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REASONS FOR JUDGMENT
On April 10, 2003 we
dismissed the appeal made by the Defendant-Appellant
(hereinafter referred to simply as the Appellant) and we
supported and affirmed the decision of the trial court
judge but the reasons for the decision were deferred.
These reasons are now given hereunder.
On the grounds of
appeal the Appellant said:
(i) That the evidence
of the Surveyor who had been appointed by the court was
not adequately considered.
(ii) That the
Appellant’s documents and oral evidence were also not
adequately considered, and
(iii) The finding that
the Appellant was liable to the Respondent in damages
was wrong.
It will, at this stage
be necessary to state the facts of the case which
emerged from the record and which the trial learned
judge accepted and used for her decision.
The Respondent who had
acquired the property in dispute in or about 1988 had
built premises on a large portion of it, walled 3 out of
4 parts of the plot and was living in the premises.
He had reserved the
unwalled 4th part for future development. He tendered in
evidence various documents of title including Exhibit
“J”, LAND CERTIFICATE.
In his testimony
supported by the testimonies of P.W.1 and ‘2’. The trial
judge found that the Respondent has been able to
establish and prove title.
We are in complete
agreement with this finding. The Appellant on the other
hand tendered certain documents, but these were found
not related directly to the land in dispute.
Further she was neither
in possession nor had she been able to prove title.
It is true that from
the testimony of the Surveyor (C.W. 1) there were minor
discrepancies noted and found with the original plans of
the litigants but C.W. 1 was able to explain to the
satisfaction of the court below how these minor
discrepancies occurred. In conclusion, however it was
found, and we agree with the finding that the land in
dispute between the parties is basically one and the
same piece of land.
It was at the stage
where the appellant started to develop the disputed land
that the Respondent in possession resisted and after the
parties had gone on unnecessary voyages through the
police, the military and some elders, and had found no
solution to their problem that the Respondent in
possession sued the Appellant.
The question to be
answered here is simply this:
Where as in the present
case two parties are each claiming for the same piece of
land which they claim to have acquired from different
vendors who wins the land?
On her part the
Appellant was not in possession of the land in dispute.
In proving title she also testified and even though it
was necessary that those she mentioned as granting her
title should have been called, she failed to call them.
On the part of the Respondent, however, he led
corroborated evidence (supported by P.W.s 1 & 2) and
tendered documents including a title certificate,
Exhibit ‘J’. He was further found to be in possession of
the disputed land and this we support.
It is now trite
learning that a person in possession of land remains in
possession and cannot be ousted except by a true owner
or someone with a superior title.
See BUCKNOR vrs. ESSIEN
[1963] 1 GLR 426 (S.C.) and CONWAY vrs. GEORGE WIMPEY &
CO. LTD. (No.2) 2 K.B. 266 at p 274.
On the balance, it was
properly held that the Respondent had proved his case as
he had a better right to possession of the disputed
land.
CONSEQUENTIAL ORDER
The Appellant should
pay ¢3 million costs to the Respondent.
K. OMARI-SASU
JUSTICE OF APPEAL
OWUSU-ANSAH, J.A.:
I agree.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL
ANIM, J.A.:
I also agree.
S. Y. ANIM
JUSTICE OF APPEAL
COUNSEL
MRS. ACHEAMPONG FOR THE
RESPONDENT.
TETTEH FOR HEWARD-MILLS FOR THE APPELLANT |
