MR. DAUDA vs. REV. MRS. AGARTHA BOAKYE [2020]DLCA8862

Date	2020-05-07
Suit No.	CIVIL APPEAL NO. H1/106/2019
Citation No.	[2020]DLCA8862

P. K. GYAESAYOR JA (Presiding)

G. S. SUURBAAREH JA

AMMA A. GAISIE JA

J. A. LARKAI FOR RESPONDENT

D. AMETEFE FOR APPELLANT

[2020]DLCA8862
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													<main id="main" class="content" style="min-height: 60rem" >MR. DAUDA<o:p></o:p>vs.<o:p></o:p>REV. MRS. AGARTHA BOAKYE<o:p></o:p><o:p>&nbsp;</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.&nbsp; H1/106/2019&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 7TH MAY
2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J.
A. LARKAI FOR RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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D. AMETEFE FOR APPELLANT<o:p></o:p>

</div>CORAM:<a name="_Hlk2214123">
<o:p></o:p></a>P. K. GYAESAYOR JA
(Presiding), G. S. SUURBAAREH JA, AMMA A. GAISIE JA<o:p></o:p><o:p>&nbsp;</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;border:none;
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</div><o:p>&nbsp;</o:p>SUURBAAREH,
JA<o:p></o:p>This is an appeal from the judgment of
the High Court, Accra, Land Division, dated 28th January 2019 in
which the trail Court refused to strike out the Plaintiff/Respondent’s
pleadings and to dismiss her action on grounds of frivolity and vexatiousness
under Order 11 rule 18(1)(b) of the High Court (Civil Procedure) Rules 2004
C.I. 47.<o:p></o:p><o:p>&nbsp;</o:p>The facts giving rise to the instant
appeal are not in any dispute.&nbsp; The parties,
who shall be called Appellant and Respondent respectively, are in occupation of
a disputed land said to be at East Kwabenya.&nbsp;
Whilst the respondent’s acquisition is based on a grant from the Abbey
We Family of Kwabenya, through its head, Nii Yarboi Yartey, in 2008, the
Appellant had his grant from the head of the Odai Ntow family, Nii Anteh
Kwakonam III, in 2011.<o:p></o:p><o:p>&nbsp;</o:p>Upon an application from the
Respondent, the trial Court, on 4th November 2014, restrained both
parties and all persons claiming through or by them, from going onto the
disputed land pending the determination of the suit.&nbsp; An application for review of the order of 4th
November 2014, to allow the appellant to complete the roofing of his building
was refused on 22nd February, 2016.&nbsp;
(See page 78 of the record of appeal).<o:p></o:p><o:p>&nbsp;</o:p>Following the filing of witness
statements, and an order for a composite plan, based on the respective site
plans submitted by the parties, per exhibit D, at page 202 of the record of
appeal, was produced.&nbsp; The Respondent, on
12th December 2018, filed a motion to vary the order of 4th
November 2014, to enable her develop the rest of the land she was claiming for
the reason that, from the composite plan, exhibit D, the Appellant’s claim did
not cover all the land she was claiming.&nbsp;
The court, differently constituted, granted this request, per the record
at page 206 of the record of appeal.&nbsp; It
was thereafter that the Appellant, on 14th January 2019, applied to
have the Respondent’s pleadings struck out and her action dismissed under Order
11 rule 18(1)(b) of C.I. 47.<o:p></o:p><o:p>&nbsp;</o:p>In the affidavit in support of the
motion to strike out the pleadings and to dismiss the suit, the Appellant
deposed to the fact that the Respondent, both in her statement of claim and
witness statements, had admitted that the subject land formed part of
Government land acquired for Ghana Atomic Energy Commission, and went on to
exhibit a search report, exhibit DH, at page 212 of the record of appeal,
showing that the land was acquired by an Executive Instrument dated 3rd
July, 1973.<o:p></o:p><o:p>&nbsp;</o:p>In reaction to the appellant’s
depositions in support of his motion to strike out the pleadings and to dismiss
the suit, the Respondent deposed as follows in paragraphs 4 and 5, at page 228 of
the record of appeal after contending that the application was misconceived:<o:p></o:p>“4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
I am further advised and verily believe same to be true that the land being
Government land it is only the Government that can evict me from the land.<o:p></o:p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
I am further advised by counsel and verily believe the same to be true that
even if I were a trespasser I can maintain an action against the Defendant on
the evidence placed before the Honourable Court”.<o:p></o:p><o:p>&nbsp;</o:p>Following viva voce submissions for and against the application to strike out
the pleadings and to dismiss the suit, the learned trial Judge, at page 231 of
the record of appeal, gave a short ruling dismissing the motion.<o:p></o:p><o:p>&nbsp;</o:p>In her ruling, after stating that she
did not want to go into the merits of the case, she went on to state as
follows:<o:p></o:p>“This
is a case where the Plaintiff admits that the land is Government land.&nbsp; The Defendant is asking the court to strike
out Plaintiff’s suit because of this admission.&nbsp;
The question is, is the defendant on this piece of land which Counsel
had referred to with various exhibits before this court as being Government
land?&nbsp; I will leave the answer to the
parties which would be proved during the trial, where each party bears the
burden of proving his averments in his pleadings.&nbsp; For now, looking at the statement of claim as
it stands, I think that the Plaintiff has a cause of action which she must
prove.&nbsp; The Defendant has not
counterclaimed but he also bears the burden to prove all his averments in his
statement of defence”.<o:p></o:p><o:p>&nbsp;</o:p>