ANNA VICTORIA BART PLANGE vs. NANA EGYEI FOAH [2011]DLSC2547

Date	2011-02-23
Suit No.	CIVIL APPEAL NO. J4/40/2010
Citation No.	[2011]DLSC2547

ATUGUBA JSC (PRESIDING)

AKUFFO (MS) JSC

ANIN-YEBOAH JSC

GBADEGBE JSC

AKOTO-BAMFO (MRS) JSC

MAXWELL HALM REPRESENTS THE APPELLANT

HANRY WILLIAM KOBINA RESPONDENT PRESENT

JOHN MERCER (WITH COSMOS ANDOH) FOR THE APPELLANT

MICHAEL ARTHUR-DADZIE FOR RESPONDENT.

[2011]DLSC2547
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													<main id="main" class="content" style="min-height: 60rem" >ANNA VICTORIA BART PLANGE<o:p></o:p>vs.<o:p></o:p>NANA EGYEI FOAH<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO. J4/40/2010 &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;DATE: 23RD FEBRUARY, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MAXWELL HALM REPRESENTS THE
APPELLANT.<o:p></o:p>HANRY WILLIAM KOBINA
RESPONDENT PRESENT.<o:p></o:p>JOHN MERCER (WITH COSMOS
ANDOH) FOR THE 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">

MICHAEL
ARTHUR-DADZIE FOR RESPONDENT.<o:p></o:p>

ATUGUBA JSC (PRESIDING) AKUFFO (MS), JSC
ANIN-YEBOAH, JSC GBADEGBE, JSC AND AKOTO-BAMFO (MRS), JSC<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">

JUDGEMENT&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;<o:p></o:p>

</div>GBADEGBE JSC:&nbsp;&nbsp;&nbsp; <o:p></o:p>This
is an appeal from the decision of the Court of Appeal that affirmed the
decision of the High Court, Cape Coast in an action that turned on the
ownership of a piece or parcel of land situate at Momofra Akyenim in the
Central Region. It appears from the judgment of the Court of Appeal that the
leaned judges accepted the determination of the trial High court. Delivering
the judgment of the court, Piesare JA (as he then was) said by way of a comment
on the appeal before them as follows:<o:p></o:p>“At the end
of the day, the trial judge gave a straightforward and comprehensive judgment
dismissing the plaintiff-appellant’s claim, and entered judgment in favour of
the defendant on his counterclaim. We have carefully examined the judgment, and
we have no good reason to disturb that judgment.”<o:p></o:p>In
our view the facts that led to the issue of the writ of summons herein in the
trial court were as said by the learned judge of the Court of Appeal whose
pronouncement has just been quoted relatively simple and turned on the question
as to who owned the disputed land that on the admitted evidence was first
acquired by the plaintiff’s family by purchase. The defendant while admitting
the prior ownership of the plaintiff’s family pleaded a grant from the family to
his predecessors in title on September 22, 1944. The said transaction of sale
on which the defendant relied was covered by a deed that was registered as No
273A/1945. The relevant pleadings of the defendant on how they came to be
possessed of the disputed land was averred to in paragraphs 7–10 of the
statement of defence, which in our view provided the plaintiff with what we
consider to be a full and frank disclosure of the reason why their claim of
title to the land was being resisted. &nbsp;&nbsp;Reference is made shortly afterward in this
delivery to the relevant pleadings for a better appreciation of the very narrow
compass within which the action ought to have been contested in the trial court
having regard to the case put forward by the parties. Since the defendant
admitted the prior ownership of the plaintiff but relied on a purchase by his
ancestors from the plaintiff’s predecessors in title, we think that the right
to begin at the trial rested on the defendant and accordingly in considering
the pleadings filed on their behalf in the trial Court, we commence with that
of the defendant. &nbsp;The relevant pleadings
of the defendant that answer the plaintiff’s averment as to title that is
asserted in paragraph 4 of the statement of claim is contained in the following
paragraphs.<o:p></o:p>“7. In
answer to paragraph 4 of the statement of claim, Defendant says that his great
grand fathers; Atekye Panyin, Nana Amba Kainbah and John Braham all Atekyem
Quarters and members of the Anona family of Elmina acquired the land in dispute
from Jacobus Vanderpuye Neizer and Elizabeth Ackon alias Essi Kubil of Elmina.<o:p></o:p>8. Defendant
further says that the said Jacobus Vanderpuye Neizer and Elizabeth Ackon alias
Essi Kubil acted for and on behalf of the late Kwamina Amissah, Anona family of
Elmina.<o:p></o:p>9. Defendant
further says that his (Defendant) great grandfathers aforementioned in
consideration of the land in dispute paid (twenty six pounds), a receipt for
which was issued by the vendors and a deed of conveyance was then executed on
September 22, 1944 to the purchasers and registered as No 273A / 1945.<o:p></o:p>10.
Defendant says that the land in dispute after its acquisition by the purchaser
in 1944 became the property of the Nana Egyei Foah Anona family of Elmin</main>