SAM BOATENG vs. YAW OSEI & 2 ORS. [2008]DLCA6947

Date	2008-06-12
Suit No.	CIVIL APPEAL NO. H1/41/06
Citation No.	[2008]DLCA6947

ARYEETEY J.A. (PRESIDING)

APALOO J.A.

YAW APPAU J.A

MR. RAY APPIAH-AMPONSAH- PLAINTIFF/APPELLANT

MR. AGYEI GYAMFI- CO-DEFENDANTS/RESPONDENTS

[2008]DLCA6947
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													<main id="main" class="content" style="min-height: 60rem" >SAM BOATENG<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>YAW OSEI &amp; 2 ORS.<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. H1/41/06&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; &nbsp; &nbsp; &nbsp;DATE: 12TH JUNE 2008<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
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RAY APPIAH-AMPONSAH- PLAINTIFF/APPELLANT <o:p></o:p>

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115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">&nbsp;MR. AGYEI GYAMFI- CO-DEFENDANTS/RESPONDENTS <o:p></o:p>

</div>CORAM:<o:p></o:p>ARYEETEY
J.A. (PRESIDING), APALOO J.A., YAW APPAU J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>ARYEETEY,
J.A.:<o:p></o:p>&nbsp;A brief background to this appeal would be
appropriate. The late Frank Moore who had been registered as German citizen
arrived in Ghana with his German wife Mrs Irene Ilse Moore. He obtained a
leasehold plot of land for ninety-nine years for building purposes. He took
steps to commence a residential building project on the said land. However,
before the building could reach roofing level Frank Moore died unexpectedly in
a motor accident on the Accra – Tema Motorway. His German wife, who had two
children by him, applied for and obtained Letters of Administration in respect
of his estate. As administrator of her late husband’s estate Mrs. Irene Moore
disposed of the land with the uncompleted building thereon by way of assignment
in favour of Jim Ofori and Katharina Writz, who are co-defendants/respondents
in this appeal. The co-defendants obtained an indenture dated 7th September
1996 from the assignor as well as building permit from the appropriate local
authority to continue with the building project on the land. Meanwhile the
plaintiff/appellant who was a brother of the late Frank Moore applied to the
Circuit Court for the Letters of Administration granted in favour of Frank
Moore’s widow to be set aside. His application was granted by the Circuit
Court. Subsequently as customary successor of his late brother, Frank Moore
applied for a fresh Letters of Administration in respect of the estate of the
deceased. He was successful. To ward off trespassers he put an inscription on
the walls of the uncompleted building on the land. However, somewhere in
September 1997 he noticed that the inscription on the walls of the building
warning trespassers to keep off had been erased. He also noticed the presence
of some workers on the land, with parts of the uncompleted building on the land
having been demolished. Also, heaps of sand, stone and other building material
had been deposited on the land. <o:p></o:p>He
therefore brought an action against the defendants claiming the following
reliefs: 1) Recovery of the land in dispute. 2) Damages for trespass. 3)
Perpetual Injunction restraining the defendant, his agents, servants, privies,
assigns, workers and any person whether an independent contractor or not from
developing the land in dispute. Later the plaintiff, on becoming aware that Jim
Ofori and Katharina Writz were responsible for the building operations on the
land, applied to the Circuit Court to have them joined to action as
co-defendants. Although the order for joinder was made on 11th November 1997 it
was not until 9th August 2001 that the co-defendants filed their defence to the
plaintiff’s claim which also embodied their counterclaim. <o:p></o:p>The
co-defendants contended in their pleading that they acquired the property from
Mrs. Irene Moore, the widow of the late Frank Moore who held Letters of
Administration in respect of her late husband’s estate. Mrs. Irene Moore gave
them documents relating to the land and actually put them in possession. The
workers on the land in dispute were there at their authorisation, they being
owners of the property by virtue deed of assignment dated 7th September 1996
marked as document No. AR/2683/97 and registered as No. 2904/1997 at the Deeds
Registry. They contended further that they acquired the property from the widow
of the late Frank Moore who held the Letters of Administration in respect of
her late husband’s estate as innocent purchasers for value without notice of
any wrong doing on the part of the vendor and therefore obtained good title.
They accordingly counterclaimed for the following reliefs: <o:p></o:p>1.
“A declaration that the sale of the disputed property by Mrs. Irene Moore, the
widow of Frank Moore as holder of the Letters of Administration of the Estate
of Frank Moore was valid in law. <o:p></o:p>2.
A further declaration that the subsequent revocation of the Letters of
Administration cannot operate to invalidate the sale which was effected at the
time when the Letters of Administration was in full force. <o:p></o:p>3.
A declaration that by virtue of the aforesaid, the co-defendants are the owners
of the disputed property. <o:p></o:p>4.
A declaration that the Letters of Administration granted to the plaintiff is
null and void as the application and grant did not conform to the requirements
of L.I. 1515.<o:p></o:p>&nbsp;5. An order or perpetual injunction to
restrain the plaintiff by himself, his agents, assigns and workmen from
entering on the disputed property and or disturbing the quiet and peaceful enjoyment
of the property by the co-defendants.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;It was after the co-defendants had filed their
pleading on 9th August 2001 that the </main>