ADDAE AIKINS vs. DANIEL DAKWA [2014]DLSC6128

Date	2014-05-28
Suit No.	CIVIL APPEAL NO.J4/24/2014
Citation No.	[2014]DLSC6128

ATUGUBA J.S.C. (PRESIDING)

ANSAH J.S.C.

ADINYIRA (MRS) J.S.C.

BAFFOE-BONNIE J.S.C.

V. AKOTO BAMFO (MRS) J.S.C.

PETER ZWENNES ESQ. FOR THE PLAINTIFF/APPELLANT/APPELLANT.

PEASAH-BOADU ESQ. FOR THE DEFENDANT/RESPONDENT/ RESPONDENT.

[2014]DLSC6128
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													<main id="main" class="content" style="min-height: 60rem" >ADDAE AIKINS<o:p></o:p>{PLAINTIFF/APPELLANT/APPELLANT}<o:p></o:p>vs.<o:p></o:p>DANIEL DAKWA<o:p></o:p>{DEFENDANT/RESPONDENT/RESPONDENT}<o:p></o:p>[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.J4/24/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 28TH MAY 2014<o:p></o:p>

PEASAH-BOADU
ESQ. FOR THE DEFENDANT/RESPONDENT/ RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;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>ATUGUBA,
JSC <o:p></o:p>In this case the
plaintiff/appellant/appellant hereinafter referred to as the plaintiff sued the
defendant/respondent/respondent hereinafter referred to as the defendant, in
the Land Division of the High Court, Accra for <o:p></o:p>(a)&nbsp;&nbsp; Declaration of title to land <o:p></o:p>(b)&nbsp;&nbsp; Recovery of possession of land lying at
Dzorwulu, Accra as described in the schedule. (c)&nbsp;&nbsp; Damages <o:p></o:p>In the schedule, the land
is described as <o:p></o:p>"All that piece or parcel of land
situate at Dzorwulu, Accra and bounded on the North West by proposed road
measuring 87 feet more or less, on the South East by vendor's land measuring 85
feet more or less, on the North East by stool land measuring 60 feet more or
less, on the South West by a[sic] measuring 20 feet more or less and covering
an approximate area of 0.09 acre[sic] and is more particularly delineated on
the site plan attached hereto and therein shown edged pink together with all
appurtenances" <o:p></o:p>The plaintiff who was
resident in Canada claimed to have acquired the land from Ernest Augustt, whose
grantor Rebecca Ashiokai Nortey was granted the same by the Osu Stool in
December 1961.&nbsp; The land was subsequently
reduced in size by the Dzorwulu-Achimota road construction from 0.23 acres to
0.09 acres. <o:p></o:p>The defendant, for his
part, claimed that he acquired his land, 0.17 acres, in or about 1984 from
Mannan Mills who obtained the same also from the Osu Stool in July 1961. <o:p></o:p>As to these respective
claims the trial judge distinctly found as quoted by the Court of Appeal per
Ayebi JA at p.362 of the Record of Appeal as follows: <o:p></o:p>"I find from the evidence on the
issue that the plaintiff and the defendant’s piece of land evolved from two
different grants separately made originally by the Osu Stool to two different
grantees and further that the particular piece of land on which the defendant
has put up the two storey building of 16 shops was the land he purchased from
the original grantee of the Stool, Mary Maanan Mills.&nbsp; The plaintiff’s claim for title, in so far as
it relates to that piece of land in possession of the defendant accordingly
fails and I so hold". <o:p></o:p>The
Appellate Judgment<o:p></o:p>The Court of Appeal
critically examined the findings of the trial judge with regard to the parties’
competing claims to the disputed land at pp.371-372 of the Record of Appeal as
follows: <o:p></o:p>"It is thus seen that Madam
Mills’s acquisition was earlier than Madam Nortey’s by just six months.&nbsp; And in the description of Madam Nortey’s
land, it is stated that she shared a common boundary with Madam Mills in the
south.&nbsp; It is not shown on the evidence
where the Dzorwulu-Achimota road passed.&nbsp;
But it is clear from the despcription[sic] that the two women were
neighbours from the onset.&nbsp; However while
Madam Nortey lost a portion of her land that of Madam Mills remained intact. <o:p></o:p>It is therefore crucial to determine
that location of the land the plaintiff acquired from his vendor Ernest
Augustt.&nbsp; The plaintiff set this issue
down for determination when he posed the question whether or not the land of
the defendant as per his grantor’s document fell into the land acquired by the
state and was taken over by Achimota to Dzorwulu motor road.&nbsp; I noticed counsel for plaintiff did not
address the issue at all. <o:p></o:p>But then the trial judge painstakingly
determined it from page 22 of the judgment and arrived at the conclusion I
quoted at the beginning of this judgment.&nbsp;
The site plans in the documents of Madam Mills (Exhibit 2) and Madam
Nortey (Exhibit C) were drawn to the same scale.&nbsp; In Exhibit 2, the grid line number 119100
passed through Madam Mills’ parcel of land. Similarly the same grid line passed
through defendant’s land in the site plan in Exhibit 1. <o:p></o:p>Taking Exhibit C, Madam Nortey’s
document for purposes of comparison, the 0.23 acre land the Osu Stool gave her,
lies between the grid lines 39000 and 37000.&nbsp;
The 0.09 acre of land plaintiff acquired in 1984 from Ernest Augustt was
what was left of this 0.23 acre of land so located.&nbsp; For unexplained reasons, the grid line number
119100 passed through plaintiff’s land as depicted on the site plan.&nbsp; And the size of the land which is only 0.09
acre appeared to be the same as defendant’s 0.17 acre land. <o:p></o:p>