NII BOI vs. ADU [1964]DLSC1931

Date	1964-06-22
Suit No.
Citation No.	[1964]DLSC1931

MILLS-ODOI JSC

OLLENNU JSC

ACOLATSE J.S.C.

HAYFRON-BENJAMIN FOR THE APPELLANT.

A.W. ACQUAAH FOR THE RESPONDENT.

[1964]DLSC1931
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													<main id="main" class="content" style="min-height: 60rem" >NII BOI <o:p></o:p>vs. <o:p></o:p>ADU <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 410<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:
22 JUNE 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">

HAYFRON-BENJAMIN FOR THE APPELLANT.<o:p></o:p>

A.W. ACQUAAH FOR THE RESPONDENT.<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">

MILLS-ODOI, OLLENNU AND ACOLATSE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. This is an appeal from the judgment
of Adumua-Bossman J. (as he then was), given in the High Court, Accra, on 26
June 1961, which reversed a decision of the Accra East Local Court. The
original appellant, hereinafter called the plaintiff, died when the appeal was
pending in this court, and Mensah Nii Boi was substituted upon his application
for him, to prosecute the appeal.<o:p></o:p><o:p>&nbsp;</o:p>The claim
of the plaintiff is for a declaration of title and damages for trespass to, and
perpetual injunction in respect of a piece of land situate at Labadi. The
respondent, hereinafter called the defendant, counterclaimed for a declaration
of his title to and interim injunction in respect of the identical land.<o:p></o:p><o:p>&nbsp;</o:p>The land
in dispute is a portion of a section of Labadi land owned by a quarter known as
Abafum. By ancient grant which, according to one Edward Quaye, a 68-year-old
gentleman, second witness for the plaintiff, was made when he had not been
born, the Abafum quarter conveyed portion of their said land to the Basel
Mission, predecessors of the Presbyterian Church; the western boundary of the
land so granted was demarcated, and upon the said grant, the missionaries
erected pillars to mark the same; those pillars were described by the third
witness for the defendant as ancient pillars. Some time in 1925, the church
acquired a piece of land belonging to the defendant’s family, and in
replacement, gave him portion of the land granted to them by the Abafum
quarter. The defendant went into possession of the land given him in exchange
for his family land, built on portion of it, and planted a hedge of Neem trees
and Madras thorns to enclose an area which he claimed comprised his grant.<o:p></o:p><o:p>&nbsp;</o:p>In 1944
the Presbyterian Church who had then taken over the land of the Basel Mission,
had a plan made of the area granted to the church; they had the elders of the
Abafum quarter present at the survey to ensure that they kept within the
ancient boundaries. This conduct of the church complies with customary law. In
the course of the survey an additional pillar was erected along that ancient
boundary, at that part of it where the defendant’s land is. The plan exhibit B
in the case was made in consequence of that survey.<o:p></o:p><o:p>&nbsp;</o:p>In 1959
the Abafum quarter granted to the plaintiff a portion of their land which forms
boundary with the area granted to the church. The eastern boundary of the
plaintiff’s land therefore runs along the church’s ancient boundary with the
Abafum quarter, and cuts across the area fenced in by the defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant is an old man, and unfortunately blind; therefore although he
appeared to have been present at the trial, one Andrew Richard Adzei Ashong was
granted permission to represent him and to assist with exhibits which might be
tendered. After the close of the plaintiff’s case, the defendant took the oath
but did not give evidence himself, the said Andrew Richard Adzei Ashong
proceeded to speak as if it were the defendant giving evidence. The defendant
thereafter called four witnesses.<o:p></o:p><o:p>&nbsp;</o:p>After the
close of the case for the defence, the local magistrate inspected the area in
dispute, then heard an address on behalf of the defendant. In due time he
delivered judgment in favour of the plaintiff. He held inter alia that the
defendant was bound by the boundary of the land as shown by hi</main>