YORMEWU vs. AWUTE AND OTHERS [1987]DLCA817

Date	1987-01-15
Suit No.
Citation No.	[1987]DLCA817

ABBAN JA

WUAKU JA

AMUA-SEKYI J.A.

APALOO (FOR AMARTEIFIO) FOR THE APPELLANT.

NO APPEARANCE BY OR FOR THE RESPONDENTS.

[1987]DLCA817
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													<main id="main" class="content" style="min-height: 60rem" >YORMEWU <o:p></o:p>vs. <o:p></o:p>AWUTE AND OTHERS <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 516<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 15
JANUARY 1987<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">

APALOO (FOR AMARTEIFIO) FOR THE APPELLANT. <o:p></o:p>

NO APPEARANCE BY OR FOR THE RESPONDENTS.<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, WUAKU AND AMUA-SEKYI JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF WUAKU J.A.<o:p></o:p>Wuaku J.
A. delivering the first judgment at the invitation of Abban JA. The appellant
(hereinafter referred to as the plaintiff) instituted the action against the
respondents (hereinafter referred to as the defendants) before the District
Court, Grade II, Keta. The plaintiff’s claim was for damages for trespass
against the first defendant who was later on joined by the other defendants on
their own application. After the plaintiff had closed his case, the defendants
who had a counterclaim abandoned it and submitted that the plaintiff had not
made any case against them. Counsel for the defendants therefore called no
evidence and addressed the court. After the addresses by counsel for the
parties, the magistrate reviewed the evidence led by the plaintiff and in his
judgment made the following pronouncement:<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">“If the
defendants have good title then they should prove it by evidence. They have
chosen to rebut the evidence of the plaintiff and his witnesses. Why have the
defendants abandoned their counterclaim? They have accepted the evidence of the
plaintiff’s witnesses as correct. There is no doubt that the plaintiff has
proved his case very ably. I give judgment for the plaintiff. The building
which the defendants put up on the land should be vested in the plaintiff.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendants were dissatisfied with the judgment and appealed to the High Court,
Ho where the appeal was allowed. The present appeal emanates from the judgment
of the High Court. Except for the present appeal, both parties to the suit had
counsel in the proceedings in the courts below.<o:p></o:p>According
to the plaintiff the disputed land was founded by Aklaza, maternal uncle of one
Humboa. Later Humboa succeeded to the property and after other ancestors had
inherited it, it devolved upon the plaintiff’s paternal grandmother, one
Ametowofokor, then to the plaintiff’s father. The plaintiff’s father had a mud
house on the land but the house had collapsed and the father had asked the
plaintiff to rebuild the house. The plaintiff had not rebuilt the house before
his father died, he had still not rebuilt it when the first defendant
trespassed onto part of the land. Cross-examination of the plaintiff showed
that it was when the first defendant started to build on his (the defendant’s)
grandmother’s land that the plaintiff alleged that the defendant took or
encroached upon, part of his land.<o:p></o:p>Before
this court, the following grounds of appeal were argued:<o:p></o:p>(a) That
the High Court judge erred in law and on the facts by holding that the
plaintiff failed to prove his case by not discharging the onus which lies on
him.<o:p></o:p>(b) The
learned High Court Judge misdirected himself and thereby fell in error in the
allocation of the burden of persuasion as provided by law in a civil case.<o:p></o:p>(c) The
learned High Court judge completely failed to consider the plaintiff’s case.<o:p></o:p>(d) That
the judgment of the learned High Court judge reversing the judgment of the
trial magistrate cannot be supported having regard to the evidence on record.<o:p></o:p>Before
going into the arguments advanced before this court, I reproduce hereinunder
the plaintiff’s claim as amended:<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">“The
plaintiff claims against the defendant the sum of N ¢100 being damages for
trespass committed by the defendant by entering upon the building plot of the
plaintiff at Anloga by three feet more or less without the knowledge and
consent of plaintiff. The land is all that piece or parcel of land situate,
lying and being at Anloga and bounded as follows: On one part, by the property
of Zodah and the second part, by the property of Kuetordu T</main>