EBUSUAPANYIN YAA KWESI vs. ARHIN DAVIS & ANOR, EBUSUAPANYIN KWAMENA BEDU [2005]DLSC2405

Date	2005-03-16
Suit No.	CIVIL APPEAL NO. J4/10/2004
Citation No.	[2005]DLSC2405

ATUGUBA J.S.C. (PRESIDING

DR. TWUM J.S.C

DR. DATE-BAH J.S.C

LARTEY J.S.C

ANINAKWA J.S.C.

MR. S. H. OCRAN FOR APPELLANT.

MR. I. G. CARSON FOR RESPONDENT.

[2005]DLSC2405
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >EBUSUAPANYIN YAA KWESI<o:p></o:p>vs.<o:p></o:p>ARHIN DAVIS &amp; ANOR, EBUSUAPANYIN KWAMENA BEDU<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/10/2004<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">

DATE: 16TH MARCH, 2005.<o:p></o:p>

MR.
I. G. CARSON FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ATUGUBA,
J.S.C. (PRESIDING), DR. TWUM, J.S.C., DR. DATE-BAH, J.S.C., LARTEY, J.S.C.,
ANINAKWA, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;LARTEY, J.S.C.:&nbsp;&nbsp;&nbsp;&nbsp; By his writ of summons the plaintiff
appellant (hereinafter referred to as the Plaintiff) sued the first and second
defendants/respondents (hereinafter also simply referred to as the defendants)
claiming:<o:p></o:p>“(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Declaration of title to a large part and
parcel of land situate at Anagye and bounded by the lands of Ebiradze family of
Fijae, Nsona family of Anagye then Noweh’s Ebiradze family of Anagye. <o:p></o:p>(b) An order quashing and (sic)
purported Lease that had been made to lease part of the land without the
consent and concurrence of the Plaintiff’s family.<o:p></o:p>(c ) Damages for trespass<o:p></o:p>&nbsp;(d) An order of perpetual injunction restraining
the defendants, their agents, servants etc. from having any dealing with the
land”.<o:p></o:p>The
plaintiff who described himself as the head of Basia Aya’s Ebiradze Family of
Anagye pleaded that his family had for a long time been recognized as owners of
a large piece and parcel of land situate at Anagye which shares boundary with
the lands of Ebiradge family of Fijai, Nsona family of Anagye and Nowah’s
Ebiradge family of Anagye, and as owners in possession various persons have
been granted farming rights over parts of the land.&nbsp; It was when the plaintiff’s family turned the
site into a layout for residential purposes that the first defendant resisted
the action and made a grant of a portion to the second defendant.&nbsp; The plaintiff further averred that his family
lodged a complaint with Ahantahen at Busua who went into the matter by way of
an arbitration after which the first defendant was found liable.<o:p></o:p>In
his amended statement of defence the defendant’s admitted that the plaintiff
lodged a complaint with Ahantahen at Busua but denied that there was any proper
arbitration because the proceedings were not an arbitration and cannot ground
an estoppel.&nbsp; On the contrary the purpose
of the complaint was to attempt an amicable settlement of the differences
between the parties.&nbsp; The defendants
averred that the ownership of the land had been determined in a judgment
delivered on 10 December, 1912 by His Worship H.C.W. Grimshaw.&nbsp; In that case the plaintiff’s ancestor called
Araba Aryeh testified and confirmed the sale of the land by auction.&nbsp; That being the case the plaintiff is estopped
from laying claim to the disputed land.&nbsp;
The defendants again relied on another case in which one L.T.F.&nbsp; Sagoe successfully sued one Ngya Assafuah a
predecessor of the plaintiff in the District Court, Sekondi in 1970.&nbsp; The defendants further averred that the first
defendant’s father also exercised rights of ownership over the land, and after
his death the land devolved on the first defendant who had been making grants
to several persons including the second defendant.&nbsp; It was part of the case for the defendants
that the first defendant started farming on the land in 1964 and that he made
farms in which he grew coconuts, oil palm, citrus, mango and pear.<o:p></o:p>The
co-defendant, variously also described as third defendant, on 8th October, 1993
filed a motion for joinder as co-plaintiff in this suit.&nbsp; That was almost sixteen months from the date
of issuance of the writ of summons.&nbsp; The
plaintiff on 11th October, 1993 promptly filed his affidavit in which he
indicated his intention to oppose the co-defendant’s application for
joinder.&nbsp; Taking a cue from the prospect
of facing opposition by the plaintiff, the co-defendant, on 10th November,
1993, filed a similar application for joinder, this time as third defendant in
this action.&nbsp; I concede that the grant or
otherwise of an application of this nature was entirely at the discretion of
the trial High Court judge, whose reason in granting the application was “in
order that justice be done to all parties”.&nbsp;
Speaking for myself I would have thought that refusing the application
would have been a better option, especially coming at a time when the plaintiff
had already closed his case.&nbsp; And as can
be gleaned from the affidavit in support of the application, the main issue
raised therein was the ownership of the whole Ntankoful land, including the
land in dispute.&nbsp; In my view that issue
was between the co-defendant and the plaintiff which conveniently could be left
for its resolution between the two.&nbsp; I am
of the opinion that the application for joinder was a recipe for confusion as
can be demonstrated by the co-defendant’s grounds of appeal to the Court of
Appeal and subsequently to this court.<o:p></o:p>Be
that as it may, the co-defendant filed his statement of defence in which he
denied that the plaintiff is the head of family of Basia Aya’s Ebiradge family;
that there is no family known as Basia Aya’s Ebiradge family; since Basia Aya
was the great grand mother of the co-defendant she belonged to theAbrashiem
Ebiradze family; that the land described in the plaintiff’s statement of claim
belongs to Abrashiem Ebiradge family; that whatever act that was done on the
land in dispute was done surreptitiously without the consent and knowledge of
the co-defendant; that apart from the cases cited by the defendants, others
like L.T.C. Davies vrs. Noweh exist which operate as estoppel against the
defendants.&nbsp; Upon the foregoing, the
co-defendant joined issues with the other parties on their pleadings.<o:p></o:p>The
learned High Court judge O. K. Sampson held at the end of the trial as
follows:-<o:p></o:p>“The plaintiff herein failed to
discharge the onus of proof incumbent upon him to establish his title to the
land in dispute.&nbsp; Plaintiff’s action
fails and it is therefore dismissed accordingly”.<o:p></o:p>