MICHAEL ATTA OSEI vs. CHRISTIAN MENSAH AFLAKPUI & ANOR. [2008]DLCA6514

Date	2008-02-21
Suit No.	H1/94/2007
Citation No.	[2008]DLCA6514

MRS. HENRIETTA ABBAN (PRESIDING)

YAW APPAU J.A.

ISAAC DUOSE J.A

MRS. M.Y.N. ACHIAMPONG FOR PLAINTIFF/APPELLANT

MR. QUIST BROWN FOR THE DEFENDANT/RESPONDENT

[2008]DLCA6514
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													<main id="main" class="content" style="min-height: 60rem" >MICHAEL ATTA
OSEI<o:p></o:p>(PLAINTIFF/ APPELLANT)<o:p></o:p>vs.<o:p></o:p>CHRISTIAN
MENSAH AFLAKPUI &amp; ANOR.<o:p></o:p>(DEFENDANTS/
RESPONDENTS)<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;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">H1/94/2007&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 21ST
FEBRUARY, 2008<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">MR. QUIST BROWN FOR THE
DEFENDANT/RESPONDENT. <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MRS. HENRIETTA ABBAN
(PRESIDING), YAW APPAU J.A., ISAAC DUOSE J.A.<o:p></o:p>

</div><o:p>&nbsp;</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;
text-align:center;line-height:115%;mso-outline-level:1;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>YAW
APPAU, JA. <o:p></o:p>The
circumstances leading to this appeal as disclosed in the record of appeal are
so phenomenal that there is the need to recount them in order to avoid any
perceived ambiguities in the judgment of this Court. <o:p></o:p>The
1st respondent in this appeal Christian Mensah Aflakpui embarked on two
separate suits against the appellant Michael Atta Osei in the year 1988 in
respect of a plot of land situate at West-Achimota in Accra. The identity of
that plot of land, which was the same in all the suits, was not in issue in
those suits. The appellant also counter claimed against the respondent for the
same reliefs in all the suits. The reliefs were for declaration of title,
recovery of possession, damages for trespass and perpetual injunction to that
same piece of land. <o:p></o:p>These
two suits were all in the Circuit Court Accra, presided over by two different
judges. One of them was before her Honour Judge I. N. N. Ashong (as she then
was), now Justice I. N. N. Ashong Yakubu. The Suit No. was CCL. 34/88. The
other was before His Honour Judge Victor Ofoe (as he then was), but now Justice
Victor Ofoe. The Suit No. in this other case was also CC.34/88. Somewhere along
the line, long after the close of pleadings, the 1st respondent who was the
plaintiff in the two suits, discontinued his action in the Circuit Court
presided over by Judge I. N. N. Ashong. This was on 27th August 1992. The
appellant, however, pursued his counter claim in the said suit and obtained
judgment as follows:— <o:p></o:p>“By Court: - Judgment for defendant as
follows:— <o:p></o:p>(1) To recover possession of the land
the subject matter of this action as set out in Exhibit ‘1’ and ‘2’ as
described therein. <o:p></o:p>(2) Perpetual Injunction against the
plaintiff, etc., plus costs of ¢50,000 in favour of defendant.” <o:p></o:p>The
respondent did not give any bother to this judgment but pursued the other suit
before Judge Victor Ofoi vigorously. The court presided over by Judge Ofoe
ordered a surveyor to map out the disputed plot to clear all doubts over the
identity of the land in dispute. This was because the 1st respondent who had no
registered document covering the disputed land had indicated that the land over
which he sued measured 0.43 of an acre while the registered indenture of the
appellant gave the measurement of appellant’s land as 0.18 of an acre. The
surveyor’s plan, which he made on the instructions of the Circuit court per
Judge Ofoe (as he then was), indicated clearly that the two parties were
talking of the same piece of land at West-Achimota, as the appellant pleaded
under paragraph 7 of his Amended Statement of Defence filed in the lower court
on 16/2/98. This was confirmed by the judgment of Judge Ofoe delivered on 8th
July 1999. This was what the judge said: <o:p></o:p>“There is no doubt however that both
parties are litigating over almost the same piece of land. <o:p></o:p>This is evidenced by the surveyor’s
plan tendered as Exhibit 7”. <o:p></o:p>While
the judgment of Judge I. N. N. Ashong in favour of the appellant dated 27th
August 1992 stood unchallenged, Judge Victor Ofoe also of the same Circuit
Court, on 8th July 1999, gave judgment in favour of the 1st respondent over the
same piece of land on technical grounds. Though the lower court came out with
the finding that the disputed land did not belong to the 1st respondent but to
the appellant, the court failed to allow the appellant to recover possession of
the land as he counter claimed on the ground that the 1st respondent had a
building on the land so it would be unfair to allow the appellant to recover it
from him. The low</main>