AUNTIE ROSE AKA ROSEMARY ANSAH vs. ABUBAKARI MOSHIE PER AFIA DONKOR [2020]DLCA9908

Date	2020-11-20
Suit No.
Citation No.	[2020]DLCA9908

OFOE J.A

BARTELS-KODWO J.A

BERNASKO J.A

[2020]DLCA9908
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><a name="_Hlk35510717">AUNTIE ROSE AKA ROSEMARY
ANSAH<o:p></o:p></a>&nbsp;(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ABUBAKARI MOSHIE PER AFIA DONKOR<o:p></o:p>&nbsp;(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

SUIT NO.HI/01/2020&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:
20TH
NOVEMBER, 2020<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>OFOE, J.A, BARTELS-KODWO, J.A,
BERNASKO, J.A<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormalCxSpFirst" align="center" style="text-align:center;line-height:
150%;tab-stops:147.0pt;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>OFOE,
J.A:<o:p></o:p>This
is an appeal that emanated from the District Court, Fomena and as would be
expected in District Court trials, detail and critical evidence is lacking
because the parties conducted the case themselves. <o:p></o:p>The
plaintiff sued as follows:<o:p></o:p>“Plaintiff
claims against the defendant for title, recovery of possession of the plot of
land measuring 80 by 120 ft, situate at Asokwa Junction under Asokwa Stool
lands, bounded by the properties of the public latrine, Maama Hawa, a proposed
petrol dump and the Asokwa Junction stop over which said plot the defendant
claims without justifiable cause.<o:p></o:p>2.
Perpetual injunction restraining the defendant, whether by itself, her agents,
workmen or those who take title through her from interfering with the
plaintiff’s right and title to the said land”.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant also counterclaimed as follows:<o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 
Declaration of title to and recovery of possession of a parcel of building plot
situate at the Fomena Asokwa junction road measuring 30ft by 30 feet which was
transferred to her in 1991 from the then Kyidomhene of Asokwa Adansi before his
demise as shown on the photocopy site plan attached hereto.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2. Perpetual injunction”.<o:p></o:p>We
will refer to the plaintiff/appellant/respondent as the plaintiff and the
defendant/respondent/appellant as defendant in this delivery.<o:p></o:p>At
the conclusion of trial, the magistrate found for the plaintiff as the owner of
the disputed land but resorted to equitable principles in the final
determination of the case and gave possession to the defendant of land size 30
ft by 30 feet. Defendant was to pay GHC 1000 for this grant.<o:p></o:p>&nbsp;We read the trial magistrates order at page 4
of his judgement, found at page 33 of the record of appeal as follows:<o:p></o:p>In
the case of Yorkwa vrs Duah(1992/93)GBR at 279. the Court of Appeal held “A
person in possession and occupation of land was entitled to the protection of
the law against the whole world except the true owner or someone who could
prove a better title” From the entire evidence adduced before this court I am highly
convinced that the plaintiff had led satisfactory evidence on the balance of
probabilities relating to the acquisition of the land in dispute. However,
there is enough evidence on record that the defendant had been in clear and
positive acts of unchallenged and sustained possession or substantial usage of
the land in dispute for the past 22 years. The boundaries of the land have been
clearly established by her. There is overwhelming evidence on record that at
all material times the defendant has been in undisturbed possession of the land
in dispute, although I find as a fact that the disputed land belongs to the
plaintiff.<o:p></o:p>I am
of the view that the defendant was deceived by the unit committee members that
the disputed land was free from any encumbrances, and sold to her about 22
years ago. Having bought the disputed land from the unit committee members it
gave her the false impression that she has a better title than the plaintiff
and started developing the land to an advance stage. Considering the present
circumstances of the defendant I am of the view that she has become a purchaser
for value without notice. Again, the plaintiff having acquiesced and allowed
the defendant to be in possession and occupation of the disputed land for the
last 20 years. Therefore this court in invoking its inherent equitable
discretion would order that the defendant shall compensate the plaintiff with
an amount of GHC1000 and continue to develop the portion of the land measuring
about 18.5ft by 16 ft currently occupied by the defendant. In default the
plaintiff shall compensate the defendant with GHC1000 and take possession of
the land.<o:p></o:p>There
is no order as to cost”.<o:p></o:p>Clearly
from this judgment the trial magistrate found ownership in the plaintiff but
found further that since the defendant has been in undisturbed possession of
this land for the past 22 years and the plaintiff having acquiesced in this 22
years occupation of the land by the defendant, he invoked what he described as
his inherent discretion and ordered the defendant to compensate the plaintiff
with GHC1000 and continue her development on the land. It is noted that additionally
he found the defendant an innocent purchaser for value without notice.<o:p></o:p>The
plaintiff appealed against the decision of the District Magistrate to the High
Court which set aside the judgment of the magistrate. It is this judgment of
the High Court setting aside the trial magistrate’s decision that the defendant
has appealed to us. What was his decision that had invoked this appeal?<o:p></o:p></</main>