VIDA NAA ASHONG MENSAH vs. MARGARET BOTWE [2018]DLHC9159

Date	2018-11-16
Suit No.	SUIT NO LDT/00053/17
Citation No.	[2018]DLHC9159

HER LADYSHIP REBECCA SITTIE (MRS)

[2018]DLHC9159
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													<main id="main" class="content" style="min-height: 60rem" >VIDA NAA ASHONG MENSAH
SUBSTITUTED BY NANCY MENSAH &amp;VICTORIA ARYEE<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>MARGARET BOTWE<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH
COURT (LAND DIVISION 10), 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 LDT/00053/17&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: 16THNOVEMBER, 2018<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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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
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LADYSHIP REBECCA SITTIE (MRS)<o:p></o:p>

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</div><o:p>&nbsp;</o:p>This
is an appeal from the Magistrate Court Amasaman. The Plaintiff/Respondent (now
deceased) referred to in this appeal as Plaintiff had a Writ of Summons issued
against the Defendant/Appellant referred to as Defendant for recovery of
possession, damages for trespass and perpetual injunction restraining Defendant
from disturbing the quiet enjoyment of Plaintiff’s land and costs. Defendant
denied the Plaintiff’s claim and stated how she acquired the land. The Judge on
application by Plaintiff’s Counsel ordered a Composite Plan to be drawn. The Judge
entered judgment in favour of the Plaintiff. Defendant being aggrieved by the
judgment of the Court filed this appeal. While the Notice of Appeal was pending
the Plaintiff passed on and had to be substituted after the family procured the
necessary Letters of Administration. Parties were ordered to file their written
arguments. The Defendant filed the following grounds of appeal.<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
That the learned trial Judge
erred in law when he relied on a defective and incomplete Composite Plan to
give his judgment.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
That the learned trial Judge
misdirected himself in law when he reduced a boundary dispute, the subject
matter in dispute to an issue of possession only.<o:p></o:p><o:p>&nbsp;</o:p>An
appeal is by way of re-hearing and therefore the Court will have recourse to
the record and all the evidence before this Court. <o:p></o:p><o:p>&nbsp;</o:p>That the learned trial Judge
erred in law when he relied on a defective and incomplete Composite Plan to
give his judgment.<o:p></o:p>On
this ground of appeal Counsel for Defendant argues that the testimony of the Surveyor,
Mr Atakorah Aryeh was that he could not survey Defendant’s land because she failed
to identify her land. Counsel for Defendant referred to page 53-54 of the Record
of Appeal which states: “The Surveyor George Aryeh Atakorah an
assistant geomatic engineer gave evidence that he went onto the field with both
parties. He said that the Plaintiff was able to identify all four pillars of
her land but Defendant could only indicate one corner. He said the washing bay
is within the land of the Plaintiff. He said the corner identified by the Defendant
as her boundary mark does not share any link with the Plaintiff… The witness
said because the Defendant failed to identify her land to him he could not
survey her land.” <o:p></o:p>It
is Counsel for Defendant’s case that since the Surveyor himself admitted that
he could not survey the Defendant’s land and the trial Judge also admitted same
it means the Composite Plan as prepared by the Surveyor without the Defendant’s
land shown on the ground in Exhibit 1 is incomplete and defective. Counsel for Defendant
says that the learned Judge erred in law in admitting the Composite Plan when
he said at page 56 of the Record of Appeal as follows: “I accept the survey work which
resulted in the cp.”<o:p></o:p>Counsel
for Defendant said the acceptance of the survey work resulted in a substantial
miscarriage of justice for Defendant.&nbsp;
Counsel for Defendant prays this Court to exclude the Composite Plan
that was erroneously admitted in evidence. &nbsp;<o:p></o:p>Counsel
for Plai</main>