MUSSTAFA TETTEY ADDY AND 2 OTHERS vs. ARMEEN KASSARDJIAN [2002]DLCA6537

Date	2002-01-31
Suit No.	CA NO. 99/2000
Citation No.	[2002]DLCA6537

BROBBEY J.A. (PRESIDING)

ADINYIRA J.A.

AMONOO-MONNEY J.A

[2002]DLCA6537
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													<main id="main" class="content" style="min-height: 60rem" >MUSSTAFA
TETTEY ADDY AND 2 OTHERS<o:p></o:p>(DEFENDANTS/
APPELLANTS)<o:p></o:p>vs.<o:p></o:p>ARMEEN
KASSARDJIAN<o:p></o:p>(PLAINTIFF/RESPONDENT)<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">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CA
NO. 99/2000&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; &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: 31ST JANUARY 2002<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">BROBBEY, J.A. (PRESIDING)
ADINYIRA, J.A. AND AMONOO-MONNEY, J.A.<o:p></o:p>

</div>BROBBEY,
J.A: <o:p></o:p>This
is an appeal from the decision of an Accra High Court in which judgment was
given in favour of the plaintiff/respondent, hereinafter referred to as the
respondent for short. <o:p></o:p>The
facts that gave rise to the litigation were these; the respondent claimed that
he acquired the land in dispute from Gomoa Nyanyanor in 1973 and registered it
at the Lands Department as No. 1498/1977. After acquiring the land, he entered
into possession by constructing chalets on portions of it. The defendant who
shall hereafter be referred to as the first appellant claimed that he acquired
the land in dispute from the chief of Kokrobite in or about 1974. He added that
on enquiring from the Lands Department, he discovered that the land had been
registered in the name of the Bortianor stool. He therefore repurchased the
land from the Bortianor stool in order, as he put it in his statement of
defense, to hedge his title. When the litigation started, Bortianor stool
joined as co-defendant. That stool shall hereafter be referred to as the third
appellant. It was part of the case of the first appellant that he had
authorized the Academy of African Music &amp; Arts Ltd. to undertake a massive
development project on the disputed land. The Academy was joined to the suit as
the second defendant. That Academy will be referred to as the second appellant.
<o:p></o:p>At
the trial court, the respondent’s reliefs were for a declaration of title,
damages for trespass, recovery of possession and perpetual injunction. Judgment
was given in favour of the respondent. Dissatisfied with the judgment, the
defendant and co-defendants appealed to this court initially on one omnibus
ground that the judgment was against the weight of evidence, after which five
additional grounds of appeal were filed on her behalf. <o:p></o:p>At
the trial court, the respondent based his claim principally on the fact that
the Stool Lands Boundary Settlement Commission had conducted some enquiries
that were numbered as 14/75 and 10/76. The two enquiries formed the basis of
another enquiry that was numbered as 2/79 and was tendered as exhibit G. The
evidence showed that the Stool Lands Boundary Appeals Tribunal set the
decisions in enquiry numbers 14/75 and 10/76 aside in 1994 and that was
tendered as exhibit I. The trial judge however upheld and applied the decision
in inquiry number 2/79 for the simple reason that even if the two earlier
inquiries had been set aside in exhibit I, that exhibit I did not expressly
overrule exhibit G. <o:p></o:p>That
argument is simply untenable. The trial judge and the parties were all
agreeable that the very basis of enquiry number 2/79 was enquiry numbers 14/75
and 10/76. In exhibit I, the appellate tribunal specifically <o:p></o:p>“set
aside the judgment relating to zone one as described above where all the six
claimants are claiming boundaries, i.e. the area edged blue claimed by Amanfro,
James Town stools and remit the same to the learned Commissioner for retrial. <o:p></o:p>On
receipt of the proceedings after retrial we shall be in a position to deliver
the full judgment to cover all the three areas. The appeal is adjourned sine
die” <o:p></o:p>The
obvious interpretation that can be given to this passage is that the appellate
tribunal had nullified the findings on zone one. The parties in this case are
agreeable that zone one covered the lands in respect of which the two inquiries
numbered as 14/75 and 10/76 were decided. If the basis of decisions had been
nullified, no amount of legal technicality can revive it. It was wrong to
insist on applying the decision in inquiry no 2/79 which is a determination of
a trial tribunal knowing very well that it has been nullified by the appellate
tribunal. <o:p></o:p>The
trial judge based his decision to apply the decision in inquiry no 2/79 on the
fact that the appellate tribunal did not directly nullify the decision but did
so by implication. The reality of the situation was that by the appellate
tribunal’s decision, the decisions in numbers 14/75 and 10/76 had ceased to
exist because they had been set aside. Since the two formed the basis of 2/79,
there was nothing for that 2/79 to stand on. As Denning L.J put it in MacFoy v.
U. A. C. [1962] A.C. 152 <o:p></o:p>“You
cannot put something on nothing and expect it to stay there. It will collapse” <o:p></o:p>Indeed,
the decision in 2/79 had collapsed and could not be revived and applied merely
because the collapse was brought about by im</main>