VICENTIA DEGORL I.D.TANO vs. CHARLES BANSAH [2021]DLCA11035

Date	2021-11-26
Suit No.	SUIT NO. HI/02/2018
Citation No.	[2021]DLCA11035

OFOE J.A

BARTELS-KODWO J.A

BERNASKO-ESSAH J.A

NELSON KPOHA for DEFENDANT/APPELLANT

GODWIN KPOBLI for PLAINTIFF/RESPONDENT

[2021]DLCA11035
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													<main id="main" class="content" style="min-height: 60rem" >VICENTIA DEGORL I.D.TANO<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>CHARLES BANSAH<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, HO-VOLTA]<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: 0cm 0cm 1pt;">

SUIT NO.
HI/02/2018&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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:
26TH NOVEMBER 2021<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NELSON KPOHA for DEFENDANT/APPELLANT<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: 0cm 0cm 1pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:150%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">GODWIN KPOBLI for
PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p>OFOE
J.A, BARTELS-KODWO J.A, BERNASKO-ESSAH 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 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>OFOE,
J.A:<o:p></o:p>The
piece of land in dispute for which the plaintiffs sued the defendant on the
21st of October 1999 at the Circuit Court, Ho, is located in Ho-Dome bounded on
its four sides by Doe Kofi, Nunyuie, Vovor and a road. This road was
constructed by the defendant’s father to enable his car have access to his
house. Whether the land in dispute is part of the land owned by the Dzaba
family to have granted it to the Dogbeys who in turn granted it to the
plaintiffs or its land for the defendant is the main contention between the
parties. <o:p></o:p>The
defendant claims the land is for the Bansah Adjakli Lankli family which was
acquired by his predecessors, specifically his grandfather, from the Adza kodjo
family. <o:p></o:p>We
provide a little more details of the case of the parties from their pleadings
for a better appreciation of the judgment of the Circuit Court, the grievance
of the defendant/appellant who lost the case before the Circuit Court and our
opinion in this appeal.<o:p></o:p>It
is the case of the respondent, who we will refer to as the plaintiffs, that he
bought this piece of land from Mr. and Mrs. Dogbe who had their grant from the
Dzaba family. Both the Dzaba family and the Dogbe’s had their title registered
with the Regional Lands Commission. Evidence however showed that it was only
the Dogbes who had their grant registered and not the Dzaba family. Paragraph 8
to 10 is of immense importance to this case we reproduce the said paragraphs:<o:p></o:p>“8. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
plaintiffs say that since they bought the land, they took over possession and
have been exercising acts of ownership in respect of the said land, negotiating
with prospective buyers as well as giving quit notices to tenants and squatters
on it.<o:p></o:p>9.&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The plaintiffs say that
there was an urgent need for the development of the land this year and had
accordingly given quit notices to all the tenants and squatters to vacate the
land to no avail.<o:p></o:p>10. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
plaintiffs own investigations reveal that the defendant is the person who has
put the said tenants and given licence to the squatters to live and work on the
land and was responsible for the flouting of the quit notices”.<o:p></o:p>From
these pleadings the plaintiffs were not clear the type of acts of ownership
they exercised but they were negotiating with prospective buyers as well as
giving notices to tenants and squatters on the land. These squatters were put
on the land by the defendant.<o:p></o:p>On
the basis of the foregoing pleadings the plaintiffs sued the defendant claiming
a declaration of title to land boundaries we have alluded to earlier in this
judgment.<o:p></o:p>By
the defendant’s amended statement of claim found at page 85 of the record of
appeal he claimed that if the plaintiffs had been alert and made the necessary
enquiries &nbsp;they would have realized that
the said land was encumbered and not available for sale. He attacked the sale
from the Dogbe’s to the plaintiffs as a fraudulent transaction since the former
knew the plot was not theirs but went ahead to sell to the plaintiffs.
Defendant pleaded effective occupation of the disputed land by their predecessors,
including building the palace of Togbe Howusu IX, the Chief of Dome, on part of
the plot. He also pleaded his father’s use of the land for a Kraal for many
years and when the area was built up the father used it as an orchard. As
further occupation of the land defendant pleaded that coconut trees, oranges,
plantain, banana, cocoyam and variety of vegetables were planted on this land.
It is the case of the defendant that currently there are 7 coconut bearing
trees, an orange tree and plantain on the disputed land. Further acts of
ownership pleaded by the defendant was the use of part of the land for meetings
by the elders of Ho-Dome since the defendant’s senior brother, a witness in
this case, is the chief of Ho-Dome and head of the Bansah Family. Currently he
has carpenters and other licensees on the land. These acts of ownership the
defendant had pleaded in their paragraph 8 to 13 of their defence. <o:p></o:p>He
traced his root of title to the grandfather who had the land from the Adza Tsyom
family of Ho Bankoe. In his evidence before the court he mentioned this family
as Adza Kodjo Tsyom family. Never was the quiet enjoyment of his predecessors
ever disturbed till date.<o:p></o:p>In
regard to plaintiff’s grantors, i.e. the Dogbe’s, defendant&nbsp; pleaded that they had once attempted annexing
this land as their own and when they were confronted by the defendant and his
brothers they never returned unto the land. Knowing that their claim to the
land had been challenged it was fraudulent for the Dogbes to have sold to the
plaintiffs. Defendant provided the particulars of fraud in paragraph 18 of
their d</main>