MRS. WILHEMINA AKWELEY GRAVES vs. ARABA BENTSI-ENCHILL [2016]DLCA5606

Date	2016-11-28
Suit No.	CIVIL APPEAL NO. H3/28/15
Citation No.	[2016]DLCA5606

HONYENUGA J.A. (PRESIDING)

GYAN J.A.

SUURBAAREH J.A.

MRS. SOLITAIRE MONHAJER FOR THE APPELLANT

NO REPRESENTATION FOR THE RESPONDENT

[2016]DLCA5606
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													<main id="main" class="content" style="min-height: 60rem" >MRS. WILHEMINA AKWELEY GRAVES<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ARABA BENTSI-ENCHILL<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, CAPE
COAST]<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. H3/28/15&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; 28TH NOVEMBER, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MRS. SOLITAIRE MONHAJER FOR THE APPELLANT<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">

NO REPRESENTATION FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>HONYENUGA J.A. (PRESIDING), GYAN J.A., SUURBAAREH J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="text-align:center;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>HONYENUGA, J.A.<o:p></o:p>By her writ
of summons, the plaintiff/respondent (hereinafter referred to as the plaintiff)
claims against the defendant/appellant (hereinafter referred to as the
defendant) as follows:-<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:10.0pt;margin-left:1.0in;mso-add-space:auto;text-align:justify;
text-indent:-.5in;line-height:115%;mso-list:l2 level1 lfo1">(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Declaration
of title to all that piece and parcel of land measuring 0.39 of an acre situate
at Rambler’s Cottage, Cape Coast.<o:p></o:p><p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:0in;
margin-bottom:10.0pt;margin-left:1.0in;mso-add-space:auto;text-align:justify;
text-indent:-.5in;line-height:115%;mso-list:l2 level1 lfo1">(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Recovery
of possession of the said plot.<o:p></o:p><p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:0in;
margin-bottom:10.0pt;margin-left:1.0in;mso-add-space:auto;text-align:justify;
text-indent:-.5in;line-height:115%;mso-list:l2 level1 lfo1">(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Perpetual
injunction restraining the defendant either by herself or her agents, workmen,
servants etc. from interfering with the plaintiff’s possession, use and
enjoyment of the said plot.<o:p></o:p>In the
accompanying statement of claim, the plaintiff averred that she is the owner by
purchase of the said plot in dispute, whilst the defendant who has an adjoining
plot around the same plot recently, started developing her plot and strayed
into the plaintiff’s land. As a result a dispute arose between the parties
which led the plaintiff’s lawyer to write to the Registrar of the High Court to
assist to demarcate the plot for peace to prevail. The plaintiff further
averred that the defendant refused to submit her site plan to the Regional
Surveyor who was appointed to demarcate the respective plots and the Surveyor
demarcated the plaintiff’s plot and pillared the plots. It is the case of the
plaintiff that she documented her plot with all the relevant bodies in the
Municipality. However, the defendant thereafter destroyed the pillars of the
plaintiff and proceeded to repot her to the Regional Police Command that the
plaintiff was preventing her from developing her plot. The matter was
investigated by the Police and the allegations were found to be false therefore
the plaintiff was asked to continue with the construction of her wall. Finally,
the plaintiff averred that the defendant continued with her acts of trespass
and prevented the plaintiff from putting up her wall despite her protests and
advice from governmental agencies.<o:p></o:p><o:p>&nbsp;</o:p>Upon service
of the writ of summons and the statement of claim on the defendant, she filed a
statement of defence and a counterclaim. The defendant averred that save that
the plaintiff lives in a building at Rambler’s Cottage, her building is however
designated plot No. 61 in the layout of the area which though commonly called
Ankaful is properly Essuekyir Layout. The defendant stated that she owns two
adjoining plots of land designated plot Nos. 62 and 63 in the layout of the
area. The defendant denied that she strayed an inch into the plot of the
plaintiff and she started developing one of her plots No. 62 close to three
years which she completed and currently living in it. The defendant averred
that the dispute arose because the plaintiff laid an adverse claim to a portion
of her land by trespassing onto the defendant’s plot No. 63 and attempted to
extend her plot into the defendant’s land with an attempted erection of a wall.
She further averred that the Regional Surveyor was not appointed by any lawful
authority or adjudicating body to do any demarcation but was procured to serve
the ends of the plaintiff. The defendant stated that she was not a party nor
privy to anything done by the said Surveyor. She further stated that subsequent
to her unlawful claim to a portion of the defendant’s land, the plaintiff gave
accommodation to an employee of the Survey Department who has intermeddled in
the whole dispute by erecting new pillars for the plaintiff who encroached on
the plot No. 63, the property of the defendant. The defendant averred that she
reported the plaintiff for unlawful entry and criminal trespass to her land. She
stated that while she was away in Accra, the plaintiff erected a fence around
her property which encroached into her land and the Building Inspector tried to
stop the illegal activity but the plaintiff brought a bulldozer to clear a
portion of her land which removed the defendant’s boundary pillars as well as
government survey pillar. Upon her report to the police about the conduct of
the plaintiff, the police advised the parties to settle the dispute through a
civil suit since it involved land. She concluded that the plaintiff rather
trespassed into her plot No. 63 and trying to erect a wall. The defendant
therefore counterclaimed for:-<o:p></o:p>