DANSO AND ALAYEA vs. KWAKU SARPONG [2010]DLCA4621

Date	2010-07-22
Suit No.	SUIT NO: H1/97/2010
Citation No.	[2010]DLCA4621

AKAMBA J.A PRESIDING

KUSI APPIAH JUSTICE OF APPEAL

VICTOR OFOE JUSTICE OF APPEAL

MR. SAM WOOD FOR PLAINTIFF/RESPONDENT

MR. PROSPER GOMASHIE FOR DEFENDANTS/APPELLANTS.

[2010]DLCA4621
																																						<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" >DANSO AND ALAYEA<o:p></o:p>&nbsp;(DEFENDANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>KWAKU SARPONG<o:p></o:p>&nbsp;(PLAINTIFF/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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">

SUIT
NO: H1/97/2010&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: 22ND JULY,
2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. SAM WOOD FOR
PLAINTIFF/RESPONDENT<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">

MR.
PROSPER GOMASHIE FOR DEFENDANTS/APPELLANTS.<o:p></o:p>

</div>CORAM:
<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">

AKAMBA
J.A PRESIDING, KUSI APPIAH JUSTICE OF APPEAL, VICTOR OFOE JUSTICE OF APPEAL<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;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;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>AKAMBA,
J.A: &nbsp;I have had the
privilege of a preview of the learned decision rendered by my able brother Kusi
Appiah, JA. I agree with him that the appeal be dismissed. I however have a few
issues to highlight. The issue at stake is not so much a declaration of title
to the plaintiff’s/respondent’s (herein after simply plaintiffs) land as much
as the status of the defendants/appellants (herein after simply defendants) on
the adjoining property to the plaintiff’s land which blocks plaintiff access to
the motorway. If the trial court had narrowed down the issue this far the
matter would have been resolved on this basis. The trial court found, rightly
to my mind, that the defendants are squatters.<o:p></o:p>Squatters are people who
occupy abandoned or disused spaces that do not belong to them. In other words
squatters occupy a space without permission.<o:p></o:p>In the instant appeal the
clear facts as amply brought out in the judgments of the trial court and my
brother Kusi Appiah, J.A, show that the defendants have no title whatsoever to
the land adjoining the Plaintiff’s land. Their legal status depends on the
manner they came to be on the said land. It is apparent that they were
initially put on the land by one Theophilus Okunor deceased. However as
evidenced in exhibit B the defendants’ donor was compensated by government when
his land was acquired or taken over for the construction of the motor way. This
then means that the defendants’ root of title was extinguished and with its
removal the defendants have nothing to stand on. Their continued stay on the
land which had become a road reservation was illegal and unauthorized. From the
evidence, the remaining part of the land which fell out of the road
reservation, also laid in the pathway of the plaintiff’s property blocking
access. &nbsp;This blockage raises the issue
of easement. Section 139 of the Land Title Registration Law (PNDCL 152) defines
easement as “ a right capable of existing …under the rules of common law
attached to land and allowing the proprietor of the land or of an interest therein
either to use another land in a particular manner or to restrict its use to a
particular extent..” Simply put, an easement is the right to use the real
property of another without possessing it. At common law an easement is
considered as a property right in itself. It is apparent that the type of
easement in issue in this appeal is the easement of way, that is to say the
right of way for the plaintiff, the dominant estate, to drive and move into and
from his property with relative ease. Even though the relief of easement
appears appropriate, do the facts in the appeal meet all the necessary
requirements for same? In their book, Ghana Land Law and Conveyancing 2nd
Ed by B.J da Rocha and CHK Lodoh the learned authors state that no right can
have the status of an easement unless it is the possible subject matter of a
grant. For it to be the possible subject matter of a grant that right claimed
must be capable of exact description; there must be a capable grantee; and
there must be a capable grantor. Unfortunately in the instant appeal the
defendants being the servient occupiers are not lawfully entitled to grant the
right of easement being trespassers and/or squatters.<o:p></o:p>Being trespassers, the
defendants have no business being on the land they presently encroach on anyway.
They have also failed to urge on this court to reverse the decision and
conclusions of the trial court. Their appeal accordingly fails.&nbsp; The decision of the trial court is
affirmed.&nbsp; Cost of five hundred cedis
(GH¢500.00) for Respondents.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>

<o:p>&nbsp;</o:p></main>