main>