JOHN HOLDBROOK YANKAH vs. ALHAJI MAMA, MR. NARTE AND MR. IKE [2014]DLCA4985

Date	2014-06-19
Suit No.	CIVIL APPEAL NO: H1/95/14
Citation No.	[2014]DLCA4985

MARFUL-SAU JA (PRESIDING)

GYAESAYOR JA

MARGARET WELBOURNE JA

NATASHA LAMPTEY FOR PLAINTIFF/APPELLANT

DANIYAL ABDUL KARIM FOR 3RD DEFENDANT/RESPONDENT

[2014]DLCA4985
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													<main id="main" class="content" style="min-height: 60rem" >JOHN HOLDBROOK YANKAH<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ALHAJI MAMA, MR. NARTE AND MR. IKE<o:p></o:p>(DEFENDANTS/RESPONDENTS)<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;
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CIVIL APPEAL NO: H1/95/14&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: 19TH JUNE, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NATASHA LAMPTEY FOR
PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DANIYAL ABDUL KARIM FOR 3RD
DEFENDANT/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;
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MARFUL-SAU
JA (PRESIDING), GYAESAYOR JA,MARGARET WELBOURNE JA<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>MARFUL-SAU,
JA:- This appeal is against the judgment of the High Court , Fast Track Division dated the 25th January
2012. In the said judgment the action by the plaintiff who is the appellant
herein was dismissed and the 3rd defendant who is the respondent in
this appeal was ordered to attorn tenancy to the Lands Commission, the owners
of the land in dispute as found by the trial court. The facts of the case as
gathered from the appeal record is simply that the appellant acquired the land
in dispute from the Osu Stool, while the respondent also acquired the same land
from the 1st and 2nd defendants both of whom did not contest the
action as the trial was a contest between the appellant as plaintiff and the
respondent as the 3rd defendant. Evidence on record revealed that
both parties developed portions of the land in dispute at different times.<o:p></o:p>The
appellant took possession of the land in 2003, erected structures on the land
and put in a caretaker who was ousted from the land by the respondent when he
decided to construct a storey building on a portion of the land. The record
also showed that during the pendency of the action, the appellant applied to
the Lands Commission and eventually got the Commission to regularise his
interest in the land. At the end of the trial the trial court found that both
parties were trespassers, since there was no dispute that the land had been
acquired by the Government and same vested in the Lands Commission. The trial
court also found appellant’s conduct during the process of regularising his
interest in the land fraudulent and as such dismissed the appellant’s claim and
ordered that the respondent attorn tenancy to the Lands Commission. It is
against this judgment that the appellant has appealed to this court on the
following grounds:-<o:p></o:p>a.
That the judgment was perverse and against the weight of evidence.<o:p></o:p>b.That
the trial Judge failed to appreciate that as against the defendant/respondent
the appellant had a better right to possessory title of the disputed land.<o:p></o:p>c.
That the trial Judge’s finding of fraud against the appellant was baseless
being unsupported by the evidence on record.<o:p></o:p>From
the record of appeal no additional ground was filed even though in the notice
of appeal, appellant gave an indication that he will file additional grounds on
receipt of the appeal record. I intend to address grounds (a) and (b) together
since by the said grounds the appellant is simply complaining that the trial
judge failed to properly evaluate the evidence adduced at the trial and by that
came to wrong conclusions.<o:p></o:p>The
law is trite that when appeal is mounted by an appellant on the ground that the
judgment is against the weight of evidence, the appellate court is vested with
power to re-examine the entire record of appeal and ascertain whether the
decision of the trial court was supported by the evidence on record or not.
What then is the evidence on record? From the record it is an undisputed fact
the at the time the appellant issued his writ of summons on the 4th
of April 2007, he as well as the respondent were trespassers on the land the
subject matter of the dispute. The evidence on record shows that during the
pendency of the action, precisely in July 2007 the appellant was able to get
the Lands Commission to regularise his acquisition. This lead to the Lease
granted the appellant and tendered at the trial as Exhibit S.<o:p></o:p>As
evidence on record showed appellant was a trespasser when he issued his writ of
summons since at that time the land was vested in the Lands Commission.
Clearly, therefore there was no way the appellant could have succeeded in his
claim for declaration of title and perpetual injunction against the respondent,
as endorsed on the writ of summons. The subsequent regularisation and the
amendment of the statement of claim by the appellant, to reflect the
regularisation of his acquisition by the Lands Commission did not and could not
have changed the status of appellant, as a trespasser at the commencement of
the action. <o:p></o:p>The
mere amendment of the pleadings by the appellant did not change the
commencement date of the action and </main>