MENCE MENSAH vs. E. ASIAMA [2011]DLSC6419

Date	2011-07-20
Suit No.	CIVIL APPEAL NO. J4/14/2007
Citation No.	[2011]DLSC6419

ATUGUBA JSC (PRESIDING)

DR. DATE-BAH JSC

ANSAH JSC

OWUSU (MS.) JSC

BONNIE JSC

YVONNE AMOATEY FOR THE APPELLANT.

RICHARD AMOFA WITH HIM NANA SERWAAH GODSON-AMAMOO FOR THE RESPONDENT

[2011]DLSC6419
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													<main id="main" class="content" style="min-height: 60rem" >MENCE MENSAH <o:p></o:p>(PLAINTIFF/APPELLANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>E. ASIAMA <o:p></o:p>(DEFENDANT/RESPONDENT/RESPONDENT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. J4/14/2007&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: 20TH JULY, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>YVONNE AMOATEY FOR THE APPELLANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RICHARD AMOFA WITH HIM NANA SERWAAH
GODSON-AMAMOO FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ATUGUBA JSC, (PRESIDING) DR.
DATE-BAH, JSC ANSAH, JSC OWUSU (MS.) JSC AND BONNIE, 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;
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JUDGMENT<o:p></o:p>

</div>BAFFOE-BONNIE
JSC <o:p></o:p>…In
the case of Achoro v Akanfela [1996-97] SCGLR 209, at pg 214, Acquah JSC, (as
he then was) made the following pronouncement: <o:p></o:p>“Now in an appeal against findings of
facts to a second appellate court like this court, where the lower court had
concurred in the findings of the trial court, especially in a dispute, the
subject of which is peculiarly within the bosom of the two lower courts or
tribunals, this court will not interfere with the concurrent findings of the
lower courts unless it was established with absolute clearness that some
blunder or error resulting in a miscarriage of justice, is apparent in the way
which the tribunal dealt with the facts. It must be established eg. that the
lower courts had clearly erred in the face of a crucial documentary evidence,
or that a principle of evidence had not been properly applied…… or as pointed
out in Robins v National Trust Co [1927]AC515, that the finding is so based on
an erroneous proposition of the law that if that proposition is corrected the
judgment disappears. In short it must be demonstrated that the judgment of the
courts below are clearly wrong . See Allen v Quebec Warehouse Co(1886)12 AC
101” <o:p></o:p>Taking
a cue from this quote, and having thoroughly reviewed the judgments rendered by
both the trial judge and the Court of Appeal, particularly with regard to the
concurrent findings of fact made by those two courts and having digested the
submissions of both counsel before us, our initial reaction was to just dismiss
the appeal and confirm the judgment of the Court of Appeal which we feel was
very well thought out. However ,ex abundante cautela, and also to give
permanent closure to an appellant who seems to be clutching at straws, we
decided to give this appeal a more detailed treatment. <o:p></o:p>The
facts in this case are fairly simple and admit of little controversy. At the
High Court the plaintiff/appellant (hereafter appellant) issued a writ
claiming: <o:p></o:p>“A
declaration of title to all that piece or parcel of land more particularly
described in the statement of claim Recovery of possession Perpetual injunction
And general damages” <o:p></o:p>The
appellant’s claim to title on the land was premised on the fact that he
obtained his title under a grant from the Oshilanaa quarter of Labadi. The
transaction was duly recorded and registered in the year 1959and he immediately
started exercising rights of ownership over the land by erecting corner pillars
on the land. <o:p></o:p>Sometime
later the defendant/respondent(hereafter respondent) started to interfere with
his quiet enjoyment of the land and when respondent failed to heed several
warnings he issued a writ at the Circuit Court where he also succeeded in
procuring an interim order of injunction. As a result of the persistence of the
respondent in his tresspassory activities on the land he issued the writ at the
High Court. <o:p></o:p>The
respondent on the other hand traced his root of title to an auction sale of the
land to one E.A Quarcoo who was the highest bidder at the auction. The
certificate of purchase evidencing this transaction was issued on 24th April
1957. E. A Quarcoo in turn sold it to Palm Grove Estates who in turn sold a
portion of the land to the respondents. He conceded that the appellant issued a
writ and procured an injunction at the Circuit Court, but the case was struck
out for want of prosecution when the appellant abandoned it. He said that when
he remained on the land the appellant reported him to the national
investigation committee’s sub-committee on Labadi stool lands where his
(respondent’s)title was confirmed. The respondent in turn reported the conduct
of the appellant to the police and he was arrested and charged. <o:p></o:p>At
the High Court the learned Judge found for the respondent and dismissed the
appellant’s action. In her judgment the Honourable Trial Judge made some
findings of fact and concluded as follows <o:p></o:p>“If on 24th April, 1957, C.S Commey
was divested of ownership of the property and same vested in E.A Quarcoo it
follows that in 1959, when he and or Anum Alormoshie and Tawiah Gbawe purported
to make a grant of a portion of the land to the plaintiff, they had nothing and
therefore gave nothing. <o:p></o:p>I find that the subject matter of the
dispute forms part of a large tract of land sold at public auction to E.A.
Quarcoo, the defendant predece</main>