ADAMTEY vs. SHARDEY (CONSOLIDATED) [1973]DLCA2348

Date	1973-07-18
Suit No.
Citation No.	[1973]DLCA2348

SOWAH JA

KINGSLEY-NYINAH JA

ANNAN J.A.

E. D. KOM FOR THE APPELLANT.

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENT.

[1973]DLCA2348
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													<main id="main" class="content" style="min-height: 60rem" >ADAMTEY <o:p></o:p>vs. <o:p></o:p>SHARDEY (CONSOLIDATED) <o:p></o:p>[COURT OF APPEAL,
ACCRA]<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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;[1973]
2 GLR 151<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:
18 JULY 1973.<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">

E. D. KOM FOR THE APPELLANT.<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">

SOWAH, KINGSLEY-NYINAH AND ANNAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.A.<o:p></o:p>This is
an appeal and cross-appeal from the judgment of the High Court, Accra, in which
it granted a declaration of title to a portion of land claimed by the
plaintiff, damages for trespass and an injunction restraining the defendant,
his agents and servants but dismissed the claim of the plaintiff for forfeiture
of the area occupied by the defendant. The parties will hereinafter be referred
to as the plaintiff and the defendant as both parties have appealed from the
decision.<o:p></o:p><o:p>&nbsp;</o:p>The
subject-matter of this dispute is a large piece of land situate at Somanya in
the Yilo Krobo State. The plaintiff contended that when the Krobos were driven
from their original abode in the Krobo Hills his great grandfather, called Narh
Kleki was the first to settle on the land in dispute. Since that first
settlement, the plaintiff’s family had been in continuous occupation and during
the period, had granted leave and licence to other families including the
defendant’s family to occupy portions of the land. The defendant’s family in
recent years has been encroaching upon land not allotted to them, has set up an
adverse claim to the plaintiff’s family’s title and also the defendant has been
erecting a building on the land outside his family’s grant. The defendant
claimed that his ancestor was the first to settle in the area and that the
plaintiffs family were subsequent arrivals; he denied that the area on which he
was building fell within the plaintiff’s land.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>It
appeared that the predecessors of the parties had about 1952 litigated
inconclusively over the area; thus in the course of the plaintiff’s
evidence-in-chief, the proceedings and judgment in the previous case were
tendered as exhibit A without objection from counsel. It ought to be added that
when a survey was ordered of the area, one of the survey instructions was that
the surveyor should from the inspection report delineate the area then in
dispute. After a review of the evidence before him, the learned High Court
judge concluded that the plaintiff’s ancestor was the first to settle on the
land and that the defendant’s family were later arrivals who were apportioned
land to settle on by the plaintiff’s family. He held further that the land was
an absolute gift to the defendant’s family and dismissed the claim for
forfeiture. The learned judge found that the small piece of land on which the
building was erected, that is, the immediate cause of action, was outside the
area granted to the defendant’s family and within the plaintiff’s land.<o:p></o:p><o:p>&nbsp;</o:p>Both the
plaintiff and the defendant immediately appealed against the findings and
numerous grounds of appeal were filed by the parties. In this court only one
ground of appeal has been urged and it is that the learned judge erred in
receiving the whole of the proceedings in exhibit A and placing reliance on the
said proceedings and the judgment inasmuch as the findings and judgment of the
native court were not confirmed on appeal by the High Court. The plaintiff in
exhibit A was non-suited. At the time, where a judgment merely non-suits a
plaintiff, he can bring a fresh action in respect of the subject matter against
the same defendant.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the defendant in this appeal argued that exhibit A was merely tendered in
these proceedings for the purpose of</main>