REPUBLIC vs. HUMPHREY NII DJAATOR BOTCHWAY AND 2 OTHERS (RESPONDENTS/RESPONDENTS) EX PARTE AMON SAS (APPLICANT/APPELLANT) [2017]DLCA5031

REPUBLIC vs. HUMPHREY NII DJAATOR BOTCHWAY AND 2 OTHERS (RESPONDENTS/RESPONDENTS... [2017]DLCA5031

Date	2017-04-06
Suit No.	CIVIL APPEAL NO. H1/31/2016
Citation No.	[2017]DLCA5031

F. KUSI APPIAH J.A. (PRESIDING)

F.G. KORBIEH J.A.

BARBARA ACKAH-YENSU (MISS) J.A.

DOROTHY NEEQUAYE FOR THE APPLICANT/APPELLANT

OPODU ADJAYE FOR THE RESPONDENTS/RESPONDENTS

[2017]DLCA5031
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>HUMPHREY NII DJAATOR BOTCHWAY AND 2
OTHERS<o:p></o:p>(RESPONDENTS/RESPONDENTS)<o:p></o:p>EX PARTE AMON SAS (APPLICANT/APPELLANT)<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO. H1/31/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
6TH APRIL, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DOROTHY NEEQUAYE FOR THE
APPLICANT/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">

OPODU ADJAYE&nbsp;&nbsp; FOR THE RESPONDENTS/RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>F. KUSI
APPIAH J.A. (PRESIDING), F.G. KORBIEH J.A., BARBARA ACKAH-YENSU (MISS) 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 facts
leading to this appeal, as can be gleaned from the record of appeal, are quite
simple and straight forward. The applicant/appellant herein had sued the first
two respondents/respondents herein in the Circuit Court, Accra claiming, among
others things, the following relief: a declaration of title to all that piece
or parcel of land situate lying and being at Ngleshie Amanfrom, Accra and
bounded on the north-west by the Accra-Winneba Road measuring there 400 feet
more or less, on the south-east&nbsp; by the
lessors land measuring 400 feet more or less, on the north-east by the Tuba
road measuring there 210 feet more or less and on the south-west by the lessors
land measuring there 210 feet more or less and containing an approximate area
of 2.26 acres more or less or 0.82 hectares. The applicant/appellant, as
plaintiff, had averred further, as follows: that he became owner of the land by
virtue of a conveyance dated 10th February, 1994 between Nii Kwashie
Gborlor and Djasetse Kwame Bosompem (on the one hand) and himself (Amon Sas)
(on the other hand). He had also averred that he had been issued with receipts
by the said Nii Kwashie Gborlor the last of which was in 1998 (27th
November). The plaintiff had later obtained a Land Title Certificate No. GA 11955
Vol. 010 Folio 64. He had continued that the 2nd defendant
trespassed unto the land and allocated 6 plots to the 1st defendant
out of the 12 plots and that the 1st defendant was developing the
land. The 1st and 2nd respondents/respondents, as 1st
and 2nd defendants, had filed a common statement of defence. The 1st
defendant had averred that he took his grant from the 2nd defendant
who had in turn averred that the 6 plots had been allocated to him as the
nephew of the chief, Nii Kwashie Gborlor. The two had therefore counterclaimed for
title to the 6 plots. The trial circuit judge had given judgment in favour of
the two defendants or the first two respondents/respondents herein for their
counterclaim. Indeed the applicant/appellant herein was found “liable” and his Land
Title Certificate No. GA 11955 Vol. 010 Folio 64 ordered to be revoked as
having being obtained by fraud.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant/appellant had proceeded to file a notice of appeal against the
judgment but which he had later withdrawn. What is of moment however is that he
also proceeded to file an entry of judgment for “Six [6] Plots i.e. the 1st
[4] plots and the 2nd [2] plots demarcated to him and given to him
by Nii Kwashie Gborlor.” After this things began to take a very murky turn, in
my view. For reasons that are not apparent on the face of the record, the entry
of judgment had to be served on the first two respondents/respondents by
substituted service and the order was to remain posted for ten days instead of
the usual 21 days. Then there was an order to issue a writ of possession and a
demolition. The record did not include the motion paper and supporting affidavit
that led to the issuance of that order. There was also a praecipe for a writ of
possession in which the boundaries of the applicant/appellant’s land were
described as follows: bounded on the north-west by the Accra-Winneba Road
measuring there 216.9 feet more or less, on the south-east by the lessors land
measuring 223.4 feet more or less, on the north-east by the Tuba road measuring
there 159.8 feet more or less and on the south-west by the lessors land
measuring there 178.4 feet more or less and containing an approximate area of 0.91acre.
The record shows that the plaintiff/applicant/appellant was put in possession
of some portion of the land in dispute.<o:p></o:p><o:p>&nbsp;</o:p>It was also
at this juncture, going by the record of appeal, that the plaintiff/applicant/appellant
(hereinafter referred to only as the appellant) filed his application at the trial
High Court in Accra asking that the three respondents be committed for contempt
for the reason that they had interfered with the execution of “the trial
judgment dated 17th November 2010, by recovering by force or fraud,
after execution of writ of possession on 18th September, 2014…” The
affidavit in support recounted in more detail the facts as narrated above but added
that after the appellant had been put into possession, he was brutally attacked
by the 1st and 3rd respondents and their thugs and land
guards. It also alleged that all three respondents and their thugs forcibly
resumed possession of the land he had been put in possession of. In their
affidavit in opposition, the respondents/respondents (hereinafter referred to
only as the respondents) denied ever receiving any entry of judgment. They also
deposed as follows: that the appellant (applicant) had lost the suit in the
Circuit Court and his application for stay of execution had been dismissed in
both the Circuit Court and Court of Appeal; that the applicant had come one
early morning and tried to destroy the kiosks of their grantees who had stopped
him; that the 1st respondent had only dealt with the land as his own
and had actually instituted contempt proceedings against the applicant in the
Land Division of the High Court and the present application was only a
retaliatory one. In her ruling delivered on the 4/2/2015, the trial High Court
judge peremptorily dismissed the application, saying that the respondents had
not flouted any order of the court.<o:p></o:p>