DEBRAH vs. SHARDEY [1995]DLCA5296

Date	1995-06-28
Suit No.	[1994 - 95] 2 G B R 892 – 897 CA
Citation No.	[1995]DLCA5296

LUTTERODT JA

FORSTER JA

SAPONG JA

E D KOM FOR THE APPELLANT

NANA ASIBEY FOR THE RESPONDENT

[1995]DLCA5296
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													<main id="main" class="content" style="min-height: 60rem" >DEBRAH<o:p></o:p>vs.<o:p></o:p>SHARDEY <o:p></o:p>[COURT
OF APPEAL]<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">

[1994
- 95] 2 G B R 892 – 897&nbsp; CA&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; &nbsp; &nbsp; &nbsp; DATE: 28 JUNE 1995<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E D 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">

NANA ASIBEY 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">

LUTTERODT JA, FORSTER JA,
SAPONG JA<o:p></o:p>

</div><o:p>&nbsp;</o:p>FORSTER
JA. <o:p></o:p>In consolidated suits nos
LT 21/64 and LT 126/65, Abban J gave judgment for the plaintiff, Paul Narkoli
Shardey, the respondent in the present appeal and dismissed the case of
Asafoatsenguah Adamtey. In both suits the plaintiff claimed declaration of
title to a piece of land at Akutunya, in Somanya, recovery of possession and
perpetual injunction. The present appeal arises from an action which was a
sequel to the judgment in the consolidated suits. The plaintiff-claimant-appellant
(hereinafter called the “appellant”) is the son of Asafoatsengua Banahene, the
defendant and co-defendant respectively in suits nos LT 21/64 and LT 126/65 in
which said suits Banahene was the losing party. The appellant had employed John
Amartey, the defendant in suit No LT 126/65, to erect a building on a portion
of the land, which Abban J by his judgment in the suit, found to have been
trespassed on by Banahene.<o:p></o:p>When the
judgment-creditor, Paul Narkoli Shardey, the respondent herein, in execution of
the judgment sought to take possession of the house constructed on the
trespassed land and owned by the appellant, the appellant brought an
interpleader action in the High Court Accra against the respondent. He claimed
title to the said house No 230. The respondent having disputed the appellant’s
claim, the court ordered that pleadings be filed by the parties. The issues for
trial as per the summons for directions were:<o:p></o:p>(i)
Whether the land on which the house was erected was the property of the
plaintiff-claimant or the property of the judgment-creditor-defendant, Shardey.<o:p></o:p>(ii)
Whether the plaintiff-claimant was the grantee of Banahene, the losing party in
the two consolidated suits; and<o:p></o:p>(iii)
Whether the plaintiff-claimant was estopped by the judgment in the consolidated
suits from denying and disputing the title of the judgment-creditor-defendant.<o:p></o:p>On 11 December 1987,
Osei-Hwere JA sitting as an additional High Court judge entered judgment for
the respondent and dismissed the appellant’s action. It is from that decision
that the appellant has appealed to the Court of Appeal. In his grounds of
appeal the appellant contends that:<o:p></o:p>(1)
The judgment is against the weight of evidence.<o:p></o:p>(2)
That the trial judge erred in holding that the building fell within the land of
the respondent.<o:p></o:p>(3)
The trial judge erred in basing his judgment solely on the evidence of the
respondent’s self-appointed surveyor.<o:p></o:p>The vital issue in this
appeal is whether the findings of the trial judge that the house of the appellant
is on the land of the respondent was supported by the evidence before him. The
most material evidence in the case was that of the witnesses of the parties and
the plans put in evidence by the respective parties.<o:p></o:p>As found by the trial
judge, exhibit 3 tendered by the respondent correctly showed the position of
the appellant’s land in relation to the boundary line from the pillar GCGEP
20/30/3/3 to the palm tree. Having reviewed the relative positions of the two
properties as shown in exhibit 3 and exhibit C5, the judge concluded:<o:p></o:p>“I am satisfied that the area of
encroachment of the claimant’s house into the judgment creditor’s land is as
shown in exhibit 3. According to the evidence of DW2, which I accept the total
acreage of the plaintiff’s building with fence around is 0.12 acre and of this
0.11 acre lies in the defendant’s land”.<o:p></o:p>The appellant questions
the judge’s reliance on the evidence of DW2, the respondent’s witness. The
appellant sought to rely on the evidence of the court’s witness, CW1. The two
witnesses were the most material witnesses in the case. It was by their
evidence that the court could decide whether the appellant’s building fell
either wholly or partly into the land adjudged in the consolidated suit to be
owned by the respondent. The evidence of CW1 and DW2 was in the nature of
expert testimony, either party relying on the probative value of the testimony
of their respective witnesses.<o:p></o:p>Of the competency of CW1,
John Dey, on which his evidence must stand or fail the trial judge commented:
“John Dey himself not being a qualified surveyor was not competent to conduct
another survey”. The judge therefore discounted his evidence and preferred the
evidence of DW2 called by the respondent. I entirely agree with the view of the
trial judge. An expert called by a court as its witness must be qualified in
the special discipline to which his evidence is relevant.<o:p></o:p>A witness who professes
any expertise must satisfy the court that he is an expert on the subject to
which his testimony relates by reason of his special skill, experience or
training, as provided in section 67(1) of the Evidence Decree 1975 (NRCD 323).
A court witness called as an expert must be as equally qualified.<o:p></o:p>Mr Dey, CW1 described
himself as a Chief Technologist of the Lands Department. He appeared as a
witness in consequence of the order of the court directed to the Chief Lands
Officer and requiring him to instruct a subordinate officer to superimpose the
site plan attached to appellant’s conveyance on another plan (exhibit 2) which
incidentally was the plan used in the consolidated suit. Had CW1 confined
himself to the superimposition of the plan as ordered, and no more the
probabilities are that he might not have fallen into error, for his competence
as an expert - a surveyor - would not have mattered in the case. CW1 however
went beyond the scope of the court’s directives and purported to survey afresh
the land in dispute, and condemned exhibit 2</main>