PROF. STEPHEN ADEI AND MRS. GEORGINA ADEI vs. GRACE ROBERTSON AND SEMPE STOOL [2016]DLSC2871

Date	2016-03-10
Suit No.	CIVIL APPEAL NO. J8/29/2015
Citation No.	[2016]DLSC2871

ATUGUBA JSC [PRESIDING]

ANSAH JSC

BAFFOE - BONNIE JSC

BENIN JSC

PWAMANG JSC.

VICTORIA BARTH WITH HER BENEDICTA ARMAH AND JERRY DEI FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS.

PRINCE FREDERICK NII – ASHIE NEEQUAYE FOR THE 1ST DEFENDANT/APPELLANT/RESPONDENT.

[2016]DLSC2871
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													<main id="main" class="content" style="min-height: 60rem" >PROF. STEPHEN ADEI AND
MRS. GEORGINA ADEI<o:p></o:p>vs.<o:p></o:p>GRACE ROBERTSON AND
SEMPE STOOL<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO. J8/29/2015&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;DATE: 10TH
MARCH, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>VICTORIA
BARTH WITH HER BENEDICTA ARMAH AND JERRY DEI FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.<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">

&nbsp;PRINCE FREDERICK NII – ASHIE NEEQUAYE FOR THE
1ST DEFENDANT/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;
padding:0in 0in 1.0pt 0in">

ATUGUBA
JSC [PRESIDING], ANSAH JSC, BAFFOE - BONNIE JSC, BENIN JSC, AND PWAMANG JSC.<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;
padding:0in 0in 1.0pt 0in">

JUDGEMENT<o:p></o:p>

</div>PWAMANG,
JSC.<o:p></o:p>The plaintiffs/respondents/appellants,
hereafter referred to as plaintiffs, in 1979 purchased a parcel of land at
Sowutuom in Accra from the Abola Piam (Tunma We) family of Accra.&nbsp; The purchase was covered by a deed of
conveyance which plaintiffs registered at the Land Registry as No.2447/1985.<o:p></o:p>In 1985 plaintiffs
acquired another parcel of land adjacent to their land from Madam Abena Asi, a
grantee of the Abola Piam (Tunma We) family.&nbsp;
This second grant is covered by two documents registered as Nos.
507/1986 and 508/1986. Plaintiffs went into possession of the lands, built a
two-room house thereon and placed a caretaker in it.<o:p></o:p>Much later, the 1st
defendant/appellant/respondent, hereafter referred to as 1st defendant
started making adverse claims to the land plaintiffs acquired from Madam Abena
Asi. In 2004, plaintiffs wall on the disputed portion of the land was pulled
down and they attributed it to 1st defendant but she denied being
responsible. Plaintiffs therefore sued in the High Court, Accra claiming
against 1st defendant declaration of title, damages for trespass,
special damages, perpetual injunction and recovery of possession.<o:p></o:p>1st Defendant
in her amended statement of defence, claimed that her mother acquired the land
in dispute from both Abola Piam family and Sempe Stool.&nbsp; Sempe Stool later joined the case and
counterclaimed among other reliefs for a declaration that they are the allodial
owners of Sowutuom lands and not the Abola Piam family.&nbsp; Defendant further contended that plaintiffs
grant from Madam Abena Asi was fraudulent as there was no person called Madam
Abena Asi from whom plaintiff acquired the land covered by document No.
508/1986.<o:p></o:p>In his judgment, the trial
High Court judge held that Abola Piam family are the allodial owners of Sowutuom
lands.&nbsp; He also held that defendants were
not able to prove the fraud alleged against plaintiffs in respect of the land
purchased from Madam Asi. The High Court rejected 1st defendant’s
claim that her mother ever acquired the land in dispute from Abola Piam
Family.&nbsp; The High Court therefore entered
judgment for plaintiffs on all their reliefs except for special damages.<o:p></o:p>Defendants appealed to the
Court of Appeal against the judgment of the High Court. The Court of Appeal
upheld the finding of the High Court that Abola Piam Family is the allodial
owners of Sowutuom lands . They also agreed with the trial court that defendant
could not prove any title to the land through Abola Piam family. In their
judgment the Court of Appeal affirmed the finding of the trial High Court that
defendant failed to prove that plaintiff’s acquisition of the land from Madam
Abena Asi was fraudulent but stated as follows at pages 444 to 445 of the
record:<o:p></o:p>“The judge also said the fact that
Madam Asi was not called by respondents to testify for them does not
necessarily impute fraud in the transaction. We do not fault him for that
conclusion, yet the fact still stands that the respondent could not lead any
further positive and credible evidence to establish or prove that they
purchased land from Madam Abena Asi. That issue has not been proven to our
satisfaction that indeed the respondent purchased that land from Madam Abena
Asi. Except repeating same on oath in the trial, no further evidence was led to
establish that assertion.&nbsp; The respondent
is therefore not entitled to declaration of title to those two plots with Land
Registry No. 507/1986 and 508/1986 allegedly bought from Madam Abena Asi.”<o:p></o:p>Being dissatisfied, the plaintiffs
have filed this appeal to the Supreme Court and have stated two grounds of
appeal as follows;<o:p></o:p><span style="font-size:
12.0pt;line-height:115%;font-family:&quot;Bookman Old Style&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Bookman Old Style&quot;;mso-bidi-font-family:&quot;Bookman Old Style&quot;">i.&nbsp;&nbsp;&nbsp;&nbsp;
The learned Justices of the Court of Appeal
misdirected themselves on the law and occasioned a grave miscarriage of justice
when they held in the face of overwhelming evidence to the contrary, that
Appellants’ failure to call Madam Asi as a witness implied that they had not
established their title to the land in dispute.<o:p></o:p>