BENJAMIN JOHNSON vs. FATI WILLIAMS [2011]DLCA6660

Date	2011-12-01
Suit No.	SUIT NO. HI/168/2011
Citation No.	[2011]DLCA6660

ABBAN J.A. (PRESIDING)

DUOSE J.A

OFOE J.A

MR. AGALGA FOR DEFENDANT/APPELLANT

MR. ALBERT ADDARE FOR PLAINTIFF RESPONDENT

[2011]DLCA6660
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													<main id="main" class="content" style="min-height: 60rem" >BENJAMIN JOHNSON<o:p></o:p>vs.<o:p></o:p>FATI WILLIAMS<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">

SUIT NO. HI/168/2011&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: 1ST DECEMBER, 2011<o:p></o:p>

MR.
ALBERT ADDARE FOR PLAINTIFF RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height: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">JUDGMENT<o:p></o:p>

</div>OFOE, J.A. <o:p></o:p>The
claim of the plaintiff before the trial court was for: <o:p></o:p>"(a) a declaration of title to
all that land lying and being at Korle-Dudor, Accra bounded on the north by a
road measuring 9,585 feet more or less, on the east by a road measuring 6,262
feet more or less, on the south by a road measuring 4,395 feet more or less and
to the south-east by a road measuring 8,213 feet more or less and covering an
approximate area of about 10.8 acres. <o:p></o:p>(b) an order for recovery of
possession. <o:p></o:p>(c) damages for trespass. <o:p></o:p>(d) perpetual injunction restraining
the Defendant either by herself, assigns, agents, servants or privies from
entering unto the land, the subject matter of dispute or in any other way
interfering with the Plaintiff's family user or quiet enjoyment of it. <o:p></o:p>(e) costs. <o:p></o:p>What
do we have in the pleadings of the parties? The gist of the case of the
plaintiff on the pleadings is that his family acquired the land in dispute by a
conveyance from the then government of the Gold Coast on the 20th day of
December 1928.&nbsp; Their head of family was
by then Mr. Gilbert Johnson.&nbsp; Their
ownership of the land was confirmed by a High Court judgment delivered on the
31st day of July 1973. This judgment, it is the pleadings of the plaintiff, is
a declaration to the whole world of their title to the land.&nbsp; Neither the defendant's predecessors nor her
family had ever had title to this land and had never exercised any acts of
ownership or possession over this land.&nbsp;
To the plaintiff therefore, Madam Commeykai or James Afutu Korley on
whom plaintiff based his title, had never ever owned this land in dispute <o:p></o:p>Defendant's
pleadings on the other hand were to this effect: that the land in dispute was
granted her predecessor Madam Commmeykai by James Afutu Korley in September
1917, registered with number 366/1917.&nbsp;
His predecessor developed this land 87years ago.&nbsp; Some of these developments were pulled down
to make way for erection of shops.&nbsp; For
the whole period of 87years when the predecessor was on this land neither the
plaintiff's predecessors in title nor any other person from plaintiff's family
raised any objection to the occupation by her predecessors in title.&nbsp; It was only recently when she pulled down the
old structures to put up shops that the plaintiff sought to challenge her
ownership of this land.&nbsp; In respect to
the 1973 judgment relied on by the plaintiff, it was the case of the defendant
that they were never parties to that suit and therefore not bound by it.&nbsp; Defendant even doubts whether the plaintiff's
land, if they had any land at all, covers that of the defendant's land now in
dispute. <o:p></o:p>Examining
the writ of summons and the counterclaim of the parties, it is clear that the
plaintiff is claiming a wider area than what he is disputing with the
defendant.&nbsp; The defendant also admits by
her counterclaim that plaintiff owns land in that area.&nbsp; She shares boundary with the plaintiff on the
North West. <o:p></o:p>The
trial judge granted the plaintiff all his reliefs claimed on the writ of
summons and general damages of GH¢2,000.&nbsp;
In addition he ordered the defendant to attorn tenant to the plaintiff
on the completed buildings.&nbsp; I must say
here immediately that the trial judge provided no reason why he had to grant
this additional relief which was not sought for by any of the parties.&nbsp; But I believe it could be because of the
nature of defendant's possession of the land that was evident from the
proceedings before her.<o:p></o:p>Aggrieved
at the trial courts judgment the defendant has appealed to this court on three
grounds <o:p></o:p>That
the judgment is against the weight of evidence adduced at the trial <o:p></o:p>That
the learned judge erred in holding that a predecessor in title of the
defendant/appellant was a licensee of the predecessor in title of the
plaintiff/respondent and was therefore only allowed to put up a temporary
structure on the disputed land after defendant/appellant predecessor's house
had been destroyed by the earthquake in 1939. <o:p></o:p>That
the learned judge erred in holding that the plaintiff's claim against the
defendant/appellant is not statute barred. <o:p></o:p>I
will continue to describe the parties as plaintiff and defendant as they were
in the trial court.&nbsp; Before looking at
these grounds of appeal let me bring out the salient parts of the evidence of
the parties on record for a clearer appreciation of this judgment. <o:p></o:p>The
plaintiff who spoke through a Nii Ansah Johnson told the court their
grandfather, the late Gilbert Johnson, had title to this land by a deed of
conveyance from the Gold Coast Government on the 20th of December 1928.&nbsp; He tendere</main>