ALPHA MUSA vs. DR. FRANCIS ASANTE APPEAGYEI [2015]DLCA4532

Date	2015-11-12
Suit No.	CIVIL APPEAL: H1/61/2015
Citation No.	[2015]DLCA4532

MARFUL SAU JA (PRESIDING)

ACQUAYE JA

AGYEMANG (MRS.) JA

ALI GOMDAH A. SAMAED FOR PLAINTIFF/APPELLANT

YAW B. ASARE FOR RESPONDENT

[2015]DLCA4532
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													<main id="main" class="content" style="min-height: 60rem" >ALPHA MUSA<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>DR. FRANCIS ASANTE
APPEAGYEI<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL (CIVIL DIVISION), 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: H1/61/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 12TH NOVEMBER 2015<o:p></o:p>

YAW
B. ASARE FOR RESPONDENT<o:p></o:p>

</div>AGYEMANG JA:<o:p></o:p>The
appellant who sued in his capacity as the administrator of the estate of his
deceased father Malam Musa, but nonetheless described himself in pleading as
the beneficial and legal owner of the land in dispute, claimed inter alia for,
a declaration of title to, and recovery of possession of a sizeable tract of
land described as situate and lying at East Legon covering an approximate area
of 275.47 acres bounded on the North/West by the lessor’s property measuring
4000 ft. more or less, on the South/East by the Tema motor road measuring
4000ft. more or less, on the South/West by the lessor’s land property measuring
3000ft. more or less, and the North/East by the lessor’s property measuring
3000ft. more or less.<o:p></o:p>It
was the appellant’s case at trial, that his late father Malam Musa who had been
the head of the Hausa community, had in 1969, acquired for his own use, the
parcel of land the subject of the suit from the Nungua Stool acting by Nii Odai
Ayiku who executed a lease with Land Registry No. 1220/1969 AC 3440A/69,
32000/19265, dated 23rd May 1969 for fifty years in favour of his lessee father.
It was further his case, that his father remained in possession of the land
until his death and exercised rights of possession. Averring that he had since
the death of his father, been granted Letters of Administration without
challenge from any quarter, the appellant as plaintiff, asserted that he had
commenced the action to safeguard the land from acts of trespass committed by
the defendant/respondent who he alleged to have forcibly entered the land to
challenge his use thereof.<o:p></o:p>It
was the case of the defendant/counterclaimant/respondent (referred to
alternately as the respondent or the respondent/counterclaimant),that on the
20th of May 1979 and again on 5th of August 2003, he acquired two parcels of
land. The first parcel of land was acquired by purchase from the Nungua Stool
whose occupant at the time was NiiOdaiAyiku IV. He built a house as well as a
perimeter fence thereat. The second purchase was from one William Nkumsah who
had also acquired it from the said Nungua stool per its occupant Nii Odai Ayiku
IV. The land which is now in dispute, and which the defendant/respondent
described as lying between Bawaleshie and East Legon (formerly Otele), was said
to have been the subject of a suit at the Circuit Court which adjudged one Nii
Kotey Amli head of the Klanaa Quarter of La, the owner thereof.&nbsp; The respondent/counterclaimant alleged that
after he became aware of the said judgment of the Circuit Court, he regularised
his leasehold acquired from Nii Odai Ayiku, Nungua Mantse, with the said Klanaa
Quarter of La. On this land, the respondent put up a one-bedroom structure.
Shortly thereafter, the appellant herein, laying claim to both parcels of land,
allegedly went onto the land and destroyed the one-bedroom structure on the
second parcel of land. The respondent counterclaimed for inter alia, damages
for trespass and for damage to his structures on the land as well as a
perpetual injunction to restrain the appellant from dealing with the land.<o:p></o:p>At
the hearing of the suit and the counterclaim of the respondent, the learned
trial judge dismissed the suit of the appellant and entered judgment upon the
counterclaim. <o:p></o:p>The
main issue upon which the suit of the appellant was dismissed was the capacity
of the appellant as administrator of the estate of his late father Malam Musa,
to institute an action in respect of the land in dispute. This was because in
the judgment of the learned trial judge, the land was not the self-acquired
property of the late Malam Musa, but had been acquired by him in his capacity
of the Head of the Hausa Community, for the use of the Hausa Community as a
Zongo. He reasoned then that the said land did not form part of the estate of
Malam Musa and consequently that the appellant who had sued as administrator of
the estate of Malam Musa lacked the requisite capacity to bring suit in respect
of the said parcel of land.<o:p></o:p>It
is against the said judgment of the High Court dismissing the claim and
entering judgment upon the counterclaim, that the present appeal has been
brought.<o:p></o:p>The
appellant has filed seven grounds of appeal which we reproduce as follows:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in
holding that “the property does not belong to Malam Musa”;<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge misdirected
himself on the interpretation of exhibit C;<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in
finding that the appellant/appellant has no capacity to institute the action;<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in
holding that the appellant/appellant failed to cross-examine on </main>