MUSAH AND ANOTHER vs. TALI [1990]DLCA2280

Date	1990-07-19
Suit No.
Citation No.	[1990]DLCA2280

AMPIAH JA

ESSIEM JA

OFORI-BOATENG JJ.A.

IBRAHIM MAHAMA FOR THE APPELLANTS.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1990]DLCA2280
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													<main id="main" class="content" style="min-height: 60rem" >MUSAH
AND ANOTHER<o:p></o:p>vs.<o:p></o:p>TALI<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 47<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>IBRAHIM
MAHAMA 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">

NO
APPEARANCE BY OR FOR THE RESPONDENT. <o:p></o:p>

AMPIAH,
ESSIEM AND OFORI-BOATENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF AMPIAH J.A.<o:p></o:p>Ampiah
J.A. delivered the judgment of the court. The subject matter of this action is
a plot of land at Ward A Extension, Tamale, numbered 67. The parties claimed to
have obtained their grants from the Chorgu Na Mahama; the plaintiff’s in 1974
and the co-defendant’s in 1963. The plaintiff had his grant concurred in by the
Chairman of the Lands Commission on 11 March 1975. This is contained in a lease
tendered in evidence by the plaintiff and marked exhibit A. According to the
co-defendant however, his grant was in exchange for a plot No. 22. Even though
he did not have his grant concurred in by the Lands Commission, he had
documents from his grantor, and the Town and Country Planning Committee which
permitted him to build on the land. These documents were tendered in evidence
and marked as exhibits A, B, C, D, E and F.<o:p></o:p>There was
no dispute that this land formed a portion of land which originally was vested
in the Chorgu skin, and it has not been controverted that until the coming into
force of the Stool Lands (Northern Region) Instrument, 1963 (E.I. 109 of 1963)
the Chorgu Na had power to deal with the land. But since the coming into force
of the Administration of Lands Act, 1962 (Act 123) the administration
(management) of stool lands fell to be performed by the “Minister . . . to whom
functions under the Act are assigned by the President.”<o:p></o:p>The main
issue which arose for determination in the action was, which of the two
grantees had a better title to plot No. 67, Ward A Extension, Tamale. The
learned trial judge resolved the issue in favour of the plaintiff and
accordingly entered judgment for him. He dismissed the co-defendant’s claim.
The defendant and co-defendant have appealed against the judgment of the High
Court, Tamale on several grounds.<o:p></o:p>Apart
from ground 3 on the notice of appeal, the other grounds are dependent upon the
success or failure of ground 5 which is the gravamen of the appellants’
submission in this appeal. On ground 3, the appellants have argued that since
there was no evidence of any wrongdoing by the defendant before the trial
judge, the judge should not have non-suited the defendant.<o:p></o:p>The
defendant by her statement of defence had alleged that she had nothing to do
with the land and that it was her husband (Imoro Kanjarga) who owned the plot.
Imoro Kanjarga was subsequently joined in the action as a co-defendant. He
filed a statement of defence and counterclaimed similarly as the plaintiff. He
died in the course of the proceedings and was substituted by his daughter
Salamatu Lardi Imoro. It is true that Imoro Kanjarga claimed title to the plot
but both in his statement of claim and evidence the plaintiff alleged that it
was the defendant who had obtained it for her husband. In her evidence-in-chief
the defendant stated, among other things, that: “. . . when Chorgu Na granted
me the plot my late husband was then stationed at Cape Coast.” And, under
cross-examination she said further: ‘I went to the Chorgu Na about twice or
thrice . . . I built on the plot granted to my late husband. No, before I
started building on the plot the plaintiff never challenged me.”<o:p></o:p>These
pieces of evidence coming from the defendant were sufficient to connect the
defendant to the alleged trespass on the land; it did not matter that she was
not the actual owner of the land. Consequently, if it was found that the
defendant’s husband had committed trespass on the land, she would herself have
committed trespass also. Her insistence on the claim by her husband and her
various acts on the land were adverse to the claim by the plaintiff. Under
those circumstances, the learned trial judge would have been right in giving
judgment against her for trespass.<o:p></o:p>But the
most important issue for resolution in this appeal is who owns the land in
dispute. The appellants have contended that:<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">“Since the
land in dispute was granted to the co-defendant by the owner before the
Registrar of Skin Lands, i.e. the President, the trial judge was wrong in
holding that the plaintiff has title to the land in dispute.”<o:p></o:p>There is
no dispute as to the identity of the land in dispute. It is plot No. 67, Ward A
Extension, Tamale. It has also not been disputed that that plot is part of the
Chorgu skin lands at Tamale in the Northern Region of Ghana. There was an
attempt by the plaintiff to trace his title through the Chorgu Na. The
plaint</main>