DEBRAH v SHARDEY

In consolidated suits nos LT 21/64 and LT 126/65, Abban J gave judgment for the plaintiff, Paul Narkoli Shardey, the respondent in the present appeal and dismissed the case of Asafoatsenguah Adamtey. In both suits the plaintiff claimed declaration of title to a piece of land at Akutunya, in Somanya, recovery of possession and perpetual injunction. The present appeal arises from an action which was a sequel to the judgment in the consolidated suits. The plaintiff-claimant-appellant (hereinafter called the “appellant”) is the son of Asafoatsengua Banahene, the defendant and co-defendant respectively in suits nos LT 21/64 and LT 126/65 in which said suits Banahene was the losing party. The appellant had employed John Amartey, the defendant in suit No LT 126/65, to erect a building on a portion of the land, which Abban J by his judgment in the suit, found to have been trespassed on by Banahene.

When the judgment-creditor, Paul Narkoli Shardey, the respondent herein, in execution of the judgment sought to take possession of the house constructed on the trespassed land and owned by the appellant, the appellant brought an interpleader action in the High Court Accra against the respondent. He claimed title to the said house No 230. The respondent having disputed the appellant’s claim, the court ordered that pleadings be filed by the parties. The issues for trial as per the summons for directions were:

(i) Whether the land on which the house was erected was the property of the plaintiff-claimant or the property of the judgment-creditor-defendant, Shardey.

(ii) Whether the plaintiff-claimant was the grantee of Banahene, the losing party in the two consolidated suits; and

(iii) Whether the plaintiff-claimant was estopped by the judgment in the consolidated suits from denying and disputing the title of the judgment-creditor-defendant.

On 11 December 1987, Osei-Hwere JA sitting as an additional High Court judge entered judgment for the respondent and dismissed the appellant’s action. It is from that decision that the appellant has appealed to the Court of Appeal. In his grounds of appeal the appellant contends that: (1) The judgment is against the weight of evidence.

(2) That the trial judge erred in holding that the building fell within the land of the respondent.

(3) The trial judge erred in basing his judgment solely on the evidence of the respondent’s self-appointed surveyor.

The vital issue in this appeal is whether the findings of the trial judge tha