ABDILMASIH vs. AMARH [1972]DLCA2179

Date	1972-07-31
Suit No.
Citation No.	[1972]DLCA2179

APALOO JSC

BENTSI-ENCHILL J.S.C.

KINGSLEY-NYINAH J.A.

U. V. CAMPBELL FOR THE APPELLANT.

JONATHAN ARTHUR FOR THE RESPONDENT.

[1972]DLCA2179
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													<main id="main" class="content" style="min-height: 60rem" >ABDILMASIH <o:p></o:p>vs. <o:p></o:p>AMARH<o:p></o:p>&nbsp;[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;[1972] 2 GLR 414<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
31 JULY 1972.<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">

U. V. CAMPBELL FOR THE APPELLANT.<o:p></o:p>

JONATHAN ARTHUR 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">

APALOO AND BENTSI-ENCHILL JJ.S.C. AND KINGSLEY-NYINAH
J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>On 19
February 1957, a man called Adolphus Emmanuel Cogo Naih of Accra, conveyed to
the plaintiff, a piece of land said to be situate at Farnofah, North Adabraka,
Accra, in consideration of the sum of £G400 or ¢800.00. That land was said to
be bounded on the north by the property of a Mr. R. B. Okai on the south by the
vendor’s land on the east and west by Kwame Nkrumah Road and Nsawam Road
respectively. To the deed was attached a site plan which gives the dimensions
of the land as 200 feet on the north and south and 50 feet on the east and west
respectively. It is this land that is the subject-matter of the present suit.<o:p></o:p><o:p>&nbsp;</o:p>Just over
a year later, the self-same vendor, again by deed, conveyed to the plaintiff an
area just south of the land conveyed by the 1957 document for a like estate in
consideration of a further sum of £G400. The result of these two assurances,
was that the plaintiff became seised of an area of land measuring 200 feet on
the north and south and 100 feet on the east and west. The right of his vendor
to grant him these two plots of land was not questioned in these proceedings.
Indeed the plaintiff’s vendor was able to show a root of title dating back to
1919. It commenced with a deed of gift executed in favour of a Mr. Samuel
Abotchie Dsane by the then Korle priest on 28 January 1919 of an area 200 feet
by 200 feet. The latter appeared to have died intestate and on 14 December
1937, a Joseph Allotey as the lawful representative of the intestate’s family,
conveyed the plot to Erastus John Ashrifie and the aforesaid Adolphus Emmanuel
Gogo Naih jointly.<o:p></o:p>Ashrifie
died on 17 July 1954 intestate and Gogo Naih succeeded him in accordance with
custom and in that capacity and in his own right made the two conveyances of
1957 and 1958. Although the evidence shows that the plaintiff entered into
possession of these two plots, his possession has not always been peaceful. But
the plaintiff’s occupation of the land antedates the two grants made to him by
Gogo Naih. The reason for this is the familiar one that Gogo Naih was his
second vendor. The plaintiff bought the land at first from a Mr. Henry
Golightly in 1946 and on 15 June of that year, the latter executed a conveyance
in his favour. Golightly himself obtained his grant from the Otupai stool. This
stool was to be adjudged five years later to have no interest in the land and
to be incapable of making any valid grant of it. The title which Golightly
purported to transfer to the plaintiff was invalid but the plaintiff was
ignorant of this until he found himself in litigation with a Mr. Foud Zagloul.<o:p></o:p><o:p>&nbsp;</o:p>In 1956,
Zagloul relying on a lease granted him by the Korle stool and the Gbese Mantse,
trespassed on the land and erected a sign board on it. The plaintiff abated the
nuisance and had to answer a trespass suit at the instance of the said Zagloul.
On 25 March 1958, that action determined in the plaintiff’s favour as the said
lease was held to be invalid. It was during the pendency of this suit that the
plaintiff was to learn that the Golightly title derived from the Otupai stool
was not going to avail him. He therefore sought to do the obvious, namely,
perfect his title. It is this that led him to the second purchase of the land
from his immediate predecessor in-title, i.e. Gogo Naih. The person who put him
in touch with his vendor was the late E. B. Okai. According to the evidence, it
was the latter who persuaded the plaintiff that his title was invalid and that
he could only obtain good title to the land from Gogo Naih with whom Okai
claimed to have a common boundary. It is in evidence that Okai was himself
present when the first lot was demarcated for the plaintiff in 1957. The deed,
which was executed in favour of the plaintiff in 1957 to evidence the sale,
described the northern boundary of the land as bounded by the land of R. B.
Okai.<o:p></o:p><o:p>&nbsp;</o:p>The
latter was the father of E. B. Okai. T</main>