MOUGANIE vs. YEMOH [1977]DLCA1365

Date	1977-07-12
Suit No.
Citation No.	[1977]DLCA1365

AMISSAH JA

JIAGGE JA

SOWAH J.A.

JOE REINDORF FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1977]DLCA1365
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													<main id="main" class="content" style="min-height: 60rem" >MOUGANIE <o:p></o:p>vs. <o:p></o:p>YEMOH <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]1 GLR 163<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:
12 JULY 1976<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">

JOE REINDORF FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF 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">

AMISSAH, JIAGGE AND SOWAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
principal issues in this case are issues of fact. Was the defendant granted the
land in question by the allodial owners before the plaintiff’s predecessors in
title were granted that land? Was the land granted to the plaintiff and his
predecessors the same as the land which has now been built on and fenced by the
defendant? The learned trial judge, Edusei J., found on these against the
plaintiff. Consequently he dismissed the plaintiff’s claim for an injunction to
restrain the defendant from trespassing on the plaintiff’s land. The plaintiff
appeals against this decision.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, a foreigner, claimed to be the owner of a piece of land in Labadi.
His claim depended on a number of transactions, which looked at cumulatively,
establish, according to him, his right to the land. First there was a deed of
conveyance executed on 11 December 1956 by which two brothers, Ziorkley and
Adisenu, sold a parcel of land to him. Neither Ziorkley nor Adisenu was an
original owner of that land. Both of them said they had bought it in 1953 from
the La Mantse Nii Adjei Onano V, and the conveyance for these transactions
dated 27 February 1953 in the case of Ziorkley and 18 September 1953 in the
case of Adisenu were exhibited. The plots of land so obtained lay side by side
and both fell within the lands of the Abafum quarter of Labadi. It is agreed
that as to such lands the proper grantors are not the La Mantse and his elders
but the head of the Abafum quarter and his elders. Presumably, Ziorkley had
heard after taking his conveyance from the La Mantse of this right inherent in
the Abafum quarter and he secured his title to the land granted to him by the
La Mantse through a deed of gift from Nii Ankamafio, the head of the Abafum
quarter dated 23 May 1953. The land granted by the Abafum quarter covered not
only that plot which had already been granted him by the La Mantse but also an
equally large piece lying due east of that. That land to the east was what
later on that year was covered by the conveyance from the La Mantse to
Ziorkley’s brother, Adisenu, referred to earlier. Thus the plaintiff traced his
root of title with respect to the part of the land he claimed to have bought
from the brothers, Ziorkley and Adisenu. The plaintiff also laid claim to a
piece of land adjoining these two plots which he said he obtained by way of a
lease dated 10 January 1958 from the La Mantse. <o:p></o:p>Some time
in 1965, the plaintiff said he observed the defendant trespassing on his land
and he instructed his solicitor on 22 November that year to write to the
defendant about it. If this were so, the defendant obviously paid no heed to
whatever warning the solicitor issued because the writ claiming an injunction
against trespass by the defendant, his servants and agents, was filed on 2
September 1966.<o:p></o:p><o:p>&nbsp;</o:p>The case
of the defendant, a man from Labadi, was that the land belonged to him. He had
been given it by customary grant as long ago as August 1942, by the Abafum
quarter of Labadi. An examination of the composite plan of the land
transactions in the area shows that the piece of land the defendant alleges to
have been so given him did not coincide in its boundaries with the plots which
the plaintiff claims to have gathered together. But the defendant’s claim
swallows up the whole of the piece of land which was said to have been given at
one time by the La Mantse to Adisenu. It takes up half the eastern half of the
land given by the La Mantse to Ziorkley and also a sizable portion of the piece
of land which the plaintiff claims to have himself leased from the La Mantse.
No document was made over the grant at the time. No document was to be made on
it for twenty years. The defendant said that upon the grant being made he went
into possession, put up pillars on the four corners and farmed on it regularly
until he left this country for an unexplained destination in 1953. Upon his
return in 1959, he saw no notice boards bearing the plaintiff’s name, his own
corner pillars were still there. Towards the end of 1964, the defendant says he
started building on the land and now has built on part of his plot, using the
other part for making cement blocks. A wall has been put around the whole plot
of land.<o:p></o:p>

Though
the defendant relies on the customary grant to justify his presence on the land
and though according to his story he had been on the land without challenge for
23 years and had started to build on it, somehow in 1965 he thought of
obtaining a document to evidence his title. And he obtained a deed of gift
covering the land from the La Mantse on 18 November 1965. That document did not
have the concurrence of the head of the Abafum quarter until 22 September 1966.
By that tim</main>