ERNESTINA OWUSU FRIMPONG vs. MR. BINEY AND MRS. BINEY [2016]DLSC2837

Date	2016-05-11
Suit No.	CIVIL APPEAL NO. J4/24/2015
Citation No.	[2016]DLSC2837

ATUGUBA JSC (PRESIDING)

BENIN JSC

AKAMBA JSC

APPAU JSC

PWAMANG JSC

MICHAEL ARTHUR DADZIE ESQ. FOR THE PLAINTIFF/APPELLANT /RESPONDENT/ APPELLANT.

ISHMAEL CARSON ESQ WITH HIM SAMUEL AGBOTTAH. FOR THE DEFENDANTS/ /RESPONDENTS /APPELLANT/RESPONDENT.

[2016]DLSC2837
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													<main id="main" class="content" style="min-height: 60rem" >ERNESTINA OWUSU FRIMPONG<o:p></o:p>vs.<o:p></o:p>MR. BINEY AND MRS. BINEY<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/24/2015&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;DATE: 11TH
MAY, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MICHAEL
ARTHUR DADZIE ESQ.&nbsp; FOR THE
PLAINTIFF/APPELLANT /RESPONDENT/ 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">

ISHMAEL
CARSON ESQ WITH HIM SAMUEL AGBOTTAH. FOR THE DEFENDANTS/ /RESPONDENTS
/APPELLANT/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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ATUGUBA
JSC (PRESIDING), BENIN JSC, AKAMBA JSC, APPAU JSC, AND PWAMANG JSC&nbsp; <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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JUDGEMENT<o:p></o:p>

</div>PWAMANG,
JSC.<o:p></o:p>This case concerns a small
piece of land at Elmina and was commenced in the District Magistrate Court,
Elmina by a writ of summons issued on 27th October, 2005. In this
judgment the plaintiff/appellant/respondent/appellant will be referred to as
“plaintiff” and the defendants/respondents/appellants/respondents as
“defendants”.&nbsp; <o:p></o:p>The facts of the case are
that the land in dispute formed part of land that was taken for the building of
the SSNIT Flats at Elmina but was later surrendered to one Mrs Hannah Amissah.&nbsp;&nbsp; Before surrendering the land to Mrs Hannah
Amissah, SSNIT permitted developments of portions of the land but did not make
formal grants to the developers. <o:p></o:p>In year 2000 the defendants,
who are husband and wife, acquired 1.36 acre of the land from Mrs Amissah and
it is their case that the land in dispute formed part of their acquisition. Upon
the acquisition, demarcation pillars were erected on the ground showing their
boundaries.&nbsp; An indenture containing a
site plan was executed for them by Mrs Amissah which they registered at the
Lands Commission, Cape Coast in 2001. Sometime after the registration defendants
constructed a perimeter wall covering their land including the disputed land.&nbsp; They stated that during the construction of
the wall plaintiff came around to check to ensure they did not enter her land but
she did not complain about the location of their wall. <o:p></o:p>In year 2001 plaintiff,
who had been permitted by SSNIT to build a school named ‘Fair Weather School’
on the land, went to Mrs Amissah for a formal grant to cover the school land.
When she met Mrs Amissah she requested her to add a piece of vacant land
adjoining her school to her grant.&nbsp; Mrs
Amissah told her that before she would add the adjoining land, plaintiff and
the surveyor should check at the Lands Commission to be sure she had not
already sold out the adjoining land. The land in dispute in this case is part
of the adjoining land.<o:p></o:p>Plaintiff checked at the Lands
Commission at Cape Coast and was informed that in their records the land was
free and she duly informed Mrs Amissah. As a result Mrs Amissah sold the land
to plaintiff and executed an indenture for her with a site plan covering both the
school land and the disputed land.&nbsp;
Plaintiff submitted her indenture to the Lands Commission for
registration.&nbsp; While plaintiff’s
indenture was being registered she met 2nd defendant on the disputed
land and questioned her why she was interfering with her land. 2nd defendant
claimed ownership of the land and pointed to a pillar she said was the boundary
of their land acquired from Mrs Amissah. &nbsp;Plaintiff went back to inquire from the Lands
Commission and was informed that defendants’ land was registered and did not
include the disputed land. <o:p></o:p>Registration of
plaintiff’s document was completed in year 2003 by which time defendants had built
their perimeter wall. Defendants also fixed a stand pipe on the disputed land. This
infuriated plaintiff and she caused the part of the wall covering the land in
dispute to be demolished claiming it interfered with her land.&nbsp; <o:p></o:p>Defendants reported the
matter to the Works Department of the Komenda Edina Eguafo District Assembly
(KEEA) and they tried to resolve it amicably but failed. Plaintiff therefore
sued defendants and claimed for declaration of title, damages for trespass,
injunction and an order for removal of stand pipe, all in respect of the
disputed land. Defendants counterclaimed for similar reliefs and also pleaded
the defence of estoppels against plaintiff.&nbsp;&nbsp;&nbsp;
<o:p></o:p>It is remarkable that although
the parties were not represented by lawyers, the pleadings they filed had the
flavour of drafting by a professional pleader. They conducted their own cases
and, as would be seen in the course of this judgment, the cross examination
conducted particularly by plaintiff, a non-lawyer, bore the forensic marks of a
trained lawyer at work. If she did that unaided then it is impressive.<o:p></o:p>The trial court gave
judgment in favour of defendants but on appeal, the High Court, Cape Coast
reversed the decision and entered judgment for plaintiff.&nbsp; Defendants appealed to the Court of Appeal which
allowed the appeal.&nbsp; Being aggrieved,
plaintiff has, with leave of the Court of Appeal, filed this appeal stating
three grounds of appeal which can all be subsumed under the omnibus ground of
appeal namely; the judgment is against the weight of the evidence. <o:p></o:p>It is an established rule
of law that an appeal is by way of re-hearing and especially where an appeal is
mounted on the ground that a judgment is against the weight of the evidence led
at the trial, the appellate court is required to peruse the whole record and
satisfy itself that the findings and conclusion reached in the judgment
appelled against can be supported by the evidence and the </main>