ERIC OMAN MENSAH AND BENJAMIN OBOUR MENSAH vs. MR. PAT YAWSON AND GEORGE EDUSEI-POKU [2010]DLSC2561

ERIC OMAN MENSAH AND BENJAMIN OBOUR MENSAH vs. MR. PAT YAWSON AND GEORGE EDUSEI-... [2010]DLSC2561

Date	2010-06-09
Suit No.	CIVIL APPEAL NO. J4/15/2010
Citation No.	[2010]DLSC2561

BROBBEY JSC (PRESIDING)

ANSAH JSC

DOTSE JSC

YEBOAH JSC

AKOTO-BAMFO (MRS) JSC

J. H. QUIST PRUDENTIAL LAW OFFICES FOR THE DEFENDANTS /APPELLANTS /APPELLANT.

GEORGE ESHUN AMARTEIFIO AND CO. FOR THE PLAINTIFFS /RESPONDENTS /RESPONDENTS.

[2010]DLSC2561
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													<main id="main" class="content" style="min-height: 60rem" >ERIC OMAN MENSAH AND
BENJAMIN OBOUR MENSAH<o:p></o:p>vs.<o:p></o:p>MR. PAT YAWSON AND
GEORGE EDUSEI-POKU<o:p></o:p>&nbsp;[SUPREME COURT, 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. J4/15/2010&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 9TH
JUNE, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>J. H. QUIST, PRUDENTIAL
LAW OFFICES FOR THE DEFENDANTS /APPELLANTS /APPELLANT.<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">

GEORGE
ESHUN, AMARTEIFIO AND CO. FOR THE PLAINTIFFS /RESPONDENTS /RESPONDENTS.<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;
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BROBBEY
JSC (PRESIDING), ANSAH JSC, DOTSE JSC, YEBOAH JSC,AKOTO-BAMFO (MRS) JSC&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>YEBOAH,
JSC:-<o:p></o:p>The respondents in this appeal commenced an action
against the appellants as defendant at the High Court, Accra.&nbsp; By the amended writ of summons the plaintiff
claimed against the defendants jointly and severally, a declaration of title to
the land described in the schedule and other ancillary reliefs.&nbsp; The land the subject matter of the action is
at Tudu, South East of Adabraka, Accra.<o:p></o:p><o:p>&nbsp;</o:p>The claim of the plaintiffs is based on the simple
ground, that the land was acquired by their grandfather in or about 1911.&nbsp; The said grandfather whose name was not
pleaded enjoyed the use of the land and upon his death the land became the
property of the father of the plaintiffs’.&nbsp;
It was after the death of the plaintiff’s father that the property
passed to the plaintiffs’ as successors.&nbsp;
It was part of the pleadings and evidence that the statutory declaration
covering the land was used to procure a <o:p></o:p><o:p>&nbsp;</o:p>Land Title Certificate covering the land.&nbsp; The cause of action against the defendants is
that the defendants had broken the wall on part of the land which serves as the
boundary between the defendants’ predecessors-in-title’s land and that of the
plaintiffs.<o:p></o:p><o:p>&nbsp;</o:p>The defendant controverted most of the allegations
of facts pleaded but it appears that when the evidence was led it became clear
that the defendants acquired their land from one Mr. Yawson who inherited the
land from his father.&nbsp; After the death of
the first defendant’s father, the property passed on to the first defendant.&nbsp; A vesting asset was prepared after the
administrators had applied for and obtained letters of administration for the
property to be vested in the first defendant who sold the property to the
second defendant.&nbsp; In the course of his
evidence, the second defendant claimed that the property was acquired in the
name of his firm for a warehouse.&nbsp; The defendants’
also counterclaimed for title and damages for trespass and prayed for a further
order for cancellation of the Land Title Certificate granted to the plaintiffs,
on grounds of fraud.<o:p></o:p><o:p>&nbsp;</o:p>From the record of proceedings, several interlocutory
proceedings were taken before the trial court which do not appear to be
necessary for the determination of this appeal.<o:p></o:p><o:p>&nbsp;</o:p>As stated above, both parties did not dispute that
their predecessors-in-title owned their respective lands.&nbsp; Even though several issues were joined to
establish the title of both parties, at the application for directions stage,
the core issue which the trial court was confronted to resolve was not the
issue of ownership but a boundary dispute between the plaintiffs and the first
defendant whose title to his land had passed to the second defendant.&nbsp; This indeed became very clear before His
Lordship Justice Tweneboah – Kodua on 26/06/1995 when he made this formal
order:<o:p></o:p><o:p>&nbsp;</o:p>“By Court:&nbsp;&nbsp;&nbsp;&nbsp; The
Chief Surveyor of the Survey Department is accordingly appointed to undertake
the job of making a composite plan of the area in dispute and superimpose the
respective plans of the parties herein to help resolve the dispute between the
parties. &nbsp;Specifically the Chief Surveyor
will determine the boundaries of the land the parties claim to be theirs, particularly
in the light of the registration of </main>