BRUTUW vs. AFERIBA [1984]DLCA897

Date	1984-04-11
Suit No.
Citation No.	[1984]DLCA897

FRANCOIS JA

EDUSEI JA

MENSA BOISON J.A.

SHORT FOR THE APPELLANTS

EWUSI-WILSON FOR THE RESPONDENT.

[1984]DLCA897
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BRUTUW <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 25<o:p></o:p>

DATE:
11 APRIL 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;
padding:0in 0in 0in 0in">

SHORT FOR THE APPELLANTS <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>The late
John Sarbah begat an illustrious son, the lawyer, scholar and author, John
Mensah Sarbah. To make provision for his son and his wife Sarah Sarbah, John
Sarbah made a gift to them of land at a place called Yaayaakuano. It appears
the land comprised a contiguous parcel of two plots bisected by the Jukwa-Cape
Coast road. The perimeters of the land were identified by cement pillars
bearing the inscriptions J. M. S. and S. S. indicating the properties of John
Mensah Sarbah and Sarah Sarbah, respectively. These pillars were affixed along
a boundary of obar, onyinah and palm trees. There can hardly be any doubt
therefore, that disputes over the boundary must necessarily take cognisance of
both man-made fixtures which the cement pillars represent and the natural
features which the forest trees provide. The Sarbahs are no more, but the
property has descended to their descendants, the present defendants whose
occupation and ownership of the land is challenged by the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>It would
be convenient at this stage to relate the short history of the dispute between
the parties. Sometime in 1970, the plaintiff’s predecessor, the then head of
family, Kobina Amoasi, sued the defendants claiming damages for trespass and an
order for perpetual injunction. Though he pleaded that his ancestors had sold a
portion of the land to John Sarbah the plaintiff sought at the trial to deny
the sale and treat the nature of the transaction between the parties as a
pledge. This was rejected by the trial judge, the late Sampson Baidoo J. The
issue consequently turned on the extent of land acquired by Sarbah; the
plaintiffs contending it did not extend into Yaayaakuano village, the
defendants challenging the attempted abridgment of their interest.<o:p></o:p>From the
nature of the claim and relief sought, an issue of ownership of the land in
dispute was raised and the usual tests are to be applied to ascertain whether
the plaintiff had successfully discharged the onus cast on him. In a fully
reasoned judgment, the late Sampson Baidoo J. pronounced judgment in the defendants’
favour. Dissatisfied with that decision, the plaintiff appealed to the Court of
Appeal which found no difficulty in dismissing the appeal. Terse though that
judgment was, it covered the areas in issue so authoritatively that I make no
apology for reproducing it in full here. Jiagge J.A who delivered the judgment
of the court said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“We find
no merit in this appeal and we dismiss it. The appellant admitted the sale of
the land by his predecessors to the respondents’ predecessors. What was in
dispute was the extent of the land sold.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">There was
evidence before the court that there were boundary trees and concrete pillars
all along the boundaries of the area claimed by the respondents as what was
sold to their predecessors. An old culvert built on the land was also shown to
the surveyor. There was unchallenged evidence before the court that the pillars
were erected during the lifetime of S. Sarbah and that the boundary trees were
planted during the lifetime of J.M. Sarbah. Most of the tenants on the land held
their grants from the respondents’ family. The appellant was not able to
explain why these acts of ownership were not challenged earlier. The
plaintiffs-appellants were not even aware of the existence of some of the
pillars and the concrete culvert on the land. The learned trial judge found in
favour of the respondents and his judgment was supported by the evidence before
him. We confirm the said judgment and dismiss the appeal.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s third throw of the dice following this defeat, was to challenge the
two previous decisions in a fresh action in the High Court, Cape Coast charging
fraud. It was the success of that gambit which has led to this further appeal.<o:p></o:p>The
specie of fraud which the plaintiff urged as vitiating the judgments of Sampson
Baidoo J. and the </main>