BUILDAF LIMITED AND 2 OTHERS vs. THE TRUSTEES OF THE CATHOLIC CHURCH [2013]DLCA8075

Date	2013-07-18
Suit No.	CIVIL APPEAL NO. H1/21/2013
Citation No.	[2013]DLCA8075

R. K. APALOO J.A. (PRESIDING)

F.G. KORBIEH J.A.

CECILIA H. SOWAH (MRS.) J.A.

MRS. N.Y. ACHEAMPONG FOR THE DEFENDANTS/APPELLANTS

MR. EMMANUEL GOKA FOR PLAINTIFF/RESPONDENT

[2013]DLCA8075
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													<main id="main" class="content" style="min-height: 60rem" >BUILDAF LIMITED AND 2 OTHERS<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>THE TRUSTEES
OF THE CATHOLIC CHURCH<o:p></o:p>(PLAINTIFF/RESPONDENT)<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:0cm 0cm 1.0pt 0cm">

CIVIL
APPEAL NO. H1/21/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 18TH
JULY, 2013<o:p></o:p>

</div>COUNSEL.<o:p></o:p>MRS.
N.Y. ACHEAMPONG FOR THE DEFENDANTS/APPELLANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MR.
EMMANUEL GOKA FOR PLAINTIFF/RESPONDENT <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:0cm 0cm 1.0pt 0cm">

R.
K. APALOO J.A. (PRESIDING), F.G. KORBIEH J.A., CECILIA H. SOWAH (MRS.) J.A.<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>F.G.KORBIEH,
J.A. <o:p></o:p>The facts of the case
leading to this appeal may be briefly narrated as follows: the
plaintiffs/respondents (hereinafter referred to only as the respondents) first
sued the first two defendants/appellants in the High Court, Accra on the
8/1/2007. The writ of summons and statement of claim were subsequently amended
on the 7/5/2009 although with no substantive changes in either the reliefs
sought or the pleadings of the respondents. This time the claim was against the
three defendants/appellants herein (who shall hereinafter be referred to only
as the appellants) and were three reliefs, namely (a) damages for trespass; (b)
perpetual injunction to restrain the defendants, their assigns, privies,
workmen and servants from dealing in any way whatsoever with the plaintiff’s
land in any way howsoever described and (c) costs of the action including
counsel’s fees. In the accompanying statement of claim, the respondent averred,
among other things, that the predecessor of their church, one Mrs. Marie Alaine
Naa Oyo Ofosu Quartey, had conveyed a large parcel of land at Achimota to the
church under a deed dated 26/2/1946 which deed had been registered at the Deeds
Registry as 274/1946. It further averred that Mrs. Ofosu Quartey had herself
derived title to the land from one Mrs. Freda Hansen Sackey who had obtained
her title from the trustees of her deceased husband’s estate and whose
conveyance to her had been registered as 1060/40. The respondent also averred
that its predecessor went into possession of the land the same year, i.e. 1946
and thereafter conducted various acts of ownership of the land without let or
hindrance from anybody and further that the respondents themselves had engaged
some trespassers on the land in litigation and won some of the cases whilst
others were still pending in court.&nbsp; The
respondents again averred that they had developed part of the land into a
church building and were planning to put up a school building on part of it. <o:p></o:p><o:p>&nbsp;</o:p>The respondents’ case
against the appellants was that the 1st appellant, which was a
company registered in Ghana, was developing a portion of their church’s said
land measuring 223 feet by 600 feet. The respondents also averred that the 2nd
appellant, described as the managing director and alter ego of the 1st
appellant, was the one personally directing the construction work for the
latter and had informed a representative of the church that he would not stop
the works and that the church could go to court but it would be to no avail.
The respondents’ case was also that the appellants were digging trenches and
carrying out other construction works on the land and when asked by the
representatives of the church to stop, had refused to do so and carried on day
and night with the view of changing the character of land so as to defeat the
purpose to which the church wants to put the land.<o:p></o:p><o:p>&nbsp;</o:p>In an amended statement of
defence and counterclaim jointly filed by the appellants, they averred that
they could neither deny nor admit a number of the material allegations of fact
made by the respondent. They however denied that the land being developed by
them belonged to the respondents’ church, saying that the land belonged to the
grantor of the 1st appellant, the Onamrokor-Adain family, whose then
head, Paul Ayitey Tetteh, had been able to convince the 2nd
appellant and proved to him through documents and judgments on Dome land, the
former’s family’s title to the land, including the disputed land. They further
averred that the family, acting through Paul Ayitey Tetteh and elders of the family,
had executed a document dated 5/3/95 granting the land to the 1st
appellant. They again averred that their grantor-family had also given the 2nd
appellant a Judicial Map, No. X1229/32, which demonstrated the extent of the
family’s land and this included the land in dispute. They however admitted that
the head of their grantor-family, Paul Ayitey Tetteh had confirmed to them that
his family’s land area was very large and that the family was aware that some
people had built and stayed on the land for a very long time but that the
family was determined to exercise its rights over vacant lands that were now
being claimed by such people. They also averred that the respondents’ claim to
the land in dispute, which was based on a grant made to Freda Hanson Sackey in
1940 was eroded by a court judgment dated 1961 which had declared the
Onamrokor-Adain family owners of all Dome lands, including the land in dispute.
It was also averred by the appellants that on the 20/4/2004, the 1st
appellant assigned its interest in the land to the co-appellant, Mohammed
Asamoah Kwaning. Based on their averments, the 1st and 2nd
appellants counter-claimed for the following reliefs:<o:p></o:p><o:p>&nbsp;</o:p>