MACLEAN II AND ANOTHER vs. AKWEI II [1989]DLCA2278

Date	1989-05-04
Suit No.
Citation No.	[1989]DLCA2278

OSEI-HWERE JA

AMPIAH JA

LAMPTEY JJ.A.

DR. ACHAMPONG FOR THE APPELLANTS.

AGODZO FOR THE RESPONDENT.

[1989]DLCA2278
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													<main id="main" class="content" style="min-height: 60rem" >MACLEAN
II AND ANOTHER<o:p></o:p>vs.<o:p></o:p>AKWEI
II<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 54<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">

</div>COUNSEL:<o:p></o:p>DR.
ACHAMPONG FOR THE APPELLANTS.<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">

AGODZO
FOR THE RESPONDENT. <o:p></o:p>

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

</div>JUDGMENT
OF AMPIAH J.A.<o:p></o:p>The plaintiff-respondent
(hereinafter referred to as the plaintiff) took out a writ of summons as
Mankralo and Acting Sempe Mantse against the defendants-appellants (hereinafter
referred to as the defendants) for a declaration of title to a piece of land
situate at Odorkor. He also claimed damages for trespass and an order of
perpetual injunction to restrain the defendants, their agents and servants from
interfering with the plaintiff’s said stool land. The first defendant, the
Mantse of South Odorkor and Acting Akumajay Mantse, denied the claim by the
plaintiff and counterclaimed for a declaration of title to a land popularly
known as Opete Kpakpo. He also claimed for recovery of possession, damages for
trespass and an order of perpetual injunction against the plaintiff, his agents
and servants. The second defendant to whom a portion of the disputed land had
been sold denied the plaintiff’s claim and counterclaimed for damages, both
special and general.<o:p></o:p>On 28
March 1984, the learned trial judge of the High Court, Accra, dismissed the
counterclaims by the defendants and gave judgment for the plaintiff on his
claim but refused his claim (c), i.e. the claim of ¢5,000 being the value of
sand, stones, etc. allegedly removed from the land by the defendants and used for
their building. It is against this judgment that the defendants have appealed.
The defendants have filed about eleven grounds of appeal, the main one being
that the judgment was against the weight of the evidence.<o:p></o:p>Both
parties asked for a declaration of title in respect of the land they
respectively claimed. They both therefore assumed the burden of proving their
title. This is how the plaintiff described the boundaries of the land he was
claiming:<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">“On the
north by the Sempe stool land measuring 200 feet more or less, on the south
measuring 200 feet, on the east by the Vendors’ land or the Sempe stool land
measuring 300 feet more or less and on the west by a proposed road measuring
300 feet more or less and adjudged by the Ghana Court of Appeal to be the property
of the Sempe stool, that portion forming part of a larger size of the said
Sempe stool land.”<o:p></o:p>The first
defendant’s land which he referred to as the Opete Kpakpo land stretched from:<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 Oblongo Road northwards up to the Winneba Road and westwards up to Odorkor
south of the Winneba Road including the northern parts of Dansoman but limited
by the Oblongo Road.”<o:p></o:p>And, the
second defendant’s land was described as:<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">“. . .
all that piece and parcel of land lying and situate at Odorkor and bounded on
the north by a proposed road and measuring 200 feet more or less and bounded on
the south by a proposed road and measuring 200 feet more or less and bounded on
the east by a proposed road and measuring 300 feet more or less and bounded on
the west by a proposed road and measuring 300 feet more or less and covering an
approximate area of 1.30 acres more or less.”<o:p></o:p>The land
claimed by all the three persons is at Odorkor. A careful study of exhibits D
and 2 would show that it was the land contained in these two documents which
the second defendant claimed she bought first from the first defendant’s stool
and subsequently from the plaintiff’s stool. This piece of land is located on
both exhibits C and 5 and shaded pink. It is over this same land that the plaintiff
asked for a declaration of title. Therefore, even if the plaintiff were to
succeed he would only in law be entitled to the land described in his writ of
summons. Even though the plaintiff relied wholly on exhibit A, i.e. the
judgment of the Court of Appeal in Crabbe III v. Quaye; Crabbe III v. Boye;
Addico v. Akuffo (Consolidated), Court of Appeal, 31 July 1970, unreported and
the plan attached thereto (exhibit C), no title could have been decreed in his
favour in respect of exhibit C. The learned trial judge was therefore clearly
wrong when he gave judgment for the plaintiff and gave him title to “. . . the
whole of the land covered by the judgment, exhibit A, and by exhibit C, the
plan evidencing the title thereto of the Sempe stool.” And, he was wrong in
ordering perpetual injunction against the defendants and awarding damages for
trespass in respect of the whole area in exhibit C.<o:p></o:p>