AYITEY vs. MANTEY [1984]DLCA888

Date	1984-12-18
Suit No.
Citation No.	[1984]DLCA888

FRANCOIS JA

EDUSEI JA

MENSA BOISON J.A.

P. A. ADJETEY FOR THE APPELLANT.

N. A. O. AMEGATCHER FOR THE RESPONDENT.

[1984]DLCA888
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AYITEY<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;[1984-86] 1 GLR 552<o:p></o:p>

DATE:
18 DECEMBER 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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P. A. ADJETEY FOR THE APPELLANT. <o:p></o:p>

N. A. O. AMEGATCHER 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;
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FRANCOIS, EDUSEI AND MENSA BOISON JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.A.<o:p></o:p>Located
somewhere in a suburb of Accra is Nmenmete, an area belonging to the Sempe
stool, and which for some whimsical reason is also known as Russia. It is in
Russia then, that the parties to this appeal are contesting legal title over
two plots of land.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff claimed that she and her husband in 1961 obtained customary grants of
five contiguous parcels of this land from the Sempe stool. She obtained two of
the plots and her husband three. Her husband built on his portion where they
presently reside and have resided for some considerable time to the knowledge
of the defendants. The plaintiff commenced a poultry venture on her part of the
land. This failed. She then turned to arable farming. These matters were
averred in her pleadings, as also the further fact that it was fifteen years
after her physical possession of the land that she noticed the intrusion of the
appellant thereon. The first defendant-appellant (hereinafter referred to as
the defendant) using the second defendant as a front proceeded to build on the
land and defied all warnings to desist. The institution of legal action to
vindicate her title was a natural consequence. The second defendant was
dismissed from the action by the trial judge and there will be no further
consideration of his liability.<o:p></o:p><o:p>&nbsp;</o:p>In
resisting the action the defendant asserted title to the land by virtue of “a
valid deed of conveyance from the Sempe stool.” This was his response to the
claim. That defence was never amended. But in an affidavit filed on 9 February
1976, the defendant disclosed that he had acquired his grant from one Modua
Abrahams in 1959. This gentleman was described as a caretaker for the Sempe
stool, who had granted the land “with the
knowledge, consent, concurrence and approval of the principal elders and
councillors of the Sempe stool as far back as in 1959.”<o:p></o:p><o:p>&nbsp;</o:p>An
affidavit filed in opposition to an application for injunction as this turned
out to be, has never been elevated into a valid statement of defence or
substituted therefor. Yet it was this alleged grant from Modua Abrahams that
figured prominently in the evidence proffered by the defence, and the grant
from the Sempe stool was played out in the lowest of possible low keys. In my
view, no lasting superstructure can be built on such shifting sands.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant pleaded acts of possession which consisted in long stretches of
farming activity on the land between 1959 and 1971, followed by a block-making
industry between 1971 and 1973, which culminated in his building operations on
the land between 1973 and 1975. It is obvious that if the extent of physical
activity deposed to by the rival parties affected the same parcel of land, and
neither had encountered the other till 1975, when the respondent agitated her
claim, then one party was projecting a very false story.<o:p></o:p><o:p>&nbsp;</o:p>In his
unqualified support of the plaintiff’s claim to a customary grant, the
accredited caretake</main>