BAAKO vs. TOURE [1993]DLCA4322

Date	1993-01-28
Suit No.
Citation No.	[1993]DLCA4322

AMUAH JA

ADJABENG JA

LUTTERODT JA

ENOCH KOM FOR THE APPELLANT.

JOE GHARTEY (WITH HIM EFUA DICKSON) FOR THE RESPONDENT.

[1993]DLCA4322
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													<main id="main" class="content" style="min-height: 60rem" >BAAKO<o:p></o:p>vs.<o:p></o:p>TOURE<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

[1992-93] 2 G B R&nbsp; 831 – 838&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 28 JANUARY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ENOCH
KOM FOR THE APPELLANT.<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">

JOE
GHARTEY (WITH HIM EFUA DICKSON) FOR THE RESPONDENT.<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 1.0pt 0in">

AMUAH
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>ADJABENG
JA. On 5 March 1975, one Malam Osumanu Baako now deceased, caused a writ of
summons to be issued against Abdulai Toure, the appellant in this appeal, at
the High Court Accra. The reliefs claimed in the said action are for a
declaration of title to and recovery of possession of all that piece or parcel
of land situate and lying at Zabon Zongo, Accra the boundaries of which have
been described in a schedule to the writ; perpetual injunction; and ¢3,500
damages for trespass.<o:p></o:p>In
his accompanying statement of claim, which was later amended, the said Malam
Osumanu Baako traced his root of title to a customary grant made to him by one
Malam Baako in 1925. According to him the said Malam Baako was granted the
Zabon Zongo lands, part of which is the land in dispute, by Nii Kojo Ababio IV
of James Town in 1909 for the settlement of the Hausa community. It was averred
that Malam Baako’s title to the Zabon Zongo lands was confirmed by this court
in its judgment in Civil Appeal No 72/69 entitled Malam Idrisu Baako v Ebenezer
Kwesi Djan. That judgment was dated 13 July 1970.<o:p></o:p>It
was also the case of the plaintiff, Malam Osumanu Baako, that when he obtained
his grant of the land in dispute from Malam Baako, he entered into possession
thereof and constructed thereon in 1925 a wooden structure which was numbered B
495/2; that in or about 1966 the appellant approached him for land to build a
two-room house to stay in as he had been ejected from where he had been staying.
It seems that because of his relationship with the respondent’s family, in that
he was married to a member of the family, the appellant was allowed by the
respondent to build on the land in dispute. The understanding was that after
staying in the house for some time to enable him recover his cost of building
the house the appellant would enter into a tenancy agreement with the
respondent and then start paying rent to the respondent for his occupation of
the land. The appellant refused to comply with this understanding. The
respondent therefore asked him to remove his structure from the land. The
appellant refused hence this action.<o:p></o:p>The
appellant completely denied the respondent’s claim. His defence was that he got
the land by purchase from the Ablorh Mills family and not from the respondent
as the latter claimed. He tendered in evidence a document to support his
contention.<o:p></o:p>Before
the actual trial of the case started the plaintiff, Malam Osumanu Baako died.
He was substituted by his brother Malam Gambo Baako, the respondent. It became
necessary also in view of the pleadings that a surveyor be appointed by the
court to survey and produce a plan of the land in dispute.<o:p></o:p>From
the evidence adduced by the surveyor, CW1, the parties and the respondent’s
witnesses (the appellant called no witness), it is crystal clear that the land
in dispute falls within the Zabon Zongo lands granted to the late Malam Baako
in 1909 for settlement by the Hausa community. The following cross-examination
of the appellant clearly demonstrates this:<o:p></o:p>“Q&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
You know that your land lies within Zabon Zongo which belongs to the
Baako family?<o:p></o:p>A&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The people gave me the land gave me a
document.<o:p></o:p>Q&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; You know it is within Zabon Zongo?<o:p></o:p>A&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; I know it is within Zabon Zongo.”<o:p></o:p>Another
important piece of evidence adduced by the respondent can be found in the
judgment of this court, pleaded and tendered in evidence by the respondent.
That is exhibit D. It is clear from this judgment that a predecessor-in-title
of the appellant’s alleged vendors had in an earlier litigation in 1948
admitted the title of the late Malam Baako to the Zabon Zongo lands of which
the land now in dispute is part. The court therefore held in that case that the
appellant’s alleged vendors, Emma and Helena Mills, were bound by this evidence
of their late brother and predecessor-in-title Joseph William Blankson-Mills.<o:p></o:p>There
was also evidence that the wooden structure which the original respondent Malam
Osumanu Baako had made on the land in dispute was still in existence at the
time the surveyor and the trial court in this case visited the land: see the
evidence of CW 2 and the court plans, exhibits B and C.<o:p></o:p>Convinced
by these and other pieces of evidence, the trial judge entered judgment for the
respondent and granted all the reliefs he claimed.<o:p></o:p>Even
though the trial judge refused to grant to the appellant leave to amend his
statement of defence to plead laches, acquiescence and relief under Act 2
because he thought the application came too late in the day as it was made
after the parties had closed their respective cases, yet the judge in his
judgment considered these matters which were raised in the addresses and
rejected the appellant’s plea.<o:p></o:p>Dissatisfied
with the judgment of the court the appellant appealed to this court. Two
grounds of appeal were filed and argued. They are as follows:<o:p></o:p>“1. The trial judge erred in refusing
the appellant leave to amend his pleadings to raise Land Development
(Protection of Purchasers) Act 1960 (Act 2) and laches and acquiescence.<o:p></o:p></main>