SERAPHIM vs. AMUA-SEKYI [1971]DLCA2162

Date	1971-01-25
Suit No.
Citation No.	[1971]DLCA2162

AZU CRABBE JA

AMISSAH JA

ANIN J.A.

H.V.A. FRANKLIN (E. D. KOM AND DJAMSON WITH HIM) FOR THE APPELLANT

K. OHENE-AMPOFO FOR THE RESPONDENT.

[1971]DLCA2162
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													<main id="main" class="content" style="min-height: 60rem" >SERAPHIM <o:p></o:p>vs. <o:p></o:p>AMUA-SEKYI <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 132<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:
25 JANUARY 1971.<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">

H.V.A. FRANKLIN (E. D. KOM AND DJAMSON WITH HIM)
FOR THE APPELLANT.<o:p></o:p>

K. OHENE-AMPOFO 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">

AZU CRABBE, AMISSAH AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>This
appeal is from the judgment of the High Court, Accra, which Ollennu J. (as he
then was) delivered on 7 May 1962. By that judgment, the court dismissed a
claim by the appellant for recovery of possession and damages for trespass to
two plots of land said to be situate at Opete Kpakpo (Abossey Okai) and
sustained a counterclaim by the respondent for a declaration of title to a
portion of that land.<o:p></o:p><o:p>&nbsp;</o:p>The
parties derived title from two rival grantors, the appellant from the Akumadjey
stool, while the respondent obtained his from Korkoi Abossey who herself relied
on a deed of gift made in her favour by Nii Abossey Okai in October 1929. But
the parties themselves relied on deeds of conveyance, the appellant’s dating
back from 1947 while the respondent’s bore the date September 1960.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence shows that soon after obtaining the two plots of land in 1947, the
appellant caused them to be fenced. He then put a watchman in charge of them.
At some time before the writ issued, the respondent entered a portion of the
land, broke down the fence and commenced building operation on the land. It is
this conduct of the respondent which occasioned this litigation.<o:p></o:p><o:p>&nbsp;</o:p>In view
of the position taken up by the parties, it was necessary to decide as between
the rival grantors, who was the owner of the land and who thus had good right
to convey. But for the fact that the judgment of the court below was overlaid
with claims of customary possession and the like, the decision on title should
not have presented any problem. This is because the ownership of the whole of
the Opete Kpakpo lands has already been thrashed out between the rival grantors
and the courts have found squarely for the Akumadjey stool — the appellant’s
grantor. Indeed, at the date when Korkoi Abossey conveyed the land to the
respondent, there was a valid and subsisting order of the court restraining her
from dealing with the land (exhibit K).<o:p></o:p><o:p>&nbsp;</o:p>The
learned judge, however, was able to find for the respondent not on the purely
legal and sometimes unsatisfactory ground that the onus probandi was not
discharged, but on the ground that the respondent’s vendor had acquired a
usufructuary title which availed against the stool itself and that the
alienation of that interest by her was good and passed a good title to the
purchaser whereas a similar and earlier alienation of title by the stool — the
rightful owner — was void and of no effect. In order to be able to come to this
conclusion, the learned judge had to accept as proved a very tenuous evidence
of long uninterrupted possession averred by the respondent’s vendor Korkoi
Abossey. That evidence was a bare assertion that, “After the land was given to
me, I farmed it, grew cassava on it, planted palm trees, mango trees and cashew
trees on it and erected pillars on it, i.e. at the four corners thereof.” The
judge accepted this in preference to the more impressive evidence that the
appellant in 1947, fenced the whole land and at that date, it was unoccupied.
He then maintained his possession by keeping a watchman on it and it was when
the latter’s possession was invaded by the respondent that the present writ was
taken out.<o:p></o:p><o:p>&nbsp;</o:p>If I were
left to decide as to which of the </main>