BOTCHWAY vs. OKINE [1986]DLCA730

Date	1986-03-20
Suit No.
Citation No.	[1986]DLCA730

ABBAN JA

OSEI-HWERE J.A

AMPIAH J.

[1986]DLCA730
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													<main id="main" class="content" style="min-height: 60rem" >BOTCHWAY <o:p></o:p>vs. <o:p></o:p>OKINE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 1<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
20 MARCH 1986<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">

KWAME TETTEH 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">

ABBAN, OSEI-HWERE JJ.A. AND AMPIAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Osei-Hwere
J.A. delivered the first judgment at the invitation of Abban J.A. The legal
battle which was fought in the court below was essentially between the
plaintiff-appellant (hereinafter to be designated as the plaintiff). And the
co-defendant-respondent (also to be designated as the co-defendant). Although
the defendant-respondent (to be referred to as the defendant) was initially
drawn into the contest he faded out after he had filed his defence.<o:p></o:p><o:p>&nbsp;</o:p>By his
writ of summons the plaintiff sued the defendant and claimed against him certain
reliefs ranging from a declaration of title, through recovery of ¢449 as
arrears of rent and up to perpetual injunction. It was averred by the plaintiff
in his statement of claim that he acquired a parcel of land by customary grant
in 1963 for the Osu stool then occupied by Nii Dowuona V and that in 1967 he
obtained a formal deed of conveyance evidencing the coustomary grants from the
said stool. The conveyance was duly stamped and registered in the Deeds
Registry as No. 147/1974 on 23 January 1974. In 1964 he let the said land to
the defendant who later fell into arrears of rent. His complaint was also that
the defendant had refused to vacate his land in spite of repeated notices to
him to do so. He identified the land in the schedule of his statement of claim.<o:p></o:p><o:p>&nbsp;</o:p>Although
the defendant essayed to resist the claims those matters he pleaded in traverse
were necessarily consigned to the lumber room when he failed to appear in court
to defend them. Be that as it may, the co-defendant joined the suit and threw
down the gauntlet at the plaintiff. The defence which he filed specifically
denied paragraphs (1), (2), (3) and (4) of the statement of claim and put the
plaintiff to strict proof of the allegations contained in those paragraphs.
Paragraphs (2), (3) and (4) of his defence were pertinent, and I quote them
hereunder:<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">“(2) In
further answer to paragraph (2), the co-defendant says that he derives his
title from Nii Dowuona IV, the land having been granted to the co-defendant by
deed of conveyance dated 13 April 1961, and registered as No. 1827/1975. The
co-defendant further derives title from one Owusu Ansah by deed of conveyance
dated 31 December 1962. The plaintiff’s alleged grant by Nii Dowuona V to him
is therefore invalid and cannot confer any valid title to the land on the
plaintiff.<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">&nbsp;(3) In answer to paragraphs (5) of the
statement of claim the co-defendant says that the plaintiff had no title to the
land and could therefore not let same out to the defendant. (4) Paragraphs (6),
(7), (8) and (9) of the statement of claim are denied. In further answer to the
said paragraphs the co-defendant sued the defendant at the Circuit Court, Accra
for declaration of title, recovery of possession, damages for trespass and
perpetual injunction. The plaintiff knew of this suit whilst it was pending but
did nothing and judgment was entered against the defendant on 6 June 1972. The
suit No. is L 36/69. After the said judgment, the defendant pleaded with the
co-defendant to be allowed to operate his workshop on the land at a monthly
rent of twelve cedis and to attorn tenancy to the co-defendant. The plaintiff
is therefore estopped by his conduct from denying the co-defendant’s title to
the land in dispute.”<o:p></o:p><o:p>&nbsp;</o:p>He
claimed for title in respect of the land claimed by the plaintiff and, in
addition, pleaded estoppel against the plaintiff by reason of the judgment in
the case of Appiah v. Ayitey, suit No. 136/69.<o:p></o:p>The
plaintiff reacted by a bitter reply which I quote:<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">“(1) The
plaintiff joins issue with the co-defendant on his defence. (2) In reply to
paragraph (2) of the statement of defence, the plaintiff says that the
co-defendant’s so-called title is based on forged documents which, in law,
confer no title in the land in question on the co-defendant; the spurious claim
the co-defendant makes to th</main>