COMFORT OFEIBEA DODOO vs. NII AMARTEY MENSAH & 4 OTHERS [2016]DLCA4585

Date	2016-05-12
Suit No.	SUIT NO: H1/38/2015
Citation No.	[2016]DLCA4585

GYAESAYOR (PRESIDING)

ADUAMA OSEI JA

DZAMEFE JA

THOMAS HUGHES FOR APPELLANTS

DAVID AMETEFE FOR RESPONDENT

[2016]DLCA4585
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													<main id="main" class="content" style="min-height: 60rem" >COMFORT OFEIBEA DODOO&nbsp;&nbsp;&nbsp;
<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>NII AMARTEY MENSAH &amp; 4 OTHERS<o:p></o:p>&nbsp;(DEFENDANTS/APPELLANTS)<o:p></o:p><o:p>&nbsp;</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;
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SUIT NO: H1/38/2015&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;DATE: 12TH MAY, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>THOMAS HUGHES FOR
APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DAVID
AMETEFE FOR RESPONDENT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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GYAESAYOR
(PRESIDING), ADUAMA OSEI JA, DZAMEFE JA<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>ADUAMA OSEI JA:<o:p></o:p>In
its judgment dated the 22nd of March, 2013, the High Court, Accra,
made a declaration of title against the Defendants/Appellants in favour of the
Plaintiff/Respondent in respect of a parcel of land situate at Amasaman in
Accra, and containing an approximate area of 229.67 acres. Other reliefs
granted against the Defendants/Appellants in the said judgment were damages for
trespass in favour of the Plaintiff/Respondent, recovery of possession in
favour of the Plaintiff/Respondent, and perpetual injunction. In the same
judgment, the High Court ordered the Lands Commission to cancel a document
which the Defendants had registered with the Commission as No. R 225/97 in
respect of the disputed land.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>Not
satisfied with the judgment of the High Court, the Defendants/Appellants have
appealed against the same to this Court and we now read the judgment of the
Court. In this judgment, the Plaintiff/Respondent is referred to as “the Plantiff”, and the
Defendants/Appellants are referred to as “the
Defendants”.<o:p></o:p><o:p>&nbsp;</o:p>The
writ of summons by which the Plaintiff initiated her action was issued on the
20th of September, 2000, and by it, the Plaintiff sued “on behalf of herself and on behalf of the
Atu We, Adjebua and Ayikushie
families of Accra”. The indorsement on it was for the reliefs which the
trial Court granted the Plaintiff in its judgment of 22nd March,
2013. <o:p></o:p><o:p>&nbsp;</o:p>In
the statement of claim that accompanied the writ of summons, the Plaintiff
described herself as the daughter and surviving executrix of the late Mercy Naa
Aponsah, also known as Mrs. Mercy Dodoo and owner of the disputed land. She
also claimed to be a beneficiary of the disputed land together with the 3
families mentioned in the writ of summons by virtue of the Will of the late
Mercy Naa Aponsah dated the 29th of December, 1984 and proved on 5th
May, 1988. Among other things, her complaints against the Defendants, as
expressed in the statement of claim, were that the 1st, 2nd
and 3rd Defendants had fraudulently procured the registration of a
portion of the disputed land by the Lands Commission in Accra, and had brought
the 4th – 6th Defendants upon the land, who had been
winning sand on portions of the land without lawful authority, and who by their
unlawful activities on the land had damaged the soil as well as food and
economic crops belonging to her and her caretakers.<o:p></o:p><o:p>&nbsp;</o:p>The
Defendants however stated in their amended statement of defence and
counterclaim that the sand-winning activities on the disputed land were being
undertaken by the 4th and 5th Defendants with the consent
of the 1st Defendant, who was described as Head of the Nii Tetteh
Mensah Family of Pobiman in the Greater Accra Region. The 2nd and 3rd
Defendants were described as principal members of the said Nii Tetteh Mensah
Family, and all their acts in the matter were alleged to have been performed on
the authority of the said family. In the name of their family, the Defendants
claimed ownership of the disputed land by settlement and contended that Mrs.
Mercy Dodoo had no power to bequeath the disputed land to the beneficiaries
mentioned by the Plaintiff or any other person. They also contended that the
Plaintiff, not being the Head of her family, had no capacity to institute the
action.<o:p></o:p><o:p>&nbsp;</o:p>