BARKO vs. MUSTAPHA AND ANOTHER [1964]DLSC1876

Date	1964-02-29
Suit No.
Citation No.	[1964]DLSC1876

SARKODEE-ADOO C.J

OLLENNU JSC

BLAY J.S.C.

T. A. NELSON-COFIE FOR THE APPELLANT.

A. W. ACQUAAH FOR THE RESPONDENTS.

[1964]DLSC1876
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													<main id="main" class="content" style="min-height: 60rem" >BARKO<o:p></o:p>&nbsp;vs. <o:p></o:p>MUSTAPHA AND ANOTHER <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 78<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
29 FEBRUARY 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

T. A. NELSON-COFIE FOR THE APPELLANT.<o:p></o:p>

A. W. ACQUAAH FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE-ADOO C.J., OLLENNU AND BLAY
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT SARKODEE-ADOO C.J.<o:p></o:p>The
appellant, hereinafter called the plaintiff, sued the first respondent,
hereinafter called the first defendant, in the High Court, Accra, and claimed
declaration of title, recovery of possession, damages for trespass and
perpetual injunction in respect of a piece of land situate at a place called
Sabon Zongo, in Accra. In paragraph (1) of her statement of claim she described
the land as “bounded on the North by Fati Yambon’s property, and on the South
by Kalimatu Barko’s property, on the East by a proposed road, and on the West
by Huseini’s property.”<o:p></o:p><o:p>&nbsp;</o:p>In
paragraphs (2) and (3) of her said statement of claim the plaintiff pleading
her root of title and her possession of the land said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(2) The
said piece or parcel of land forms part of a larger area known as the Sabon
Zongo land and was granted by a customary grant to the plaintiff by Malam
ldrisu Barko, the Serikin of Sabon Zongo, and successor of Malam Mohamed Barko
(deceased) the original owner of the Sabon Zongo land. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) After
the said grant the plaintiff went into possession of the land, erected a wooden
building thereon and has since been in occupation thereof”.<o:p></o:p><o:p>&nbsp;</o:p>And in
paragraph (4) thereof she pleaded that the defendant had taken possession of
and occupied the land, and fenced it in.<o:p></o:p><o:p>&nbsp;</o:p>The
second respondent, hereinafter called the second defendant, was joined during
the course of the trial when it was disclosed in the evidence of the first
witness for the plaintiff, brother of the plaintiff and the chief of Sabon
Zongo, that the first defendant’s entry upon the land to erect the fence was as
an agent of his son, the first defendant.<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant filed a defence to the plaintiff’s claim, asserting ownership of the
area fenced in, but did not counterclaim for declaration of title; that defence
was relied upon by the second defendant when he was joined as a party to the
suit. In that statement of defence, the defendants made a typographical mistake
which appeared to be a serious error, and the plaintiff was quick to take
advantage of it. Referring to a building his ancestor had on the land in
dispute which building was destroyed by the earthquake of 1939, and in place of
which the second defendant now has an unroofed building, the statement of
defence gave the number of the said house as B414/2 instead of B411/2. The
seriousness of the error lies in the fact that the number B414/2 is the number
of a building undisputedly owned by the plaintiff and standing on land
adjoining the area in dispute between the parties. Upon discovery of the error,
defence counsel applied for leave to amend; the application was however
vehemently opposed by counsel for the plaintiff creating the impression that
there was one and only one building on the land in dispute, that the said one
only building is numbered 414/2, and was in the possession of the plaintiff. It
appeared to the High Court at that stage that the parties were not ad idem as
to the building; the court therefore stood the case down and went with the
parties and counsel straight from court to the area and inspected the same. The
result of the inspection is set out in a record made by the court when it
resumed an hour later, and is summed up in the judgment of the High Court as
follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It was
at the inspection that the position was clarified that opposing counsel did not
refer to the one and the same house or premises, but rather to two distinct and
separate houses, occupation and possess</main>