BALLMOOS v. MENSAH

JUDGMENT OF OSEI-HWERE JA

The plaintiff sued out a writ in the High Court, Accra for the following reliefs against the defendant:

(a) declaration of title to a piece of land at Odawkwa measuring 200 feet by 600 feet;

(b) recovery of possession;

(c) ¢5 million damages for trespass; and

(d) perpetual injunction.

The writ was accompanied by a statement of claim. That same day the writ was sealed. He subsequently filed his motion on notice for an interim injunction to restrain the defendant from carrying out building operations on the land.

The motion came before Ammah J who after he had taken some pains to inquire into the allegation and denials evoked by the affidavits of the parties by inspecting the disputed land, ruled in favour of the plaintiff's motion subject to the plaintiff giving an undertaking as to damages. Aggrieved by the interlocutory order of injunction obtained against him the defendant has appealed to this court.

The plaintiff's affidavit supporting his motion disclosed that he bought his land in 1976 from one Samuel A Acquaye. The sale is evidenced by a deed stamped and registered as No 2695/1976. The plaintiff's vendor, in turn, derived his title from the Sempe stool. The [p.728] plaintiff entered into possession and fenced his land by using pillars and steel wires. He laid a pipe to connect water to the site and he deposited cement blocks on the land. In July 1985 his attention was drawn to the defendant's trespass to the land. He found that the defendant had dug a foundation for a proposed building. He contacted the defendant who delegated his brother to make a search with him at the Lands Department. The search disclosed that the land has been registered in the plaintiff's name, whereupon he warned the defendant to desist from committing further acts of trespass. The plaintiff visited the land in July 1985 only to discover that the defendant was carrying out frantic building operations on the land and that part of his fence and some of his pillars had been broken down to gain access to the land.

In his affidavit in answer, the defendant deposed that he owns a plot of land at McCarthy Hill by virtue of a deed of conveyance dated 13 June 1985 between John Richard Nii Awuley and family (as the vendors) and himself (as the purchaser). His deed was stamped and registered in 1985-and the land bought measures 100 by 150 feet. His vendors, on their part, derived their title to the plot from the James Town stool as per their deed of c