PHILIP BOBIE FRIMPONG vs. JULIANA DAMPARE-BEACHLER [2017]DLCA4967

Date	2017-05-18
Suit No.	CIVIL APPEAL NO. H1/164/2017
Citation No.	[2017]DLCA4967

F.G.KORBIEH J.A. (PRESIDING)

AVRIL LOVELACE-JOHNSON (MISS) J.A.

CECILIA H.SOWAH (MRS.) J.A.

MR. CORNELIUS VITO FOR THE PLAINTIFF/APPELLANT

KWAKU AGYEI-GAMFI FOR THE DEFENDANT/RESPONDENT

[2017]DLCA4967
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													<main id="main" class="content" style="min-height: 60rem" >PHILIP BOBIE FRIMPONG<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>JULIANA DAMPARE-BEACHLER<o:p></o:p>(DEFENDANT/RESPONDENT)<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;
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CIVIL APPEAL NO. H1/164/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATED:
18TH MAY, 2017 <o:p></o:p>

</div>COUNSEL: 
MR. CORNELIUS VITO FOR THE PLAINTIFF/APPELLANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWAKU
AGYEI-GAMFI FOR THE DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>F.G.KORBIEH
J.A. (PRESIDING), AVRIL LOVELACE-JOHNSON (MISS) J.A., CECILIA H.SOWAH (MRS.)
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="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>F.G.KORBIEH, J.A.<o:p></o:p><o:p>&nbsp;</o:p>The
following is a summary of the facts of the case leading to this appeal. The
plaintiff/appellant (hereinafter simply referred to as the plaintiff) sued the
defendant/respondent (hereinafter simply referred to as the defendant) in the
Land Division of the High Court, Accra through his lawful attorney claiming the
following reliefs: 1. Declaration of title to land situate at Adentan with
Registration No. 397/1979 the subject matter of the suit; 2. An order for
repossession; 3. Perpetual injunction against the defendant from entering or
dealing with the land in any form; 4. Demolition of unauthorized structures put
up by the defendant on the land and disposal of the waste at her expense; 5.
General damages and 6. Costs. In a schedule the plaintiff described in detail
the boundaries of the land in dispute. In the accompanying amended statement of
claim, he averred, among other things, as follows: that the defendant is a
trespasser who&nbsp; encroached on the
plaintiff’s land during his absence and has put up illegal structures which she
occupies without any reference to the plaintiff; that the plaintiff acquired
two plots of land from the family of Nee Adjei Kpeen II of La, Accra in
December 1976 and has been in possession as lawful owner; that an indenture
dated 5th December, 1976 and executed by the grantors as vendors on
the 18th January, 1979 was issued to him as purchaser of the land;
that he fixed pillars to demarcate the land before he travelled out of the
country; that in 1987 one Mante and later one Senyo Yaw Pongo challenged him
over the ownership of the land and in 1991 the Zonal Secretariat of the
Committee for the Defence of the Revolution (CDR) completed investigations into
the matter and its findings are in a report. The writ and statement of claim
were initially served on the defendant by substituted service and upon receipt
of which she filed a statement of defence which she subsequently amended in
which she denied most of the material averments of facts made by the plaintiff.
She in turn averred as follows: that she is the lawful owner in possession of
the land in dispute; that she commenced the development of the land in January
1993 and completed same in May, 1999 without challenge from any quarters and
that the plaintiff’s action is statute barred by virtue of section 10 of the
Limitations Act, 1972 (NRCD 54); that she acquired the land in December, 1991
from Gabriel Amankwa by an indenture stamped as LVB 9341/93 which she
registered and has been issued with Land Certificate No. GA 17320; that her
grantor had acquired his title from Joseph Yaw Pongo who had in turn acquired
his title from Nee Adjei Kplene II and Afototse Onukpa, Joint Heads and Lawful
Representatives of the Agbawe Family of Labadi; that she was not party to whatever
took place at the CDR office and the report from that office was inadmissible
against her. In his reply the plaintiff joined issue with the defendant on his
defence. He denied that his action was statute barred and averred that the
decision of the CDR was binding on the defendant because at the material time
the CDR exercised judicial power.<o:p></o:p><o:p>&nbsp;</o:p>The case
went to trial on the basis of nine original and four additional issues that had
been set down for trial. The first person to testify was the surveyor called by
the court itself. He tendered in evidence exhibit CE1. Thereafter the plaintiff
and his witness (PW1) testified. The testimony of the defendant’s attorney
ended the trial of the case. The learned trial judge gave his judgment on the
1/2/2016 in favour of the defendant. It is that judgment that the plaintiff has
appealed against on the following grounds:<o:p></o:p>(a)&nbsp;&nbsp; The
judgment is against the weight of the evidence.<o:p></o:p>(b)&nbsp;&nbsp; The trial
judge was in grave error when he failed or refused to consider in his judgment
the superimposition, exhibit CE1; that failure or refusal to consider exhibit CE1
disabled him to properly evaluate and focus on the most important issues
namely:<o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not the parties were fighting over the
same piece of land…<o:p></o:p>