SAMUEL ODOI QUARSHIE vs. YEMOLEY BAAKAN [2004]DLCA6959

Date	2004-03-26
Suit No.	SUIT NO.: H1/92/2004.
Citation No.	[2004]DLCA6959

ESSILFIE-BONDZIE J.A [PRESIDING]

OSEI J.A.

QUAYE J.A.

MR. KENNETH BROOKMAN AMISSAH FOR PLAINTIFF/RESPONDENT

[2004]DLCA6959
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													<main id="main" class="content" style="min-height: 60rem" >SAMUEL ODOI QUARSHIE<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>YEMOLEY BAAKAN<o:p></o:p>(DEFENDANT/APPELLANT)<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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO.: H1/92/2004. &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: 26TH MARCH,
2004<o:p></o:p>

MR. KENNETH BROOKMAN AMISSAH FOR
PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>ESSILFIE-BONDZIE
J.A [PRESIDING], OSEI J.A., QUAYE J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ESSILFIE-BONDZIE,
J.A.:<o:p></o:p>&nbsp;This is an appeal from the judgment of the
Circuit Court Accra dated 20th day of October, 2000. By a writ of Summons filed
on the 3rd March, 1999 the Plaintiff/Respondent (who, will hence forth known as
the plaintiff) sued for himself and the family of Quarshie and claimed against
the defendant/appellant (who will hereinafter referred to as the defendant) the
following reliefs: <o:p></o:p>(a) A declaration of title to all that
piece or parcel of land lying and situate at La, near Degaulle Park measuring
an approximate area of 0.21 acres. <o:p></o:p>(b) Declaration that the Plaintiffs
are the bona fide owners of land measuring and covering an approximate of 0.21
acres.<o:p></o:p>&nbsp;(c) Perpetual Injunction restraining the
defendant, assigns and privies from having any thing to do with the said land
or interfering with the ownership and possession rights of the Plaintiff and
his family over the said land. <o:p></o:p>(d) Replacement of 600 pieces of block
or its equivalent in cedis." <o:p></o:p>It
is necessary at this stage to give a brief account of the genesis of this suit.
The plaintiff' representative, Mr. Samuel Odoi Quarshie is first cousin to the
defendant. They Come from two twin brothers Erasmus Akuetteh Quarshie and Oko
Yemoh. Plaintiff's father is Erasmus and the defendant's father is Oko Yemoh.
The two brothers had one sister called Yemoteley Quarshie.<o:p></o:p>&nbsp;The plaintiff's case, was that some time ago,
his family's land situate at La near Degualle Park in Accra, was earmarked for
public purpose. To avoid losing the land, the family mandated the defendant his
Cousin, to use all possible means to reclaim the land for the family which she
succeeded in doing. According to the plaintiff the defendant was reimbursed for
expenses incurred and the land was shared equally between three beneficiaries
Namely his father, Erasmus Akuetteh Quarshie, Yemoteley Quarshie and Oko Yemoh.
It was contended by the plaintiff that the defendant had her father's and also
took that of their, aunt Yemoteley Quarshie's share arguing that since the Aunt
had no child she would be buring her when she died. The Plaintiff alleged that
since the division of the land, he has exercised control over his fathers
portion without any hindrance. The defendant, he alleged was laying, adverse
claim to this father's land and had appropriated 600, blocks belonging to his
father which she had failed to replace or pay for. <o:p></o:p>The
defendant denied the plaintiff claim that the piece of land is family land
which was shared amongst two brothers and a sister. It was her case that she
purchased the land from the Lands Commission Secretariat in her own right for
herself and that the land in dispute is hers, not by inheritance from her
father or her aunt Yemoteley Quarshie. As to the 600 blocks she said she paid
¢2,400 to plaintiff father for it. It is therefore not true that she failed to
pay for these blocks.<o:p></o:p>&nbsp;The defendant also counter claimed for
declaration of title. The defendant lost the suit. Being aggrieved and
dissatisfied with the decision of the Circuit Court, the defendant has appealed
to this Court. She filed two original Grounds of Appeal and four additional
Grounds of Appeal. In this appeal however I propose to deal with Ground One of
the original grounds appeal and Ground one of the additional grounds of appeal
which I consider relevant to the determination of the appeal.<o:p></o:p>Before
I commence to deal with the said Grounds of the appeal, I want to have on
record the fact that the Court docket, indicates that the plaintiff/respondent
was served with the written submission of the defendant on the 9th December,
2003. As on the 12th February when the appeal came on for hearing, no written
submission had been filed by the Respondent (i.e for a period of more than 30
days) in accordance, with Rule 20 (4) of C.I. 19 which stipulates a period of
21 days after service of the appellants written submission under the
circumstances the appeal was adjourned to day for judgment. The inference is
that the plaintiff respondents did not want to contest the appeal. <o:p></o:p>Be
that as it may I will proceed to deal with the appeal on its merits. Ground One
of the original grounds of appeal states that "The judgment of the trial
Court is unreasonable and cannot be supported having regard to the nature of
evidence adduced at the trial". The established principle in land Law is
that a plaintiff in an action for a declaration of title assumed the heavy
burden of proof and the plaintiff must succeed by the strength of his own case
and not by the weakness of the defendant's case. See OPPONG KOFI and ANOTHER vrs. FOFIE [1964] G.L.R. 174 SC, BANGA and
OTHERS vrs. DJANIE and ANOTHER. [1989-90] G.L.R. 510.<o:p></o:p>