ALPHA MUSA vs. DR. FRANCIS ASANTE APPEAGYEI [2015]DLCA8279

Date	2015-11-12
Suit No.	CIVIL APPEAL: H1/61/2015
Citation No.	[2015]DLCA8279

MARFUL SAU JA (PRESIDING)

ACQUAYE JA

AGYEMANG (MRS.) JA

ALI GOMDAH A. SAMAED FOR PLAINTIFF/APPELLANT

YAW B. ASARE FOR RESPONDENT

[2015]DLCA8279
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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><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0;mso-ansi-language:EN-GB">vs.<o:p></o:p>DR. FRANCIS ASANTE APPEAGYEI<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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: 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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
12TH
NOV, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ALI GOMDAH A. SAMAED FOR PLAINTIFF/APPELLANT<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">

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

</div><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;mso-ansi-language:EN-GB">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">

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

JUDGMENT<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 Nii Odai Ayiku 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>