ANATU DAGARTI vs. MUSTAPHA BANDAH [2018]DLCA4558

Date	2018-03-01
Suit No.	SUIT NO. H1/160/2017
Citation No.	[2018]DLCA4558

MARFUL-SAU J.A. (PRESIDING)

ADJEI J.A.

MRS SOWAH J.A.

ROBERT PAPPOEL FOR PLAINTIFF/RESPONDENT

MRS. ANGELA QUARDE FOR THE DEFENDANT/APPELLANT

[2018]DLCA4558
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													<main id="main" class="content" style="min-height: 60rem" >ANATU DAGARTI<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>MUSTAPHA BANDAH<o:p></o:p>(DEFENDANT/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;
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SUIT NO. H1/160/2017&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; DATE: 1ST MARCH, 2018<o:p></o:p>

MRS.
ANGELA QUARDE FOR THE DEFENDANT/APPELLANT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>MARFUL-SAU
J.A. (PRESIDING), ADJEI J.A., MRS SOWAH J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>ADJEI (JA):<o:p></o:p>The
Circuit Court in Accra on 23rd November, 2015 delivered judgment in the case which
has culminated in this appeal. The trial Circuit Court dismissed the
Defendant’s counterclaim and entered judgment for the substituted Plaintiff on
all the reliefs endorsed on her claim.<o:p></o:p>The
Defendant dissatisfied with the judgment of the trial Circuit Court filed an
appeal against same on16th December, 2015. For the purposes of this appeal, the
Plaintiff/Respondent shall be referred to as the “Plaintiff” and the
Defendant/Appellant as ‘Defendant”.<o:p></o:p>A
cursory look at the facts make them complex and ambiguous but in reality they
do not admit no ambiguity. The original Plaintiff in the case sued the original
Defendant for an order of&nbsp; injunction and
recovery of possession with&nbsp; respect to
House Number B234/19 , South Odorkor, Accra. The Plaintiff claimed that he
developed his plot into residential accommodation several years before he met
the Defendant. As both of them professed the Muslim faith, he took the
Defendant as his brother and gave him a portion of the house to occupy as a
licencee. The original Defendant on the other hand testified that he acquired
the plot, built a portion thereof and permitted the Plaintiff to occupy same as
his caretaker. The Defendant testified that he was then living in the Brong
Ahafo Region. The trial Circuit Court Judge after having made his findings of
facts came&nbsp; to the conclusion that the
land was acquired and built by the Plaintiff before he met the Defendant. The
trial Circuit Court Judge granted the two reliefs sought by the Plaintiff and
dismissed the Defendant’s counterclaim as unproved. The Defendant dissatisfied
with the judgment of the trial Circuit Court Judge filed an appeal against the
judgment to this Court to rehear the matter and find&nbsp; in his&nbsp;
favour. The parties in the course of the trial died and each of them was
substituted. <o:p></o:p>The
four grounds of appeal filed against the judgment by the Defendant are as
follows:<o:p></o:p>“a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Court erred when it held that the Defendant’s land is distinct and different
from the Plaintiff’s land when in fact there is enough evidence to the
contrary.<o:p></o:p>b. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Court erred when it held that the Plaintiff, having been in possession of the
subject matter&nbsp; in dispute, was entitled
to the land even though the Defendant had a superior title to this land.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Court erred when it failed to uphold the Defendant’s counterclaim.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
judgment is against the weight of evidence”.<o:p></o:p>We
address ground I of the appeal which is about the identity of the land which
the Plaintiff was declared the owner by the trial Circuit Court. The Plaintiff described
the land in dispute as house No. B234/19 South&nbsp;
Odorkor, Accra. The Plaintiff tendered her tile deed as exhibit ‘B’. It
is a deed of gift made between Augustus A. Tibo of Accra as Donor and Karimu
Dagarti as Donee. The deed was registered on 17th December, 1983 and covered an
area of 0.23 acres. The deed was registered as No. 353/1984. The description of
the land was vividly made in paragraph 4 of the Deed. It provides thus:<o:p></o:p>“The
land situate lying and being at ODORKOR SOUTH ACCRA&nbsp; and bounded on the North-West by Donor’s land
measuring 100 feet more or less on the South-East by proposed Road measuring
100 feet more or less on the South-West by Donor’s land measuring 100 feet more
or less on the North-East by Donor’s Land measuring 100 feet more or less and
covering&nbsp; an approximate area of 0.23
acre more or less&nbsp; which piece of land is
more particularly delineated on the&nbsp; plan
attached hereto&nbsp; and thereon shewn edged
pink which shows the relevant measurements”.<o:p></o:p>The
Defendant on the other hand derives title through exhibit ‘3’. It is a
conveyance registered with Land Registry No. 2515/1993 made the 3rd day of
December, 1965. Even though exhibit ‘3’ was made on 3rd December, 1965, it was
registered in 1993 at the Lands Commission. The Defendant’s grantors were Atto
Maclean and James Odum Maclean. The schedule attached to exhibit ‘3’ describes
the Defendant’s land as follows:<o:p></o:p>“All that piece or parcel&nbsp; of land situate lying and&nbsp; being at Odorkor in the Accra city in the
Accra Region of the&nbsp; Republic of Ghana
and bo</main>