ALHAJI MAMUDU SALLEY & ANOR. vs. RASHAD PEREGRINO BRIMAH AND 5 OTHERS [2016]DLCA4524

Date	2016-04-14
Suit No.	CIVIL SUIT: NO: H1/27/2016
Citation No.	[2016]DLCA4524

M.OWUSU (J.A.) PRESIDING

KORBIEH (J.A.)

WELBOURNE (J.A.)

SAMIRATU SEIDU FOR PLAINTIFFS/APPELLANTS

FRANK ADEEKU FOR 1ST TO 5TH DEFENDANTS/RESPONDENTS

[2016]DLCA4524
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													<main id="main" class="content" style="min-height: 60rem" >ALHAJI MAMUDU SALLEY
&amp; ANOR.<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>RASHAD PEREGRINO BRIMAH
AND 5 OTHERS<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;
padding:0in 0in 1.0pt 0in">

CIVIL SUIT: NO:&nbsp; H1/27/2016&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: 14th April, 2016<o:p></o:p>

FRANK
ADEEKU FOR 1ST TO 5TH DEFENDANTS/RESPONDENTS<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARIAMA OWUSU, J.A.:<o:p></o:p>On
the 29th day of January, 2015, the High Court, Accra dismissed the plaintiffs’
claims.&nbsp; The 6th defendant’s counterclaim
was also dismissed.&nbsp; Cost of GH¢10,000.00
was awarded against the plaintiffs in favour of the 1st to 5th defendants.&nbsp; No cost was awarded against the 6th
defendant.<o:p></o:p>Dissatisfied
with the decision of the High Court, the plaintiffs appealed to the court of
Appeal on the following grounds:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the judgment is against the weight
of the evidence on record.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the learned trial Judge erred in
holding that the plaintiffs failed to prove their claim of ownership of the
land in dispute and further erred in holding that the land did not belong to
Amidu Butcher.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the learned trial Judge erred in
holding that the plaintiffs were caught by laches and acquiescence.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Further grounds of appeal would be
filed upon receipt of the record of appeal.<o:p></o:p>Before
dealing with the arguments canvassed in support and against this appeal, I will
like to recount the brief case of the parties before the trial court.<o:p></o:p>Per
their amended statement of claim, the plaintiffs averred that the 1st plaintiff
is the Head of Amidu family of Accra and 2nd plaintiff is a grandson of Amidu
Butcher of Accra.&nbsp; Whilst the 1st to 5th
defendants are sons and siblings of Mobolaji Preregrino Brimah of Accra.&nbsp; The 6th defendant is the great grandson of
Chief Brimah of Accra.<o:p></o:p>The
plaintiffs averred that their grandfather purchased the land situate at
Knutsford Avenue near Chief Brimah’s property between 1910 and 1920.&nbsp; The plaintiffs gave the boundaries owners of
the disputed property with an approximate area of 0.26 acre.&nbsp; The plaintiffs averred further that during
the life time of their grandfather the property in issue was a vacant land
which he used as a stable for sometime and later a 17 zinc shed was built by the
2nd son of Amidu Butcher by name Abdulai Falke, who was a carpenter by
profession.&nbsp; According to the plaintiffs,
the zinc sheds were used by both Amidu and Peregrino Brimah families for
residential purposes.<o:p></o:p>Plaintiffs
continued that, the reason why the Peregrino family came to stay on the
disputed land was because of a quarrel which developed between two rivals i.e.
two wives of Chief Brimah who was a very close friend of Amidu Butcher who
migrated together from Nigeria to Ghana. It is the case of the plaintiffs that
Imoru Mobolaji Peregrino Brimah (IMPB), a son of one of the rival women and
also a secretary to Amidu Butcher and his son Abdul Kadiri, came to seek a
place of refuge for their mother to avoid further problems at home.&nbsp; Permission was granted by Abdul Kadiri to his
mother, Fatima Okpedu to reside on the disputed land.&nbsp; The plaintiffs averred further that, in the
1940’s the disputed area begun to develop and Imoru Mobolaji Peregrino Brimah
on behalf of the Amidu Butcher leased the land in dispute to Emmanuel Omari
Anson and three others all of Accra on 6th of June, 1946 for a period of thirty
(30) years whereof the zinc sheds were demolished for the redevelopment of the
land by defendants’ predecessors led by Imoru Mobolaji Peregrino Brimah.&nbsp; The plaintiffs concluded that when the lease
agreement was being registered, Imoru Mobolaji&nbsp;
Peregrino Brimah fraudulently changed Amidu Butcher’s name to Imoru
Mobolaji Peregrino Brimah and his siblings.<o:p></o:p>The
plaintiffs gave the particulars of the fraud and concluded that, Imoru Mobolaji
Peregrino Brimah was not only acting as secretary and caretaker for the Amidu
family but also an agent, deponent and witness for the said family.&nbsp; Even though Abdul Kadiri who gave permission
to Imoru Mobolaji Peregrino Brimah passed away in the early 1950’s, the
disputed property remained in the hands of Imoru Mobolaji Peregrino Brimah and
when the latter also passed away between the late 1950’s and early 1960’s, the
land document and other documents remained with the family of Imoru Mobolaji
Peregrino Brimah and his subsequent dealings with the disputed property, had
changed the name of Amidu Butcher to Brimah without the consent of the
plaintiffs’ predecessors.&nbsp; Since then the
documents of the disputed property has continued to remain in the hands of the
Peregrino family until 2009 when the Amidu’s discovered that the defendants
were demolishing the second structure i.e. H/No D 963/3 Knutsford Avenue, Accra
without their knowledge and consent hence this action claiming the following
reliefs:<o:p></o:p>