ALBERT LUMOR SALLAH vs. MARGARET SERWAH [2016]DLCA4477

Date	2016-06-08
Suit No.	CIVIL APPEAL NO. H1/23/2014
Citation No.	[2016]DLCA4477

DENNIS DOMINIC ADJEI J.A. (PRESIDING)

CECILIA H. SOWAH J.A.

L. L. MENSAH J.A.

SIR S. ASANTE-ANSONG FOR PLAINTIFF/APPELLANT.

STEPHEN ASANTE-BEKOE FOR DEFENDANT/APPELLANT.

[2016]DLCA4477
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													<main id="main" class="content" style="min-height: 60rem" >ALBERT LUMOR SALLAH<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MARGARET SERWAH<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, KOFORIDUA]<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. H1/23/2014&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; DATE: 8TH JUNE 2016<o:p></o:p>

STEPHEN
ASANTE-BEKOE FOR DEFENDANT/APPELLANT.<o:p></o:p>

</div>L. L. MENSAH, J.A.<o:p></o:p>This
is an appeal by the Plaintiff/Appellant who will be described hereafter as the
Plaintiff against the judgment of the High Court, Koforidua dated the 17th day
of January 2014 in favour of the Defendant/Respondent who will be described
hereafter as the Defendant.<o:p></o:p>On
the 7th of December, 2005, the Plaintiff instituted an action against the
Defendant claiming the following reliefs:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration of his title and
ownership of ALL THAT PIECE OR PARCEL OF LAND known as Plot No. 14 and
containing an approximate area of 0.29 of an acre situate and lying and being
at Section 3A Block “C”, Koforidua in the New Juabeng District in the Eastern
Region of the Republic of Ghana and bounded on the North-West by Koforidua to
Huhunya motor road and measuring on that side a distance of 95 feet more or
less; on the North-East by Plot No. 15 and measuring on that side a distance of
125 feet more or less; on the South-East by an unnamed road and measuring on
that side a distance of 95 feet more or less and on the South-West by Plot No.
13 measuring on that side a distance of 145 feet more or less.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order of the court to compel the
Defendant to remove, pull down or take away every structure she has unlawfully
constructed on a portion of Plaintiff’s land.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Or in the alternative pay compensation
at the sum of ₵5,000.00 for the area of the
Plaintiff’s land she trespassed on by the Defendant to the Plaintiff.<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Perpetual injunction to restrain the
Defendant, her agents, workmen and all persons claiming by interest through the
Defendant from entering on the undeveloped portion of the Plaintiff’s land.<o:p></o:p>The
Defendant upon receipt of the Plaintiff’s writ filed a stiff statement of
defence.&nbsp; At the end of the trial at the
court below, Plaintiff’s action was dismissed, whereupon the Plaintiff launched
this appeal to vindicate his ownership of the disputed land.<o:p></o:p>The
Defendant filed one ground of appeal and an additional ground.&nbsp; These are:<o:p></o:p>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the judgement is against the weight
of evidence.<o:p></o:p>The
additional ground is:<o:p></o:p>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the learned trial judge erred by
relying exclusively on the evidence of the surveyor (CW1) that there were two
layouts on the site plans attached to the leases of both the Appellant and the
Respondent and that occasioned miscarriage of justice.<o:p></o:p>The
facts on which rests this appeal from each of the parties’ perspective are as
follows:-&nbsp; The Plaintiff acquired a
leasehold interest of a plot of land known as Plot No. 14 Section 3A Block C,
Koforidua on 28th March, 1989 from the Lands Commission.&nbsp; The document on the land was duly registered
and tendered Exhibit A.&nbsp; He took
possession of the land, walled a portion thereof and completed the construction
of a house on the fenced portion of the land in about 1990.<o:p></o:p>The
further evidence of Plaintiff is that since he was living outside Koforidua, he
was not always present.&nbsp; The Defendant
and her late husband in his absence built on a portion of his land and
completed the building thereon.&nbsp; He
however drew the attention of the Defendant’s husband about his trespassory
acts.&nbsp; The Defendant’s husband assured
him that he would see to it that the matter was resolved.&nbsp; The matter was however not resolved before
the Defendant’s husband died.<o:p></o:p>Plaintiff
said the Defendant was claiming a portion of the land he granted to one Aboagye
PW1 as her own and this is what ignited the flames of the litigation between
them.<o:p></o:p>The
evidence of PW1 Patrick Kofi Aboagye aforementioned is in the mai</main>