ISSUFU HUSSEIN vs. ALHAJI IDDRISU MOHAMMED [2007]DLCA5233

Date	2007-11-08
Suit No.	CIVIL APPEAL NO. H1/210/06
Citation No.	[2007]DLCA5233

AKAMBA J.A. (PRESIDING)

QUAYE J.A.

KUSI-APPIAH J.A.

[2007]DLCA5233
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													<main id="main" class="content" style="min-height: 60rem" >ISSUFU HUSSEIN<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ALHAJI IDDRISU MOHAMMED<o:p></o:p>(PLANTIFF/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;
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CIVIL
APPEAL NO. H1/210/06&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;8TH NOVEMBER, 2007<o:p></o:p>

</div>CORAM:
<o:p></o:p>AKAMBA J.A. (PRESIDING), QUAYE J.A.,
KUSI-APPIAH 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="text-align:center;line-height:115%;
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</div>KUSI-APPIAH J.A.: By his writ of
summons the plaintiff/respondent (hereinafter referred to as the plaintiff)
sued the defendant / appellant (hereinafter also to as the defendant) claiming:
-<o:p></o:p>&nbsp;“ (1) An
order for declaration of title to all that piece or parcel of land situate at
North-East Teshie, covering an approximate area of 0.14 acre more or less
bounded on the North-West by Lessor’s land measuring 110 feet more or less on
the South-East by a proposed road measuring 57 feet more or less on the
South-West by Lessor’s land measuring 122 feet more or less which piece or parcel
of land is more particularly delineated on the plan attached to the Indenture
dated the 4th day of April,1979.<o:p></o:p>(2)
An order for perpetual injunction to restrain the Defendant, his agents,
assigns, servants, privies etc. from interfering with the said piece or parcel
of land.<o:p></o:p>(3)
Damages for trepass.<o:p></o:p>(4)
Costs.”<o:p></o:p><o:p>&nbsp;</o:p>The Defendant filed his amended
statement of defence and counter claim. In his counter claim, he asked for :-<o:p></o:p>&nbsp;“(a) Declaration of title to all that piece or
parcel of land covering an&nbsp; approximate
area of 0.04 acre or 0.02 hectare, situate and lying at Teshie Zongo.<o:p></o:p>&nbsp;(b) An order of perpetual injunction to
restrain the plaintiff, his agents, assigns, servants, privies from interfering
with the said piece or parcel of land.&nbsp;&nbsp;&nbsp;
<o:p></o:p>(c)
An order for the payment of ¢1.5 million being cost of wall destroyed by
plaintiff.&nbsp; &nbsp;&nbsp;<o:p></o:p>(d)
An order compelling the plaintiff to give &nbsp;the defendant access or easement to his
property.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff’s case as disclosed in
his pleadings and evidence at the trial is that sometime in 1979 he bought the
land in dispute from one Osuman Umoro who delayed in giving him an indenture on
the transaction. So he approached Klu Tsuru Nmashie II who executed a deed of
lease dated 4th day of April, 1979, tendered in evidence as Exhibit
“A”. Sometimes in June, 1988, the said Osuman Umoro executed another indenture
for him. That document was also tendered and marked as Exhibit “B”. According
to the plaintiff when he acquired the land he took effective possession and
constructed a two room house thereon. Later on, he gave out his two room house
to his brother in-law one Mohammed Abubakar (deceased) to live in temporarily
with his family of four when the latter was ejected from his rented premises
for non-payment of rent.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff testified that
somewhere in November, 1999 he saw the defendant unlawfully occupying his said
house. And when he confronted him, he told him (the plaintiff) that that piece
of land has been sold to him by one Mohammed Abubakar (the plaintiff’s brother
in-law). The plaintiff claimed ownership of the land including the house. But
when all efforts to get the defendants vacate the land failed, the plaintiff
came to court.<o:p></o:p><o:p>&nbsp;</o:p>The defendant resisted the claim and
also called evidence to show how he came to own the land in dispute.In
paragraphs “5,6and 7” of his amended statement of defence filed on 10th
October, 2000, the defendant claimed that he lawfully acquired the land from
the said Mohammed Abubakar of Teshie in December, 1995 and thus not a trespasser&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; . He averred that his vendor, Mohammed
Abubakar prepared an Indenture for him covering the land. That he immediately
built a fence around the land and constructed two single rooms on the land
which he is using as his residence. The defendant alleges that his only problem
with the plaintiff is that he sought his permission for access through
plaintiffs land to his land but he refused. He further stated that sometime in
May, 2000, the plaintiff broke a wall he was constructing around his property
and at that time, he had spent an amount of ¢ 1.5 million. <o:p></o:p><o:p>&nbsp;</o:p>The plaintiff did not call any
witness but tendered some documents while the defendant called two witnesses in
support of their respective cases. The relevant parts of their evidence will be
considered in the course of this judgment.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;After a full trial, the learned trial Judge
dismissed the defendant’s counter-claim, entered judgment for the plaintiff and
granted all the reliefs sought by him. Against this decision, the defendant has
appealed. The grounds of appeal as contained in the notice filed on 1st
April, 2005 were as follows :-<o:p></o:p><o:p>&nbsp;</o:p>(1)&nbsp;&nbsp;