ABRAHAM MARTEY & ANOR v. YAW MIREKU & 3 ORS
2022
COURT OF APPEAL
GHANA
CORAM
- SENYO DZAMEFE JA (PRESIDING)
- AMMA GAISIE JA
- NOVISI ARYENE JA
Areas of Law
- Property and Real Estate Law
- Civil Procedure
- Evidence Law
- Contract Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arises from a land dispute over four plots at New Nungua/Nmai Dzorn (New Legon). The husband-and-wife appellants, resident in the United States, claimed title via a 2006 Deed of Assignment from the 5th defendant, who asserted a grant from the Nungua Stool in 1998. They alleged possession, fencing, building, and a caretaker, and complained of encroachment and damage by the 1st–4th defendants, including land guards. The High Court dismissed their suit, relying substantively on In Re Ashalley Botwe, which recognizes title in the Okpelor Sowah Djin family of Teshie over Nmai Dzorn lands. On appeal, the Court of Appeal held the Supreme Court’s Ashalley Botwe decision applies and binds, found the appellants failed to prove root of title or acts of possession, and rejected simultaneous claims for declaration and damages against their grantor under the Conveyancing Act. The court further held the interlocutory judgment against the defaulting 5th defendant could not result in damages without Order 10 Rule 3(2) notice of assessment. The appeal was dismissed, and the trial court’s judgment affirmed, with no order as to costs.
NOVISI ARYENE JA:
Plaintiff sued defendants jointly and severally at the land division of the High Court for the following reliefs:
I. Declaration of title to four plots of land situate and lying at New Nungua/Nmai Dzorm and also known as New Legon with boundaries described.
II. Recovery of possession
III. General damages for trespass
IV. Special damages for damage caused to plaintiff’s property including padlocks, wall and crops totaling Ghc6,200
V. A perpetual injunction restraining defendants, their privies, servants, agents or assigns and any person claiming by or through or in trust for any of them, entering, developing or in any manner interfering with the plaintiff’s occupation of the disputed land the subject matter of the action.
VI. Damages for breach of statutory duty and breach of contract against the 5th defendant.
In judgment delivered on 26th of March 2018, the trial court dismissed the action for reasons summarized by the trial judge at page 370 of the ROA thus;
“Before I conclude this judgment, I would sum up the decision of this court as follows:
The action of the plaintiffs for declaration of title to the four plots of land at Nmai Dzorn is dismissed on the grounds that their grantor does not own the lands in that area so as to enable him make grants to other people. It did not matter whether or not they were granted four plots of land earlier in time before the grant made to the 2nd defendant by the rightful owners.
Since plaintiffs claim to the disputed land has failed they are also not entitled to any of their remaining reliefs they claim against the 1st 2nd 3rd and 4th defendants. Again they are also not entitled to their claim against the 5th defendant since they did not prove their case against him. In short, the plaintiffs’ action fails in its entirety and same is dismissed accordingly.”
Aggrieved by the decision, plaintiffs on 12th June 2019, mounted the instant appeal against defendants praying for the judgment to be set aside and judgment entered in their favour for the reliefs endorsed on the writ of summons. The judgment was impugned on the following grounds:
I. That the judgment is against the weight of evidence
II. That the trial judge erred in law when he relied solely on the decision of the Supreme Court in In Re-Ashalley Botwe case to dismiss the plaintiff’s claim
III. That the trial judge erred in law when he failed to properly consider the evidence put forth by PW 1.
IV. Additional grounds will be filed